I.        Elements of a negligence cause of action.

·         (1) DUTY - The defendant owed plaintiff a legal duty;

·         (2) BREACH -  The defendant, by behaving negligently, breached that duty;

·         (3) HARM -  The plaintiff suffered actual damage;

·         (4) CAUSE IN FACT - The defendant’s negligence was an actual cause of this damage;

·         (5) PROXIMATE CAUE - The defendant’s negligence was a “proximate cause” of the damage.

Elements of Negligence to create the Prima Facie Case

     I.         Duty

A.     Reasonable Person Standard - The standard of care requires conduct of a reasonable and prudent person under the same or similar circumstances.

a.  External circumstances

1.    There is no “exceptional” standard of care in dangerous situations (the reasonable person standard applies), but the degree of care required does increase with danger and risk

a.    Stewart v. Motts – gas explosion; higher degree of care necessary when dealing with dangerous substances like gasoline.

b.  Sudden emergency doctrine

1.    Wilson v. Sibert – Bank drive-thru; D backed up into P; sudden emergency b/c car in front of D backed up, and D was trying to get out of the way.

c.                Internal characteristics of actor

1.    Child §10:  Child held to a “reasonable child” standard – that of a reasonably careful person of the same age, intelligence, and experience.  Does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

a.    Robinson v. Lindsay – D (child) operating snowmobile, P (also child) gets injured.  Use reasonable person, not child standard b/c dangerous activity normally conducted by adults, not children.

2.    Disability §11:  (a) Physical disability: person negligent if actions don’t conform to reasonable careful person w/ same disability, (b) A sudden physical disability (like loss of consciousness): actor negligent only if the illness was foreseeable, (c) Mental/Emotional disability: held to reasonable person standard (no special permissions) – except if a child (see §10)

a.    Mental Disability

(a)  Creasy v. Rusk – person w/ mental disability held to same standard of care as normal reasonable person.  BUT, not liable to a caregiver (caregiver has duty to patient, not the other way around). 

(b)  Rationales for holding the mentally disabled liable under the reasonable person standard:

(a)  Allocates loss btwn innocent parties to party who caused loss

(b)  Incentive to those responsible for people with mental disabilities to restrain them

(c)  Removes inducement of “faking” of insanity to avoid liability

(d)  Avoids admin problems involved in courts attempting to identify/assess significance of mental disabilities

(e)  Unjust enrichment of insane; they should pay for the damage they do if they are permitted to live in the world (not institutionalized)

b.    Physical Disability

(a)  Shephard v. Gardner – P cannot see well & falls; P’s duty of care is of a reasonable prudent person with a like infirmity

c.    Sudden medical emergency

(a)  Roman v. Estate of Gobo – D (decedent) suffers unforeseeable heart attack while driving, killing and injuring Ps. Not liable – sudden medical emergency doctrine.

3.    Special Knowledge – someone who has special knowledge or skills is required to exercise the superior qualities reasonable under circumstances.

a.    Hills v. Sparks – operating machinery; D knew of the risks to passenger, but didn’t warn, and passenger died.

4.    Low Intelligence – held to reasonable person standard. No escape of liability just b/c he does the best he can, or if he acted same as others of similar intelligence.

5.    What Actor is Required to Know (reasonable person) (R2T §290)

a.    Qualities/habits of human beings and animals and the qualities/ characteristics/capacities of things and forces, to extent of common knowledge in the community; and

b.    the common law, legislative enactments, and general customs in so far as they are likely to affect the conduct of the other or third persons.

B.    Reasonable  Woman Standard

a.  Conduct Of A Reasonable Man: The Standard (R2T §283)

1.    Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.

b.  Whether to make allowance for women’s “bad” driving – women drivers were thought to be less able

1.    The Lake Shore & Mich. Southern R.R. Co. v. Mary Miller

2.    Calvin Daniels v. Richard Clegg

3.    Tucker v. Henniker

c.                Whether to require women to exercise extra care in light of their “fragility” – women getting on an off trains and street cars (which often didn't stop fully or for very long) less agile, given their long skirts and possible "delicacy."

1.    Eichhorn v. Missouri, K. & T. RY. Co.

2.    Asbury et ux. v. Charlotte Electric Railway, Light & power Co.

3.     Little Rock & FT.S.RY.Co. v. T Ankersl

4.     Henry Fox, Administrator v. Town of Glastenbury

a.    Women as passengers – women passengers less accountable for warning male drivers of impending danger

5.    Denver & R.G.R. Co. v. Lorentzen

6.    Denton v Missouri, K. & T.RY.Co.

C.    Negligence per Se – Specification of Particular standards or duties

a.    Attempts by judges to define the duty owed (what a reasonable person would do when specific facts present) as a matter of law / The difficulties when judge’s announce a set standard of care

1.    Marshall v. Southern Railway Co. – P driving, hit D’s construction. Court says as a matter of law, P must exercise reasonable care in keeping a lookout for obstructions while driving.

2.    Chaffin v. Brame – P driving at night, hit D’s truck, b/c blinded by another car’s headlights. D negligent in leaving car in middle of the street. No contributory negligence by P (b/c he was driving safely), court says as a matter of law.

a.    Limitation of a judge-made rule. When presented with diff factual circumstances,  its application may not work

b.  Negligence per se – defining duty by “statute”: Is the plaintiff in the class of persons the statute is designed to protect, and is the injury in a class that the statute is designed to protect?  If you cannot establish negligence per se, you can use this as evidence to establish negligence (but easier to establish negligence per se).

1.    Martin v. Herzog – D driving, hit P, who died. P negligent driving w/o lights. Statute that says vehicles must have lights. P’s violation of statute used as contributory negligence, but not as negligence itself.

2.    Rains v. Bend of the River – P’s son (18yo) buys gun from D, then shoots himself. No negligence per se b/c suicide is not the type of injury the statute is designed to protect against.

3.    Wright v. Brown – dog bites someone, statute says dog must be quarantined for 14 days.  D (dog warden) lets dog free be4 14 days.  Dog bites P. D says P not within class of persons, but court says she is b/c class is the community in general. But P never alleged a claim of an injury that statute designed to protect (bite from a diseased dog), so no negligence per se.

c.                Excused violation of “statute” (excuses to negligence per se)

a.    Actor’s incapacity (medical emergency, mental incapacity, child)

b.    Neither knows nor should know of compliance (night driver’s taillight goes out w/o his knowledge)

c.    Unable to after reasonable diligence to comply

d.    Confronted by emergency not due to own conduct (brake failure)

e.    Compliance would have caused a greater risk to actor or others

2.    Impson v. Structural Metals Inc. - D’s truck tries to pass P w/in 100 ft of intersection, and hits P.  Statute prohibits this. D says he is excused, denied.

   II.        Breach

A.    Risk/Utility Formula:  Assessing Reasonable Care by assessing risks and costs

a.  Breach:  Assessing reasonable care

1.    Brown v. Stiel Problem (and related hypos)

a.    If D (contractor) knows has to choose btwn building with steel (cheaper but kills or injures 3 ppl) and concrete (injures 1), is he committing an intentional tort if he uses steel & someone gets hurt?

(a)  Intentional tort – have to be certain ppl will be killed/injured, but this is a statistic, not certainty. Not intentional tort. Also, intent is to build cheaper, not to hurt anyone.

(b)  If concrete used, person injured – not liable for intentional tort b/c no safer way to build.

(c)  Wood safer than concrete, no liability to use concrete b/c using wood holds up progress (ppl will not build due to liability).

(d)  If specific work/method negligent, then liable.

2.    Criteria for assessing what constitutes “unreasonable risk”

a.    R3T §3 – Negligent if actor doesn’t exercise reasonable care under circumstance. Factors: foreseeability of harm occurring, severity of harm, burden of precaution.

b.    Indiana Consolidated Insurance Co. v. Mathew – Issue on whether D breached reasonable care standard. Court decides no.

(a)  Not reasonable to expect D to start mower outside garage (weight/size of mower + that’s what garages are for)

(b)  D very careful, only filled ¾, used funnel, & careful not to spill

(c)  Not reasonable to expect D to push mower out of garage (would have created danger to D). Exercised prudence in calling fire dept. Human life/safety more important than property.

c.    Stinnett v. Buchele - P hired by D to paint his roof; P fell and says b/c of D’s failure to supply a safe working area. D didn’t breach duty.

(a)  D is Dr, not a roofer (no knowledge), but P has.  D reasonable to assume P knows, and D complied with all of P’s requests. Also, it was an obvious danger, nothing hidden.

d.    Bernier v. Boston Edison Co. – Car accident, driver lost control, hit a light pole (designed & maintained by D); Pole struck Ps (not inviting or expecting danger – pedestrians). 

(a)  Duty of care breached – very foreseeable (force sufficient to break poles was very slow, high rate of poles being struck), and alternative design available to reduce risk.

b.  Learned “Hand” formula:  Impose liability where: The burden of precaution is less than the probability of harm x the gravity of harm.  If action would be very burdensome, not reasonably expected to take that precaution (social utility).

1.    United States v. Carroll Towing Co. – Accident and P suffers loss; barge employee could have avoided it. Absence of barge employee negligence b/c burden of precaution (paying employee) less than prob of harm (very probable) x gravity (a lot of damage). 

2.    Benefits of hand formula: (1) social efficiency, (2) fairness

3.    Only works when property is involved (can’t determine value of life)

4.    Alternatives: (1) when danger is foreseeable, must act to deter, (2) community expectation approach

c.                Apportioning responsibility

1.    Comparative fault – each faulty party bears burden of losses. Each party liable only for % responsible.

2.    Apportionment among defendants – multiple tortfeasers; they split damages based on % of fault.

3.    Joint and several liability – Multiple tortfeasers; P can enforce against either. P can get judgment on either, but not for more than full amt of damages.

4.    Contribution – if only 1 D pays full amt, not fair. So co-D would pay D his portion, called contribution.

5.    Insolvent or immune tortfeasers – 1 D is immune to tort liability. Co-D incurs all expense of damages, and cannot get contribution.

6.    Several liability and comparative fault – Determine % fault of each D, and D only liable for his share. P can only pursue each D for the % fault.

B.    Proving Negligence: Inference & Custom – P must prove negligence more probable than not

a.    Proving Conduct

1.    Santiago v. First Student, Inc. – P unable to show evidence that D was negligent. Cannot pursue claim.

2.    Upchurch v. Rotenberry – car crash; too much conflicting evidence. Jury decides the truth, cannot overrule; can reasonable go either way.

b.    Evaluating Conduct

1.    Thoma v Cracker Barrel Old Country Store Inc. - P slipped on liquid in store. P could not show through evidence than D was probably negligent by conduct. Mere presence of liquid insufficient.  To recover, P must show D created or had knowledge of the dangerous condition.

2.    Wal-mart Stores, Inc. v Wright – Wal-mart negligent based on its own manual (higher standard), but not by reasonable person standard. Court says only reasonable care must be taken (doesn’t want to discourage businesses from employing a higher degree of care b/c they would be liable to stick to it).

3.    The T.J. Hooper – Court says although radios weren’t the industry custom, it would have prevented the accident, and so should have been used b/c of its availability and not burdensome for D to use (use common sense). Courts want advanced technology to be used (progress).

C.     Res Ipsa Loquitur - R2T § 328D: “It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff or third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.”

a.  Byrne v Boadle – Barrel rolled out of warehouse, hitting P. Barrels don’t just roll out w/o negligence, and warehouse under exclusive control of D. Res ipsa.

b.  Application of res ipsa means P can go to trial, and jury will be instructed that if elements of res ipsa are satisfied, then they can infer negligence. Doesn’t mean P wins if he gets res ipsa.

c.  When does Res Ipsa apply?  - Probably negligence and probably the defendant

1.    Probably defendant:  Harm-causing event must be tied to the defendant

a.    Giles v. City of New Haven - P, elevator attendant keeps pressing buttons; goes for a wild ride. Tries res ipsa, but cannot prove it was probably D (who maintains elevator). Could have been P’s negligence.

2.    Probably negligence:  Event must be one that generally does not occur absent negligence

a.    Warren v Jeffries - Car runs over child (who dies); no res ipsa b/c cannot be determined if negligence caused accident, or if there was something wrong w/ car (not examined after accident).

b.    Widmyer v Southeast Skyways, Inc. – Plane crash; apply res ipsa b/c of technology it is unlikely plane crash to happen w/o negligence.

  III.        Actual Harm– Compensable Injury

A.    Preston v. Cestaro – Car accident, D hit P. P claims back injuries. Found that back injuries caused by previous incident.  The negligence must have actually caused harm in order to recover damages.

 IV.        Cause in Fact

A.    The but-for test of causation (harm wouldn’t have happened but for D’s negligence)

a.  R3T § 28 - Tortious conduct must be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.

b.  Salinetro v. Nystrom – P pregnant, but doesn’t know. Gets x-rays, Dr doesn’t ask if she’s pregnant; and fetus dies. No causation b/c injury would have occurred even if Dr asked (b/c she didn’t know, she would have said no).

B.    Concurrent & sufficient causes, indivisible injury

a.  Landers v East Texas Salt Water Disposal Co. – 2 D’s responsible, but cannot tell % fault of each (so cannot apply but-for test). So, all of the wrongdoers will be held jointly and severally liable for entire damages.

C.    Substantial factor test - R3T §27: If multiple acts exist, each of which alone would have been a factual cause of the physical harm at the same time, each act is regarded as a factual cause of the harm.  

a.  Anderson v Minneapolis, St. Paul & Sault Ste. Marie Railway – Fire started by D, but combines with another fire of unknown origin. D liable as if he alone at fault.

D.    Proof: What Was Caused?

a.  Present value approach to apportionment: The damages for negligence are decreased in contributory negligence when negligence of D is great and other causals are present.

1.    Dillon v. Twin State Gas & Electric – Boy trespasses on D’s bridge, but D knows this happens a lot. Boy loses balance, grabs wire and is electrocuted, dies. If wire were insulated, boy would have prob survived. D’s should have known the risk, and insulated it.

b.  Alternative causation

1.    Summers v Tice – 3 ppl Hunting quail. 2 Ds shoot and P gets hit. We don’t know who actually shot P, but since they were both negligent, both liable. D’s burden to offer proof of apportionment (b/c D has more knowledge).

a.    Doe v. Baxter Healthcare Corp.  - Unsuccessful attempt to rely upon Summers v. Tice alternative liability.  Blood transfusion from multiple sources; P gets HIV. Must show that other sources were probably not responsible in order to hold D liable.

c.                Lost opportunity doctrine/value of the chance - hard to quantify, but possible through expert testimony. At present only for medical malpractice

1.    Lord v. Lovett – P injured in accident. D (dr) negligent, and P lost the opportunity for a better recovery

2.    Approaches to lost opportunity:

a.    Preponderance test – P must prove that D deprived P of at least 51% of a more favorable outcome than p rec’d. If P can’t reach 51%, no recovery, if P can, than P can recover for full extent of injury (can be unfair).

b.    Relaxed-Causation test – P must prove D’s negligence more likely than not increased harm to P or destroyed a substantial possibility of achieving a more favorable outcome. Damages rec’d in full (NY has similar test).

c.    Quantified-Causation test – P establishes lost opportunity; get quantified value; P recovers differential.

3.    Loss of chance can apply to future consequences which may never occur. The damages are for the increased risk of harm, even if harm hasn’t yet occurred.

    V.        Proximate Cause

A.    Proximate Cause R3T §29 - An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious.

a.  Medcalf v. Washington Heights Condominium Ass’n, Inc. – P wants to enter building, buzzer doesn’t work; while waiting for door to open, p gets attacked. No proximate cause – no foreseeability (buzzer is to protect residents of outside intruders).

1.    Scope of risk – how to determine what risk is that makes D negligent?

a.    Likelihood of harm x burden of precaution

b.    Foreseeability

c.    Also, depends on facts of each case. Use substantive analysis.

b.   Palsgraf v. Long Island Railroad Co. – D tries to help man into RR (negligently), & in process man drops package, which unknowingly contains fireworks, which explode, injuring P. No proximate cause – not foreseeable that there would be an explosion, and it was the explosion, not the D’s negligence that caused P’s harm (use foreseeability test)

1.    Dissent (Andrews): Uses Direct Consequence test - says a person who is negligent to any class of persons is negligent to everyone who is in fact injured. Not a matter of foreseeability alone.

B.    Scope of Risk Principle - D liable for harms only within the scope of risk he negligently created.  Not liable for harms outside the risks he negligently created.

a.  A harm or risk is not within the scope of the risks negligently created by the defendant in any of the following circumstances:

1.    Harm/risk of this type not foreseeable by reasonable person

2.    If there is foreseeability, but reasonable person would not have taken greater precautions to avoid it than D did (no breach)

3.    Harm/risk to class of persons P falls in not foreseeable to reasonable person

C.    The Rescue Doctrine R3T §32: If D’s tortious conduct creates a situation where rescue is necessary, D is also liable for harm caused to the rescuer.

D.    Manner of the Harm Rule – Harm/risk of a kind that is foreseeable is within the scope of risk even if neither the exact harm or exact manner of occurrence could have been foreseeable.

a.  Hughes v. Lord Advocate – Workers leave manhole open, boys don’t fall in but drop a lantern in which causes fire, and boys burned. It was foreseeable that leaving the manhole open & lantern unattended would cause injury, even though the manner it happened was unforeseeable.

b.  Doughty v. Turner Manufacturing Co., Ltd. – Worker knocked cover into molten liquid, but no splash. A few minutes later liquid erupted. Even though eruption (exact harm) was unforeseeable, risk of harm by dropping it in was foreseeable.

E.    Extent of Harm Rule

a.    Thin Skull / Eggshell Plaintiff - R3T §31: When D’s tortious conduct causes harm to P, that b/c P is more sensitive causes a greater or different type of harm that might be reasonably expected, D is liable for the full extent of the harm.

b.  Fire Cases – tortfeasers responsible for full extent of damage caused by fire, even if not foreseeable.

F.    Intervening Person or Force - R2T §34: When there’s an intervening act or force, D liable only for harms that result from within the scope of foreseeable risk.

a.  Intervening intentional/criminal acts – traditionally, would be superseding cause, but not so much anymore. Now ask if intervening act was foreseeable.

1.    Derdiarian v. Felix Contracting Corp.- no barrier for construction site (negligence). Car drove into site (intervening act); caused injury. Foreseeable for this type of accident to happen if no barriers, so there is proximate cause.

2.    Sheehan v. City of New York – bus stops in wrong lane, truck hits bus, passenger injured. No proximate cause b/c intervening act not a foreseeable risk. Bus driver provided an occasion for the accident, but not the cause of the accident. Also, driver in wrong lane, but law is only to protect ppl getting on and off, not passengers on the bus.

3.    Ventricelli v. Kinney System Rent a Car, Inc. – D sold car to P w/ defective trunk. P trying to close trunk when a parked car jumped up and hit him. Maj says foreseeable for P’s inconvenience in closing the trunk, but not to be hit while in safe (parked cars) area, where he could have been at any time. Not a proximate cause. Dissent: Uses manner of harm rule. Foreseeable that P would have had to close trunk even on highway, and gotten hit, doesn’t matter the manner he got hit, only that it was foreseeable.

4.    Marshall v. Nugent – D caused a car to go off road, and helping to get back on. P stayed on road to warn oncoming traffic and was hit. The risk D created was still present when plaintiff was injured, so there is proximate cause.

5.    D claims that he is not responsible for the plaintiff's injuries because the injuries were caused by AB (3^rd person).  If D is negligent, but P’s injuries caused by AB, D can still be responsible, if D should have reasonably foreseen that his negligence would result in AB’s act.   If a reasonably prudent person would not have foreseen it, then D is not liable.

b.  Intervening forces of nature – only liable if foreseeable risk