Torts Evening- Fall 2007
Professor Ralph Brill
Substantive Reviews
Substantive Reviews

NEGLIGENCE

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 --- FAILURE TO CONFORM TO THE DUTY -- FALLING BELOW THE STANDARD OF CONDUCT REQUIRED.

3. THE BREACH PROXIMATELY CAUSES.

4. DAMAGES -- PHYSICAL INJURY, PROPERTY DAMAGES, (OR POSSIBLY MENTAL DISTRESS.)


1. A DUTY TO CONFORM TO A STANDARD OF CONDUCT OR A STANDARD OF CARE......

USUALLY, THE STANDARD OF THE
(a) REASONABLE PRUDENT PERSON
(b) UNDER THE CIRCUMSTANCES.

BUT THE STANDARD OF CARE REQUIRED MAY BE DIFFERENT THAN THE ORDINARY REASONABLE PRUDENT PERSON:

1. FOR CHILDREN, A SPECIAL STANDARD.

2. EFFECT, IF ANY, OF THE DEFENDANT BEING PHYSICALLY INFIRM - BLIND, LOST LIMBS, ETC.

3. EFFECT, IF ANY, OF DEFENDANT BEING MENTALLY INFIRM...INSANITY.

4. EFFECT, IF ANY, OF DEFENDANT HAVING LOWER OR HIGHER INTELLIGENCE OR EXPERIENCE THAT ORDINARY REASONABLE PERSON.

5. FOR SOME OTHER SPECIAL CLASSES OF DEFENDANTS, THE LAW IMPOSES A DIFFERENT STANDARD, SOME HIGHER, SOME LOWER, SOME JUST SPECIAL.

5.A. FOR EXAMPLE, INNKEEPERS, COMMON CARRIERS, PUBLIC UTILITIES.
5.B. LANDOWNERS OR OCCUPIERS TOWARDS VARIOUS CLASSES OF PLAINTIFFS -- I.E., DUTIES TO TRESPASSERS, LICENSEES, INVITEES.
5.C. POLICY LIMITATIONS. IS THERE A DUTY TO AN UNBORN CHILD? A FETUS?
5.D. IS THERE A DUTY TO HELP OTHERS IN DISTRESS, NOT DUE TO D'S CONDUCT?
5.E. IS THERE A DUTY NOT TO CARELESSLY CAUSE MENTAL DISTRESS?

6. PROFESSIONALS – WHO IS A PROFESSIONAL? STANDARDS FOR LAWYERS; MEDICAL MALPRACTICE.

7. STATUTORILY ESTABLISHED STANDARDS. STATUTORY TORTS; COURTS ADOPTING STATUTES OR REGULATIONS AS THE STANDARD OF CARE.

8. EFFECT, IF ANY, OF CUSTOM.

(b) WHAT CIRCUMSTANCES ARE CONSIDERED?

EFFECT OF EMERGENCY.

EFFECT OF DEFENDANT'S SPECIFIC CHARACTERISTICS.

SECOND PART OF THE FIRST ELEMENT:

[A DUTY TO CONFORM TO A STANDARD OF CONDUCT]

FOR THE PROTECTION OF
(a) OTHERS AGAINST
(b) UNREASONABLE RISKS OF HARM.

(a) WHAT "OTHERS?" HOW DO COURTS DETERMINE TO WHOM A DUTY IS OWED?

IS IT A SPECIFIC DUTY TO SPECIFIC INDIVIDUALS? OR IS IT A GENERAL DUTY OWED TO ALL OF SOCIETY?

(b) WHAT CONSTITUTES AN "UNREASONABLE" RISK OF HARM? WHAT FACTORS ARE WEIGHED IN CALCULATING WHETHER A RISK OF HARM IS "UNREASONABLE?" WHAT FACTORS?

WHAT IS THE ROLE OF FORESEEABILITY?

WHAT IS THE ROLE OF THE BURDENS ON THE DEFENDANT? WHAT KIND OF BURDENS ARE CONSIDERED? FINANCIAL? PHYSICAL? SOCIETAL?

ELEMENT NO. 2. BREACH OF DUTY....FALLING BELOW THE STANDARD OF CARE REQUIRED.

PROOF OF BREACH.

DIRECT EVIDENCE.

CIRCUMSTANTIAL EVIDENCE.

RES IPSA LOQUITUR.

ELEMENT NO. 3. THE BREACH PROXIMATELY CAUSES (DAMAGES)

A. CAUSE IN FACT.

TESTS. BUT FOR; SUBSTANTIAL FACTOR.

PROVING CAUSATION

BURDEN OF PROOF

MULTIPLE CAUSES

EVIDENCE LACKING-

PROBLEMS IN DETERMINING
WHO CAUSED THE HARM


OTHER THEORIES FOR FINDING CAUSE-

ALTERNATIVE THEORIES.

B. LEGAL CAUSE

TWO MAJOR TESTS

DIRECT CONSEQUENCES

FORESEEABLE CONSEQUENCES

QUALIFICATIONS TO PROXIMATE CAUSE:

MANNER OF INJURY - MUST IT BE FORESEEABLE?

EXTENT OF INJURY - MUST IT BE FORESEEABLE?

EFFECTS OF:

INTERVENING AND SUPERSEDING CAUSES

INTERVENING NEGLIGENCE OF A THIRD PERSON

INTERVENING ACTS OF G-D

INTERVENING INTENTIONAL ACTS

INTERVENING CRIMINAL ACTS

INTERVENING ACTS BY THE PLAINTIFF (SUICIDE?)

DEFENSES

CONTRIBUTORY NEGLIGENCE

COMPARATIVE FAULT

ASSUMPTION OF RISK

AVOIDABLE CONSEQUENCES

STATUTES OF LIMITATIONS IMMUNITIES

JOINT AND SEVERAL LIABILITY