NEGLIGENCE: Negligence is an act which breaches a legal duty of care and which actually and proximately
causes a compensable injury. To prevail in a negligence action against D, P would have to demonstrate 4
elements by a preponderance of the evidence: 1) Duty, 2) Breach of Duty, 3) Casuation, and 4) Injury.
NEGLIGENCE PER SE (statutes): The negligence per se doctrine allows courts to use criminal or civil
statutes as a substitute for determining the reasonable person standard of care in a case. (Martin v. Herzog).
Under R2d 286, the court may adopt as a standard of conduct of a reasonable person, the same requirements of
a legislative enactment whose purpose is to protect a class of persons whose rights were invaded by the actual
harm the statute was intended to prevent. So, to prove negligence per se, the P must show that the statute was
intended to protect a person similar to the P, and that the risk of injury is similar to that suffered by the P.
RES IPSA LOQUITUR: Directly translated, means “the thing speaks for itself.” In situations where 1) it’s
highly probable that the injury wouldn’t have occurred if someone hadn’t been negligent, 2) the indicated
source of the negligence is within the scope of a duty owed by the D to the P, and 3) neither the P nor any 3rd
party seems to have contributed to P’s injuries, an inference is allowed that D was negligent, without any direct
proof (R2d 328D). The D then has the burden of proving that inference wrong. Ct’s recognize RIL in situations
of an injured P, where D has better access to evidence concerning the injury’s cause. RIL also puts the burden
on D to explain away the negligence, and doesn’t apply unless reasonable persons could disagree that 51% or
more of the probability points to the D’s liability. A ‘presumption of negligence’ may be raised by RIL and
unless the D shows evidence to rebut, the court must find negligence as a matter of law. (McDougald v. Perry).
Defenses to RIL: 1) inspection is not a defense, 2) offer alternate explanations for the injury to the P other than
the D’s negligence, 3) show that such injuries happen frequently w/out anyone being negligent, 4) show the D
didn’t have control of the situation, or that someone else had control (Ybarra v. Spangard).
DUTY: To prevail in a negligence action against D, P would have to prove that D had a duty of care to P. The
default duty of care is the objective duty of a reasonable person of ordinary prudence under like circumstances
(Vaughn v. Menlove). There are differences when the party is a professional (higher duty of care), physical
handicap (contextual duty of care), children (duty of care based on what may be expected of children of like
age, intelligence, and experience, but if they’re engaging in adult activities, then they’re held to adult standards
R2d 283A). There’s no difference for mental incapacity (R2d 283B). The judge instructs the jury on what
standard of duty to decide on, and the jury decides whether that standard has been met under the facts.
BREACH OF DUTY: To determine if there’s a breach of duty, courts use the reasonable person of ordinary
person standard to apply a form of a risk-utility balancing system (R2d 291). They check to see whether the
resulting injury was foreseeable, or whether the burden of preventing the loss suffered was greater than the
probability of the loss. This is most clearly exemplified in U.S. v. Carroll Towing, where Judge Learned Hand
determined breach by weighing the burden on the D to adequately prevent the injury, against the gravity of the
resulting injury and the probability of the occurrence. If the cost of the D to avoid the injury was less than the
cost of the accident, discounted by the probability of it occurring, then there is a breach of duty (B < PL).
CAUSATION: To establish causation, the P must show that Ds negligence was both the actual cause and
proximate cause of injury. Cause-in-Fact: The traditional test for actual causation is the “but for” test. For a D to
be held liable, the P must establish that “but for” the D’s negligence, the P would not have been harmed. When
there’s multiple tortfeasors or the exact certainty of who caused the harm is unknown (Summers v. Tice) the
Substantial Factor Test (R2d) is used. Alternative Liability Rule R2d 432(2) says something is a substantial
factor if “two forces are actively operating, one because of the actor’s negligence, the other not because of any
misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence
may be found to be a substantial factor in bringing it about.” Also, R2d 432(a), “D’s conduct was sufficient to
cause injury and/or D’s conduct was approximately equal in scope as with other conduct or events. Also, R3d
27 (Sufficient Cause Test), “If multiple acts occur, each of which alone would’ve been a factual cause under
Sec 26 [seeing forth the but-for test] of the physical harm, at the same time in the absence of the other act(s),
each act is regarded as a factual cause of the harm.”
Proximate Cause: As a narrowing of actual cause, the D’s action must also be determined to be the proximate,
or legal cause. Historically, proximate cause has been established using direct causation, where an actor is
responsible for any damage that is directly traceable (no intervening [Doe v. Manheimer] or superseding cause)
to that act (In re Polemis). It is important to point out that this test is disfavored. Alternatively, courts apply a
foreseeability test to determine if the D should have reasonably foreseen, that as a natural and probable result of
his or her conduct, that the harm would come to the P (Wagon Mound (foreseeability)/Palsgraf (duty)). In
Andrews’ dissent in Palsgraf, he sets out a 4-factor test to determine proximate cause: 1) Foreseeability, 2)
Directness of connection between D’s act and P’s harm, 3) Whether the act was a substantial factor in causing
the harm, and 4) remoteness of time and space.
SO, correct methodology:
1) Go through the but-for test, all versions of it.
2) Go through the cause in fact test, all versions of it.
3) Then you go to proximate causation test, knowing that diff courts focus on diff things, you have
some polemis, you have some substantial factor, you have foreseeability. Understand that all are
pretty important. Sometimes a court doesn’t even use one criteria, but decides based on policy.
- Model Answer: give every other theory in the fact pattern. Explore other routes too. Under the first
element, she alternatively used the but-for test, and used the substantial factor for complexity, and the
third restatement test for substantial factor for complexity. She did this all succinctly. If you had more
time, you could lay it out more calmly ‘in the first statement, etc.. in the second statement, etc.. in the
third statement, etc.. so here,… etc’
- take a stand and have a theory that youre working with.
- as for policy.. its addressed in that last 3rd issue, very slightly. If you had time, you could lay out the
whole set of public policy concerns about deterring lack of care and deterring intentional wrongdoing.
JOINT AND SEVERAL LIABILITY: When there are multiple party defendants, the standard approach is to
divide up liability amongst the defendants, so each pays an equal share. Multiple defendants can be jointly,
severally, or jointly and severally liable. Joint liability means each D is liable up to the full amount, but if the P
recovers once, they can’t recover from the other Ds. Several liability means the parties are only liable for their
respective obligations. Joint and several liability, which most states use, mean the P can pursue an obligation
against any one party as if they were jointly liable, and after they recover from them, it’s the D’s responsibility
to sort out their respective proportions of liability and payment with the other Ds and pursue them for a
contribution to their share of the liability.
DEFENSES TO NEGLIGENCE:
1) Contributory Negligence: Standard common law rule says that a P’s action for negligence is barred
(complete defense) if D can prove P had contributory negligence that was a substantial factor in bringing
about her injury. The Last Clear Chance Doctrine tried to ease the harsh effects of contributory
negligence as a complete defense. When the D is negligent, and P, through contributory negligence,
places themselves in a position of either ‘helpless’ or ‘inattentive’ peril, the D must be aware of Ps
situation, under a duty to discover the P, and able to recognize the P’s peril and avoid injury to P. (even
if I walk out on street with donkey and your car hits me, if you could’ve avoided hitting me, I can bring
claim against you despite my obvious contributory negligence).
2) Now states have adopted a form of Comparative Negligence (Fritts v. McKinne), and there’s “pure” v.
“partial” comparative negligence, some states adopt each. “Pure”: Allows a P to recover a percentage of
damages, even if his own negligence exceeds that of the D’s (if he was 90% at fault, can still recover
10%). “Partial”: They deny any recovery to a P whose own negligence equals or exceeds that of the D,
so they have to be equal to or less than 49% liable. Some states modify this with the “50% limit plan”,
where they only deny recovery if the Ps negligence exceeds the Ds (equal to or less than 50%). If the
jury finds the P is 50% at fault, the P can still recover half his damages, but 51% = completely barred).
3) Assumption of Risk: This defense arises when the P voluntarily encounters a known danger and by his
conduct, expressly or impliedly consents to take the risk of the danger. In such a case, the D is relieved
of responsibility for his negligence. The P needs to have had knowledge or awareness of the particular
danger involved, and it must be voluntary—if D left them no choice, that’s not assumption of risk. To
establish assumption of risk as a defense, the D must show that the P 1) had knowledge of the dangerous
condition, 2) knew the condition is dangerous, 3) appreciate the nature and extent of the danger, and 4)
voluntarily exposed themselves to the danger. (Davenport v. Cotton Hope)
NO GENERAL DUTY TO ACT, AND EXCEPTIONS BLL:
A. No general duty to act: A person generally can’t be liable in tort solely on the grounds that she’s failed
to act. This means that if D sees that P is in danger, and fails to render assistance, even if it’s easy and
safe to do so, D isn’t liable for refusing to assist. In general, there is no duty to rescue, no duty to warn,
and no duty to provide affirmative protection. A-H ARE ALLEN’S 8 EXCEPTIONS TO NO
GENERAL DUTY TO ACT, REST ARE FROM CRUNCHTIME:
a. SOCIAL COMPANIONS EXCEPTION (Farwell v. Keaton): When the parties are engaged in a
‘common pursuit’ such that they might be called ‘co-venturers’, some cts have imposed on the D
a duty of warning and assistance. Two friends on a social venture together counts.
b. PSYCHOTHERAPIST EXCEPTION (Tarasoff v. Regents of the UC)
c. EMPLOYER TAKING EMPLOYMENT EXCEPTION (Randi W. Muroc School District)
d. PUBLIC UTILITY EXCEPTION (Strauss v. Belle Realty). Public utilities aren’t GENERALLY
gonna be liable to 3rd parties, but they COULD be liable where there’s gross negligence or
recklessness that harms a limited class of persons who are foreseeable.
e. DRAM SHOP EXCEPTION (Providers of alcohol)
f. SOCIAL HOST EXCEPTION
g. NEGLIGENT ENTRUSTER EXCEPTION (Vince v. Wilson)
h. VARIOUS POSSESSOR/POSSESION OF LAND EXCEPTION
i. SPECIAL RELATIONSHIP (Harper v. Herman): A duty to give assistance may arise out of a
‘special relationship’ between the parties. R3d list of special relationships: common carriers and
their passengers, innkeeper and guests, business/landowner that holds premises open to public
and those lawfully on the premises, employer and its employees, school and its students, LL and
tenants, custodian w/ those in custody.
j. ASSUMPTION OF DUTY (Farwell v. Keaton): Once D voluntarily begins to render assistance
to P, even if D was under no legal obligation to do so, D must proceed with reasonable care.
k. DUTY TO CONTROL OTHERS (Randi W. v. Muroc School District, Tarasoff v. Regents of the
UC): If D has duty to control 3rd persons, D can be negligent for failing to exercise that control.
A duty to control 3rd persons may arise either because of a special relationship between the
parties, or a special relationship between D and a 3rd person (e.g. a business open to public must
protect its patrons from wrongdoings by 3rd parties)
DUTIES OF LANDOWNERS AND OCCUPIERS BLL:
TRESPASSERS (ADULT): As a general rule, landowners owe no duty to a trespasser to make the land safe, to
warn of dangers on it, or to avoid carrying on dangerous activities on it, or to protect the trespasser in any way.
Exception: However, when landowners have knowledge of constant trespassers, there’s a tendency to treat the
‘discovered’ trespasser as a licensee.
TRESPASSERS (CHILDREN): R2d 339 says landowners owe a duty of reasonable care to trespassing children
if these 4 reqs are met—1) the owner knows that the area is one where children are likely to trespass, 2) the
owner has reason to know that the condition poses an unreasonable risk of serious injury or death to trespassing
children, 3) the injured child either doesn’t discover the condition or realize the danger due to his youth, 4) the
utility of maintaining the condition is slight in relation to the risk of injury to the infants, and 5) the owner fails
to use reasonable care to eliminate the danger. However, there’s no duty to inspect, and also less chance of
liability when the condition is natural.
LICENSEES (SOCIAL GUESTS): A licensee is a person who has the owner’s consent to be on the property,
but who doesn’t have a business purpose for being there, or any other purpose entitling him to be on the land,
except the owner’s consent. The landowner has duty to either warn the licensee of, or make safe, known natural
or artificial conditions or activities involving any risk of harm that the licensee is unlikely to discover (nonobvious dangers), whether existing at the time of entry or arising thereafter. There is no duty to inspect in order
to discover dangerous conditions; there’s only duty for known dangerous conditions. Firefighter’s Rule:
Firefighters, police officers, and other public safety officials who come onto private property in the performance
of their duties are treated as mere licensees, and the owner does not owe them a duty to inspect the premises or
make them reasonably safe. Most states continue to apply this rule, while some don’t have it.
INVITEES: An invitee is one who goes upon the land of another with the consent of the landowner for some
purpose connected with the use of the premises (e.g. a business or public place held open to the public). The
landowner has duty of reasonable care, not only to warn and make safe their property, but also have a duty of
reasonable inspection to find even hidden dangers, if they are reasonably foreseeable. (R2d 587). They must use
reasonable care to take affirmative action to remedy a dangerous condition. Business invitees are those invited
to the premises for potential pecuniary benefit to the owner; even loiterers in front of a store are invitees
because they might buy something. They also have duty to control 3rd party conduct to protect an invitee who
might be injured on their property. One the visitor’s use of the premises goes beyond the business purpose or
beyond the part of the premises held open to the public, their status becomes that of a licensee.
GOVERNMENTAL IMMUNITY / SOVEREIGN IMMUNITY BLL
The doctrine of sovereign immunity, or that government is generally immune from tort suits is in the name of
public policy; the idea that ‘the people’ as a whole can’t be guilty of a tort. (Riss v. NYC) Today, it’s been
whittled away a lot by the federal govt under the Federal Tort Claims Act, which allows tort suits against the
federal govt, though not for all torts. There’s still immunity for ‘discretionary’ acts and basic policy decisions
(if the U.S. govt is testing bio weapons carefully as possible, but gas leaks and Ps injured, theyre immune from
negligence). State govts have traditionally had similar sovereign immunity, but many have abolished it now,
and they have Court of Claims Act 8, which gives public some ability to bring lawsuits against the state. Local
govt immunity, same, mostly abolished. But even there, if if the govt is performing a ‘propietary’ function,
there’s no immunity (proprietary functions are those not historically run by govt, and usually engaged in by
private corps, like revenue producing activities like running a hospital, utilities, airports, etc. Police Dept,
firefighters, and schools systems aren’t proprietary, and can’t be sued at common law).
NEGLIGENT INFLICTION OF EMOTIONAL HARM
Courts have usually awarded a 3rd party victim recovery for emotional harm only if, in addition to proving these
elements of IIED, they can show these 4 Factors for determining whether an emotional injury is compensable
because it was foreseeable: 1) The death or serious physical injury of another caused by the Ds negligence, 2) a
marital or intimate familial rship between the P and injured person, 3) observation of the death or injury at the
scene of accident, and 4) resulting severe emotional distress. (Portee v. Jaffee) The D’s duty of reasonable care
to avoid physical harm to others extends to the avoidance of this type of mental and emotional harm. The
Restatement is somewhat less restrictive, requiring only that a primary victim’s immediate family members be
present and can prove the elements of the tort (R2d 46).
NUISANCE (PUBLIC AND PRIVATE)
Private (R2d 822): “Nontrespassory invasion of another’s interest in the private use and enjoyment of land”.
Can be intentional or unintentional, and remedied by injunction or money damages.
Public (R2d 821B): “Unreasonable interference w/ a right common to the general public”. Unreasonable =
significant interference with public health, public safety, the public peace, the public comfort or the public
convenience or proscribed by [law] or long-lasting effect. Remedied by injuncton or money damages.