10/3 Negligence: Standard of Care
A person who negligently causes personal injury or property damage is subject to liability in tort
Negligence Liability- liability for one particular kind of fault – typically, failure to use reasonable care under
the circumstances
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Negligence Law on the whole, control suits for injuries suffered by patients at the hands of doctors,
tenants by landlords, and customers by businesses
Negligent conduct is almost always some specific act such as driving too fast or some omission such as
failing to keep a proper look-out
Communication can be negligent
o Giving inaccurate information to one who is imperiled by acting upon it or giving completely
accurate information to a person who is likely to use it dangerously
Characteristics of a negligence case
1. Open-ended claims
a. Allows plaintiff to claim any given conduct is negligent
b. Argument is that the defendant should not have engaged in that conduct at all or carried it out
more safely
c. No pre-existing rule requiring proving a particular act
2. Jury roles
a. Big impact on result
b. Subject to fewer restrictions than in other kinds of tort cases
3. Actual harm requirement
a. No claim for negligence will be recognized UNLESS plaintiff suffers actual harm
b. No nominal damages in negligence cases
4. Preoccupation with bodily harm and property damage
a. Restrictive rules on claims that negligence has caused emotional distress alone; deny recovery in
a lot of these cases
b. Negligence rules usually limit what the plaintiff can recover in financial injury cases
c. Core of negligence law is physical injury to persons and tangible property
5. Damages when a negligence claim is established
a. Plaintiff can recover all damages that are reasonably foreseeable including damages such as
intangibles (like pain), a sense of enjoyment of life, and emotional distress
Negligence in (old) Common Law
Strict Liability: when the writ of Trespass was used; included cases of immediate and direct harm from the
unauthorized view of physical force
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Under this, a defendant might be liable for an accidental shooting, even if the defendant was not
negligent
Negligence law developed from the action on the case. Action on the Case was proper
a. When the defendant inflicted injury that was not immediate and direct
b. When injury arose out of consented-to invasions that were carried out badly,
c. When the defendant’s fault lay in his failure to act rather than in some affirmative misconduct
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Plaintiff had to prove defendant’s fault and actual harm in the action on the Case.
People involved had relationships by contract or status
o Important due to relationship may require defendant to take affirmative steps to avoid harm
to the plaintiff
o The standard of care or duty owed by defendant was implicitly set by accepted community
practices and expectations as incorporated in the contract/relationship
Stranger cases
o Changed as time went on
 No contract/relationship
Negligence Concept
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Negligence as a general principle
o Brown v. Kendall
 Set general standard for negligence law
 The defendant should us ordinary care or more particularly the care of a reasonable and
prudent person
Boundaries
o Duties of care limited to exclude liability fir many purely emotional harms and to limit the care
required by, say, landowners to trespassers
General Principle of Fault
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Basis of tort liability in 1850
Many decisions still focus on the particular duty or standard of care owed by a D in a specific
relationship to the P