Master Torts Outline – Fall 2013 Professor Negowetti
Negligence- failed to exercise reasonable care under the circumstances.
5 elements to establish a prima facie case of negligence: p must prove 5 elements by a preponderance of the evidence
1) Duty. D owed p a legal duty
– the question of what duty is owed is a question of law and never goes to the jury
– if D owed p no duty, he is not liable even if he acted negligently in light of the foreseeable risks
– most often, D owes p a duty of reasonable care
– duty of reasonable/ordinary care: the duty to exercise the care of a reasonable or prudent person under the same or similar circumstances
– negligence per se- statutory violation
2) Breach. D, by behaving negligently, breached his duty to p
– breach of duty of ordinary care is simply behaving recklessly.
– This is sometimes called “negligence”: describing just that portion of the tort that is the breach
3) Damages. p suffered actual damages
– Proof that π was harmed by the Δ’s breach of duty is part of establishing the tort; it isn’t just used to figure out what damages you can recover as in the trespassory tort
– damages must be actionable, not technical as in the case of intentional torts
4) Causation in Fact. D’s negligence was an actual cause (cause-in-fact) of p’s damages, and
– the damages must be traced to D’s breach/negligence
– “but for” D’s breach/negligence, the damages wouldn’t have occurred
5) Proximate Cause. (legal cause) D’s negligence was a proximate cause of p’s damages
– there must be a direct, foreseeable relationship between the breach of duty and the harm caused
– What happened to π must be one of the risks that led us to call the action negligent in the first place
– Two Theories of Proximate Cause:
(a) Direct v. Indirect Harm: Direct harm is proximate.
(b) Risk Rule/Foreseeability. Palsgraf. The risk to be perceived defines the duty to be obeyed. (Very similar to the idea of per se negligence: was the harm that occurred included in the class of risks that the statute intended to prevent?)
i. If you breach a duty, then you’ve essentially acted in the face of foreseeable risks to other people, so foreseeability and breach often go hand-in-hand
ii. Thin Skull/Hemophilia Rule: one place where foreseeability does not work to limit Δ’s liability.
1.Duty
“Reasonable person under same or similar circumstances”
Reasonable person considers:
1. Foreseeable risks of injury
2. Extent of risks posed by conduct
3. Likelihood of a risk actually causing harm
4. Whether alternatives to proposed conduct would achieve the same purpose with lesser (or greater) risk.
5. Cost of various action
a. Only takes precaution that are “worth it” in the sense that the injuries avoided outweigh the cost of the extra precaution
Restatement- primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
– duty of care is that of a reasonable person in the same or similar circumstances
– decisions are not reflexive; they have to be made in the time in which the D had to choose
– the standard of care never varies – always reasonable
– the amount of care needed to meet that standard varied with the given circumstances
– disabled persons are not held to a higher standard of care than normal persons
– they must take their disability into account as a circumstance and use the reasonable care accordingly
—Emergency Doctrine. In an emergency situation, a person is not expected or required to use the same judgment or care that is required in a calmer and more deliberate moment.
– A person in an emergency is not relieved of the reasonable standard of care. It’s not that the standard is lowered, it’s just that the actor has that much less time and ability to meet that standard, and that is taken into account.
– The Court worries that the jury might read the Emergency Doctrine as having the general result of excusing actions taken during an emergency.
– Even in an emergency, you must use reasonable care. But in an emergency you have (a) fewer options and (b) less time to make the judgment. There is also an incredible amount of stress and startlement with the emergency that affects how the reasonable person would act in that situation.
It is a question of psychology: are instructions on Emergency Doctrine helpful to the jury in educating them about the circumstances under which defendant acted, or do they influence the jury into thinking that the standard of care is lowered?
The fear is that the jury will think that as long as it wasn’t Δ’s fault, then he is relieved of care in an emergency, rather than just taking into consideration the limits in that situation on time and ability to meet that standard of care.
The emergency is often one of the biggest factors determining whether Δ acted reasonably.
Do you give that instruction to the jury, or do you just present the situation to the jury as part of the circumstances of the incident?
– generally, mentally disabled adults, are responsible for the torts they commit
– neither insanity nor, mental deficiency relieves the actor from liability, and his conduct must conform to the general standards of care of a reasonable person under similar external circumstances
– Physical infirmities are included in the circumstances surrounding the standard of reasonable care
– ex: a person with impaired vision is not held to the standard of a seeing person
– age is generally a circumstance: reasonable child, reasonable 80 year old, etc.
– gender is included
– Mental infirmities are not included in circumstances
– the mentally infirm are asked to overcompensate for their disability – harks of strict liability
– the theory is justified on placing the burden of recovery on the causer of the tort
3 policy reasons for mentally disabled liability:
1) encourages families to care for the mentally ill
2) a loss must be suffered by the one who occasioned it
3) discourages tortfeasors from feigning insanity
– Normally, a child sued for negligence is held to the standard of care of a reasonable child of the same age, intelligence and experience.
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· Refusing to impose liability for unforeseeable consequences- proximate cause
· Refusing, for policy reasons, to impose liability for consequences that are foreseeable-duty limitation
Negligence per se: A violation of a criminal statute where safety is the underlying purpose is negligence per se.
– The statute itself imposes a duty. Violating the statute is, therefore, breaching the duty.
– Does not work both ways. Statutes are usually minimum standards; therefore, compliance w/ statute does not preclude negligence
– That substitutes for proof that Δ violated the standard of ordinary care.
– Tort law in effect imports the criminal law and uses them as standards of care under the circumstances described in the statute.
– Relevant standard of care- evidence of violation of statute may not be used to establish breach of duty of care unless the statute establishes a relevant standard of care
– Only relevant if statute is meant to protect persons from the type of harm which actually occurred
– Victim must also be within class of persons statute is designed to protect
What rule does custom/trade/similar situations play in deciding the case? Custom is not used to establish negligence per se, but it is used to establish a reasonable standard of care and reasonable behavior to use in a situation.
Res Ipsa Loquitur: “the thing speaks for itself;” the mere fact that an accident occurred is evidence of negligence. Certain accidents carry on their face such a strong inference that there must be negligence behind it that we give π some assistance by not forcing them to find out exactly what happened, and instead force the Δ to come out and explain what happened.
– Considered a special form of circumstantial evidence
– The circumstantial evidence allows the jury, based on evidence about the accident itself, to infer that it must have resulted from some negligent act by defendant.
Circumstantial evidence- evidence of facts from which a jury could infer that the defendant was negligent.
A D may be presumed negligent when an accident occurs of which the only explanation could be the D’s negligence. In Byrne, p was struck in the head by a barrel flung out of D’s shop window. D was found negligent because he was in exclusive control of the shop and no other explanation could explain p’s injuries.
– RIL occurs when the most likely scenario is the D’s negligence
– The evidence from the accident itself carries on its face such strong indicia of negligence that it carries p’s burden of persuasion
RIL must have p negligence ruled out as well as all other possibilities that could have cause the accident
