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West Virginia University School of Law
Taylor, John E.

Elements of a Case of Negligence


-duty of care to plaintiff
a. General rule – to prevent physical injury to foreseeable plaintiffs
b. Everyone has a duty to extend reasonable care to all plaintiffs
c. Limited duty
i. express assumption of the risk
ii. implied assumption of the risk
d. Land-owner liability – status trichotomy
i. invitee
ii. licensee
iii. trespasser
1. exceptions: attractive nuisance
2. known or discovered trespassers
3. constant trespassers upon a limited area

Breach of Duty

-unreasonable conduct
a. Reasonable person standard
b. The Hand Formula B<PL speaks negligence
c. Role of Custom (more powerful as a sword)
d. Statutory standard of care
i. strict negligence per se
ii. NPS w/ excuses
– excuses permitted
iii. presumption of negligence
iv. evidence
e. Class Harm test
f. Res Ipsa
g. Professional Standard of Care – Custom
h. Judicial Rules & Standard


-causal connection between breach and harm
a. “but for” test
b. substantial factor
c. alternative liability
d. market share theory of liability
e. tortious act increased the risk of harm by more than double

Steps for “but for” causation:
1. what is the injury?
2. what is the untaken precaution?
3. imagine the case with the untaken precaution
4. would this untaken precaution have prevented the accident?
5. answer to #4.

Scope of liability/Proximate Cause

a. is the harm caused one that explains why the actor’s conduct was negligent in the first place? (Palsgraf)
b. unforeseeable type of harm is outside the scope of liability
c. unforeseeable extent of harm is within the scope of liability
d. foreseeable type of harm brought about in an unforeseeable manner is within the scope of liability with exceptions for intentionally tortious or criminal conduct. (McClenahan)
e. was the act of the third party one of the risks that explains why the original actor’s conduct was negligent in the first place?
f. was the harm caused within the scope of the risks and as such just realized in a different way, o

f contract if

the merchandise is reasonably certain to be dangerous (place life and limb in peril) if negligently made,
there is a foreseeable use by 3rd party who would use merchandise w/o new tests,
probable that the defect would cause injury,
and is the proximate cause of the injury of P.

**Overruled Winterbottom privity rule.

Breach of Duty

Reasonable Person Standard

Normal intelligence
Normal perception
Normal memory
Basic knowledge

*Mentally ill individuals are held to the reasonable person standard.

*Children are held to a child standard of care except when engaging in adult activities; then they are held to an adult standard of care.

The Hand Formula
Cost/Benefit Analysis, Risk/Utility Analysis, Balancing

A person is negligent when B < PL.

P = probability of harm