Textbook: Cases and Materials on The Law of Torts (3rd Ed.), Christie, Meeks, Pryor, Sanders
PART I: NEGLIGENCE:
A. Prima Facie Elements (duty-breach-cause-damages):
1. P must establish that D owed P a duty to conform to a legal standard of conduct for the protection of the P against injury (duty extends to foreseeable P).
2. P must show that D breached the duty.
3. P must show that alleged negligent conduct was the proximate cause of P’s injury.
4. P must show damages.
a. Usually physical injury or damage to property (we will talk about emotional injury later).
1. Contributory negligence.
2. Comparative negligence.
3. Assumption of risk.
C. General Analytic Framework(like framework for intentional torts):
1. P must establish each element by a preponderance of the evidence.
2. D can defeat with defenses.
D. Risk Theory (theory underlying negligence):
1. Risk = foreseeable, possible harm created by conduct.
2. Learned Hand Classic Formula: a risk is unreasonable when the foreseeable probability and gravity of the harm outweigh the burden to D of alternative conduct which would have prevented the harm (weighing test).
3. In determining whether a risk is unreasonable, consider:
a. Foreseeability of risk/harm.
b. Gravity of harm that conduct would cause.
c. Cost of preventing the harm.
4. Risk theory has little to do with traditional negligence claims but is an expanding tort – used as an instrument for changing public policy.
E. Distinguished from Intentional Torts:
1. No intent required – fault is included in notion of duty.
2. [?] Language of prima facie elements is purposefully ambiguous to allow for interplay between court and jury:
a. Duty – question of law – court.
b. Breach – question of fact – jury.
c. Cause – question of fact – jury.
d. Damages – question of law – court (usually).
F. Negligence is always tied to litigation – can we get the claim to a jury?
II. duty – reasonable person standard
A. General rule:
1. ORPP: whenever you act, you have a duty to act like an ordinary, reasonable, prudent person.
2. On top of ORPP standard, there is imputed to all persons a knowledge of all things commonly known in the community.
a. All persons are imputed with knowledge of commonly understood dangers (e.g., Delair where D held liable for defective tires).
B. Subjective v. Objective Standard:
1. Rule is the objective test – not whether D intended to exercise due car, nor whether D did the best he could to exercise due care, but whether his conduct was
hen minor is required to act like an ORPP (see RSTMT § 283A).
1) Rationale: nature of activity poses significant threat to public safety.
2) Criteria for what constitutes adult activity (two views):
a) Narrow: RSTMT two-prong test:
(1) Activity primarily/normally engaged in by adults.
(2) Activity that requires a license (e.g., boat, auto).
b) Broad: any activities which are dangerous (potentially hazardous) and which pose a threat to public safety.
d. Generally, parents are not liable in vicarious liability for the negligence of minors; however, one could argue that parents are negligent directly for allowing minor to engage in conduct.
2. Mental condition (objective):
a. In judging D’s conduct, no allowance is made for deficiencies in D’s mental capacity to conform to ORPP standard (fact that D is mentally deficient, intoxicated or insane is irrelevant).
b. In determining contributory negligence of the P, courts may or may not consider the P’s mental capacity (subjective standard); there is still much debate on this issue.
3. Physical condition (subjective):