Elements
An obligation to perform a particular standard of conduct toward another and act reasonably toward a plaintiff
Duty
Determined by:
(1) Would a reasonable person have recognized a risk of harm; and
(2) What would a reasonable person have done to avoid the harm?
(1) Breach is determined by:
__(2)__ determines whether defendant owed plaintiff a duty ... __(3)__ determines whether that duty was breached
(1) Three factors:
- What would a reasonable prudent person foresee?
- What would be an unreasonable risk of injury?
- What could constitute an exercise of ordinary care in light of all the surrounding circumstances?
(2) Court
(3) Jury
I don't have a prompt just like the cases for actual harm lol:
Case: Right v. Breen
(Right was hit from behind by Breen while stopped at a red light + Right sues Breen for negligence + BUT jury says that Right wasn't physically injured and thus Breen wasn't responsible);
(Negligence cause of action requires that the plaintiff prove actual damages)
Case: Berry v. City of Chicago
(City replaced old water mains and meters in a manner that allegedly increased residents' exposure to lead + city failed to warn residents of the risk + residents experienced elevated levels of lead in the water and blood levels);
(An increased risk of harm is not a cognizable injury ... "the primary purpose of tort law is not to punish or deter the creation of the risk, but rather compensate victims")
The Rescue Doctrine
A defendant who negligently endangers someone is liable for injuries to rescuers
- as long as the rescuer engages in a reasonable rescue attempt, he can recover harms against himself
- person who attempts to rescue is a foreseeable consequence
Occurs when a person fails to act with care that a reasonably prudent person would under similar circumstances and thus, creates a risk of harm to the plaintiff
Breach
The Reasonable Person Standard
An actor must exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize the risks
Case: Stewart v. Motts
(Stewart enters Motts' auto shop and offers to help with fuel tank repair + Motts says okay + Stewart pours gas into the carburetor + Motts starts car + car explodes + Motts suffers burns);
(The defendant is NOT held to a higher degree of care ... only standard is reasonable care ... care is proportionate to the danger of the activity undertaken by the defendant)
Foreseeability
Requisite to breach; risks of harm are unreasonable when a reasonable and prudent person would foresee that harm would result and would avoid conduct that creates risk
Unforeseeable = risk so small, reasonable person would not take precautions against it
Case: Pipher v. Parsell
(3 friends in car, Beisel grabs Parsell's wheel while driving causing car to veer onto shoulder + Parsell rights car + Beisel grabs wheel again + car crashes into tree);
(Parsell did not have duty the first time as wheel yank was surprise ... but Parsell was on notice of the danger that could occur if it happened again and didn't take adequate steps to prevent the wheel pull happening again and he owed a duty to keep his passengers safe);
(Must establish that (1) defendant owed a duty of care, (2) defendant breached duty, (2) defendant's breach proximately caused plaintiff's harm)
Types of Apportionment
Causal Apportionment - two persons causing separate or divisible injuries; each tortfeasor will be liable for the harms that tortfeasor caused
Fault Apportionment - two persons causing a single indivisible injury; both are subject to liability via joint and several liability or proportionate fault liability
Pre-existing disability - if the tortfeasor aggravates the plaintiff's pre-existing disability, the tortfeasor is ideally liable only for the aggravation
Violation of a statute
Violation of a statute does not automatically establish proximate cause the way it can be evidence of negligence
To recover, the plaintiff must show:
(1) she is a member of the class of persons whom the statute intends to protect
(2) the type of harm she endured was within the class of harm the statute intended to protect
A defendant is liable for all harms he causes within the scope of risks he negligently created; harm resulted from the risks that made the defendant's conduct negligent in the first place; not for reasonable risks or for those that were unforeseeable
Scope of Risk
Sudden Emergency Doctrine
A person can avoid liability if when faced with a sudden, unforeseeable emergency, the person behaves as a reasonable person would have if confronted with the same emergency. One cannot invoke sudden emergency if they acted and put herself in the emergency situation
Case: Posas v. Horton
(Posas was driving when she had to stop suddenly to avoid hitting a pedestrian + Horton, who was too close to Posas, rear-ends her);
(Horton can't say that she faced sudden emergency because she was driving too close to Posas' car)
Unstructured weighing of risks and costs
AND
Structured weighing of risks and costs and Risk Utility Formula
Unstructured: Case-by-case evaluation without a formalized test
Case: Indiana Consolidated Insurance Co. v. Mathew
(Mathew used brother's lawn mower in bro's garage + after refueling and starting engine, lawnmower explodes + Mathew shuts off lawnmower and tries to unsuccessfully extinguishes the flames + he calls fire dept. + garage burns down + insurance co. sues Mathew for negligence);
(the law favors protecting human life over property, as long as the defendant acted as a reasonable person would under like circumstances ... Mathew took reasonable precautions);
(balancing: the law doesn't require one to anticipate unlikely events ... low risk of an unlikely event compared to high effort to mitigate)
Case: Bernier v. Boston Edison Co.
(Alice hits car backing out of a parking spot + loses control of the car + hits gas instead of brakes + car hits pole + pole falls onto Bernier + Bernier sues pole company (Edison) for negligent design);
(manufacturers must anticipate the environment in which they operate and must design against reasonable foreseeable risks ... failure to do so will result in negligence)
Structured: Risk-Utility Formula
(Burden < Probability of harm Liability)
Case: United States v. Carroll Towing Co.
(Connors owed barge carrying flour + hired Carroll to move the barge + Carroll hired Grace Line to do the job + barge was left unattended and ended up sinking after a failed move of the barge to another dock + Connors sues Carroll and Grace + US sues Connors for loss of flour);
(Court found Connors contributorily negligent + Carroll responsible for 1/2 of the damage of Barge and all of the loss of flour);
(Risk Utility Formula -- if the cost of taking safety measures is less than the chance of an accident happening multiplied by the seriousness of possible injury ... then negligence);
(Corrons contributorily negligent because the burden of taking precautions was nothing more than paying its employee to remain on the barge during normal working hours when the incident occurred)
But-For Test of Causation
A defendant is liable if the harm would not have occurred "but for" their conduct
Case: Ziniti v. New England Central Railroad
(Ziniti was struck by a train at railroad crossing + crossing was located after a covered bridge and indicated only by a sign on the left side of the road + Ziniti sues railroad and argues there should've been more warnings + railroad claims extra signs would not have provided meaningful additional notice);
(Actual causation exists if but for a defendant's conduct, the plaintiff's harm would not have occurred ... court found that the absence of a sign does not establish actual causation for Ziniti's injury)
Case: Jordan v. Jordan
(Wife backs up car + hits husband who was squatting behind the car + wife did not look behind her or use rearview mirror before backing up);
(Defendant's negligence must be cause of the plaintiff's injury ... wife's failure to look in the rearview mirror does not constitute actionable negligence because wife would not have seen husband in rearview mirror anyway)
Assessing the scope of the risk
Eggshell Plaintiff - holds a defendant liable for the full extent of the injuries caused, even if the plaintiff has a pre-existing condition or unique vulnerability
Manner of Harm - the way which the harm occurs need not be foreseable, only the general type of risk
(1) The plaintiff must suffer legally cognizable harm as a result of the defendant's breach of duty
(2) A defendant is liable if the harm would not have occurred "but for" their conduct
(1) Actual Harm
(2) Factual Cause
Circumstances in the actor's capacity (Limitations)(2)
Physical Limitations
Case: Shepherd v. Gardener Wholesale, Inc.
(Shepherd, who is partially blind, trips over concrete slab; Gardener argues contributory negligence);
(Restatement Third - "The conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability)
Mental Capacity
Case: Creasy v. Rusk
(Rusk, who is an Alzheimer's patient, kicks Creasy and injures her);
(Adults with mental disabilities are generally held to the same standard of care as that of a reasonable person under the circumstances, without regard to their capacity to control or understand the consequences of their actions);
(Rusk owes to duty to Creasy; One employed to take care of a patient known to be combative because of Alzheimer's disease has no complaint for injuries sustained in doing so; Duty of care is also one-way street from caretaker to patient)
Custom
Proof of a general custom and usage is admissible under breach because it helps the jury decide what a reasonable person in the defendant's position would've done
Shield(typically helps Defendant): Duncan v. Corbetta
(Duncan falls down wooden stairs at Corbetta's residence + top step collapsed due to non-customary materials BUT the materials were still within the guidelines);
(Restatement Third: A person's departure from the community's custom in like circumstances in a way that increases risk is evidence of that person's negligence ... BUT it is not conclusive evidence of negligence);
(Court here was willing to say that a defendant who complied with all the safety requirements of a statute might be negligent if he failed to follow a safety custom)
Sword(typically helps Plaintiff): TJ Hooper
(Two tugboats contracted to move coal lost their barges in a storm + neither tugboat had radios to receive the weather forecast that could have warned them of the storm);
(A business may be liable for failing to adopt new technology, even if the industry has not widely adopted it, if the use of technology constitutes reasonable prudence);
(An industry as a whole may be at times lagging behind, but this is no excuse for the failure to take precautions)
Problems with But-For Test and Alternative Factors
Problems: Fails where multiple sufficient causes of the injury, or causation, are indeterminate
Case: Landers v. East Texas Salt Water Disposal Company
(Landers sued East Texas and Sun Oil Co. + alleges the companies were jointly and severally liable for polluting a lake that Landers owned and had stocked with fish);
(Where the tortious acts of two or more wrongdoers combine to produce an indivisible injury that cannot be apportioned with reasonable certainty, all wrongdoers are jointly and severally liable for the entire damage ... we don't know which defendant's negligence is responsible for the factual cause of the plaintiff's harm)
Duplicative causation v. Preemptive Causation
Two or more sufficient causes act together simultaneously v. One sufficient cause happens first and prevents other potential causes from having any effect
Alternatives:
(1) The Substantial Factor Test - the defendant's conduct is a cause in fact of the plaintiff's harm if it was substantial factor in bringing about the injury
(2) Restatement Third - rejects the SBT, says if there is conduct of one tortfeasor that fails the but-for test because there is another set of conduct also sufficient to cause the harm, then their conduct is still a factual cause of that harm
Case: Lasley v. Combined Transport
(Truck from Combined Transport spills contents on the highway + spill forces Lasley to stop his car + Judy hits Lasley + Lasley's car catches fire and he dies + Judy admits liability + Combined Transport denies liability and argues Judy is the one who actually hit Lasley and she was drunk);
(BUT jury could find that Judy's action wouldn't have had fatal consequences she and Lasley had been driving at a safe speed);
(BUT the jury could find that the collision was fatal because Lasley had stopped to avoid the spill ... Judy's intoxication wouldn't negate Combined Transport's factual role in contributing to Lasley's death)
Case(s) for Liability to type of injury within the scope of risk
Foreseeable: Thompson v. Kaczinski
(Kaczinski left trampoline in yard near a road + storm blew trampoline onto road + following day Thompson drives on road and swerves to avoid trampoline + car rolls over in ditch);
(Restatement Third - an actor's liability is limited to those physical harms caused to others that result from the risks that made the actor's conduct tortious ... aka the risk standard);
(Kaczinski is liable because it is foreseeable that leaving trampoline parts may blow onto the road)
Unforeseeable: Abrams v. City of Chicago
(City does not send an ambulance in time for Abrams (who's pregnant) + friend drives Abrams to hospital + friend drives through red light and they get hit by Jones + Jones was speeding and driving drunk + Abrams is left in coma and baby dies);
(Restatement Third - a defendant is only liable for foreseeable harms that a reasonable person would have avoided ... the unforeseeable falls outside the defendant's negligence);
(City is not liable where a reasonable person would not foresee not sending an ambulance leads to running a red light)
Defenses for Negligence
(1) Contributory Negligence
(2) Comparative Negligence
(3) Assumption of Risk
(4) Immunity
Circumstances in the actor's capacity (Knowledge)(Children)
Special Ability, Knowledge, Experience
Case: Hill v. Sparks
(Sparks ran over and killed his sister while driving machinery of which he was a professional operator);
(If the actor has in fact more than the minimum of [attention, perception, memory, knowledge, intelligence, and judgment], he is required to exercise the superior qualities that he in a manner reasonable under the circumstances)
The Child Standard
Case: Stevens v. Veenstra
(Veenstra, 14 year-old, was taking his first driving lesson + accidentally injures Stevens);
(When probability of, or potential harm associated with a particular activity is great, anyone engaged in the activity must be held to a certain minimum level of competence, even though that level may lie beyond the capability of a beginner ... some activities are so dangerous that the risk borne by the beginner rather than the innocent victims, and lack of competence is no excuse)
Evaluating Conduct
A plaintiff must prove each element of the case by a preponderance of the evidence, that is, by the greater weight of the evidence
Case: Santiago v. First Student, Inc.
(Santiago gets injured while riding the school bus + sues for negligence + but she could not give any information such as location, actions of the drivers, etc.);
(The plaintiff must present evidence sufficient to demonstrate the existence of a material issue of fact for each element of a negligence claim ... Santiago fails to meet her burden)
Case: Upchurch v. Rotenberry
(Rotenberry was driving Upchurch when she lost control + hits tree + Upchurch dies + at trial testimonies were wildly different);
(The credibility of the witness is for the jury to decide);
(Differs from Santiago because circumstantial evidence is present here)
Case: Renner v. Retzer Resources Inc.
(Renner trips over leg of highchair protruding from wall + suffers injuries + sues Retzer + a regular customer testified that the chairs are always stored in that manner and had complained to the manager and employees);
(For the business to be liable, the injured party must show one of three things: (1) the business engaged in negligence by creating the condition, (2) business has actual knowledge and failed to warn, (3) a dangerous condition created by another of time that constructive knowledge is imputed)
Proof: What harm was caused?
Liability for negligence attached only when factual cause links the defendant's negligence to the plaintiff's injury
Physical Harm Case: Summers v. Tice
(Summers, Tice, Simonson go quail hunting + Tice and Simonson shoot at a quail in Summers's direction + one pellet hits Summer's eye and the other pellet hits his lip + unknown which pellet was shot by whom);
(If two defendants not acting together both serve as proximate cause of a plaintiff's injuries, both may be held liable if it is impossible to tell which defendant was the actual cause of the injury ... it's the burden of the defendants to absolve themselves or apportion the damages between them)
Loss of chance Case: Mohr v. Grantham
(Mohr had neurological event and despite showing neurological symptoms was sent home without further instructions + Morh was unable to walk herself to the front door + Morh returns to the hospital and her doctor sons beg the hospital to test her but they fail + Mohr suffers permanent brain damage);
(Loss of chance is a cause of action ... the lost opportunity for a better outcome is itself the injury for which the negligently injured person may recover);
(opportunity to achieve a better outcome/result must be >50% for plaintiff to recover)
Case(s) for Liability limited to class of persons
Palsgraf v. Long Island Railroad Co.
(Palsgraf was standing on train platform + a different train bound for another destination pulls into station; 2 men run to catch that train as it's pulling away + one man was carrying package containing fireworks + drops package and it explodes + Palsgraf gets struck);
(The scope of a defendant's care is defined by the scope of the reasonable foreseeable harm resulting from the plaintiff's actions)
(Majority opinion: Palsgraf's injuries were not foreseeable; too remote in time and space to be foreseeable and not in the zone of danger)
(Minority opinion: Palsgraf's injuries were foreseeable; everyone has a duty to avoid actions that would reasonably harm others, not just those nearby + clear sequence of events)