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Torts
Villanova University School of Law
Turkington, Richard C.

Textbook: Cases and Materials on The Law of Torts (3rd Ed.), Christie, Meeks, Pryor, Sanders
 
 
 
 
PART I: NEGLIGENCE:
 
I.                              introduction
 
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).
 
B.       Defenses:
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):