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West Virginia University School of Law
Taylor, John E.

Tort Law and Practice
I)       General Information
a)      Essential Elements of a Negligence Case
i)        Duty – did the defendant owe the plaintiff the obligation to exercise reasonable care
ii)      Breach of Duty – commit an act that is unreasonable in light of foreseeable risks
iii)    Causation – “cause-in-fact” – “but for” my negligent conduct would the accident have occurred – did the negligent conduct cause the accident
iv)    Scope of Liability – proximate cause – limits liability in regards to the ripple effect
v)      Damages – must be damages of some type
b)      The Culpability Spectrum
Intent —–   Recklessness —–   Negligence —– Strict Liability
            Decreasing liability   →
c)      Negligence – unreasonable conduct in spite of the foreseeable risks of harm – if you exercise less care than the law demands
d)     Strict liability or absolute liability – despite concept of no fault, someone must pay for the injuries – only used in certain areas
e)      Punitive damages – to deter defendants from continuing with bad, negligent activities
f)       Compensatory damages – to make plaintiff whole
g)      The Functions & Goals of Torts Law
i)        Compensation – for people who are injured
ii)      Deterrence – helps to reduce accidents
iii)    Avoidance of undue burdens on economic activities — spread costs of injury
iv)    Legal administration effectiveness & efficiency in the accident law process
v)      Fairness
II)     Breach of Duty
a) “Reasonable Person” standard – most common standard of breach
vi)    normal intelligence, perception, memory, basic common sense
vii) must be objective b/c the law cannot account for the small differences in character in each person
viii)additional knowledge, intelligence, and skill possessed by actor are considered
ix)    exceptions are allowed when defects of nature in a person are recognizable, ex: blindness, deafness, youth
x)      mental illness is not normally taken into account, nor is mental retardation (in Wisconsin a sudden mental disability can be taken into account
            The Reasonable Person
[A] General Characteristics
     c) Rule: An error in judgment is does not necessarily constitute negligence. Need to  ask if a reasonable person would have made the same decision.
d) Rule: Jury found that there was no negligence b/c D acted in a reasonable        manner.
[B] Reasonable Men and Women
      e)   Holding: Sometime the sex, age, etc. of people may change how they deal with a situation. The sex of the defendant may be taken into consideration b/c a woman’s conduct might vary from a man’s conduct in this type of situation.
[C] Emergency
·         Emergency circumstances do get taken into account, unless the emergency was created by the defendant
[D] Physically Different Characteristics
·         Some physical characteristics, such as blindness, deafness, etc., are taken into consideration. Ex: The “reasonable blind person.”
·         Physical and mental difficulties arising from voluntary drinking of alcohol or drug use are not given any allowance under the la

      If there is a substantial risk, then all precautions must be taken so it is no longer a substantial risk. It does not matter what the precautions are.
·         Ways in which concrete ideas are given to help form a negligence standard
1)      custom
2)      judge-made rules
3)      statutes
[B] Role of Custom
·         custom must be reasonable
·         custom is never a substitute for reasonable person standard, simply gives more information to form the standard
·         either plaintiff or defendant can use custom evidence – plaintiff introduces a deviation from custom while defendant introduces compliance with custom
·         small businesses cannot argue that they should be held to a lesser standard b/c of small size and income
·         not always dispostive as a matter of law
·         is the standard of care in medical malpractice and there is no reasonable person standard (if there are 2 customs a doctor can follow either one) custom can be a shield in medical malpractice case
      l)   The T. J. Hooper
Facts: Two barges were lost in a storm. There were no radios on the boats so the captains were not alerted of the storm. Captains claim they would have gone to land if they had known about the storm.