THE GLORIOUS TORTS OUTLINE
SPRING 2008—PROFESSOR MARY DAVIS
I. The Basics of Negligence
A. Strict liability doctrines within negligence liability
1. Res ipsa loquitor (“the thing speaks for itself”)
a. Evidentiary rule that allows jury question based solely on the existence of the accident
b. Severely limited to cases where it would be nearly impossible for the plaintiff to proof negligence of a single defendant (e.g., injury during surgery, barrel comes rolling out of a window)
c. Requirements:
i. Defendant has exclusive control of the instrumentality (i.e., this is the type of accident the defendant had a duty to guard against)
ii. Not the kind of accident that happens without negligence
iii. Cannot use if plaintiff’s conduct contributed to the injury
2. Vicarious liability: respondeat superior
a. Makes employers liable for torts of their employees that occur “within the scope of employment”
b. Does not require the company be negligent, but does require that the employee was negligent
c. Although companies are not negligent for actions of independent contractors until this doctrine, possibility of action for negligent hiring
B. Standard of Care
1. Fault=failure to exercise ordinary care
a. Below the level of care a reasonable, prudent person would use
b. Level necessary to guard against probable danger (foreseeable?)
c. Varies with circumstances
d. Plaintiff must prove what level of care is required
2. The Learned Hand risk calculus (United States v. Carroll Towing Co.)
a. (burden of precaution)<(possibility of loss occurring)*(gravity of loss)ànegligence
b. Some level of foreseeability is required
3. Common carriers owe the highest duty of care given the circumstances (elevated)
C. The Reasonable Person
1. Negligence does not look at defendant’s subjective state of mind
2. Ch
iii. Statute seeks to protect against the kind of harm
iv. Statute protects against the particular hazard
b. Violation of relevant SAFETY statutes is negligence per se
c. Compliance with a statute is not enough for lack of negligence
d. In cases where it can be shown that violation of a statute was “reasonable,” no negligence (e.g., walking on opposite side of the road when the amount of traffic actually makes it safer to violate the statute)
3. Evidence requirements
a. Constructive notice of the danger is required, but actual notice may not be (negligence is a “should have known” standard)
b. Prior, similar occurrence provides the requisite notice
c. Res ipsa loquitor actions require significantly less evidence
