Torts Outline
1. Negligence
a. Elements
i. Duty
1. To use reasonable care
2. An actor must conform to a certain standard of conduct for
the protection of others against unreasonable risk
3. Whether a duty exists is a question of law (court decide)
ii. Breach
1. Failure to meet the duty, whatever the duty entails
iii. Causation
1. A reasonably close causal connection
iv. Damages
1. Caused by the breach of duty
b. Duty
i. Burden of Proof
1. Evidence must show a greater probability than not that the
defendant
a. failed to meet the required standard of care
b. failure was the proximate cause of injury
c. plaintiff suffered damages
2. Can demonstrate failure by introducing evidence of the
required standard of care through custom and usage,
violation of statute, or res ipsa loquitur
ii. Cost Benefit Analysis
1. Primary factors to consider in determining whether the
defendant has acted negligently
a. Foreseeable likelihood that the defendant’s conduct
would cause harm
b. Foreseeable severity of any resulting harm
c. The defendant’s burden (costs) in avoiding the harm
d. United States v. Carroll Towing – barge attendant
left, barge sunk
iii. Cases
1. Lubitz v. Wells – Not unreasonable to leave a golf club
lying in one’s backyard
2. Blythe v. Birmingham - The reasonable person acts with
reference to the average circumstances and is not liable for
accidental happenings outside those average circumstances.
Definition of Negligence- Negligence is the omission to do
something, which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of
human affairs, would do or doing something which a
prudent and reasonable would not have done.
3. Pipher v. Parsell - Driver owes a duty of care to
passengers. Driver may be held liable where the actions of
the passengers are foreseeable
4. Chicago v. Krayenbuhl – a jury must consider a # of factors
in determining whether conduct meets the reasonable
standard of care
a. A party is negligent if it fails to take the
precautions that an ordinary man would take under
the circumstances.
5. Davison v. Snohomish County – “under the circumstances”
not very safety measure is required under a
“reasonableness” standard
c. Standard of Care
i. Standard of care imposed is that of a Reasonably Prudent Person
under the same circumstances
ii. Objective standard – measured by what a reasonably prudent
person would do, not whether a person acted in good faith or using
her best efforts—If a reasonably prudent person would have been
aware of the consequences in a similar situation, the defendant can
be held liable
1. Vaughn v. Menlove – farmer and the haystack fire
a. Standard for negligent conduct is what a reasonable
person would have done under the circumstances,
not what defendant believed was reasonable
b. No allowance was made for the fact that the
defendant’s judgment was not as good as that of an
ordinary farmer.
iii. Defendant is deemed to have the knowledge of things known by
the average member of the community, not the knowledge that the
person actually has
a. Delair v. Macadoo - Drivers will be presumed to
know of any danger that could have been
discovered during a reasonable inspection
iv. Custom – Within a Community or Industry
1. Evidence of custom or industry practice may be used as
evidence of what the reasonable person would do under the
circumstances, but it is not conclusive
2. Trimarco v. Klein – Landlord did not replace glass shower
door that led to tenant’s injury. A party is liable for
negligence when a custom or accepted practice was ignored
and this departure was the proximate cause of one’s
injuries.
v. Emergency
vi.
vii.
viii.
ix.
1. Must act as a reasonable person would under the same
emergency – “reasonable person in an emergency”
2. Cannot be an emergency of defendant’s own making
a. Cordas v. Peerless Transportation – Armed robber
jumps in the back of taxi. Driver jumps out with car
still in motion
Physical Disabilities
1. Physical characteristics are considered in determining the
reasonableness of defendant’s behavior
2. Reasonableness of conduct of defendant with physical
disability will be determined based upon a reasonably
careful person with the same disability
3. Roberts v. Louisiana – Blind man must act as any other
reasonable blind man would under the circumstances
Mental Illness
1. Defendant’s own mental disability is not considered in
determining negligence
2. Mentally disabled person is held to the standard of
someone of ordinary intelligence and knowledge
3. Breunig v. American Family Ins. – In cases with no
forewarning mental illness may be treated equivalently to
an onset of a sudden physical illness—In this case the
defendant had notice
Children
1. Standard of care of a child is that of a reasonable child of
similar age, intelligence, and experience.
2. Subjective standard
3. Children Engaged in Adult Activities are held to the adult
standard of care-It would be unjust to allow a child to
defend his negligence on the basis of age when he was
willfully engaged in activity normally not undertaken by
individuals his age.
a. Held to same standard of care as an adult
b. Robinson v. Lindsay – child drives snowmobile
Professionals
1. Expected to exhibit the same skill, knowledge, and care as
an ordinary practitioner in the same community under
similar circumstances
a. Heath v. Swift Wings - Reasonable person standard
within a particular profession is an objective
standard and does not vary based on an individual’s
personal training and experience within that
profession.
2. Specialist held to a high standard
3. Professionals who meet the standard of care are not liable
for mere errors in judgement that result in a bad result
a. Hodges v. Carter – attorney served insurance
company improperly, used process customary to
NC attorneys
4. Establishing Negligence by Professional
a. Requires expert testimony to establish the standard
of care and the defendant’s deviation from that
standard
b. Unless the negligence is so apparent a lay person
can identify it
c. Boyce v. Brown – plaintiff did not establish
deviation from standard of care
x. Informed Consent
1. Physicians are obligated to explain the risks of a medical
procedure to a patient in advance of a patient’s decision to
consent to treatment
2. If an undisclosed risk was serious enough that a reasonable
person in the patient’s position would have withheld
consent to the treatment = breach of duty
3. Standards for Evaluating Medical Professionals Conduct
a. National Standard
b. Strict Locality – practitioner in good standing in the
local community in which the practitioner practices
c. Similar Community in Similar Circumstances
d. Morrison v. MacNamara – Standard of care for
board certified physicians, hospitals that are
nationally certified is a national standard
4. Reasonable Physician Standard – what a reasonable
physician would disclose-majority
5. Reasonable Patient Standard – what a reasonable patient
would want to know-minority
a. Scott v. Bradford – doctor adequately informed
patient of risks
6.
2. Breach or Violation of Duty of Care
a. Negligence Per Se (Statutory Negligence)
i. A criminal or regulatory statute imposes a penalty for violation of
a specific duty
ii. Defendant violates the statute by failing to perform that duty
iii. Plaintiff is in the class of people intended to be protected by the
statute
iv. The harm is of the type the statute intended to protect against
1. Cases
a. Osborne v. McMasters
b. Stachniewicz v. Mar-Cam Corp. - sued the owners
of the bar, claiming a violation of an OR statute
requiring bar owners to “prevent the recurrence of
abuses associated with” bars
c. Ney v. Yellow Cab – Trial court must determine the
risk against which the legislature intended to protect
the class of persons from. P was among the class of
persons intended to be protected and the harm was
one the legislature intended to prevent.
v. Perry v. S.N. (Child Abuse at Daycare)
1. Plaintiff can be members of the class and suffer harm
against which the statute was intended to protect, but a
criminal statute can nonetheless be found inappropriate to
import a duty and standard of conduct in tort.
2. Factors to consider include
a. whether the statute clearly defines the prohibited or
required conduct;
b. whether applying negligence per se could create
liability without fault;
c. whether the statute would impose ruinous liability
disproportionate to the seriousness of the
defendant’s conduct, and
d. whether the injury resulted directly or indirectly
from violation of the statute
vi. Effects of Statute
1. Violation of a statute can constitute both negligence per se
(assuming causation and injury demonstrated) and can
apply equally to plaintiff and defendant
a. Martin v. Herzog – Driver collided with car that
didn’t have headlights on
2. The presumption that a violation of a statute constitutes a
prima facie case of negligence may be rebutted by offering
an adequate excuse under the circumstances of the case.
a. Zeni v. Anderson – P walked in road when sidewalk
covered with snow
vii. Proof of Negligence
1. Circumstantial Evidence
a. Goddard v. Boston & Maine – banana peel on
platform. No evidence on how long the banana had
been on the platform.
b. Anjou v. Boston Elevated Railway – old banana
peel platform.
i. Even without direct evidence (testimony as
to how long peel had been on platform), the
circumstantial evidence (testimony re
condition of the banana) was sufficient for
jury to infer it had been there long enough
c.
d.
e.
f.
for defendant’s employees to have noticed it
and removed it.
Joye v. Greater Atlantic – banana peel on floor at
market
i. Where circumstantial evidence cannot
establish how long banana has been on floor,
plaintiff failed to present enough evidence to
jury
Ortega v. Kmart - P has the burden of producing
evidence that the dangerous condition existed for at
least a sufficient time to support a finding that D
had constructive notice of the hazardous condition.
Jasko v. F.W. - Where D is responsible for creating
the dangerous condition (including through its
operating method), P need not demonstrate either
actual or constructive notice of the dangerous
condition that caused P’s injury.
H.E. Butt Grocery Co. v. Resendez – The P slipped
and fell near a grape display owned by the D. A
mere display or produce for customer sampling,
without more, does not constitute an unreasonable
risk of harm to customers.
2. Proof of Negligence – Res Ipsa Loquitur (the thing speaks
for itself)
a. The fact that a particular injury occurred may itself
establish a breach of duty
b. Inference of Negligence
i. Plaintiff must establish that the accident
causing the injury is the type that would not
normally occur unless someone was
negligent
ii. Other responsible causes are sufficiently
eliminated by the evidence and the inferred
negligence is within the scope of the D duty
to P.
iii. Byrne v. Boadle – Barrel fell out of the
window. Under certain circumstances the
fact finder is permitted to infer negligent
conduct in the absence of evidence of
negligent conduct. Here, it was possible for
the jury to infer negligence simply from the
happening of the accident itself.
iv. Cruz. V. DaimlerChrysler-The P bought a
used vehicle from the D. The P was inside
the vehicle cleaning it when the airbags
spontaneously deployed for no reason,
causing him injury negligence is permitted
only when the event is
v. James v. Wormuth – The Defendant
performed a lung biopsy on Plaintiff. At
some point during the procedure, the guide
wire dislodged inside of Plaintiff. The
defendant searched the wire but felt it was
best to stop the surgery. Res Ipsa Loquitor is
applicable only if the subject is
unintentionally left in a patient following an
operative procedure.
vi. Sullivan v. Crabtree – The inference of the
D negligence that comes about due to the res
ipsa loquitor is not conclusive because there
was other possible causes of the accident. It
was possible that the brakes gave way, or
that the accident could have been caused by
the combination of several factors.
c. Negligence Attributable to Defendant
i. Plaintiff must establish evidence connecting
defendant with the negligence to support a
finding of liability
d. Traditional Standards of Res Ipsa Loquitur Plaintiff
Must Prove – Larson v. St. Francis Hotel – chair
fell out hotel window
i. There was an accident that ordinarily does
not occur in the absence of negligence
ii. It was caused by an agent or instrumentality
within the exclusive control and
management of the defendant
iii. It was not due to any action on the part of
the plaintiff