Torts Evening- Fall 2007
Professor Ralph Brill
Substantive Reviews
Substantive Reviews
NEGLIGENCE HAS FOUR ELEMENTS:


1. A DUTY TO CONFORM TO A STANDARD OF CONDUCT FOR THE PROTECTION OF OTHERS AGAINST UNREASONABLE RISKS OF HARM;

2. BREACH OF THAT DUTY.... i.e., FALLING BELOW THE APPLICABLE STANDARD;

3. WHICH PROXIMATELY CAUSES;

4. PERSONAL INJURY OR PROPERTY DAMAGE TO PLAINTIFF.

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I. In determining duty, one of the first questions is to determine TO WHOM THE POSSIBLE DUTY IS OWED. There are two major views on this:

A. DUTY TO CONFORM TO A STANDARD OF CONDUCT FOR THE PROTECTION OF PLAINTIFF FROM UNREASONABLE RISK OF HARM. (CARDOZO VIEW)

Or

B. DUTY TO CONFORM TO A STANDARD OF CONDUCT FOR THE PROTECTION OF THE PUBLIC IN GENERAL FROM...... (ANDREWS VIEW)


II. Another component for finding a duty is to determine the applicable standard of conduct or standard of care:


A. WHAT STANDARD OF CARE IS APPLICABLE?


I. ORDINARY REASONABLE AND PRUDENT PERSON UNDER THE CIRCUMSTANCES.

2. CHILD STANDARD-- SUBJECTIVE, BASED ON THE INDIVIDUAL CHILD'S OWN AGE, INTELLIGENCE, MATURITY, EXPERIENCE, TRAINING.

3. PROFESSIONAL

4. STATUTE OR SAFETY REGULATION ADOPTED BY THE COURT AS THE APPLICABLE STANDARD

5. INNKEEPER, COMMON CARRIERS, UTILITIES....."UTMOST DUE CARE" or "EXTRAORDINARY CARE."

6. LIMITED DUTIES -- historical and for policy reasons; UNBORN CHILDREN, MENTAL DISTRESS, FAILURE TO ACT, PRIVITY, ECONOMIC LOSSES;

7. LIMITED DUTIES FOR OWNERS OR OCCUPIERS OF LAND TOWARDS LICENSEES AND TRESPASSERS-- DIFFERENCES IS DUTIES FROM ACTIVITIES AND FROM CONDITIONS.


III. Finally, one must determine whether the defendant's acts or omissions have created an unreasonable risk of harm.


B. WHAT CONSTITUTES AN UNREASONABLE RISK OF HARM?


1. BALANCE OF FORESEEABILITY THAT HARM WILL RESULT ( RANGING FROM PROBABLE TO UNLIKELY)

2. AND THE EXTENT OR MAGNITUDE OF THE FORESEEABLE HARM


Vs.


2. BURDEN ON D TO PREVENT SUCH HARM.
(the Hand formula)

I. FINANCIAL

II. PHYSICAL

III. SOCIETAL (freedom; first amendment; hampering growth of industry; etc.)


IV. If one finds a duty by application of these factors, one must then look to see if that duty was breached. One determines what the defendant should have done under the cirumstances, and then looks to see whether factually the defendant has done it or not.


A. BREACH OF THAT DUTY....

FALLING BELOW THE APPLICABLE STANDARD.

a. FACTUAL

b. PROVEN BY DIRECT OR CIRCUMSTANTIAL EVIDENCE

c. IN APPROPRIATE CASES, MAY USE RES IPSA LOQUITUR TO (MAJORITY RULE) INFER NEGLIGENT CONDUCT, i.e., to infer that there has been a duty and a breach of the duty.


V. If breach of duty is shown, then one must establish that the breach was "A" proximate cause of plaintiff's injuries. This is a two-part test, cause-in-fact and legal cause.


A. PROXIMATE CAUSE


I. CAUSE IN FACT


a. USUAL TEST IS: BUT FOR (MORE LIKELY THAN NOT)

b. SUBSTANTIAL FACTOR (where two or more independent acts concur to cause the injury)

c. BURDEN OF PROOF ISSUE...MORE LIKELY THAN NOT

d. ALTERNATIVE THEORIES - where use of ordinary rules would be unjust.

i. SHIFTING BURDEN OF PROOF TO DEFENDANT

ii. ENTERPRISE LIABILITY

iii. MARKET SHARE

iv. HEIGHTENED POSSIBILITY--(lost chance)


VI. The other component of Proximate Cause is the policy consideration of where to draw the line at responsiblity, called Legal Cause. There are two major tests used in the U.S. with many variations from state to state.


A. LEGAL CAUSE


One view makes the Defendant a legal cause of the injuries if the same kind of injuries result which were foreseeable before D acted or failed to act:


I. FORESEEABLE CONSEQUENCES ( I.E., THE NEGLIGENT DEFENDANT IS RESPONSIBLE FOR RESULTING INJURIES OF THE SAME KIND, OR TYPE, OR SORT OF INJURY AS WAS ORIGINALLY FORESEEABLE. BY KIND, TYPE OR SORT, WE DO NOT JUST MEAN "DEATH" OR "PHYSICAL HARM" --IT MUST BE OF THE SAME KIND).

a. UNDER THIS VIEW, HOWEVER, IT IS NOT NECESSARY TO FORESEE THE MANNER OR EXACT WAY HARM COMES ABOUT

b. NOR IS IT NECESSARY TO FORESEE THE EXTENT OR MAGNITUDE OF THE HARM THAT COMES ABOUT (eggshell skull)


The other major view, as exemplified by Andrews' dissent in Palsgaf, is the Direct Consequences test:


II. DIRECT CONSEQUENCES


a. FACTORS... PALSGRAF DISSENT -- MAIN ONES=

TIME, DISTANCE, LOGICAL CHAIN OF EVENTS, LOOKING BACK DID EACH STEP HAPPEN IN A LOGICAL PROGRESSION?, INTERVENING EVENTS, "A ROUGH SENSE OF JUSTICE."

b. ANALOGY...DOMINO THEORY

AN INDIVIDUAL STATE MAY ADOPT ONE OF FOUR POSSIBLE COMBINATIONS OF THE TWO VIEWS OF DUTY AND THE TWO VIEWS OF LEGAL CAUSE.

It could:

I.


1. Couple Cardozo's view of DUTY (element number 1).... i.e., that one must be able to foresee injury to a specific individual or class of individuals, with

2. The foreseeable consequences test for LEGAL CAUSE (part of element number 3) ..... i.e., that one must be able to reasonably foresee the kind of injury the plaintiff suffers.

This would be a very conservative view of liabiltity.


It could:

II.


1. Couple Cardozo's view of DUTY.... that one must foresee injury to specific individual or class of people, with

2. The direct consequences test for LEGAL CAUSE.... i.e., that one is liable for all consequences, foreseeable or not, which occur in a direct, continuous sequence of events, not broken by substantial intervening act, and not too remote in time and distance..... a rough sense of justice.

This would be an intermediate view.

It could:

III.

1. Couple Andrews' view of DUTY, that if one can foresee injury to one person (and theother factors are present..... burden doesn't outweigh, ordinary prudent person would do something to prevent, etc.), then one has a pure duty.... a duty to society, to everyone, with

2. The foreseeeable consequences test of LEGAL CAUSE ... i.e., one is only liable for the kind of injuries one can reasonably foresee.

This also would be an intermediate view.

Or the most liberal view would be:

IV.

1. Couple Andrews' view......DUTY TO SOCIETY... with the

2. Direct Consequences test for LEGAL CAUSE ..... Andrews' Palsgraf dissent.... for the results that happen in a direct chain of events