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Negligence Outline

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Mica Piro
NEGLIGENCE
NEGLIGENCE: Conduct which falls below the standard of (reasonable) care established by law for the protection of others
against unreasonable risk of harm. To establish a prima facie case for negligence, the following elements must be proved:
(1)duty, (2) breach (of duty), (3) causation (in fact & proximate), & (4) damages.
“NEGLIGENT
BEHAVIOR”
(1) DUTY: a legal obligation on the actor to use reasonable or ordinary care for the protection of
others against unreasonable risks
 Question of law (court)
(2) BREACH: a failure of the actor to conform to the required standard of care (*liability)
 Question of fact (jury) – UNLESS judge determines that no reasonable jury could
find that a duty was breached under the circumstances
(4) DAMAGES: the money awarded for actual loss as a result of a tortious act of another
 NO NOMINAL DAMAGES
 “Nuisance”
NEGLIGENCE FORMULA (DEGREE OF CARE):
𝑩 < 𝒋(𝑷) × 𝑳 = 𝑫𝑼𝑻𝒀 𝑶𝑭 𝑪𝑨𝑹𝑬
B = Burden of taking adequate precautions (to
avoid the risk)
P = Probability of Harm
L = Severity of Harm
RST (3D) § 3: NEGLIGENCE
A person acts negligently if he or she does not exercise reasonable care under all the
circumstances. In order to determine whether the person’s conduct lacks reasonable care, one
must consider:
1) the foreseeable likelihood that the conduct will result in harm
2) the foreseeable severity of the harm
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SUMMARY
(3) CAUSATION: established by a reasonably close causal connection between conduct &
resulting harm
(A) CAUSE IN FACT: a necessary cause or any event that leads as a matter of fact to a
given result
 BURDEN (π): show actual causation by a preponderance of the evidence—
proof that, more probable than not, the harm was caused by (∆)
(B) PROXIMATE (LEGAL) CAUSE: any original event which, in natural unbroken
sequence, produces a particular foreseeable result, without which the result would not
have occurred (“How far will liability extend?”)
3) the burden of precautions to eliminate or reduce the risk of harm
1. DUTY (EXISTENCE OF DUTY)
DUTY: An actor ordinarily has a duty to exercise reasonable care when the actor’s own conduct creates a risk of physical or
emotional harm to another (RST (3d) § 7)
EXCEPTION: when an articulated countervailing principle or policy warrants denying or limiting liability in a particular
class of cases, a court may decide that the ∆ has no duty or that the ordinary duty of reasonable care requires
modification
An actor whose conduct has NOT created a risk of physical or emotional harm to another has NO duty of care to the
other unless a court determines that one of the affirmative duties applies
SOURCES OF DUTY
1.
2.
3.
4.
5.
RULES OF LAW
LEGISLATION
RELATIONSHIPS
PRIVITY OF CONTRACT
CUSTOMS & STANDARDS
1. RULES OF LAW provide guidelines for the review of jury determinations of an issue of fact, or fixed rules of law
determine that given conduct is or is not negligent as a matter of law
2. LEGISLATION (statutes, ordinances, regulations) often prescribe SOC for the protection of others
a.
Unexcused violation of a statute is negligence (majority)
3. RELATIONSHIPS
(1) Pre-existing relationship between π & ∆
(2) Foreseeability of harm
(3) Connection between ∆ and π’s injury, and
(4) Reliance by π upon ∆ to protect him
a. RESCUE OR AID: NO duty to protect or aid π, even when ∆ realizes π is in a position of danger, UNLESS risk or
harm is a result of ∆’s conduct OR there is a pre-existing relationship
i. EX: Carrier passenger, innkeeper-guest, landowner-lawful entrant, employer-employee, jailerprisoner, school-student, parent-child, husband-wife, store-customer, & host- guest or friends
engaged in a joint social outing
b. “GOOD SAMARITAN” statutes in many states relieve physicians & others who render emergency medical aid
from all liability for negligence, if it is in good faith
c. DUTY TO CONTROL CONDUCT OF ANOTHER: the dominant or custodial member required to use reasonable
care to regulate the conduct of the person within his custody or control so as to protect third persons or third
persons so as to protect the person in his custody or care
i. EX: parent-child, master-servant, permitted user of land/chattel...
d. DUTY TO PROTECT SCHOOL CHILDREN: school NOT liable for abuse of teachers because the employee’s acts
are outside the scope of employment.
i. SCHOOL: may be liable for negligence in hiring, retaining or supervising the abusers. It may also be
liable if school officials knew or should have known of the abuse but took no effective action.
1. May also be liable for negligently failing to protect students from violence by other
students, or from attacks by intruders on school grounds.
ii. STUDENT: may also have a civil rights claim against the school
e. PARENT/CHILD
i. NO ED recovery for child’s injury as a result of negligence if parent did not witness injury
ii. Parents may not maintain a wrongful death action for the death of an unborn child
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iii. Child may NOT file a “wrongful life” claim to recover damages for diminished childhood
DOCTOR/PATIENT: arises when a doctor undertakes to render medical services in response to an express or
implied request for services by the patient or his guardian
i. Not liable for breach of contract unless they guarantee a result
ii. INFORMED CONSENT
iii. Duty to Disclose: all significant medical info (risks & benefits) that an ordinary physician in the field
possesses or reasonably should possess that is material to an intelligent decision by the patient
1. EXCEPTIONS:
a. (1) No duty if patient is unconscious & medical treatment is required
b. (2) No duty if a patient is so distraught that the doctor reasonably concludes that
full disclosure would be detrimental to her well-being
c. (3) No duty to inform a patient that you are inexperienced & have never performed
the procedure you are doing
g. LAWYER/CLIENT: a fiduciary duty arises when a party places confidence/trust in another party with that
party’s full knowledge; to be enforceable, must have been created under the law (statutes, legislation,
contract) or through factual circumstances
i. Act in the best interest of the client
ii. Confidentiality/attorney-client privilege
f.
STORE OWNER/CUSTOMER (PREMISES LIABILITY)
i. Store owner owes a duty to exercise reasonable care in keeping the premises reasonably safe.
ii. To establish a premises liability claim, the π must establish that the ∆ had actual or constructive
notice of a dangerous condition creating an unreasonable risk of harm and the ∆’s failure to use
reasonable care to minimize the harm, which caused the π’s injuries.
1. NO NOTICE required when dangerous condition is continuous and easily foreseeable.
h. DUTY TO PROTECT TENANT/GUEST when landlord is in control of property area or responsible for defective
condition
i. Specific Harm Rule: Under this rule, a landowner does not owe a duty to protect visitors from violent
acts of third persons unless he is aware of specific, imminent harm.
ii. Prior Similar Incidents Rule: foreseeability is established by evidence of previous crimes on/near
premises.
iii. Totality of the Circumstances Test: This test takes additional factors into account, such as the
nature, condition, and location of the land, and any other relevant factual circumstances.
iv. Balancing Test: The foreseeability of harm is balanced against the burden on the business of
imposing a duty to protect against the criminal acts of third persons.
i. THE TARASOFF RULE: a mental health professional has a duty to use reasonable care to warn a specific third
person of a specific serious threat by his patient against that person if the professional, exercising proper
professional judgment, in fact predicted or should have predicted that the patient was likely to carry out
threat.
j. FORESEEABLE π: π in the zone of danger created by the ∆. (RPP-SoC) (Palsgraff v. Long Island Railroad)
i. Cardozo View (Zone of Danger) (Majority): the (D) owes the duty of care only to those people who
are within the zone of danger (the dangerous area) created by the (D)’s negligent behavior and who
suffer foreseeable harm as a result of the (D)’s actions.
ii. Andrews View:
4. PRIVITY OF CONTRACT: If π is harmed by breach of contract, special rules determine tort liability.
a. ∆ NOT liable where the breach consists merely of his failure to commence performance at all
b. ∆ IS liable for tortious mis-performance, whether consisting of acts or omissions to act
c. Not Party to Contract, then no cause of action for harm as a result of (D)’s mis performance or
nonperformance.
i. EXCEPTIONS: NONFEASANCE
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1. Public Callings: common carriers, innkeepers, public warehousemen, public utilities, and
public officers—are subject to tort liability for nonperformance
2. Contracts for Security Services: liable for failure to use reasonable care if the failure
increases the risk of harm or the other person relies on the undertaking.
3. Fraud: Promise made without intent to perform may be fraud for which a tort action in
deceit will lie.
4. Failure of a telegraph company to transmit a telegram
5. Non-performance by an agent of his contractual duty to supervise property or persons over
which he has been given control, or to take certain precautions for the safety of third
persons
6. Non-performance of a contract to maintain, inspect, or repair an instrumentality which
foreseeably creates a substantial risk of harm to third persons
7. Non-performance by a landlord of his contract to repair the premises
ii. EXCEPTIONS: MISFEASANCE
1. Where ∆’s negligence consists of mis-performance after having begun to perform, the
privity rule is now obsolete, and majority of courts will subject ∆ to liability.
OWNERS & OCCUPIERS OF LAND
 OUTSIDE THE PREMISES: Possessor must exercise reasonable care to see that activities (conduct) and artificial
conditions on the land do not harm his neighbors or passers-by on adjacent ways.
 NATURAL CONDITIONS:
 landowner is liable for negligence if he knows, or should have known, that the dangerous natural condition
may cause harm, if he did not take reasonable precautions.
• Whether it be classified as ‘urban’ or ‘rural,’ landowner may owe a duty of reasonable care as to
natural land conditions that threaten outsiders.
• R1 § 363 – no liability for injuries resulting from natural conditions of the land other than trees
growing near a highway
• R2 § 840(2) – urban landowner liable for failure to exercise reasonable care to prevent unreasonable
risk of harm to persons using the highway
• R3 § 54(b) – duty only if the land is commercial, the landowner knows of the risk or the risk is obvious
 PUBLIC LAND: the state, city or county owes to all persons coming on the premises a duty to use reasonable
care to keep the premises safe.
 ON THE PREMISES
★ TRESPASSERS: NO duty to exercise reasonable care for a trespasser who enters or remains on land without
privilege to do so
 Immunity from liability to T does NOT extend to intentional torts or harm caused by reckless
misconduct.
 EXCEPTIONS:
 Frequent Trespassers: duty of reasonable care in the conduct of active operations on the
premises and to warn T of dangerous artificial condition on the land which T may not
discover, provided the risk to T is one of serious bodily harm.
o Anticipated Trespass: duty of reasonable care to those whose trespass can be
anticipated. ∆ must know or have reason to know that the place is one where
people are likely to trespass
 Discovered Trespassers: duty of reasonable care to
o (1) conduct activities with regard to T’s safety,
o (2) warn T of an artificial condition which poses a risk of serious bodily harm, if (D)
knows or has reason to know that T is in dangerous proximity to it and that T will
probably not discover the danger or realize the risk, and
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(3) control those forces within his control which threaten T’s safety or give T an
adequate warning of them.
DUTY TO RESCUE: duty of reasonable care to come to the aid of a discovered T who is
injured or in peril on (D)’s premises, even though (D) is not responsible for T’s situation.
CHILDREN: “Attractive Nuisance” Doctrine: A possessor of land is subject to liability for
physical harm to trespassing children caused by an artificial condition upon the land if the
following requirements are met, and ∆ fails to exercise reasonable care to eliminate the
danger to such children or otherwise to protect them.
o Duty of reasonable care to children whose trespasses can be anticipated.
o ∆ must know or have reason to know that the place where the condition exists is
one where children are likely to trespass.
★ LICENSEES: A licensee has a privilege to enter or remain on ∆’s land. (social guest)
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The owner/occupier has the duty to warn a licensee/social guest of known hidden dangers
 TAKES THE PROPERTY AS HE FINDS IT
DANGEROUS CONDITIONS: ∆ is subject to liability to a licensee if:
 (a) ∆ knows or has reason to know of the condition and the risk it creates,
 (b) the licensee does not,
 (c) ∆ should expect that the licensee will NOT discover or realize the danger, and
 (d) ∆ fails to exercise reasonable care to make the condition safe, OR to warn the licensee
of the condition and the risk involved.
SCOPE OF INVITATION: The invitation may be expressly or impliedly limited, as to:
 (a) duration,
 (b) purpose, or
 (c) the portion of the premises to which the invitation extends.
 If π exceeds the scope of the invitation, he becomes a trespasser, depending upon whether
or not ∆ consents to his remaining.
★ INVITEES: An individual who enters another's premises as a result of an express or implied invitation of the
owner or occupant for their mutual gain or benefit.
 ∆ must exercise reasonable care for their safety.
 ∆ must exercise reasonable care to protect against foreseeable harm by third persons on the
premises, and to discover that such acts by third persons are being done or are likely to occur.
 ∆’s duty does not extend to protection against criminal violence by third persons, but the
prevailing view is that in such cases (D)’s negligence is a question of fact for the jury.
 Public Invitee is a person who is invited to enter or remain on land as a member of the public for a
purpose for which the land is held open to the public.
 “Business Visitor” (RST equivalent of an invitee—same thing) is a person who is invited to enter or
remain on (D)’s land for a purpose directly or indirectly connected with business dealings with the
possessor of the land. This includes potential or future business. (CL – open to public… exercise
reasonable care)
 Scope of Invitation: The invitation may be expressly or impliedly limited, as to (a) duration, (b)
purpose, or (c) the portion of the premises to which the invitation extends. If (P) exceeds the scope
of the invitation, he becomes a trespasser, depending upon whether or not (D) consents to his
remaining.
★ OTHER PRIVILEGED ENTRANTS: generally classified as licensees.
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Public Employee, Economic Nexus. Public employees who are required by law regularly to enter (D)’s
premises to make inspections, deliveries, or collections necessary to (D)’s operations are invitees.
Firemen and Policemen traditionally were classified as licensees. However, there is a trend to make
them invitees, at least when upon those parts of the premises held open to the public or when their
presence at the place of injury was foreseeable.
 Firefighter’s Rule or Professional Rescuer’s Rule: In most jurisdictions, the possessor has no
general duty of reasonable care to professional emergency responders with respect to
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negligence that occasioned the emergency response, and in some cases for conditions of the
premises.
o limited or abolished in some jurisdictions (Ruiz v. Mero (NJ): officer sued bar)
o operates to preclude recovery only if the risk created was the type of risk
reasonably anticipated by the job.
o does not apply if alleged negligence was independent and not related to situation
requiring police response
Recreational Entrants: most states now have statutes that deny invitee status to persons invited or
permitted to come upon (D)’s land without charge for recreational purposes (e.g., hunting, fishing,
swimming).
★ LESSOR & LESSEE: lessor of real property is not liable to his lessee or lessee’s guest except when:
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Latent Hazards: lessor knows or has reason to know of a concealed unreasonably dangerous
condition (artificial or natural) existing on the premises at the time the lessee takes possession, but
fails to warn the lessee about it, the lessor is subject to liability to the lessee and his guests for
physical harm caused by that condition.
Pre-existing Conditions: lessor remains liable for a condition (existing at the time the lessee takes
possession) which the lessor realizes or should realize unreasonably endangers persons outside the
premises.
Conditions and Activities During Lease: lessor is subject to liability to persons off the premises if he
knows when the lease is executed that the lessee intends to conduct an activity on the premises
dangerous to such persons and nevertheless consents to that activity or fails to require proper
precautions.
Contract to Repair: negligent failure to perform the lessor’s contract to repair the premises subjects
him to liability to persons off the premises.
Lease for Purpose of Public Admission: lessor must exercise reasonable care to inspect the premises
and remedy unreasonably dangerous conditions which exist when possession is transferred
Retained Control: lessor is subject to liability for physical harm caused by a dangerous condition
located on a part of the premises which the lessee is entitled to use and over which the lessor has
retained control, provided the lessor by the exercise of reasonable care could have
 (1) discovered the condition and the unreasonable risk and
 (2) made it reasonably safe.
Liability extends to the lessee, members of his family, employees, and all lawful visitors on the
premises. It does not extend to areas where tenants and their guests are forbidden.
Agreement to Repair: In most jurisdictions, the lessor’s contractual promise to repair or maintain
the leased premises subjects him to tort liability for negligence in failing to perform his contract
resulting in an unreasonable risk of physical harm, whether the disrepair existed before or after the
lessee took possession.
NOTICE: unless otherwise provided by the lease, the lessor’s duty is only to exercise reasonable
care to make the repairs after he has notice of the need for them. No inspection of premises
required.
 Constructive Notice: Where (D) is the owner of premises open to the public, (D) has an
affirmative obligation to make reasonably frequent inspections of those premises to make
sure that no unsafe condition exists. If (P) can show that the unsafe condition existed for
longer than the maximum reasonable interval between inspections, it will be enough for the
jury to conclude that (D) was on constructive notice.
 If the (P) creates the circumstance that gives rise negligence, (D) is not entitled to notice and
opportunity to remedy.
Services: The lessor may be liable for failure to provide a service required by the lease (e.g. heat,
light) where the premises cannot be safely used without it.
Negligent Repairs: lessor who undertakes (or purports to undertake) repair of the leased premises is
subject to liability for physical harm resulting if
 (a) he increases the danger which existed before he undertook the repairs, or
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(b) a concealed danger remains and his repairs create a deceptive appearance of safety, or
(c) the danger is a latent one and the lessor assures the lessee that the repairs have been
made when in fact they have not, provided the danger (or enhanced danger) is such that the
lessee neither knows nor should know that the repairs were not made or were made
negligently.
5. CUSTOMS & STANDARDS: When custom and practice have removed certain dangers, the custom may be used as
evidence that one has failed to act as is required under the circumstances (NOTICE) (Trimarco v. Klein)
★ EX: Hackbart v. Cincinnati Bengals – general customs of football do not approve the intentional punching or
striking of others.
STANDARD OF CARE
(A) REASONABLE PRUDENT PERSON
STANDARD OF CARE: that of the ordinary, reasonable & prudent person (RPP) under the same circumstances (objective test;
BPL formula)
a) “Ordinary” = not an extraordinarily careful/cautious person who is preoccupied with the idea of potential danger
i) to require constant apprehension of danger is beyond “normal” conduct & too harsh a standard
b) BURDEN ON π: show that ∆ did not conform to the standard of conduct required (question of fact)
1. REASONABLE MAN: a person exercising those qualities of attention, knowledge, intelligence, & judgment which
society requires of its members for the protection of their own interests & the interests of others
a. Objective/External Standard:
i. Fixed by legislation
ii. Adopted from legislation
iii. Fixed by judicial decision
b. DRIVERS/OWNERS OF VEHICLES: required to know the condition of those parts which are likely to become
dangerous where the flaws/faults would be disclosed by a reasonable inspection (Delair v. McAdoo)
c. FORGETFULNESS: does NOT excuse negligence, because a reasonable person will not forget what is actually
known
i. EXCEPTION: when distracted attention, lapse of time, or other similar factors make it reasonable to
forget
2. SUPERIOR SKILLS OR KNOWLEDGE: standard of care is that of a RPP of the same skills or knowledge—actor is only
expected to exercise those superior qualities in a way that a RPP of same qualities would
a. RST (2d) § 289(b), comment m
b. RST (3d) § 12
3. CUSTOMS: when custom & practice have removed certain dangers, the custom may be used as evidence that one has
fallen below the required standard (Trimarco v. Klein)
a. Custom = hat which reflect the judgment, experience, & conduct of any (RST (2d) § 295A, comment a,b)
b. PROOF (π): (1) of an accepted/common/customary practice, & (2) evidence the ∆ did NOT conform to it =
lack of due care
i. LIABILITY = customary practice + evidence ∆ ignored it + ignorance was prox. cause of accident
1. *Does NOT need to be universal—it is sufficient that the custom be fairly well defined & in
the same calling or business so that the actor may be charged with knowledge of it or
negligent ignorance
2. NOT CONCLUSIVE – just helps prove
ii. POLICY: provides opportunities to others to learn of the “safe way” of doing things; guides the
common sense of jury to judge a particular conduct under particular circumstances
c. JURY decision
d. **Customs that are so clearly unreasonable that they are not even to be admitted as evidence of due care??
i. Note 3 (pg. 164)
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4.
5.
6.
7.
ii. ∆ Proofthat in every establishment/situation it has been the practice to ____, it would have no
tendency to show that the act was consistent with ordinary care or due regard for safety of those
using the premises by their invitation
SUDDEN EMERGENCY DOCTRINE: an ordinary person who acts in way that might be considered negligent in response
to a sudden emergency/perceived danger, not of his own creation, is not liable for resulting harm so long as the
response is reasonably expected under the circumstances of the emergency; π must establish that a jury instruction
should be given on the doctrine
a. An event qualifies as a sudden emergency if it is: (1) unforeseen, (2) sudden, and (3) unexpected
b. EXCEPTION: if the emergency is created by ∆’s negligent conduct, (e.g., puts himself in a position of danger)
the doctrine does NOT apply
i. Conduct AFTER the emergency has arisen does NOT excuse
c. EXCEPTION: where it is physically impossible for ∆ to act volitionally in response to emergency, the doctrine
does NOT apply (e.g., when actor suffers some sort of medical crisis)
d. EXCEPTION: doctrine NOT appropriate where, in an event of common experience/occurrence, the potential
danger presented is one that a person must anticipate & exercise reasonable care to avoid
i. RST § 290, comment k
PHYSICAL DISABILITIES: a disabled person must take the precautions which the ordinary RPP would take if he had the
same disability; conduct is negligent only if it does not conform to that of a RPP with the same disability
i. Physical disabilities must be significant & objectively verifiable
b. SUDDEN INCAPACITATION: conduct during period of sudden incapacitation or loss of consciousness resulting
from physical illness must be reasonably foreseeable to the actor—if not, it may constitute negligence
i. Must be reasonable in light of his knowledge of his disability (treated as one of the circumstances
under which he acts)
c. MENTAL/EMOTIONAL DISABILITY: not considered when determining whether conduct is negligent UNLESS
the actor is a child
SUPERIOR PHYSICAL CHARACTERISTICS: (flexible standard) if actor has skills or knowledge that exceed those
possessed by most others, they are to be considered in determining whether the actor behaved as a RPP
a. No cited cases to distinguish between superior physically & superior knowledge**
i. DUTY (∆  disabled): effect of the handicap may be considered in determining whether required
standard of care has been met
b. LEARNERS/BEGINNERS: generally not considered UNLESS there exists a special relationship between actors
that attaches significance to this status
i. EX: person learning to drive while teacher is in the car; if an accident occurs that injures the π, the ∆’s
status as a beginner is taken into account in negligence determination/liability
1. Status is ignored if the ∆ is sued by a pedestrian injured in the same accident
c. INTOXICATION: technically arguable as physical disability, BUT courts consistently refuse to allow it where it
is “voluntary” (or even negligent)
i. Voluntariness not an excuse to intent—involuntariness only considered if it helps explain the
substandard conduct
ii. ∆ Obligation? “drunk man entitled to safety as a sober one, & much more in need of it”
1.
CHILDREN: standard of what is reasonable to expect of children of like age, intelligence, & experience (majority;
RST[2d] §238A; RST[3d] P/E Harm § 10)
a. EXCEPTION: more may be required of a child of superior intelligence
i. Any mental or emotional disability suffered is considered
b. Whether child met the standard = jury decision
i. BUT, if only conclusion is that child behaved unreasonably in its estimated capacity, judge may direct
verdict against the child
c. RULE: children less than 5 years of age are incapable of negligence (RST[3d] § 10(b))
i. MAXIMUM: usually appears to be 17 years old—over 17 the special rule does not apply
ii. MINORITY: use of arbitrary age limits to determine capability of negligence
d. RULE: special rule for children should NOT be applied when the actor engages in activity which is normally
undertaken only by adults, & for which adult qualifications are required (RST[2d])
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i. *ADULT STANDARD has been found applicable when child is driving an automobile, motorboat,
motorcycle/motor scooter
1. EXCEPTION: adult standard applied to children engaged in dangerous activity that is
characteristically undertaken by adults, including the use of firearms (RST[3d] §10(c),
comment f)
ii. Child standard: has been applied when bicycle riding, deer hunting, building a fire outside, downhill
skiing
e. **RST [3d] § 11, comment c (physical & mental deficiencies of old age taken into account to determine
comparative negligence instruction)
8. INSANITY: no allowance for the mental illness of the defendant--∆ is judged by the standard of a reasonable person,
even in the case of “sudden insanity” (majority)
a. RST (2d) § 283(B): no allowance is made for lack of intelligence
b. RST (3d) § 11(c): no allowance is made for mental or emotional disability
9. STANDARD of π vs. ∆: determination whether RPP standard is met is the same (very few exceptions)
(B) PROFESSIONALS (MALPRACTICE)
STANDARD OF CARE: that of an ordinary member of the profession with the knowledge, training, & skill (or ability &
competence) of a RPP in the profession
a) the RPP takes on the profession of the actor, & the objective standard is applied
b) NOT an “average” member of the profession—implies ½ of the members could not meet the standard; someone
with average skills may still have the degree of skill/care to meet standard
1. CONTRACTS FOR SERVICES: usually, professionals only liable for negligence, because performed service does not
have guaranteed result
a. Suits are usually in tort for damage caused by negligence
i. UNLESS the provider includes an express contract (e.g., a guarantee)—this is enforceable in K
law
b. No need to contract specifically to exercise ordinary skill of the professional—the law imposes the duty
2. *EXPERT TESTIMONY: required to establish SOC in professional cases bc they are engaged in work that is
technical in nature & NOT common knowledge—without expert testimony, a lay person (the jury) is not in a
position to understand the nature of the work or the application of the SOC to the type of work
a. π must offer expert testimony on the standard of care in order to establish his/her case
b. EXCEPTION: expert testimony not required when the negligence is so obvious that it is within the common
knowledge & experience of laypersons/jurors (medical)
3. *ATTORNEYS: failing to advocate for or anticipate a substantial change in law requiring an overruling of
controlling precedent is illegal malpractice
a. The π-client must show that but for attorney’s negligence the client would have been successful in
prosecuting or defending the claim
b. Most frequent areas of malpractice: real estate, personal injury, family law, estate & probate
c. Most common alleged ERRORS: failure to know or properly apply the law, procrastination or failure to
follow up, inadequate discovery or investigation, planning error/error in procedure choice, & lost
file/document/evidence
4. Generally 3 areas where an professional conduct may be questioned:
a. 1) Possession of Knowledge or Skill: e.g., failing to adequately research a topic in a case (which
prevented client from receiving benefits they could have received if he had researched)
i. Only expected to know what the ordinary member of the profession does—not everything
b. 2) Exercise of Best Judgment: the professional is NOT liable for a “mere error of judgment”
i. EX: when attorney makes a tactical decision on a debatable point of law; a doctor’s use of
discretion in making a diagnosis
ii. *Jury instructions must be carefully worded so they are not misled into thinking that
professional is not liable as long as she exercised her “best judgment”, even if it was below the
SOC
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8.
9.
Use of Due Care: the professional’s use of due care in the application of the professional’s skill &
knowledge
i. Steps that are mechanical rather than discretionary—no professional judgment implicated
1. more likely to find liability!!!
ii. EX: lawyer failure to file a suit before the running of the statute of limitations; doctor failure to
obtain the requisite date on which to exercise trained discretion to develop a diagnosis by, for
example, failing to read test results
CLERGY: so far, no parishioners’ have succeeded in their attempts to persuade their jurisdiction to recognize
clergy malpractice as a separate tort
a. Most cases involve allegations that the cleric engaged in consensual sexual relations with an adult
parishioner (also mention when a person receiving marriage counseling from cleric)
i. Where consent was obtained through intimidation or fraud
b. Courts reluctant to recognize a new COA where alleged acts already give rise to an existing COA (e.g.,
counseling malpractice or battery) or where such a recognition would entangle the court in defining
reasonable conduct within the context of religious tenets
TEACHERS: courts generally have refused to recognize educational malpractice
a. Difficult to determine why the student failed to learn (various educational theories to choose from to set
standard) and problems in assigning/awarding money damages)
*SPECIALISTS: modified standard for specialists in a particular profession who hold themselves out to have higher
skills (than non-specialists in the profession)
PRO BONO SERVICES: professionals providing their services pro bono owe the same duty of care as those whose
services are compensated
OTHER PROFESSIONS: accountants, architects/engineers, designers of group health ins. Plans,
doctors/dentists/veterinarians, pharmacists
10
2. BREACH
BREACH is a failure to conform to the required standard of care
WAYS TO ESTABLISH A BREACH:
1.
2.
3.
4.
5.
Failure to act/warn
BPL Formula (unreasonable risk)
Negligence per se
Res Ipsa Loquitur
Customs & Industry Standards
★ FAILURE TO ACT/WARN
 General Rule, no duty exists to warn or protect another.
 If unreasonable risk of harm inherent in (D)’s conduct, (D) must reduce that risk so far as reasonably possible;
 ONLY then will an adequate warning of the remaining risk constitute “reasonable care.”
★ PROOF OF NEGLIGENCE
 Burden of Proof is on (P) to introduce sufficient evidence to support a finding by a preponderance of the
evidence on each element of his cause of action—duty, breach, causation, damages.
Whether a duty exists is usually an issue of law for the court;
the trier of fact (Jury) determines the other elements.
o Evidence
 Actual/Constructive knowledge of a dangerous condition established through direct/circumstantial
evidence, must be proven to impose liability
 To avoid directed verdict, (P) must provide sufficient evidence to support inference of negligent
conduct.
★ UNREASONABLE RISK when the foreseeable probability and gravity of the harm outweigh the burden to (D) of
alternative conduct that would have prevented the harm
Magnitude of Risk is the probability or likelihood that the harm will result, in conjunction with the gravity or
seriousness of the potential harm, are placed on one side of the scale. The gravity of the harm includes both the
extent of the damage and the relative societal value of the protected interest. (Risk/Utility)
Burden of Alternative Conduct is reducing or eliminating the risk by alternative conduct. Factors relevant in
assessing this cost include:
 (1) the importance or social value of the activity or goal of which (D)’s conduct is a part;
BPL Formula (Hand Formula)
 (2) the utility of the conduct as a means to that end;
B < j(P) x L = Duty of Care
 (3) the feasibility of alternative, safer conduct;
 (4) the relative cost of safer conduct;
B = Burden of taking adequate precautions
 (5) the relative utility of safer conduct; and
P = Probability of Harm
 (6) the relative safety of alternative conduct.
L = Severity of the Harm
★ NEGLIGENCE PER SE: An actor is negligent if, without excuse, the actor (1) violates a statute that is designed to
protect against the type of accident the actor’s conduct causes, & if the accident (2) victim is within the class of
persons the statute is designed to protect (majority)
o (P) is member of class statue sought to protect, and harm is type of harm statute sought to prevent o Violation
of statue raises rebuttable presumption of negligence (acceptance discretionary)
11
o (D) must show violation did not cause the harm or provide adequate excuse in circumstances
o A violation does NOT per se establish a sufficient causal relation between the violation and injury
o Children: A minor’s violation of a statute is only evidence of negligence, not negligence per se.
o PERMITTED EXCUSES
 (a) physical circumstances beyond (D)’s control;
 (b) innocent ignorance of facts which make the statute applicable;
 (c) sudden emergencies not of (D)’s making;
 (d) situations in which it would be more dangerous to comply with the statute than to violate it;
 (e) reasonable violation in light of (D)’s childhood or physical disability/incapacity; and
 (f) (D) used reasonable care in attempting to comply with the statute
o (P) must prove injuries were directly and proximately caused by the (D)’s violation of the statute
★ RES IPSA LOQUITUR establishes prima facie case of negligence just by mere fact of occurrence. The factfinder may
infer that the ∆ has been negligent when the accident causing the π’s harm is a type of accident that ordinarily
happens as a result of the negligence of a class of actors of which the ∆ is the relevant member.
(Byrne v. Boadle – Barrel) –
RULE OF EVIDENCE
o (P) has met his burden of production, and is thus entitled to go to the jury
o Burden on (D) to rebut presumption of negligence by preponderance of evidence
o Injury caused by instrumentality or condition under (D)’s exclusive management or control at time o DOES
NOT APPLY when injury may be attributable to multiple causes, some of which not within exclusive control
and management of the (D).
o BURDEN OF PROOF (π) REQUIREMENTS FOR RIL: To meet the prima facie using res ipsa π must prove:
1. the event is of a kind which ordinarily does not occur in the absence of negligence;
2. other responsible causes, including the conduct of the π and third persons, are sufficiently eliminated by
the evidence; and
3. the indicated negligence is within the scope of the ∆'s duty to the (P).
4. There must be no direct evidence of how ∆ behaved in connection with the event.
5. The π must show that the instrument which caused her injury was, at the relevant time, in the exclusive
control of the ∆
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3. CAUSATION
CAUSATION is established by reasonably close causal connection between conduct &resulting harm
CAUSE-IN-FACT
CAUSE-IN-FACT is a necessary cause or any event that leads as a matter of fact to a given result. π must demonstrate actual
causation by a preponderance of the evidence & prove that, more probable than not, the harm was caused by the ∆.
CONCURRENT
 Separate acts of negligence produce a single injury, then each (D) liable for entire result even if acts alone may NOT
have caused the result.
 π may recover from both ∆s even if the π is unable to show which ∆ actually or directly caused the π’s injury.
 Probable proven reduction in the decedent’s chance for survival is sufficient
 “General Acceptance” of a scientific technique NOT required in scientific community as an absolute prerequisite to
admissibility of expert witness testimony.
 Dependent Causes: (1) multiple acts or forces combine to cause a single indivisible harm to the (P) harm (2) neither act
or force, by itself, would have been sufficient to cause the harm. (3) The but for test is used to determine factual cause.
★ BUT-FOR TEST (sine qua non – essential condition/absolutely necessary): The (D)’s conduct is the factual cause
of the π’s injuries if it can be said that without the ∆’s actions the injuries would not have resulted. Applies when
there is a single cause that brought about the (P)’s injuries.
▪ Only for 1 ∆
 Independent Causes: (1) multiple acts or forces combine to cause a single indivisible harm to the (P) harm (2) each act
or force, by itself, would have been sufficient to cause the harm. (3) the substantial factor test is used to determine that
each is a material factor in the (P)’s harm.
★ SUBSTANTIAL FACTOR TEST: The substantial factor test is satisfied where four elements are met:
▪
▪
▪
▪
▪
(1) multiple forces combine simultaneously to cause the harm
(2) any one of these forces is sufficient to cause the harm alone
(3) it is impossible to determine which force caused which portion of harm; AND
(4) the negligent conduct was a material or significant in causing the harm
∆ is independently liable if a substantial factor in bringing about the (P)’s injury.
o Alternative Causes Doctrine: (1) Multiple (D)s are negligent, (2) at least one of the (D)s caused the harm, but (3) the (P) is
unable to prove which (D)’s negligence caused the harm. If the (P) satisfies this test, then the burden of proof shifts to each
(D) to show that his or her negligence did not cause the injury or be held liable.
o Market Share Theory: Where (P) cannot prove which of three or more tortfeasors caused her injury but can show that all
were negligent. Each manufacturer is responsible only for a percentage of the (P)’s damages equal to that manufacturer’s
share of the market.
o Loss-Chance of Survival Doctrine: If a doctor misdiagnoses the patient’s condition, thus delaying treatment, and it can be
shown that this delay caused the patient’s chance of survival to be reduced, some courts have found the doctor to be liable
even if the patient would have probably died of the condition with proper diagnosis.
 (P) must show a 51% probability that D’s conduct caused the injury or premature death.
 (P)’s family may recover damages based only on damages caused directly by premature death, such as loss of earnings
or additional medical expenses, etc.
 Under the preponderance of evidence standard, (P)s fail in their burden of proving factual causation if they do not
introduce evidence that proper care would more likely than not have cured or otherwise improved their medical
condition
PROXIMATE CAUSE
13
PROXIMATE OR LEGAL CAUSE is any original event which in natural unbroken sequence, & without any intervening efficient
cause, produces a particular foreseeable result, without which the result would not have occurred.
 It creates limitations on how far liability will extend.
 The ∆ is liable only for those harms that are of the same general type or nature as the reasonably foreseeable risk of
harm created by the ∆ negligent conduct.
 Actions must NOT be too remote in time/place.
 Policy decisions made by the legislature or the courts to deny liability for otherwise actionable conduct are based on
considerations of logic, common sense, policy, precedent and justice.
o FORESEEABILITY TEST
 (D) is only liable for the ordinary and natural results of his negligent conduct.
 (D) is NOT liable for unforeseeable consequences of his negligent conduct.
 (D) is liable for aggravation of (P)’s pre-existing illness due to the (D)’s negligent conduct.
 (D) is liable if damage is foreseeable, even though the exact extent of the damages is not foreseeable
 (D) owes a duty of care only to those (P)s who are in the reasonably foreseeable zone of danger (Palsgraff v. Long Island
Railroad)
 Andrews View (Minority): Work backwards and link the harm to the (D)’s actions you can assign liability to the (D).
o EGGSHELL SKULL RULE: It is the general type of harm, not the extent of harm that must be foreseeable.
 If D’s negligence causes harm to P, (D) is liable for any additional unforeseen physical consequences, provided these do
not stem from intervening causes so unlikely that they should supersede D’s liability.
 If D’s negligence has created or increased the risk that a particular harm to (P) will occur and has been a substantial
factor in causing that harm, and the harm is within the scope of risk created by D’s negligent conduct, the precise chain
of events giving rise to the harm need not be foreseeable. It is immaterial to the D’s liability that the harm is brought
about in a manner, which no one in his position could possibly have been expected to foresee or anticipate.
o INTERVENING CAUSES: Are acts, omissions, or other forces that occur after the (D)’s negligent conduct and which
contributes to that negligence in producing the (P)’s injury.
 will NOT necessarily absolve (D) of liability, so long as it was reasonably foreseeable, unless it is a superseding cause.
 to relieve (D) from liability, such intervening cause must be truly independent of and not set in motion by the original
negligence.
 normal and foreseeable act producing harm to another after the actor’s negligent act or omission
 causal connection is NOT severed if the intervening act is a normal and foreseeable consequence of the risk created by
the (D)’s conduct.
 (D) is not liable for the intentional intervening malicious acts of third-party which is not reasonably foreseeable
★ Intervening Cause (not superseding) -- FACTORS
• Helpless Peril: The first (D) is liable for injuries caused by a second or subsequent (D), where the first (D)’s
negligence has foreseeably and unreasonably put the (P) in a position of helplessness or danger to the negligence
of others.
• Rescuers: where the (D)’s negligence puts the (P) in a position of helpless peril, it is generally foreseeable that
the intervening negligence of a rescuer (or would-be rescuer) will exacerbate the (P)’s injuries.
• Medical Treatment: Where D’s negligence forces the (P) to seek medical treatment, (D) will be liable for
subsequent harm that the (P) might suffer because of medical negligence in treating the initial injury.
Exceptions: The fact finder does not consider (P)’s own negligence in creating the condition that (D) was
employed to remedy.
• Foreseeable Reaction of Others: Harm resulting from other people’s natural and foreseeable responses to
dangerous situations created by the (D)’s negligence is not a superseding cause and the (D) is liable for the harm
caused by such acts
14
• Suicide: If the (P) becomes so despondent or pained by the injuries he has received from the (D) negligence that
he kills himself, and the (P) was sane at the time he committed suicide, the suicide would be a superseding
cause, and the (D) has no liability for it. However, the suicide would not regarded as a superseding cause if there
was something about the circumstances to indicate that suicide was foreseeable as a normal response to the
situation created by D’s negligence. For example, if (P) suffered head injuries that caused mood-altering brain
damage, his later suicide might be regarded as a foreseeable, natural consequence of the original negligent
driving, and so would not be a superseding cause and (P) would be liable.
• Unforeseeable Natural Forces: The extraordinary operation of a force of nature, which merely increases or
accelerates harm to another which would otherwise have resulted from D’s negligent conduct, does not prevent
(D) from being liable for such harm.
★ SUPERSEDING CAUSE: abnormal, unforeseeable, independent intervening cause that severs liability w/ respect to
that first negligent act and is not part of the risk that (D) reasonably foreseeably created by negligence.
• Breaks the causal connection between D’s original negligence and (P)’s injuries
• If intervening act of D2 is reasonably foreseeable as an ordinary, normal consequence of the (D)'s act or omission
(D1)? If yes, than D1’s actions was the proximate cause of (P)’s injury because D2’s actions were not superseding.
(D1 one and D2 could be jointly responsible under comparative negligence. There can be more than one
proximate cause.)
• RESCUE DOCTRINE: if (D) creates a circumstance that places the (P) in danger, then (D) is liable not only for the
harm caused to the (P), but also the harm caused to any person injured in an effort to rescue (P).
 an injured rescuer need not prove the (D) proximately caused his injuries.
 an injured rescuer need only prove the (D) proximately caused the danger. applies in product liability
actions just as it does in negligence actions
 Cardozo: the heart of this doctrine is the notion that “danger invites rescue.”
 Rescuer Status Requirements
 the (D) was negligent to the person rescued and such negligence caused the peril or appearance of
peril to the person rescued;
 the peril or appearance of peril was imminent;
 an RPP would have concluded such peril or appearance of peril existed; and the rescuer acted with
reasonable care in effectuating the rescue.
 Crimes and Intentional Torts: The (D) is generally not liable for harm caused by a third party’s crime or intentional tort;
unless:
The (D) had a special obligation to protect the (P) from the third party.
Intentional tor or criminal acts are foreseeable and within the scope risk created by D’s negligent conduct.
 Intervening Force: The (D) is not liable for an intervening force that arises after the reasonably foreseeable risk of harm
from the D’s negligent conduct has abated. The foreseeable risk is deemed abated when (P) is put in a position of
apparent safety from the foreseeable dangers associated with the D’s negligence or where the dangerous force set in
motion by the D’s negligence become apparently safe.
** Public Policy
 Injury to a mother, resulting in injuries to a later conceived child, does not establish a cause of action against the original
tortfeasors.
 Host is liable for foreseeable negligent acts of intoxicated guest (Public Policy)
15
4. DEFENSES
A) PLAINTIFF’S (Π) CONDUCT
How to treat the fact that the π’s negligence contributed to the accident? – 3 Basic Options:
1. The law could completely bar π’s claim (contributory negligence)
2. The law could completely ignore π’s culpable conduct (Worker Compensation Acts & No-Fault Automobile Accident
Reparation Systems—big advantage to π)
3. The law could adopt one of the first 2 options as a general rule & then set up other rules making exceptions for
designated situations (common law for option 1; all-or-nothing approach)
4. The law could compare π’s fault with that of ∆ and reduce π’s damages according to the measure of fault
(comparative negligence or comparative fault) (majority)
5. CONSENT
(1) CONTRIBUTORY NEGLIGENCE
CONTRIBUTORY NEGLIGENCE is when the law completely bars the π’s claim to recovery if the π’s own negligence was an
actual & proximate cause of the injury. This is so regardless of the apportionment of fault between the parties. The π’s 1%
fault will absolve the ∆ of 100% of the liability. (minority—4 states);


NOT A DEFENSE TO INTENTIONAL TORTS
Requires proof of breach of duty (to self), factual cause, & proximate cause
RATIONALE:
★ The defense has a penal basis & π is denied recovery as punishment for misconduct
★ π is required to come to court with “clean hands” & the court will not aid one whose own fault has
participated in causing his injury
★ A rule of negligence is designed to encourage optimal care by both interacting parties—primary liability may
be inadequate where one party acts negligently & the other has an opportunity to avoid the accident
 POLICY: without the defense of contributory negligence, the injured party may face a diluted
incentive to take due care & the system may incur more administrative costs as well
★ Plaintiff’s negligence is an intervening, superseding cause, which makes the ∆’s negligence no longer
“proximate”—π’s negligence can be viewed as an act that stops the ∆’s responsibility for the wrongful
conduct
 POLICY: Without the intervention of the π’s action, corrective justice notions would demand that the
∆ rectify the wrong toward the π
 Should be distinguished from the doctrine of avoidable consequences, which is invoked AFTER the π has been
injured
★ Also remember that π’s conduct may be such that it is the sole proximate cause of the injury, even if the ∆
too was negligent
 Problem: the common law rule of contributory negligence often produced results that a court or jury regarded as
unjust—as a result, courts developed ameliorating practices & a group of exceptions for avoiding its application
★ EROSION PRINCIPLE
★ RST § 4: the ∆ has the burden to prove π’s negligence, & may use any of the methods a π may use to prove
∆’s negligence
16

∆ also has burden to prove that the π’s negligence, if any, was the proximate cause of the π’s
damages
★ Courts have been very reluctant to take the contributory negligence issue away from the jury through
summary judgment, directed verdict, or judgment as a matter of law
 Only do so if no reasonable jury could find in favor of the π
★ Plaintiff’s negligence will bar recovery only if it is a substantial factor in bringing about the result
★ Courts have subtly confined the defense by narrowly limiting the scope of proximate cause as applied to
RISKS that π exposed himself to by his act of negligence
 APPLICABILITY OF DEFENSE IN PARTICULAR CIRCUMSTANCES:
★ ∆ ENGAGED IN INTENTIONAL, WANTON OR WILLFUL OR RECKLESS CONDUCT

RULE: NOT a defense where ∆ has engaged in “wanton & willful” or reckless conduct because it
differs from negligence in both degree and kind
★ STRICT LIABILITY
★ ∆ VIOLATES A STATUTE (NEGLIGENCE PER SE)


RULE: Generally, contributory negligence still held to be a defense although ∆ was negligent per se
because of violation of a statute
EXCEPTION: certain statutes are deemed to abrogate the defense
 Statutes explicitly abolishing the defense in limited situations (e.g., Federal Employers
Liability Act (FELA))
 Statutes Intended to Protect a π Unable to Protect Himself
o EX: prohibiting child labor, the sale of firearms to minors, the sale of liquor to
intoxicated persons, & those requiring safety devices to protect factory workers
o Must be determined by the court (RST 2d § 483)
EXCEPTIONS: The π may recover in full if:




(1) The ∆’s recklessness caused the injury
(2) the underlying tort is an intentional tort
(3) the last clear chance doctrine applies, or
(4) the rescue doctrine applies
 ∆’S RECKLESSNESS OR GROSS NEGLIGENCE: Contributory negligence not a defense to liability caused by ∆’s reckless
or wanton/willful conduct, or gross negligence.
 LAST CLEAR CHANCE DOCTRINE: if the ∆ had the opportunity to avoid the accident after the opportunity was no
longer available to the π, the ∆ is the one who should bear the loss (the whole loss is still placed on one party or the
other).
★ Does NOT apply when:


∆’s negligence precedes π’s negligence
∆ is not negligent at all
★ A π who has negligently subjected himself to a risk of harm from the ∆’s subsequent negligence may recover
from harm caused thereby if, immediately preceding the harm:
 π is unable to avoid it by the exercise of reasonable vigilance & car, and
 The ∆ is negligent in failing to utilize reasonable care & competence and existing opportunity to avoid
the harm, when he:
 (a) knows of the π’s situation & realizes or has reason to realize the peril involved in it, or
 (b) would discover the situation & have reason to realize the peril, if her were to exercise
the vigilance, which then is his duty (discovered peril doctrine):
o Conscious LCC: when ∆ discovers π and then acts negligently, π is allowed to recover
when ∆ discovers π in a position of peril and can avoid the injury but acts negligently
so the injury results
17
o
Unconscious LCC: when ∆ negligently fails to discover π in a position of peril, the π is
allowed to recover when ∆ should have discovered π but failed to do so because of
his own negligence
★ Applications

Some jurisdictions have restricted its use to cases where the π was helpless & unable to avoid the
danger created by the ∆’s negligence; Others permitted its use if the π was merely inattentive to the
danger
 Some required the ∆ to have discovered that the π was helpless; Others allowed its use if the ∆
should have discovered that the π was helpless
 RST 2d §§ 479-480, grouping the patterns around the nature of the π’s conduct
 RESCUE DOCTRINE: where the π negligently injures herself in trying to rescue the ∆ from a predicament that is the
result of the ∆’s own negligence, the π will not be charged with contributory negligence unless the π recklessly (or
wantonly) injured himself
(2) COMPARATIVE NEGLIGENCE
COMPARATIVE NEGLIGENCE is when the law compares π’s fault with that of the ∆ and reduces π’s damages according to the
measure of fault (majority)
TYPES OF COMPARITIVE NEGLIGENCE:
1. PURE: the π’s recovery is reduced by the percentage of fault attributable to the plaintiff
2. MODIFIED:
a. π “NOT AS GREAT AS” (50% RULE): the π’s recovery is reduced by the percentage of fault attributable to the
π as long as the π’s fault is not as great as the ∆’s
i. If π’s fault is equal to or greater than the ∆’s, the π is completely barred from recovery
b. π “NOT GREATER THAN” (49% RULE): the π’s recovery is reduced by the percentage of fault attributable to
the π, as long as the π’s fault is not greater than the fault of the ∆’s
i. If π’s fault is greater than the ∆’s, the π is completely barred from recovery
c. *NOTE: the 2 modified forms only produce a different result in the 50/50 cases (rule in favor of ∆)
i. Important bc a 50/50 case is an appealing on to juries & therefore common
d. MULTIPLE ∆’s: majority view is that a π’s negligence should be compared “against all” ∆s together
3. SLIGHT: only in South Dakota—π’s negligence was “slight” in comparison with the ∆
APPORTIONMENT:

Some statutes use a special verdict or special interrogatory procedure by which jurors inform the court as to (1) what
percentage of fault was attributable to each party & (2) how much damage each claimant suffered
BURDEN OF PROOF: the burden is on the ∆ to show both that the π was negligent & that the π’s negligent conduct was the
proximate cause of the π’s injuries
IMMUNITY?  whether or not an immune tortfeasor’s conduct should be considered depends on the type of immunity
JOINT & SEVERAL LIABILITY?  some states have eliminated J&S liability after adopting comparative negligence, while others
have retained it
FAILURE TO TAKE ADVANCE PRECAUTIONS AGAINST INJURY & MITIGATION OF DAMAGES AFTER INJURY:


BEFORE INJURY: seatbelt use—π negligently fails to wear seatbelt & is more seriously injured than he would have
been if he had worn it
o Unless there is a statute precluding consideration, such conduct should be taken into account
AFTER INJURY: the duty to mitigate damages (doctrine of avoidable consequences) does not allow recovery of those
damages that π could have avoided by reasonable conduct on the part of the π after a legal wrong has been
committed by the ∆
o The failure to submit to surgery that a reasonable person would undergo to mitigate injury can limit π’s
damages for both loss of wages and pain & suffering
o The fact that there is some risk involved may not bar the application of the rule
18
(3) ASSUMPTION OF RISK
Not favored by the courts & disliked by plaintiff—long history of defeating recovery in cases of genuine hardship (especially in
cases involving injuries to employees prior to worker comp acts)
1. EXPRESS: agreement to accept risk of harm arising from ∆’s negligent conduct, π cannot recover for such
2.
harm, unless the agreement is invalid as contrary to public policy
(1) Whether the risk that injured π fell within the unambiguous terms of the agreement
(2) Whether the contract itself violates public policy & therefore should not be enforced
 Tunkl TEST (public policy factors for transactions):
1. A business of a type generally thought suitable for public regulation
2. The party seeking exculpation is engaged in performing a service of great importance to the
public (often a matter of practical necessity for some members of the public)
3. The party holds himself out as willing to perform this service for any member of the public who
seeks it, OR at least for any member coming within certain established standards
4. As a result of the essential nature of the service, the party invoking exculpation possesses a
decisive advantage of bargaining strength against any member of the public who seeks his
services
5. In exercising a superior bargaining power, the party confronts the public with a standardized
adhesion contract of exculpation, & makes no provision whereby a purchaser may pay additional
reasonable fees & obtain protection against negligence
6. As a result of the transaction, the person or property of the purchaser is placed under the control
of the seller, subject to the risk of carelessness by the seller or his agents
IMPLIED: π’s implied voluntary consent to encounter a known danger created by ∆’s negligence. ∆ bears
burden of pleading, production, & proof. ELEMENTS:
(1) Actual knowledge of the particular risk
(2) Appreciation of the magnitude of the risk
(3) Voluntary encountering of the risk
(1) ACTUAL KNOWLEDGE: the best way to show this is through a direct admission from π or someone
who overheard him.
- Circumstantial evidence may be adequate for the jury to make a reasonable inference
- There are certain risks which anyone of adult age must be taken to appreciate: the danger of
slipping on ice, of falling through unguarded openings, of lifting heavy objects, etc.
(2) SCOPE OF THE RISK ASSUMED: courts place a narrow or specific gloss on “risk”
(3) “VOLUNTARY”: the assumption is not voluntary if π is away from home & has to get back, but IS if
there is a reasonably short & convenient detour at hand, in good condition
- π’s PROTESTS: evidence that he does not consent to assume the risk; BUT, having protested, he
may thereafter, even though reluctantly, accept the situation & “waive” the protest (question of fact
for the jury)
- Often turns on some reasonable alternative to the π’s course
A) IMPLIED PRIMARY ASSUMPTION OF RISK: cases where the ∆ owed no duty to the π or where the ∆ did not
breach the limited duty owed to the π rather than that π assumed the risks inherent in the activity
B) IMPLIED SECONDARY ASSUMPTION OF RISK: cases where the π acts voluntarily but unreasonably to
encounter a known risk
i) Growing number of courts are in agreement that implied secondary AOR merges with contributory
negligence and does not remain a separate defense
RST § 3, comment c
C) OPEN & OBVIOUS DANGER: eliminated as a bar to recovery; jury should consider any known or obvious
characteristics of the danger as factors in the larger comparative negligence analysis (MAJORITY!)
ASSUMPTION OF RISK vs. CONTRIBUTORY NEGLIGENCE
19


ACTUAL KNOWLEDGE REQUIREMENT: actual, subjective knowledge of the risk is what separates assumption of risk
from contributory negligence—if the π merely should have known about the nature & character of the risk through
the exercise of reasonable care, then the situation calls for application of contributory negligence
UNREASONABLE CONDUCT (π): in order for ∆ to invoke principles of contributory or comparative negligence, the ∆
must show that the π’s failure to protect him was unreasonable under the circumstances. There is no such
requirement for assumption of risk—the π may be barred from recovery under assumption of risk principles, even
though the π’s conduct was reasonable under the circumstances.
B) STATUTES OF LIMITATIONS & REPOSE
STATUTE OF LIMITATIONS: (procedural) A complete bar to actions that do not meet its time limits—limits the time during which
a cause of action can be brought. It is in no way dependent on the merits of the case. In tort, most states impost a 2-3 year time
limit. The time limit may vary depending on the (1) basis of liability, (2) general subject matter of claim, & (3) the type of interest
invaded. *In most jxns, the SOL is satisfied by the filing of the complaint. SOL is an affirmative defense—if it is not asserted, it is
waived.
 ACCRUAL: most SOL provide that the time within which to file begins to run when the cause of action accrues, which is fixed by




the courts
• Most courts have held that the SOL begins to run when there has been an actual injury to π’s person or property
(time-of-injury rule)
 Can lead to difficulty in certain types of action for professional malpractice
 Discovery Rule: SOL begins to run when the π suffers actual damage & discovers the damage was
attributable to the professional
• Sometimes limited to “foreign objects”—situations where surgeons leave sponges, scalpels, or
other objects in patient’s body
• Has been extended in many jxns to apply to any action based on a latent injury—the COA
accrues only when the claimant in fact knew or reasonably should have known of the alleged
wrong(s)
o Under this rule, a delayed filing of a complaint is tolerated bc the COA is inherently
unknowable
o “Should have known”—inquiry notice; SOL starts when person gains sufficient
knowledge of facts that would put a reasonable person on notice of the existence of a
problem or potential problem such that he would inquire further about it
o Dependent on fact-finding by jury  makes it unlikely that the ∆ can obtain summary
judgment based on SOL
• Can be narrow or broad depending on what the π has to discover to trigger the SOL
CONTINUING TORT: (professional malpractice cases) some courts have found that the SOL did not begin to run until the course
of treatment was complete
• LATENT DEFECT: (builders/architects/engineers) affects the application of the SOL—many state legislature shave
enacted special SOL dealing with malpractice by builders/architects/engineers
 If these classes of ∆s are given special protection without any rational basis, the special SOL may be found to
be unconstitutional bc it denies equal protection
TOLLING: SOL contain provisions that toll (stop) the running of the time within which to file—ordinarily, the tolling stops (SOL
starts) when the minor reaches her majority or when the incompetent becomes competent again
• EX: minors, legally insane or incompetent, & ∆s who have concealed their identity through fraud or obstructed the
filing of the action
• Ordinarily, the tolling stops (SOL starts) when the minor reaches her majority or when the incompetent becomes
competent again
• EQUITABLE TOLLING: (not provided in the statute)—where, for example, the ∆ fraudulently concealed the injury from
the π or concealed his own identity
 Not available if it is someone other then the ∆ that concealed the identity of the ∆
WRONGFUL DEATH ACTIONS: SOL begins to run on the date of death, even if fatal injury occurred earlier
Which State’s Law Applies?  injury happened in one state but the lawsuit filed in another; the law of the forum determines
the SOL
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•
Some states have borrowing rules that provide that the forum’s law applies unless the other jxn’s statute is shorter, in
which case that jxn’s limitation is borrowed (prevents states with longer SOL from having to hear lawsuits for claims
that arose in other jxns)
 NOTICE-OF-CLAIM STATUTES: statutes that provide a limited waiver of sovereign immunity to allow tort claims against
governmental entities frequently provide that a notice-of-claim must be made to the appropriate govt agency within a
particular time frame, in addition to a SOL
STATUTE OF REPOSE: limits potential liability by limiting the dime during which a cause of action can arise (substantive). They
stem from the equitable concept that a time should arrive when a person is no longer responsible for a past act. Enacted primarily in
the area of liability for architects, engineers, & products liability. Special exceptions have been made for particular products, such as
asbestos or DES that involve a long latency period between exposure & manifestation of injury.
 Outside time limit within which the action must commence (sometimes even before a person is injured)
 “Parts replaced” exception
 Tolling provisions of the SOL do not apply to the statutes of repose
C) IMMUNITIES
IMMUNITY vs. PRIVILEGE
 PRIVILEGE: avoids liability for tortious conduct only under particular circumstances, & because those circumstances
make it just & reasonable that the liability should not be imposed

IMMUNITY: avoids liability in tort under all circumstances, within the limits of the immunity itself. It is conferred not
bc of facts, but bc of the status or position or relationship of the favored defendant. It does not deny the tort, but rather
the resulting liability.
1. LITIGATION
a. The “absolute privilege” to publish defamation in the course of judicial, legislative, or executive proceedings
is an immunity of those engaged in the proceedings, conferred bc of the public interest in protecting them
from suit (litigation immunity)
b. May protect judges, attorneys, witnesses, court-appointed guardians ad litem, & court-appointed
psychiatrists
2. EMPLOYER
a. Worker Comp. statutes provide that employees may recover from their employers for work-related injuries
without having to show any fault on the part of the employer
3. FAMILIES
a. INTERSPOUSAL (Husband/wife): at one point, the general CL rule was that husband & wife were each
immune from tort liability to the other spouse for torts committed during coverture. However, the majority
of states have no abolished this immunity, & most of the rest have recognized exceptions.
i. EXCEPTIONS:
1. Termination of Marriage: after divorce/marital dissolution, spouses are permitted a claim
for torts that occurred prior to &, in some jxns, during the marriage (BUT NOT AFTER)
2. Tort Prior to Marriage: some states allow a claim for a tort occurring before a marriage
(reasoning: a spouse should not lose a property right bc of entering into a marriage)
3. Intentional Torts: most states allow claims for intentional torts
4. Automobile Accidents: a number of courts have abolished the immunity in these suits
5. Vicarious Liability: most states allow husband or wife to sue one who is vicariously liable for
the other spouse’s tort
a. EX: husband/wife work for same employer & husband negligently injures the wife in
a car accident while on a joint business trip. Wife could sue employer under
respondent superior, even though interspousal immunity might bar from suing her
husband directly.
b. PARENT & CHILD: at CL, a parent & minor child were immune from suit by the other for a personal tort,
intentional tort, or negligence
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i. About 12 states have abolished the doctrine completely. Most states have partially abrogated the
doctrine and developed one or more exceptions to the general rule for policy reasons.
ii. EXCEPTIONS:
1. Intentional torts (“willful or wanton”)—conduct is so foreign to the relation as to take the
case out of it
2. Termination of relationship by death (parent or child) prior to suit; includes wrongful death
of child through parental negligence
3. Wrongful death of spouse (child π suing other parent)
4. Legal emancipation of child
5. In loco parentis (stepparent /guardian)—question of fact/jury determination
6. Automobile accidents (relationship is coincidental to the conduct)
7. Negligent Supervision: parents are immune from suit, so long as their conduct in
supervising the child is not willful or wanton
iii. Majority have abrogated the doctrine in motor vehicle torts—reasoning that the existence of
mandatory auto liability insurance renders it unnecessary to bar suit in order to preserve family
finances or family harmony
1. Others have said that its existence is a reason to uphold immunity bc it creates an
opportunity for fraud & collusion against the insurance company
a. Ins. Company receives some protection against this from the “failure to cooperate”
clause that appears in the standard liability insurance policy
iv. Siblings: generally, NO immunity between siblings
v. Minors: (parent sues minor child) most courts have found that immunity, to the extent recognized &
including whatever exceptions have been recognized, should be reciprocal
vi. Contribution/Indemnity Against Parent: immunity would also protect the parent from actions by
other TF’s sued by the child. Many challenges to parental immunity come from claims of joint
tortfeasors seeking contribution from PARENTS rather than from children seeking compensation
from parents.
1. Court has held that the doctrine precluded product sellers from seeking contribution from
parents, but allowed them to present evidence of parents’ conduct to argue comparative
negligence, product misuse, & intervening cause
vii. Standard of Care (Parents): not required to meet an idealized standard
1. POLICY: parents have always had the right to determine how much independence,
supervision, & control a child should have, & to best judge the character & extent of
development of their child. The discharge of parental responsibility entails countless matters
of personal, private choice, which, in the absence of culpability beyond ordinary negligence,
are not subject to review in court.
a. Different cultural, educational, & financial conditions affect the manner in which
parents supervise their children
b. Negligent Supervision: not really allowed as a cause of action—would enable
others, ignorant of a case’s peculiar familial distinctions & bereft of any standards,
to second-guess a parent’s management of family affairs
i. “Day-to-day” exercise of parental discretion, such as having a dog/allowing
child to be exposed to the dog, is something the state would rather not
disrupt
4. INCOMPETENTS
a. One with deficient mental capacity is not immune from tort liability for that reason alone. An incompetent ∆
is held to the same standard as a normal person, particularly in torts involving physical harm. However, ∆’s
mental condition may sometimes be relevant in determining whether any tort has been committed.
5. CHARITIES
a. The CL tort immunity of charitable, educational, religious, & benevolent organizations no longer exists,
except in a few jxns that retain vestiges.
b. Legislation has recently began to recreate immunities for particular activities by non-profit charities, or for
individuals engaged in certain charitable activities Examples of these exceptions/limitations included:
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i. Abolishing immunity for charitable hospitals, but retaining it for religious institutions & other
charities
ii. Implied Waiver: retaining immunity for beneficiaries of the charity—not for π’s who are employees,
strangers, or other non-beneficiaries
1. Beneficiary has “impliedly waived” his right to sue in tort by virtue of accepting benevolence
iii. Abolishing immunity to the extent that the ∆ is covered by liability insurance OR to the extent that
the judgment can be satisfied out of other non-trust fund assets
1. Rationale is that charities hold donations in trust & donor did not give funds with the intent
that they be used to pay tort claims
6. GOVERNMENT
a. STATE & LOCAL GOVERNMENTS: the doctrine at CL meant that the government could not be sued without its
consent, which was also extended to municipal corporations & local entities. Most states have largely
abolished their sovereign immunity by comprehensive tort immunity statutes. However, there is LIMITED
liability for certain governmental functions.
i. State Governments: given firmer limitations in some state statutes & constitutions that required
legislative consent for the state to be liable in tort
1. In most states, immunity extends to state agencies & to instrumentalities (perform govt
functions) of the state
a. EX: prisons, hospitals, educational institutions, state fairs, conservation districts, &
public works commissions
b. **The legislation creating the agency or instrumentality is examined to determine
whether it is included in the immunity
i. Entities created after that state has adopted tort claim legislation may
specify whether or not they are protected & under what circumstances
they can subject the state to liability
2. Most state schemes preserve some special privileges to the state as well as placing various
procedural limits on the enforcement of the claims
a. Place damages caps on total amount for which it is liable
i. Usually upheld even when they represent a small portion of π’s damages
b. Create special courts of claims
c. Impose additional “notice of claim” requirements
3. Judicial & Legislative Functions: retained immunity even in states that have waived or
limited governmental immunity
a. Extends to the agents of government (e.g., a legislator may not be sued for how he
voted or a judge for how he ruled)
b. Almost ALWAYS immune (except when there has been NO state constitutional
barrier)
ii. Local Govt & Municipal Corporations: (cities, school districts, etc.) have a dual character—on the
one hand, they are subdivisions of the state, acting as local governments; on the other, they are
corporate bodies, capable of much the same acts & having much the same special interests &
relations as private corporations. Immunity is extended to municipal corporations engaged in
governmental functions.
1. “Governmental” Functions: administering elections, providing a judicial system, exercising
police powers, etc. Those involved in exercising those functions are immune.
2. EXCEPTIONS:
a. “Proprietary”/”Private” Functions: courts imposed liability when the city or town
engaged in activity that normally was carried out by the private sector of the
economy
i. Revenue-producing activities such as gas, water, utilities, airports, etc. are
generally held to be proprietary functions
b. Liability Insurance: when the state has authorized a municipal corporation to
purchase liability insurance, a number of courts have held that action to be an
implied waiver of immunity to the extent of the insurance
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iii. State & municipal immunities have been abrogated by legislation, which may be enacted after
judicial abrogation
1. Some statutes are modeled on the FTCA, others broadly provide that the state shall be liable
to the same extent as any private individual
2. Complex “codes” have been worked out in several states
3. Waivers of Immunity: every state provides for some tort claims against the government
under some circumstances
a. Standard of conduct to which the entity is held may vary depending on how the
claim is characterized
i. “Palpably unreasonable” actions
iv. DUTY OWED TO CITIZENS: much narrower than duty for private corporations
★ RULE: NO DUTY of police protection (municipalities) to particular members of the public
a. EXCEPTION: municipality loses its immunity when a special relationship is created
between the police & an individual which gives rise to a special duty
i. Situations where the municipality assumes a duty to particular members of
the public which it must perform “in a non-negligent manner, although
without the voluntary assumption of that duty, none would have
otherwise existed”
1. Voluntary assumption of a duty carries with it the obligation to act
with reasonable care
2. In doing so, they expose them, without adequate protection, to the
risks which then materialize into actual losses
3. Must be an affirmative act(s)/undertaking that creates justifiable
reliance
ii. EX (special duty): informers, undercover agents, persons under court
orders of protection, & school children for whom the municipality has
assumed the responsibility of providing crossing guards
1. Many states & the federal government have eliminated immunity for ministerial acts but
retained it for discretionary functions
b. Discretionary Functions: those where the government is acting to establish policy
i. Court review of discretionary decisions would interfere with democratic
choices (e.g., how much $ to spend on police force, how many snow plows
to buy, whether to build a new school, or provide internet access in public
libraries)
c. Ministerial Acts: those that implement or effectuate the policies
i. Not manifestations of public policy decisions & therefore can subject the
government to liability if they are negligently performed
1. EX: govt agent negligently: drives a car, fails to maintain govt
premises, or fails to maintain public roads
ii. Even if decision is ministerial (no immunity), the claimant till MUST show
that there was some special relationship that gave rise to a duty
b. THE UNITED STATES:
i. Federal Tort Claims Act (FTCA) (1946): USA waived its tort immunity for $$ damages to person or
property “caused by the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under circumstances where the US, if a
private person, would be liable to the claimant in accordance with the law of the place where the
act or omission occurred”
1. Claimant seeking recovery must present claim to the “appropriate Federal agency” before
instituting suit (failure to do so results in dismissal due to lack of SMJ)
2. Time deadlines:
a. (1) Claim with the admin. Agency must be filed within 2 years of when the COA
accrues (when learns of injury & its cause—not that it was tortious)
b. (2) Lawsuit must then be filed within 6 months of when the agency mails the notice
of final denial of the claim
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Lawsuit must be filed in the district where the π resides or where the act/omission occurred
Tried by judge (not jury)
Attorney fees subject to express regulation
USA is NOT liable for interest prior to judgment or for punitive damages
ii. EXCEPTIONS:
1. Discretionary Functions: US not liable for acts done with due care in the execution of a
statute or regulation (even though invalid), or for an act or omission based upon the
exercise or performance or the failure to exercise or perform a discretionary function or
duty, whether or not the discretion is abused
2. Specified Torts: US not liable for any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, except in the case of investigative or law
enforcement officers; or abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights. Nor is it subject to strict tort liability in any form.
a. Does not apply to medical battery by military or veterans’ benefits health care
providers
3. Feres Doctrine: FTCA does not permit recovery for claims arising out of or in the course of
activity incident to any active duty service (extended to shield the govt against
contribution/indemnity claims brought by product manufacturers sued by service personnel)
4. Officers & Employers: immune when exercising a judicial or legislative function. Highest
executive officers are absolutely immune except when acting clearly beyond the bounds of
their authority. Lower level executive & administrative employees have a qualified
immunity for the good faith exercise of a discretionary function, but are liable for tortious
ministerial acts.
iii. PUBLIC OFFICERS: may be subject to personal liability for tortious conduct committed in the course
of their official duty. Claims against them may be predicated on the CL of torts, special statutes (e.g.,
Civil Rights Act), or a provision of the Constitution
1. May be shielded from liability if the official’s conduct comes within common law official
immunity—a doctrine that is separate & apart from governmental immunity
a. May still protect an individual public official, even after govt immunity has been
abolished
b. When a state has NOT consented to be sued on a matter, a public official may be
personally liable if the conduct does not come within the immunity discussed
2. Immunity granted through exclusive remedy provisions—FTCA provides that the remedy
against the US for negligent acts of its employees is exclusive of any remedy against the
employee
a. Individual must be dismissed from the case if the AG or the state equivalent certifies
that the govt employee was operating within the scope of his employment at the
time of the tortious conduct
3. PO immunity based on a recognition of the need of preserving independence of action,
without deterrence or intimidation by the fear of personal liability & vexatious suits (RST 2d
§ 895(D), comment b)
4. Legislators & judges have absolute immunity for acts committed within scope of their office,
even if acted in bad faith
a. Some states provide immunity to attorneys appointed to represent indigent
criminal ∆s
5. President is absolutely immune for acts within scope of his office
a. Presidential aides, like other federal govt officials, are entitled only to a qualified
immunity
6. Qualified Immunity: similar in an operative sense to a “privilege,”
a. Standard developed with respect to violations of the CRA (1871)
b. State official may be deemed to have violated the act if he knew or reasonably
should have known that his conduct would violate π’s constitutional rights or if he
took the action in bad faith
7. Official immunity is available only with respect to discretionary acts (not ministerial)
3.
4.
5.
6.
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8. Police: immune unless they undertake a responsibility for protection &/or π justifiably relies
on the protection
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5. DAMAGES
DAMAGES constitute the money awarded for actual loss by the tort of another
A (D)’s breach of duty must cause the (P) to suffer actual loss or detriment. A (P) may not be able to recover, in negligence, for all
types of harm in all cases. Five cardinal elements of damages; past physical and mental pain; future physical and mental pain; future
medical expenses; loss of earning capacity and permanent disability and disfigurement. (Nominal damages may not be awarded.)
COMPENSATORY DAMAGES (actual damages) are designed to provide restitution for the harm caused to the innocent party. The
intent is to return the innocent party, as close as possible, to the position he was in before he was injured by someone’s
negligence. These are negligence damages connected to and the apparent result of the injury, or they may simply be implied by
the law. Awarded for both pecuniary and non-pecuniary losses.
o
o
o
Special Damages allow a person to recover the out-of-pocket expenses he incurred as a result of his injury. These damages
include past and future medical bills and lost wages.
General Damages include the repair or replacement of any property damaged by the negligent party, pain and suffering,
and emotional distress; fundamentally non-economic.
Personal Injuries:
 Victims under tort law can be compensated for
Medical expenses
Lost wages, or impaired earning capacity
Other incidence economic consequences caused by the injury and Pain and suffering
 A trial court may review a jury’s award of damages to determine if it exceeds the maximum amount which the jury
o
could reasonably award.
 An award of damages will be deemed excessive if it falls outside the range of fair and reasonable compensation or
results from passion or prejudice, or if it is so large that it shocks the judicial conscience.
Property: Awarded for permanent deprivation or destruction of property are generally measured by the market value of
the proper at the time of the tort. If real or personal property is damaged
but not destroyed, courts generally compensate the victim for the diminished market value of the property but sometimes
aware the cost of repairs instead of diminished value.
o
o
Mitigation or the Doctrine of Avoidable Consequences: injured victims have a responsibility to act reasonably to limit or
mitigate losses incurred if a (P) fails to act reasonably to mitigate injuries, the (D) will not be held liable for incremental
losses that may have been avoided.
Collateral Source Rule: Under traditional common law doctrine, the (P)’s recovery against the (D) is not affected by
compensation the (P) received for the loss form other sources such as insurance.
Such collateral sources for recovery are not disclosed to the jury under the collateral source rule. Numerous reform
statutes most notably I the context of medical malpractice, now reject the collateral source rule and allow the jury to
consider such insurance payouts and deduct them from the d’s liability.
 Gratuitous or Discounted medical services are a collateral source not to be considered in assessing the damages due a
personal-injury (P).
PUNITIVE DAMAGES (exemplary damages… typically not awarded unless gross or negligent)
o awarded if the negligent party’s conduct was reckless, wanton, or malicious in nature
o expresses moral condemnation of the negligent party
o quasi-criminal in nature and serve to deter and punish wrongful activity.
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o
court must weigh the reprehensibility of the (D)’s conduct, the disparity between the actual harm caused and the amount
of the punitive damages awarded, and the difference between the punitive damages awarded and the civil penalties
imposed under state law.
JOINT TORTFEASORS:
Parties jointly involved in illegal activity are jointly liable for injuries to a third person regardless of which party directly inflicted
the injury or damage upon the third person.
o
Comparative Negligence: If the injured party is also at fault, negligence damages may be reduced proportionately
 a concurrent tortfeasor is not jointly and severally liable for the entire amount of the (P)’s judgment
 does not eliminate joint and several liability
o CONTRIBUTION
 Joint liability is required before any contribution can be ordered.
 The right to contribution does not exist only between tortfeasors against whom the (P) has obtained judgment.
INDEMNITY

A joint tortfeasor is not entitled to indemnification from a fellow tortfeasor.

If applicable, requires one tortfeasor to fully reimburse another tortfeasor who has paid the Ps judgment
regardless of comparative negligence

May be required by contract (ex. retailer v manufacturer)
o APPORTIONMENT

(D) cannot be held liable for a (P)’s subsequent injury where the (P) cannot apportion the damages between
the causes of the injuries.
o One Satisfaction: if (P) suffers indivisible harm by several parties, (P) is entitled to only one satisfaction.
o
Mary Carter Agreements where a settling (D) has a stake in the outcome of a case against co-(D)s, are violative of public
policy.
Pure Economic Loss
 (P) cannot recover in negligence for economic loss that (P) sustained from physical harm to another or to property in which
(P) has no interest.
 P may not recover for economic loss caused by reliance on a negligent misrepresentation not made directly to (P) or
specifically on (P)’s behalf.
 Exceptions: privity or some “special relationship” between (P) and D
Negligent Performance of a Service: client who foreseeably relied on service or other intended beneficiaries.
Exercise of Public Right: (P) whose business is based on the exercise of a public right has been allowed to recover for
economic loss caused by (D)’s negligent interference with that right.
Loss of Consortium an action for tortiously caused injury (negligence, battery, anything) other than death that adversely affects
the relationship of husband and wife. Pecuniary damages. When the person whose consortium is lost dies from the tortious
conduct, the family members may sue only under wrongful death actions for their loss in quality of life.
Wrongful Death allows the survivors of the decedent to recover for their own loss as a result of the death of the victim. Doesn’t
allow recovery for their emotional harm that occurred when confronted with the death.
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