Torts
A tort is a civil wrong. The tort
system of liability is central to
the American legal system.
Negligence
• The concept of negligence is central to
the tort system of liability. The
negligence concept is centered on the
principle that every individual should
exercise a minimum degree of ordinary
care so as not to cause harm to others.
Who Is Responsible
• Everyone is responsible, not only for the
result of his or her willful acts, but also for an
injury occasioned to another by his or her
want of ordinary care or skill in the
management of his or her property or
person. (Cal.Civ.Code § 1714(a).) "Negligence
is not the act itself, but the fact which defines
the character of the act, and makes it a legal
wrong." (Stephenson v. Southern Pac. Co.
(1894) 102 Cal. 143, 147.)
NEGLIGENCE AND ORDINARY CAREDEFINITIONS
• Negligence is the doing of something
which a reasonably prudent person
would not do, or the failure to do
something which a reasonably prudent
person would do, under the same or
similar circumstances. It is the failure
to use ordinary or reasonable care.
Ordinary or reasonable care is that care
which persons of ordinary prudence
would use.
NEGLIGENCE-ESSENTIAL ELEMENTS
• The elements of a cause of action in
tort for negligence are: (1) a duty to use
ordinary care; (2) breach of that duty;
(3) a proximate causal connection
between the negligent conduct and the
resulting injury and (4) resulting
damage. (Budd v. Nixen (1971) 6 Cal.3d
195, 200.)
In other words, the essential elements of
a claim of negligence are:
• 1. The defendant was negligent;
• 2. Defendant's negligence was a cause
of injury, damage, loss or harm to
plaintiff.
A TEST FOR DETERMINING THE
QUESTION OF NEGLIGENCE
• One test that is helpful in determining whether or not
a person was negligent is to ask and answer the
question whether or not, if a person of ordinary
prudence had been in the same situation and
possessed of the same knowledge, he or she would
have foreseen or anticipated that someone might
have been injured by or as a result of his or her
action or inaction. If the answer to that question is
"yes", and if the action or inaction reasonably could
have been avoided, then not to avoid it would be
negligence.
AMOUNT OF CAUTION VARIES
• The amount of caution required of a
person in the exercise of ordinary care
depends upon the conditions that are
apparent or that should be apparent to
a reasonably prudent person under the
same or similar circumstances.
RIGHT TO ASSUME OTHERS' GOOD
CONDUCT
• Every person who is exercising
ordinary care, has a right to assume
that every other person will perform his
her duty and obey the law, and in the
absence of reasonable cause for
thinking otherwise, it is not negligence
for such a person to fail to anticipate an
accident which can occur only as a
result of a violation of law or duty by
another person.
RIGHT TO ASSUME OTHERS'
NORMAL FACULTIES
• A person who is exercising ordinary
care has a right to assume that other
persons are ordinarily intelligent and
possessed of normal sight and hearing,
in the absence of reasonable cause for
thinking otherwise.
DUTY TO ANTICIPATE CRIMINAL
CONDUCT OF THIRD PERSON
• When the circumstances are such that
the possibility of harm caused by the
criminal conduct of a third person is, or
in the exercise of due care should be,
reasonably foreseeable, it is negligence
to fail to use reasonable care to prevent
such criminal act from causing injury
or damage.
EVIDENCE OF CUSTOM IN
RELATION TO ORDINARY CARE
• Evidence as to whether a person
conformed or did not conform to a
custom that had grown up in a given
locality or business is relevant and
ought to be considered, but is not
necessarily controlling on the issue
whether such person was negligent.
STANDARD OF CONDUCT FOR
MINOR
• A minor is not held to the same standard of
care as an adult. A minor is required to
exercise the degree of care which ordinarily
is exercised by minors of like maturity,
intelligence and capacity under similar
circumstances.
• Minor - n. someone under legal age, which is
generally 18, except for certain purposes
such as drinking alcoholic beverages.
IMPAIRED PHYSICAL FACULTIESAMOUNT OF CAUTION
• The amount of caution required of a
person whose physical faculties are
impaired is the care which a person of
ordinary prudence with similarly
impaired faculties would use under the
same or similar circumstances.
CARE REQUIRED FOR SAFETY OF
MINOR
• Ordinarily it is necessary to exercise greater caution
for the protection and safety of a young child than
for an adult person who possesses normal physical
and mental faculties. One dealing with children must
anticipate their ordinary behavior. The fact that
children usually do not exercise the same degree of
prudence for their own safety as adults, or that they
often are thoughtless and impulsive, imposes a duty
to exercise a proportional vigilance and caution on
those dealing with children, and from whose conduct
injury to a child might result.
NEGLIGENCE PER SE--VIOLATION OF
STATUTE, ORDINANCE, OR SAFETY
ORDER
• The violation of a law or statute that results in injury to another
may constitute negligence per se. However, just because a
statute has been violated does not mean that the violator is
necessarily liable for any damage that might be ultimately
traced back to the violation. "The doctrine of negligence per se
does not apply even though a statute has been violated if the
plaintiff was not in the class of persons designed to be
protected or the type of harm which occurred was not one
which the statute was designed to prevent." (Olsen v.
McGillicuddy (1971) 15 Cal.App.3d 897, 902-903) Mere "but for"
causation, is simply not enough. The statute must be designed
to protect against the kind of harm which occurred.
CONTRIBUTORY NEGLIGENCE-DEFINITION
• Is negligence on the part of a plaintiff which,
combining with the negligence of a
defendant, contributes as a cause in bringing
about the injury. "Contributory negligence is
conduct on the part of the plaintiff which falls
below the standard to which he should
conform for his own protection, and which is
a legally contributing cause cooperating with
the negligence of the defendant in bringing
about the plaintiff's harm." (Rest. 2d Torts, §
463.)
Contributory Negligence
• Traditionally, any amount of
contributory negligence on the part of a
plaintiff, no matter how small, operated
as a total bar to recovery. However, the
modern rule of comparative negligence
has softened the harsh effect of the
traditional rule.
• The majority of states have now
abrogated the "all-or-nothing" rule of
contributory negligence and have
enacted in its place general
apportionment statutes calculated in
one manner or another to assess
liability in proportion to fault. Hence, in
most jurisdictions, contributory
negligence is no longer a total bar to
plaintiff's recovery.
• Contributory negligence, if any, on the part of the
plaintiff does not bar a recovery by the plaintiff
against the defendant but the total amount of
damages to which the plaintiff would otherwise be
entitled shall be reduced in proportion to the amount
of negligence attributable to the plaintiff. (Li v. Yellow
Cab (1975) 13 Cal.3d 804) In California, the doctrine
of last clear chance is abolished, and the defense of
assumption of risk is also abolished to the extent
that it is merely a variant of the former doctrine of
contributory negligence.
Federal Sphere
• In the federal sphere, comparative
negligence of the "pure" type has been
the rule since 1908 in cases arising
under the Federal Employers' Liability
Act (see 45 U.S.C. § 53) and since 1920
in cases arising under the Jones Act
(see 46 U.S.C. § 688) and the Death on
the High Seas Act (see 46 U.S.C. § 766).
CONTRIBUTORY NEGLIGENCE-FORGETFULNESS OF KNOWN DANGER
• If a plaintiff voluntarily proceeds into a
dangerous situation of which he or she
had previous knowledge, but
momentarily forgot the danger, such
forgetfulness is not in itself
contributory negligence unless under
all the circumstances it shows an
absence of ordinary care not to have
kept the danger in mind.
RECOVERY FOR INTENTIONAL HARM
NOT DIMINISHED BY CONTRIBUTORY
NEGLIGENCE
• Contributory negligence, if any, on the
part of the plaintiff does not reduce any
recovery by the plaintiff against the
defendant for an injury caused by
misconduct of the defendant, if the
defendant intended to inflict harm upon
the plaintiff.
CONTRIBUTORY NEGLIGENCE-MINORS
• In California, a minor under the age of five years is
incapable of contributory negligence as a matter of
law. Contributory negligence, if any, on the part of
the minor over the age of five years does not bar a
recovery against the defendant but the total amount
of damages to which the minor would otherwise be
entitled is reduced in proportion to the amount of
negligence attributable to the minor. The negligence,
if any, of the parents, or either of them, does not bar
or reduce recovery of damages for injuries to the
minor.
DUTY OF PASSENGER FOR OWN
SAFETY
• One who is simply a passenger in a motor
vehicle and has no right to the control or
management of such vehicle nevertheless
has the duty to exercise the same ordinary
care for his or her own safety and protection
as a person of ordinary prudence would take
under the same or similar circumstances.
The passenger has the duty of doing
whatever a person of ordinary prudence in
the same situation would do to inform or
warn the driver in an effort to prevent an
accident.
DUTY OF PASSENGER FOR OWN
SAFETY
• Contributory negligence, if any, by the
passenger does not bar recovery
against the defendant but the total
amount of damages to which the
passenger would otherwise be entitled
shall be reduced in proportion to the
amount of negligence attributable to
the passenger.
RES IPSA LOQUITUR -- NECESSARY
CONDITIONS FOR APPLICATION
• Res ipsa loquitur is the name of a
doctrine that permits a trier of fact to
infer the existence of negligence in the
absence of direct evidence of
negligence. For the doctrine to apply it
must be shown that:
RES IPSA LOQUITUR -- NECESSARY
CONDITIONS FOR APPLICATION (Continued)
• First, that it is the kind of accident or injury
which ordinarily does not happen unless
someone is negligent;
• Second, that it was caused by an agency or
instrumentality in the exclusive control of the
defendant over which the defendant had the
exclusive right of control originally, and
which was not mishandled or its condition
otherwise changed after defendant
relinquished control; and
RES IPSA LOQUITUR -- NECESSARY
CONDITIONS FOR APPLICATION (Continued)
• Third, that the accident or injury was
not due to any voluntary action or
contribution on the part of the plaintiff
which was the responsible cause of
plaintiff's injury.
RES IPSA LOQUITUR -- PRESUMPTION
OF NEGLIGENCE
• If the foregoing circumstances are
established, the trier of fact must find
from the happening of the accident or
incident involved that a cause of the
occurrence was some negligent
conduct on the part of the defendant.
Negligence - Duty
• Duty concerns whether a person has a
legal obligation to act, and a
corresponding legal liability for failing
to act, in a particular circumstance. The
existence of a duty is a question of law
for the court. (Isaacs v. Huntington
Memorial Hospital (1985) 38 Cal.3d 112,
124.)
RISK IMPORTS RELATION
• The seminal case on duty is (Palsgraf v. Long Island
R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 59 A.L.R.
1253]) While Mrs. Palsgraf stood on a platform of
defendant's railroad, a man carrying a package of
fireworks wrapped in a newspaper attempted to
board a moving train. A railroad employee assisted
him, and the package was dislodged, fell and
exploded. The shock threw down platform scales
many feet away, and these struck Mrs. Palsgraf.
Palsgraf established that in analyzing questions
regarding the scope of an individual actor's duty, the
courts look to whether the relationship of the parties
is such as to give rise to a duty of care and whether
the plaintiff was within the zone of foreseeable harm.
(Palsgraf v. Long Is. R.R. Co., supra.)
Palsgraf v. Long Island R. Co.
• "The damaged plaintiff must be able to
point the finger of responsibility at a
defendant owing, not a general duty to
society, but a specific duty to him."
(Johnson v. Jamaica Hosp., , 62 NY2d
523, 527.) "The risk reasonably to be
perceived defines the duty to be
obeyed." (Palsgraf v. Long Is. R.R. Co.,
supra.). In other words, foresee ability
of risk defines the scope of duty.
THE SCOPE OF ANY DUTY OF CARE
VARIES WITH THE FORESEEABILITY OF
THE POSSIBLE HARM.
• The kind and number of hazards encompassed
within a particular duty depend on the nature of the
duty. Where an individual breaches a legal duty and
thereby causes an occurrence that is within the
class of foreseeable hazards that the duty exists to
prevent, the individual may be held liable, even
though the harm may have been brought about in an
unexpected way. Conduct is considered negligent
when it tends to subject another to an unreasonable
risk of harm arising from one or more particular
foreseeable hazards (Rest.2d Torts § 281).
THE SCOPE OF ANY DUTY OF CARE VARIES
WITH THE FORESEEABILITY OF THE
POSSIBLE HARM (CONTINUED)
• When the person is harmed by an occurrence
resulting from one of those hazards, the negligent
actor may be held liable. In contrast, where the harm
was caused by an occurrence that was not part of
the risk or recognized hazard involved in the actor's
conduct, the actor is not liable. For example: A gives
a loaded pistol to B, a boy of eight, to carry to C. In
handing the pistol to C, the boy drops it, injuring the
bare foot of D, his comrade. The fall discharges the
pistol wounding C. A is subject to liability to C, but
not to D. (Rest.2d Torts § 281 comment f)
THE SCOPE OF ANY DUTY OF CARE VARIES
WITH THE FORESEEABILITY OF THE
POSSIBLE HARM (CONTINUED)
• Under the common law, as a general rule, one
person owed no duty to control the conduct of
another Rest.2d Torts (1965) § 315), nor to warn
those endangered by such conduct (Rest.2d Torts,
supra, § 314, com. c.; Prosser, Law of Torts (4th ed.
1971) § 56, p. 341) The courts have carved out an
exception to this rule in cases in which the
defendant stands in some special relationship to
either the person whose conduct needs to be
controlled or in a relationship to the foreseeable
victim of that conduct (see Rest.2d Torts, supra, §§
315-320).
THE SCOPE OF ANY DUTY OF CARE VARIES
WITH THE FORESEEABILITY OF THE
POSSIBLE HARM (CONTINUED)
• As explained in section 315 of the
Restatement Second of Torts, "a duty of care
may arise from either (a) a special relation ...
between the actor and the third person which
imposes a duty upon the actor to control the
third person's conduct, or (b) a special
relation ... between the actor and the other
which gives to the other a right of
protection." (Tarasoff v. Regents of
University of California (1976) 17 Cal.3d 425,
435)
DUTY OF ONE IN IMMINENT PERIL
• A person who, without negligence on his or
her part, is suddenly and unexpectedly
confronted with peril arising from either the
actual presence of, or the appearance of,
imminent danger to him or herself or to
others, is not expected nor required to use
the same judgment and prudence that is
required in the exercise of ordinary care in
calmer and more deliberate moments.
DUTY OF ONE IN IMMINENT PERIL
(Continued)
• His or her duty is to exercise the care that an
ordinarily prudent person would exercise in the
same or similar circumstances. If at that moment he
or she does what appears to him or her to be the
best thing to do, and if his or her choice and manner
of action are the same as might have been followed
by any ordinarily prudent person under the same
conditions, he or she does all the law requires of him
or her. This is true even though in the light of afterevents, it should appear that a different course
would have been better and safer.
RESPONSIBILITY OF ONE CAUSING
THE PERILOUS SITUATION
• When a situation of peril such as that described
above is caused by someone's negligence, and the
person in peril, acting under the impulse of fear,
makes an instinctive and reasonable effort to escape
and, in so doing, injures himself or herself or a third
person, the negligence that caused the peril is
deemed to be a cause of the injury. This is true even
though it might have appeared, or after the event it
may appear, from the viewpoint of another person,
that the effort to escape was unwise or that the
person in danger would not have been injured no
one would have been injured if that effort had not
been made or had been made differently.
VOLUNTARY UNDERTAKING-"GOOD SAMARITAN" RULE
• A person who is under no duty to care
for or render service to another but
who voluntarily assumes such a duty,
is liable to the other for injury caused
by a failure to exercise ordinary or
reasonable care in the performance of
that assumed duty.
Good Samaritan Rule
n. from a Biblical story, if a volunteer comes to the aid of
an injured or ill person who is a stranger, the person
giving the aid owes the stranger a duty of being
reasonably careful. In some circumstances negligence
could result in a claim of negligent care if the injuries or
illness were made worse by the volunteer's negligence.
Thus, if Jack Goodguy sees a man lying by the road, a
victim of a hit and run accident, and moves the injured
man, resulting in a worsening of the injury or a new
injury, instead of calling for an ambulance, Goodguy may
find himself on the wrong end of a lawsuit for millions of
dollars.
THE RESCUE DOCTRINE--LIABILITY
TO RESCUER
• In general, there is no duty to come to the aid
or rescue of a stranger unless, the rescuer
negligently created the situation which put
the stranger in peril and necessitated the
rescue. The essential elements of the rescue
doctrine are:
• 1. The defendant engaged in negligent
conduct;
• 2. Such conduct threatened real and
imminent serious harm to the person or
property of another;
THE RESCUE DOCTRINE--LIABILITY
TO RESCUER (Continued)
• 3. The plaintiff attempted to rescue the
endangered person or property;
• 4. In attempting such rescue, the plaintiff
suffered injury, damage, loss or harm; and
• 5. The defendant's negligence was a cause of
the rescue attempt and of the injuries or
damage sustained by plaintiff in the course
of such rescue attempt.
Rescue Doctrine
n.
The rule of law that if a rescuer of a person hurt or put in
peril due to the negligence or intentional wrongdoing of
another (the tortfeasor) is injured in the process of the
rescue, the original wrongdoer is responsible in
damages for the rescuer's injury. Example: Sydney
Sparetire speeds on a mountain highway, and skids in
front of Victor Victim, running Victim's car off the bank,
trapping Victim in the vehicle. Raymond Rightguy stops,
ties a rope to the grill of his car, slides down and
extricates Victim, but on the way up slips and breaks his
arm, and then finds the grill is badly bent. The negligent
Sparetire is liable to Rightguy for his broken arm
(including medical expenses, loss of wages and general
damages for pain and suffering) as well as the property
damage to the car grill.
OTHER SITUATIONS GIVING RISE
TO DUTY
• Restatement Second of Torts Section
388 outlines the requirements for
imposing liability on one who supplies
a chattel which is known to be
dangerous for its intended use. No duty
can exist under section 388 unless
defendant supplies a chattel to
defendant to use.
Chattel
• n. an item of personal property which is
movable, as distinguished from real
property (land and improvements).
OTHER SITUATIONS GIVING RISE
TO DUTY (Continued)
• A travel agent has a duty to disclose
reasonably obtainable material
information to the traveler unless that
information is so clearly obvious and
apparent to the traveler that, as a
matter of law, the travel agent would
not be negligent in failing to disclose it.
(McCollum v. Friendly Hills Travel Ctr.
(1985) 172 Cal. App.3d 83, 945.)
DUTY OF CARE - OWNERS AND
OCCUPIERS OF LAND
• The common law determined what duty of care an
owner of land owed to those coming upon the land
by classifying the plaintiff either as a trespasser,
licensee, or invitee and then adopting special rules
as to the duty owed by the possessor to each of the
classifications. Generally speaking a trespasser is a
person who enters or remains upon land of another
without a privilege to do so; a licensee is a person
like a social guest who is not an invitee and who is
privileged to enter or remain upon land by virtue of
the possessor's consent, and an invitee is a
business visitor who is invited or permitted to enter
or remain on the land for a purpose directly or
indirectly connected with business dealings between
them. (Oettinger v. Stewart, 24 Cal.2d 133, 136 [156
A.L.R. 1221].)
DUTY OF CARE - OWNERS AND
OCCUPIERS OF LAND (Continued)
• Although the inviter owed the invitee a duty to exercise
ordinary care to avoid injuring him (Oettinger v. Stewart, supra,
24 Cal.2d 133, 137; Hinds v. Wheadon, 19 Cal.2d 458, 460-461),
the general rule was that a trespasser and licensee or social
guest were obliged to take the premises as they find them
insofar as any alleged defective condition thereon may exist,
and that the possessor of the land owed them only the duty of
refraining from wanton or willful injury. (Palmquist v. Mercer, 43
Cal.2d 92, 102; see Oettinger v. Stewart, supra, 24 Cal.2d 133,
137 et seq.) The ordinary justification for the general rule
severely restricting the occupier's liability to social guests is
based on the theory that the guest should not expect special
precautions to be made on his account and that if the host
does not inspect and maintain his property the guest should
not expect this to be done on his account. Most courts have
now rejected the rigid common law classifications and instead
approach the issue of the duty of the occupier on the basis of
ordinary principles of negligence.
Negligence - Causation In Fact Proximate or Legal Cause
• CAUSE--SUBSTANTIAL FACTOR TEST
– In tort law "cause" is a term of art. A legal
cause of injury, damage, loss or harm is
something that is a substantial factor in
bringing about an injury, damage, loss or
harm. "An actor may be liable if his
negligence is a substantial factor in
causing an injury." (Vesely v. Sager 5
Cal.3d 153.)
CAUSE
from Latin causa 1) v. to make something happen. 2)
n. the reason something happens. A cause implies
what is called a "causal connection" as
distinguished from events which may occur but do
not have any effect on later events. Example: While
driving his convertible, Johnny Youngblood begins
to stare at pretty Sally Golightly, who is standing on
the sidewalk. While so distracted he veers into a car
parked at the curb. Johnny's inattention (negligence)
is the cause of the accident, and neither Sally nor
her beauty is the cause. 3) n. short for cause of
action.
PROXIMATE CAUSE
• The question of legal responsibility is commonly
considered in terms of "proximate cause," which is
ordinarily concerned, not with the fact of causation,
but with the various considerations of policy that
limit an actor's responsibility for the consequences
of his conduct. (See, Prosser, Torts, pp. 311-313.) A
proximate cause of an injury is a cause which, in
natural and continuous sequence, produces the
injury, and without which the injury would not have
occurred. "The concept of proximate causation has
given courts and commentators consummate
difficulty and has in truth defied precise definition."
(State Compensation Ins. Fund v. Ind. Acc. Comm.
176 Cal.App.2d 10, 20.)
PROXIMATE CAUSE (Continued)
• In the Polemis Case (1921, 3 K. B. 560),
defendant's worker carelessly allowed a
plank to fall into the hold of the ship. The
falling plank struck something and thereby
caused a spark which in its turn ignited
gasoline vapor in the hold. The vapor caused
a fire which destroyed the whole ship. Held:
The fire was not a reasonably foreseeable
consequence of allowing the plank to fall.
However, it was reasonably foreseeable that
the falling plank would cause some form of
damage to the vessel.
PROXIMATE CAUSE (Continued)
• Because of this, the court established
defendant's negligence. Whether the
particular damage caused by the fire
was recoverable depended solely on it
being a direct consequence of the
negligent act. Although the damage by
fire could not have reasonably been
foreseen as a consequence of dropping
the plank, Defendant was therefore
liable for the loss of the ship by fire.
PROXIMATE CAUSE (Continued)
• In Wagon Mound 1 (Overseas Tankship (U.K.) Ltd. v.
Morts Dock and Engineering Co. Ltd. [1961] 1 All
E.R. 404; [1961] A.C. 388; [1961] 2 W.L.R. 126; (P.C.)
and Wagon Mound 2 (Overseas Tankship (U.K.) Ltd.
v. The Miller Steamship Co. Pty. (1966), [1966] 2 All
E.R. 709; [1967] 1 A.C. 617; [1966] 3 W.L.R. 498 (P.C.)
the wind and tide carried the oil beneath a wharf
where welding operations were being carried on by
employees. After being advised that they could
safely weld, the employees continued their work.
Some 55 to 60 hours after the original discharge,
molten metal set some waste floating in the oil on
fire. The flames quickly developed into a large fire
which severely damaged the wharf.
Wagon Mound (Continued)
• Liability turned on the question of whether the risk of
fire was foreseeable, since furnace oil has such a
high boiling point it is unlikely to catch fire under
normal circumstances. In Wagon Mound 1 and 2, the
two sequential claimants argued the risks of fire in
opposite ways. Each of these diametrically different
presentations of the risk of fire was accepted by the
very same court as equally true and valid facts. The
upshot of the two Wagon Mound cases is that a
defendant will only be liable for damage that is
reasonably foreseeable as a consequence of the
negligent act. Foreseeable damage being "real or
very likely " - not far-fetched or fanciful."
CONCURRING CAUSES
• There may be more than one cause of an injury.
When negligent or wrongful conduct of two or more
persons or negligent or wrongful conduct and a
defective product contributes concurrently as
causes of an injury, the conduct of each is a cause of
the injury regardless of the extent to which each
contributes to the injury. A cause is concurrent if it
was operative at the moment of injury and acted with
another cause to produce the injury. It is no defense
that the negligent wrongful conduct of a person not
joined as a party was also a cause of the injury.