Torts - Outline

1. Torts: Introduction
a. Definition: civil wrongs other than contracts for which a remedy may be
obtained usually in the form of damages, obligations people have that they have
not agreed to. Non-criminal obligations or duties that all persons as individuals
owe to all other individuals.
b. Purpose of Tort Law:
i. Allocation of Losses to those who ought (fairness, justice, economic efficiency)
to bear them, decides what to do with transferring losses;
ii. Compensation to persons for harm caused: Damages through $ aimed to
restore people to their original condition
1. Compensation for losses caused by wrongful acts or omissions of another;
2. Prevention of future losses and harm: deterrence, notice of what one will
have to pay for
iii. Punishment/Admonition: primary purpose of Criminal Law, secondary purpose
of Tort Law.

2. Negligence
a.

Definition: Unintentional fault: the failure to exercise the standard of care that
a reasonably prudent person would have exercised in a similar situation; any
conduct that falls below the legal standard established to protect others against
unreasonable risk of harm, except conduct that is intentionally, wantonly, or
willfully disregardful of others rights.

b. Liability without Fault:

i. In order to be negligent the must have some control over the situation:
1. Cannot be an unanticipated illness which causes an act:
a. Cohen v. Petty- must have a specific knowledge of the possibility of
fainting while driving for negligence.
ii. Strict Liability: Liability that does not depend on actual negligence but is based
on an absolute duty to make something safe.
1. Ex) Spano v. Perini Corp.: there is strict liability for blasting
c.

Elements of a Cause of Action for Negligence:

i. Duty: to use reasonable care, obligation to protect another from unreasonable

risk of injury
ii. Standard of care: determines breach, RCUC: reasonable care under the
circumstances
iii. Breach: failure to conform to the required standard
iv. Cause in Fact: close causal relationship between action and injury, did the
breach cause the damage?
v. Proximate Cause: limits liability
vi. Damages: actual losses suffered, physical, financial, and emotional.
d.

Negligence Formula
i. Learned Hand Formula: not the law, can be chosen to be used or not used by
judges. *The formula is one way to help determine reasonableness. Cost
benefit analysis:
1. P = Probability that an event will occur (children playing on a railroad
turntable)
2. L = Injury, degree of harm resulting from the occurrence of an event (kids
foot severed by turntable)
3. B = Burden, inconvenience or costs of taking precautions to prevent the
occurrence (putting a lock on the turntable)
4. If B < P x L, precautions should have been taken.
a. Krayenbuhl: a lock is a trivial burden and does not restrict the public
good of the railroad
b. Gulf Refining v. Williams: the probability of a rough bung cap
causing an explosion after an employee notices it must be weighed
against the seriousness of the possible consequences even if it is
improbable: proof is sufficient to allow a jury to evaluate.
c. Carroll Towing: barge secured negligently, breaks and hits another
barge which then sinks. argues that if bargee had been present,
loss could have been prevented.
-Creation of Learned Hand formula; B<PL so was liable

e.

Standard of Care
i. The Reasonably Prudent Person (RPP): Reasonable care under the
circumstances (RCUC). The s conduct is measured against what the

reasonable, ordinary, prudent person would have done in s circumstances.

Measured by an objective standard.
Characteristics:
1. Physical Characteristics: the reasonable person is considered to have
the same physical characteristics. Must take the same precautions which
the ordinary reasonable person would take in with similar physical
characteristics.
a. Physical characteristics are objective where human judgment is
subjective.
2. ex) Blind man not negligent in walking to bathroom without cane and
bumping into someone: was exercising reasonable care. Roberts v.
Louisiana
3. Mental Ability: most courts treat mental conditions as irrelevant for
negligence liability. Insane people are held to a level of sanity and people
with mental disabilities are held to a level of normal intelligence.
a. ex) Vaughn v. Menlove: cannot hold to whether he exercised his
best judgment in building a Hay rick close to neighbors property:
the standard of reasonable care is objective and does not vary from
person to person. Must be what a RPP would do.
b. ex) Breunig: Insanity is not a defense, even if it is sudden insanity,
is judged by the standard of the reasonable person.
4. Same knowledge as average community members: must know what
the average person in the community would know, this is an objective
standard: does not consider the individual shortcomings of the .
a. ex) Driving with worn is negligence as the average person would
know not to drive with tires worn to the threads: Delair v. McAdoo
5. Emergency: An emergency is a special circumstance which can be used
to determine RCUC. Most states allow jury to consider that the was
acting under an emergency not of their own making. A acting under an
emergency does not automatically exculpate them from liability.
a. ex) Cordas v. Peerless Transportation: Cab driver jumps out of
moving cab when held at gunpoint, cab hits pedestrian: jury allowed
to consider the emergency situation

6. Custom: Custom is admissible, relevant, and a possible ground for a

conclusion of negligence or no negligence. Custom helps prove what a
RPP would do.
a. ex) Low v. Park Price: car repair shop conformed to custom in
parking car in lot then the transmission of car to be repaired is
stolen: custom admissible to allow case to go to jury to be decidednot negligence as a matter of law.
b. Precedent may determine reasonable care under the circumstances:
ex) Pokora v. Wabash Ry. Co.
ii. Professional Standard of Care: a person who is a professional has special
skills (doctor, lawyer, airplane pilot) and is required to have the requisite
degree of learning, skill, and ability of the ordinary member of the
profession in good standing.
1. Expert testimony: must have expert testimony when a jury of layman
cannot understand without assistance the nature of the work. must
offer expert testimony.
a. It is not enough for an expert to simply testify they would not follow
the s practice: must show the practice did not conform with the
standard of care of an ordinary member of the profession.
b. ex) Heath v. Swift Wing: must evaluate the conduct of the pilot in
regards to what a reasonable pilot would have done using expert
testimony.
2. Medical Malpractice:
a. Locality Rule: Most jurisdictions use the rule of a similar
community in similar circumstances for establishing the standard
of care.
i. ex) Morrison v. McNamara: DC doctors held to a national
standard of care for administering urethral smear test: DC is
an urban area with the highest level of medical practice.
b. To get to a jury the must prove:
i. a standard of care;
ii. which the deviated from (proved through expert
testimony);

1. Exception: Expert testimony not needed when

negligence of doctor is so egregious that a layperson
can determine breach. ex) leaving a scalpel inside a
patient during surgery.
iii. the conduct deviated from the standard of care in similar
locales.
c. Informed consent: The requirement that a doctor must disclose
all risks and information in order for the patient to make an
informed decision regarding medical treatment/procedures.
i. Must be proven that adverse consequences did in fact occur
and were not made known and that the patient would not
have consented had they known of the risk.
1. Scott v. Bradford: patient undergoes hysterectomy,
not informed of risk and says would not have
consented had she known: this must be proven to be
credible and was not in this case: the loss of free will
is not enough to recover.
2. Moore v. Regents of UCLA: expands informed
consent: surgeon uses patient cells after surgery for
research, sells licensed cells developed from patients
cells: physician must disclose personal interests
unrelated to the patients health (economic) that
may affect the physicians professional judgment.
iii. Child Standard of Care:
1. Rule: Children generally held to standard of what is reasonable to expect
of children of like age, experience, and intelligence. A Subjective
standard: tailored more specifically to the child.
2. Exception:
a. Inherently dangerous conduct or Adult activity: children may be
evaluated based on a higher, adult standard of care if engaging in
inherently dangerous conduct such as the operation of a motor
vehicle.
i. ex) Robinson v. Lindsay: 13 year old drives snowmobile, tows
girl behind him who loses thumb: should be held to adult

standard as conduct was adult activity and inherently

dangerous.
f.

Violation of Statute, Negligence Per Se:

i.

Harm and Class Test: A violation of a statute/regulation can be used to

establish negligence when:
1. The statute is intended to protect a certain class of people (ex. patrons in
a bar); and
2. the harm that occurs is meant to be protected by the statute (ex.
violence).
a. Violation of a statute may occasionally substitute for RCUC.
b. ex) Stachniewicz: Bar owner can be evaluated by jury for violating a
regulation prohibiting loud, boisterous conduct: fight ensues where
is injured.
c. ex) Ney v. Yellow Cab: cabbie leaves car running and unlocked on
side of road, thief steals cab and crashes into the , cabbie violated
Traffic Statute and may be evaluated by jury to determine if
violation caused the injury.
3. Exceptions: if violates statute which contributes to an accident may
not allow to recover even if is also negligent ex) Herzog: travelling at
night in buggy with no lights, car crosses line and crashes into buggy: the
jury may not be given dispensing power over the violation of a statute as
innocent or culpable.
a. Gen Rule: Defenses are unavailable to unexcused violations. If
meets the harm and class rule and the statute is violated, an
excuse must be provided for violating the statute:
i. Zeni v. Anderson: woman walking on road on snowy day
when sidewalk was covered in snow is violating statute that
keeps pedestrians to sidewalks and is hit by a car: jury
decides there was a sufficient excuse for the violation and
she recovers.

g. Proof of Negligence:
i. Circumstantial Evidence: an inference, (from fact X you deduce fact Y)
negligence can be proven without direct evidence using circumstantial
evidence (ex. banana was brown/gritty).

1. Gen Rule: Must be able to establish on a more probable than not basis
that reasonable jurors could find the s contention of negligence correct
to get to a jury.
2. Banana Cases: use RCUC determining reasonable people do not leave
slippery food on the ground where people will be walking.
a. Constructive notice: establishes the should have known of a
condition. Was the banana on the ground for long enough for the
owners of the train station to have known?
b. These cases use circumstantial evidence to establish negligence:
look at color and whether there was dirt in banana peels to show
the banana had been on the ground for long enough that should
have known of the condition.
i. Constructive notice need not be proven when operating
methods of a store are such that a dangerous condition is
continuous or easily foreseeable. Jasko v. Woolworth:
slipping on pizza in store.
c. Prima facie case: a case sufficient on the surface to support a jury
verdict.
ii. Res Ipsa Loquitur:
1. Definition: rule of evidence that permits but does not compel an inference
of negligence under certain circumstances. The thing speaks for itself,
the may not know what actually happened but there is a permissible
inference of negligence
a. ex) Byrne v. Boadle: walking on street past shop, barrel of flour
falls on him from the window above: prima facie evidence of
negligence.
b. ex) Sullivan v. Crabtree: truck goes off road and crashes, driver
cannot explain what happened, jury enters verdict for : jury can
infer negligence but is not compelled to find negligence using res
ipsa loquitur.
c. ex) Ybarra v. Spangard: medical malpractice and res ipsa loquitur;
injured while unconscious for surgery (injury not related to surgery)
multiple s and unknown instrumentality; patient is allowed to go

forward without showing any one person responsible on inference of

unreasonable conduct unless can rebut
i. Ybarra is not a general rule.
2. Requirements:
a. The must have exclusive control over the object in question;
i. Larson v. St. Francis Hotel: hit in head with chair in front of
hotel: could not prove hotel had exclusive control over chair:
could have been guests.
b. The event would not have happened without negligence (no
injury without negligence)

3.

Cause in Fact:
a.

Definition: the cause and effect relationship between s conduct and s

injury or loss.

b.

But-for Test (Sin Qua Non): But-for the s unreasonable conduct, the
injury would not have occurred, must prove more probably than not that the
conduct caused the injury.
i. ex) Reynolds v. Texas Ry. Co: railroad does not light stairwell or provide
handrail and tells passengers to hurry up; falls down stairs and is injured:
court decides a reasonable juror could decide the negligence caused the
injury.
1. The fact that the accident might have happened without negligence is not
sufficient to defeat.

ii. ex) Gentry v. Douglas Hereford Ranch: suing ranch where man fell near
stairs with gun in hand and accidentally shoots woman: cause in fact cannot
be proven as a matter of law that the negligently maintained stairs caused
to trip.
iii. Concurrent Causes: The negligence of one does not preclude the
negligence of another.
1. The but-for test applies when several acts combine to cause an injury
that would not have happened without either act.
a. Hill v. Edmonds: truck parked protruding into road on a stormy
night, driver not paying close attention crashes into it: both are
negligent and each party is liable for all the damages. Each
negligence is a cause in fact.
c.

Substantial Factor: if there are multiple causes: s conduct has to be a

substantial factor in causing the injury (not the but-for cause)
i. Fire caused by railroad joins with another fire of unknown origin and
destroys s property: the negligence in the air is more important than the
but-for cause.

d. Determining what Party Caused Harm when uncertain: when two or more
people are negligent but it is uncertain which one caused s injury: burden of
proof shifts to s to prove their negligence was not the cause of injury.
i. ex) Summers v. Tice: hunting with two others, two men shoot towards bird
and shot by one bullet, cant determine more probably than not who caused

the injury: both men may be held liable and the burden shifts to to prove
they did not cause injury.
e.

Medical Uncertainty: courts will allow the plaintiff to recover for wrongful
death from medical malpractice even if the patient probably would have died at
the same time anyway, if the doctor's negligence significantly reduced the
patient's chance of surviving. The jury has discretion to find the medical
malpractice caused the death and award wrongful death damages.
i.

Herskovitz v. Group Health: misdiagnosed s cancer: already had a less

than 50% chance of survival but misdiagnosis reduced the chance of survival
14%: can recover for damages caused by premature death.

ii. Enterprise Liability/ Market Share Liability: applies to DES cases: several
jurisdictions allow for % of manufacturers market share to equal the % they
are liable for when the cannot prove what manufacturer was used. ex)
Sindell v. Abbott Laboratories: court allows 6 manufacturers of DES drug to be
held liable as they make up 90% of market of drug that may have caused
cancer.

4. Proximate Cause
a. Definition: determines whether liability should be imposed where cause in fact
has been established. Deals with limitation of liability and deals with
liability/nonliability for unforeseeable or unusual consequences of ones acts.
Must have both breach and cause in fact to apply proximate cause
b. Foreseeability:
i. Of risk: whether the should have foreseen the consequences or type of
harm suffered by the
1. Wagon Mound #1: dock sues ship that releases oil that later catches on
fire: court finds no liability- not foreseeable that fire would occur from oil
on water, no liability.
a. Wagon Mound #2: brought owner of ship damaged at dock, uses
Learned Hand formula to find negligence. Foreseeability can be
based on expense to eliminate risk. The ship owners did nothing to
start the fire (dock owners were welding in #1)
2. Egg Shell Rule: the type of injury to the need not be foreseeable,
unforeseeability of injury to the person from a physical injury is allowed to
establish proximate cause. must take as he finds him.
a. Jeckovich: has pre-existing psychiatric condition, involved in minor
car accident and suffers complete mental breakdown: proximate
cause established.
ii. Foreseeable Plaintiffs:
1. Palsgraf Test: (Cardozo): foreseeable zone of risk: was not in the area of
risk (package falling could not be foreseen to pose a risk to at end of
station)
a. Andrews Dissent: Proximate cause should be based on public policy
considerations and cant be reduced to a single test ( should be
liable for the direct effect of explosion as it was a natural and
continuous sequence)
c.

Directness Test: established if negligence directly caused injury; producing an

unexpected/unforeseeable result does not relieve the negligent party from
damage. Can see the action was a cause in hindsight.
i. Polemis: is liable for damage to a ship caused by fire, injury was not
foreseeable but liability flows because the consequences directly result from

act, plank falls into hold igniting gas fumes (more direct than Wagon Mound
#1)
d. Intervening Causes: an intervening force is a new force which joins with the
defendant's conduct to cause the plaintiff's injury. The intervening cause occurs
after s conduct. Liability determined based on whether the intervening act was
foreseeable (car driving into worksite, no barrier: yes)
i. ex) Derdiarian v. Felix Contracting: where the act of a 3rd person intervenes
between s conduct (maintaining construction site) and s injury the causal
connection is not severed.
ii. Superseding act: intervening force is superseding only when the act is
extraordinary and breaks the causal chain: no proximate cause.
1. Intervening criminal conduct can be a break in the causal chain but is not
always. Watson v. Kentucky RR: if man lit match intentionally then railroad
that leaked gas is not liable.
2. Suicide does not automatically preclude liability as a superseding cause:
a. Fuller v. Preis: minor car accident causes man to have seizures, man
kills himself : court allows driver involved in accident to be
evaluated by jury.
e. Public Policy: must occasionally use policy arguments in limiting proximate
cause
i. Enright v. Eli Lilly: cant hold producer of DES liable for multiple generations:
must confine liability within reasonable limits (those who ingest drug or are
exposed to it): extending liability to multiple generations affected by DES
could discourage research and withhold useful drugs.

5. Duty of Care
6. Defenses
7. Intentional Torts