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University of Toledo School of Law
Martyn, Susan R.

Torts Outline

**Most torts involve accidents rather than intentional harms: Intent




Strict Liability

R 3d § 1

R 3d § 2

R 3d § 3

R3d § 20, Products Liability

R 2d § 8A

R 2d § 500

R 2d § 283

R 2d §§ 402A, 519

Act with purpose of producing the consequence or knowing that the consequence is substantially certain to result

Acts with knowing indifference to a risk of harm that would be obvious to another in that situation; Acts with deliberate disregard of a high probability of harm

Does not exercise reasonable care under all the circumstances; Creates an unreasonable risk of harm. P x G vs. B

Engages in certain conduct that causes harm. E.g., Vicarious Liability, Abnormally Dangerous Activities, Sale of Defective Products

Recklessness R3d §2:
A person acts recklessly in engaging in conduct if:
(a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person‘s situation, and
(b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person‘s failure to adopt the precaution a demonstration of the person‘s indifference to the risk.
(Basically look at if the (a) risk is obvious and (b) easy to avoid) Recklessness can swing between intent and negligence.

Negligence §3: A person acts negligently is the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

R2d §282: the basis for liability is the creation of an unreasonable risk of harm to another.

Negligence Prima Facie Case R2d §281:
1. Duty (Judge)
2. Failure to conform to duty (Jury)
3. Causation in Fact (Actual Cause)
4. Proximate Cause
5. Actual Damage

Duty: Plf. must show that def. owed him a legal duty to conduct himself according to certain standards, so as to avoid unreasonable risk to others.
1. Foreseeable Risk: foreseeable likelihood that conduct will result in harm, foreseeable severity of harm, and burden of precautions to eliminate/reduce risk: P x G vs. B
2. Foreseeable Plf.: Duty owed must be owed to particular plf. (Palsgraf)
3. Law for the Court

Failure to Conform (Breach – Question of Fact for the Jury): Plf. must show that a failure by the def. to conform his conduct to this standard. (carelessness/lack of reasonable care)
*act with the care that a reasonable person would exercise*
** P x G

Cause in Fact (Actual): Plf. must show that def’s failure to act with reasonable care was the cause in fact of the injury to the plf.
*but for cause (a cause without which the injury wouldn’t have occurred)*

Proximate Cause: The plf. must show that there is sufficiently close connection (causal link) between the def’s act of negligence and the harm suffered by plf, to justify holding def. liable as a matter of policy.

Actual Damage: Plf. must show that they suffered actual damages. **REQUIRED**
*Compensatory Damages: can be awarded for physical injury, property damage, lost work capacity, and pain/suffering.

Brown v. Kendall (Man separates fighting dogs and injures another’s eye): If in the prosecution of a lawful act, a casualty purely accidental arises (injury was unavoidable) and the conduct of the def. was free from blame, no action can be supported for an injury arising therefrom. Could not recover: (1) if at the time of the accident, both were using ordinary care; (2) def. was using ordinary care and plf. was not; (3) if they both were using ordinary care. (Could not have avoided by using the kind of care necessary).
*ordinary care: That kind and degree of care, which prudent and cautious people would use, such is required under the circumstance and is necessary to guard against probable danger. An inevitable accident is one which the def. could not avoid by the use of the kind and degree of care necessary under the circumstances.

Conduct Of A Reasonable Man: The Standard R2d §283: **OBJECTIVE**
Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.

U.S. v. Carroll Towing Co. (Bargo sank with cargo when no one stayed aboard): Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such a magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it was done (R2d §291).
*Balancing Test: P x G vs. B (Def. does not exercise reasonable care under all circumstances
and creates an unreasonable risk of harm)
B = burden which the def. would have had to bear to avoid the risk
G = gravity of the potential injury
P = probability that harm will occur from the def’s conduct
*If the burden is less than the probability, then liability would ensue.

Results from Learned Hand test:
If B<PxG, Def. is negligent
If B>PxG, Def. is not at fault

§292 Factors Considered In Determining Utility Of Actor’s Conduct
In determining what the law regards as the utility of the actor’s conduct for the purpose of determining whether the actor is negligent, the following factors are important:
(a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;
(b) the extent of the chance tha

xcuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.
*When a safety statute has a sufficiently close application to the facts of the case, an unexcused
violation of the statute is negligence per se, and the def. will not be permitted to show that the legislature set an unduly high standard of care.
*Some courts conclude that violation of statute, regulation, or ordinance is “not negligence per
se, but evidence of negligence.”
*A violation of a statute may also be excused if it was impossible for the def. under the
circumstances to comply with the statute (sudden emergency exception).

Excused Violations – R3d §15:
1. Violation is reasonable due to childhood or physical disability
2. Def. acted reasonably in attempting to comply with statute
3. Def. neither knows or should know the factual circumstances that make the statute applicable
4. Violation is due to the statute’s confusing presentation
5. Compliance would involve greater risk of harm

§286 When Standard Of Conduct Defined By Legislation Or Regulation Will Be Adopted
The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.
*R3d – Def. violated statute, the statute was designed to protect against the same type of accident that def.’s conduct caused, and the accident victim falls within the class of persons the statute was designed to protect.

Martin v. Herzog (Plf. had no buggy lights; Def. failed to stay in his lane): the unexcused violation of a statute that applies to the facts of a case is negligence per se.
*Failure to adhere to the statute is negligence in itself and falls short of the standard of diligence
to which those who live in organized society are under a duty to conform.
*Def. who travels without lights is not to pay damages for his fault unless the absence of lights is
the cause of the accident. A plf. who travels without them is not to forfeit right to damages. To say that conduct is negligence is not to say that it is always contributory negligence.