o 1. Injury/harm occurs.
o 2. Duty – to use reasonable care so as to avoid unreasonable risks to others. P must show that D owed a duty of care to the SPECIFIC P. (Palsgraf)
o 3. Breach of the Duty
o 4. Causation – breach of duty must CAUSE IN FACT and be the PROXIMATE CAUSE OF P’s injury.
o 5. Actual Damages
· Unreasonable Risk of Harm
§ Adams v. Bullock – child electrocuted (trolley). Risk was not foreseeable. No liability.
o Hand Formula – B < L x P (burden < loss x probability) (or, is the cost of avoidance greater than the gravity of loss?) § U.S. v. Carroll Towing – Barge. Party breached duty of care when risk could have been avoided with minimal effort § R.I. v. Zapata Corp. – bank doesn’t check authenticity all checks under $1000 – would be more expensive than amount of money it would save. Here, B > PL, so bank not liable.
o Social Utility (e.g. driving car – usefulness > danger)
· Standard of Care –
o Reasonable Person under same circumstances
§ Exceptions: children, physical/mental handicaps, sudden illness or unconsciousness
§ Vaughn v. Menlove – Cottages burned down. Reasonable = ordinary prudence, not D’s best judgment
§ Mussivand v. David – D slept w/ P’s wife, infecting her (and subsequently P) with STD. D liable.
o Industry Custom (persuasive but not mandatory)
§ T.J. Hooper – Tugs sink. Radios not working.
No radio = not seaworthy. An entire industry can be acting unreasonably, negligently.
§ Exception: med mal (med profession standard)
o Professionals – minimum standards of their profession
o “Emergency Doctrine” – sudden and unexpected circumstance (through no fault of his own) which leaves little or no time for thought or deliberation, or causes the actor to be reasonably so disturbed that he must make a speedy decision w/o weighing alternative courses of conduct, the actor may not be negligent if actions taken are reasonable and prudent in the emergency context.
· Negligence Per Se – violation of statute, if statute was applied to prevent the harm caused.
o Must prove that D caused harm. Then up to D to disprove.
o UNLESS emergency, or compliance w/ statute would be more dangerous than non-compliance
o Dalal v. City of New York – driving w/o glasses
o Bayne v. Todd Shipyards – guardrail required (admin. reg.)
o Victor v. Hedges – sidewalk parking stat
Baker v. Fenneman (Taco Bell) – Business owes duty to provide reasonable care to a sick/injured person
ú recreational use of land (no admission fee)
ú patrons who exceed scope of invitation (restricted area – become trespassers – Leffler [below])
o Licensees – w/ consent (e.g. social guests) (firemen etc. are invitees, not licensees)
§ NO inspection duty
§ Exception: active operations (e.g. Bible study meeting)
§ YES duty to make safe or give warning of dangers
ú Rowland v. Christian – Cracked faucet. Owner neg. unless he makes reasonable effort to avoid harm
§ Burns v. Cavalea – trespass is a strict liability tort.
D suffered monetary loss – entitled to recovery.
§ Only duty to trespasser: must refrain from willful or wanton unjury
§ Leffler v. Sharp – drunk bar patron climbs through window to restricted area (roof). Falls through, sues. Ct: by entering restricted area, invitee became trespasser. D had no duty to protect.