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Unformatted text preview: TORTS OUTLINE
I. Introduction: Legal Process, Institutions, Theories of Liability
II. The Negligence Standard [p. 39-106;106-128] Failure To Use Ord/Reas Care [PROVE D-B-C-H]
1. The Standard of Care
B. The Central Concept Adams v. Bullock - outside range of prudent foresight! [REVERSED!]
o No special danger @ this bridge warned the D that here was need of
specific measures of precautions.
o Chance of harm, though remote, may betoken neg, if needless.
o Facility of protection may impose a duty to protect. EX: Is it possible to insulate the wires? NO!
o NEG ANALYSIS DET BY P – P makes his choice from among a group of
possible contenders and frequently alleges several untaken precautions
in the alternative. Braun v. Buffalo GE – the deceased, a carpenter, came in contact with the nowexposed wires; electrocuted.
o ISSUE: Whether the Respondent in the exercise of RC/foresight should
have apprehended and guarded against such contingency? Q FOR JURY – What was reasonably to be anticipated?!
o D bound to ANTICIPATE what was USUAL – buildings being erected
on the vacant lot. Personal harm v. Property Damage
o Greene v. Sibley – cust stumbled over foot of a mechanic who had knelt
to look at the underside of the register. TC/AC AFFIRMED JUDG FOR P; CARDOZO REV. BOTH! CARDOZO: P failed to establish negligence on mechanic’s part Case of personal behavior not unreasonable business judgment
o U.S. v. Carroll Towing Co. – Bc of Ds neg the Anna C broke loose and
rammed against a tanker, whose propeller broke a hole near the bottom
of the barge. The Anna C soon filled with water & sank, losing cargo
owned by the U.S. [REV/REMANDED for reconsideration of allocation of
damages] Connors trying to recover value of barge from Carroll. TC, as fact-finder, found NO NEG on part of the bargee &
Carroll appealed that finding among others. Bargee not liable bc no general rule to det when the absence of a
bargee/attendant will make the owner liable for injuries to other
vessels. NOT CUSTOM CUSTOM SHOULD CONTROL! Since there are occasion when every vessel will break from her
moorings, owner’s duty to provide against resulting injuries is a
function of 3 variables:
1. PROB that she will break away
2. GRAVITY of resulting injury [MAG of loss]
3. BURDEN of adequate precautions HANDS FORMULATION OF THE NEG STANDARD
o Liability dep on whether: B (burden) < P (prob) x L (loss) PL > B NEGLIGENCE In this case, the likelihood varies with time & place.
o EX: Storm danger is greater
o B – economic benefit from incurring costs necessary to
prevent the accident. TORTS OUTLINE Costs > Benefit of accident avoidance forego acc prev
Costs < Benefit of accident avoidance rational
o RATIONALE Profit maximizing enterprising will pay tort judgment
to the accident victims rather than incur larger cost
of avoiding liability! Comp/ent. Made liable in expectation that selfinterest will lead it to adopt the precautions in or to
avoid greater cost in tort judgments.
DANGER & DUE CARE
- Public good demands use of dangerous machinery
- Danger is INSIG when weighed v benefits resulting from use of
machinery. [until it no longer outweighs the danger to be antic.]
o Chicago, Burlington & Quincy R. Co. v Krayenbuhl – group of children
were playing on the RRs unlocked turntable. Ps leg got caught and was
o To render it completely safe would INTERFERE with its beneficial
use. Danger is LESSENED by use of a LOCK.
o Use of a turntable w/ a lock is SLIGHT that it is OUTWEIGHED by
DANGER antic by omission to use it.
POSNER – no info to quantify these variables (PLB)
o McCarty v Pheasant Run, Inc. – P assaulted in room at Ds resort by
intruder who entered by a sliding glass door; chain fastened but no lock.
JV FOR D. Ps JNWV DENIED; AFF ON APPEAL
o Moisan v Loftus – Car ran off the road
o Of the 3 factors, CARE is the ONLY one ever susceptible of
QUANTITATIVE estimate and often that is NOT.
o Probability VARIES w/ SEVERITY of INJURIES!
MARK GRADY‟S “COMPLIANCE ERROR”
o Type of negligence, linked to the impossibility of driving or engaging in
any high-rep prec behavior w/o an occasional lapse
o DISTINGUISHED from Hand’s formula neg that tends to involve the
quality of perf rather than high-repetition situation EX: Impossible to drive a car for any period of time w/o missing a
required precaution. [special cost of consistent performance;
people respond to this cost by trying to est for themselves an
EFFICIENT RATE OF ERROR!]
o Judges, however, assess penalties for EVERY miss & do NOT recognize
special cost of consistency
o Bolton v. Stone – Visiting team drove ball out of Ds cricket field onto a
relatively untraveled road. P was on that road & was hit by the ball.
o HOLDING: risk so small that D might reas disregard it
o LORD REID – even the most careful person CANNOT avoid
creating SOME risks and accepting others.
o REASONABLE MAN TEST: Whether the risk of damage to a
person on the road was so SMALL that a REAS MAN in the
position of the appellants, from a safety POV, would have thought
it RIGHT to REFRAIN from taking steps to prevent the danger?
o Take into consideration:
1. How REMOTE the chance a person may be struck
2. How SERIOUS cons are likely to be if struck TORTS OUTLINE o *If it CAN’T be done W/O creating a SUB RISK It should
NOT be DONE AT ALL!
*If SR difficulty of remedial measure insignificant
Alternatives to Hand‟s Formula: Foreseeable Danger Approach p. 6 Community Expectations Approach p. 53 2. The Reasonable Prudent Person Kelly v. Manhattan Ry. Co. – Imposed duty upon common carriers of “the
exercise of the UTMOST CARE, so far as human skill and FORESIGHT can go.” Bethel v. NYC Transit Authority – P hurt on D’s bus when the “wheelchair
accessible seat” collapsed under him. P could NOT PROVE D actually knew of
the defect but relied on theory of constructive notice. JV for P due to
“HDOC” inst. AD AFF COA REMANDED.
o ISSUE: Whether a duty of HIGHEST CARE should continue to be
applied, as a MOL, to common carriers? NO!
o LEVINE: Court REALIGNED SOC req of common carriers with the trad’l,
basic neg SORC under the circ. RC under all the circ of the particular
case. INST ERROR NOT HARMLESS! Carrier’s duty of EXTRAORD. CARE NO LONGER VIABLE! The infinite #/variety of situations which arise make it
IMPOSSIBLE to fix definite rules in advance for all conceivable
human conduct. SOC must be OBJECTIVE – a fictional, reas person or ordinary
prudence; FLEX to permit juries/cts fully to take into acct the
ultrahazardous nature of a tortfeasor’s activity Wood v. Groh – P accidentally shot w/ Ds gun fired by his 15 yr old son who
used a screwdriver to take it out of a locked cabinet. JV for D.
o Ordinary neg charge. P appealed D owed HIGHEST DEG OF CARE in
safekeeping the handgun. AD agreed w P.
o Under Bethel, hypo person whose conduct is taken to measure what is
reas under the circumstances.
o HARPER‟S TWO-FOLD EXTERNAL STANDARD: Whether the salient measuring stick of DC is the CONDUCT OR
STATE OF MIND of the D? Whether it should be MEASURED against the D’s OWN
CAPACITY or against an EXTERNAL STANDARD?
o When REAS man FAILS to EXERCISE the FORESIGHT of which he is
capable of exercises w/ evil intent NEGLIGENCE
o The law req a man to possess ordinary cap to AVOID harming his
neighbors, unless a CLEAR/MANIFEST INCAPACITY: When a man has a distinct DEFECT of such a nature that all can
recognize it as making certain prec impossible. EX: blind man; infant of tender years bound to take
prec of which blind/infant are capable NO GEN RULE RE INSANITY – Insanity may be admitted
as an EXCUSE when it manifestly incap the sufferer from
complying w/ the rule he’s broken; however, he could be
insane yet able to take precautions! NOT LIABLE for UNINT‟L HARM UNLESS, possessing
such capacity, he might and ought to have FORESEEN the
danger, or UNLESS a man or ORD TORTS OUTLINE INTELLIGENCE/FORETHOUGH would have been to
blame for acting as he did.
o Vaughan v Menlove – D landowner piled hay in a way that created a fire
hazard to neighbors including P. Fire occurred; P WON. D contended that instead of charging the standard of ord
prudence, the judge should’ve asked the jury to decide whether D
had acted TO THE BEST OF HIS JUDG; CT REJECTED! Prudence VARIES w/ faculties of man TOO SUBJ!
Physical Ability – can be proven w/ comparative ease/certainty
o Roberts v Ramsbottom – D had suffered a stroke a few min before
setting out on a drive; NO WARNING SIGNS. Impaired consciousness but SUFF POSSESSION OF FAC. D was @ no time aware of the fact that he has unfit to drive NO
MORAL BLAME can be attached to him for driving, BUT D is
responsible for FAILING to APPRECIATE the proper sig of his
prior mishaps. Escape liability if @ the time actions wholly beyond his control.
[Sudden unconsciousness] EXCEPTIONS: Retained some control and driving was below the req
standard LIABLE CANNOT avoid liability on basis that owing to some
malfunc of the brain, his cons was impaired. Alternate Ground of Liability:
o D’s FAILURE to REALIZE, after one or two misadv on the
road, that he was UNFIT to drive. DOESN‟T CONSIDER DEF OF ELDERLY/HANDIC
Bashi v. Wodarz – D rear-ended a car; left scene and collided w P. D claims
little recall of events; no control of her actions. TJ granted SJ for D – unanticip
sudden onset of MI. COA REVERSED.
o RES 283B/C – Unless the actor is a child, his insanity or other mental def
does NOT relieve the actor from liability for conduct which does NOT
conform to the SORM under like circ/disability.
o JUSTIFICATIONS: “Difficulty of drawing any satisfactory line between mental
deficiency and those variations of temperament, intellect, and
emotional balance which cannot” be considered in imposing
liability The “unsatisfactory char of the evidence of MD in many cases,
together w the ease with which it can be feigned IF MD are to live in the world they should pay for the damage they
do The expectation that liability will stimulate those who have charge
of them or their estate to look after them, keep them in order, and
see that they do NOT do harm.
o RES 289B – D, in add to exercising the “attn., perception of the circ,
memory, knowledge of other pertinent matters, intelligence & judgment,”
as would a reas person, must ALSO exercise such “superior” attributes
on the listed items as the “actor himself has.”
Children TORTS OUTLINE
o Apart from statutes, parents are RARELY VL for their children. They may,
however, be LIABLE for their OWN NEG in PERMITTING children to do
something beyond their ability or in FAILING to exercise CONTROL a
o Ps must often SUE CHILD DIRECTLY.
o Children HELD TO BLENDED STANDARD: one that recog their
age/abilities as well as obj component – children must exercise the care
that a REAS CHILD in their actual age/intel/experience would exercise. Mastland, Inc. v Evans Furniture Inc. – Jury‟s inquiries
1. SUBJ: What was the CAP of the PART CHILD – given what
the evidence shows about his age/intel/exper – to perceive
and aovid the particular risk in this case?
2. OBJ: How would a REAS CHILD of LIKE CAP have acted
under SIMILAR CIRC?
3. NEG ONLY IF ACTIONS FALL SHORT OF WHAT IS REAS
EXP OF CHILDREN OF SIM CAPACITY! Ellis v. D‟Angelo – 4 yr old charged w neg shoving a babysitter to
the floor. 4 yr olds don‟t have MC to foresee poss of their
inadvertent conduct NOT NEG! Price v. Kits Transit – Children BELOW 6/7 conclusively
presumed to be UNABLE to comprehend risk suff to be held
negligent. REBUTTABLE PRESUMP for 7-14 Dellwo v Pearson – When child engage in adult condition apply adult standard [oper of car/airplane/powerboat] Goss v Allen – 17 yr old beg skier, whe attempting to negotiate a
turn, collided w P. Skiing act for all ages – can’t be held to adult
stand. 18 approp age for holding persons to adult standard. Stevens v. Veenstra – 14 yr old student driver taking a DEd
course held to adult standard for conduct duing his first lesson w/
an instructor. When the prob of/or potential harm assoc w/ a
particular is GREAT, anyone engaged in the activity must be
held to a certain min level of competence! [lack of
competence is NO excuse!]
Emergency Doctrine – A person confronting an emergency NOT of his/her
OWN MAKING is REQ to EXHIBIT only an HONEST exercise of judgment.
o Levey v. DeNardo – D rear-ended P who had stop suddenly when a car
came across her path. TJ refused to inst jury to judge D‟s conduct
under emergency doctrine. ERROR – REVERSED! Confrontation w SUDDEN, UNFORESEEABLE occurrence bc of
shortness of time in which to react should NOT be held to the
same SOC as someone confronted w a foreseeable occurrence. Many states refuse to give an ED charge in ANY neg case. Bjorndal v. Wettman - Neg standard focuses on whether a
person acted w/ RC to avoid harm to others, in light of all the
circumstance including any “emergency” a. Roles of Judge/Jury
a. In General
1. Baltimore & Ohio RR Co. v. Goodman SC 27 – driving truck hit by train.
Suit brought by widow/admin of D v petitioner for causing his death by
running him down at a grade crossing. Verdict/judgment for P.
REVERSED TORTS OUTLINE
a. D was familiar with the crossing; daylight NOTHING to
RELIEVE D from responsibility for his own death
b. If a driver can’t be sure whether a train is dangerously near he
must stop, get out & look. Imposes a spec duty on drivers @
c. Question of due care left to jury, but when we are dealing w/
standard of conduct and it is clear – it should be laid down!
2. Pokora v. Wabash Railway Co. 34 – P was driving his truck across 4
tracks of Ds RR. A string of boxcars on the switch tracks north of the
crossway cut off Ps view of the track. As he moved past that track, he
listened but heard no bell/whistle. As he reached the main track he was
struck by a train. Relying on Goodman, COA UPHELD DV for RR DUTY to look along the track. HELD – Goodman imposes a standard for
app by the judge. LIMITED it accordingly. REVERSED/REMANDED
a. Question for jury whether reas caution forbade his going fwd in
reliance on the sense of hearing unaided by that of sight.
b. FELL SHORT OF THE LEGAL STANDARD OF DUTY EST FOR
TRAVELER WHEN HE FAILED TO LOOK & SEE!
c. What constitutes reas care under the circ ordinarily is a question
for the jury but not every case is for the jury.
3. Andrews v. United Airlines, Inc. 94 – A briefcase fell from an overhead
compartment and seriously injured P. P claims injury was foreseeable
and airline didn’t prevent it. DC dismissed suit on SJ. HELD – heightened
duty of CC, even small risk of injury to passengers may form basis of
liability SJ NOT APPROPRIATE – REVERSED/REMANDED
a. Issue: whether the hazard is serious enough to warrant more than
b. D is a COMMON CARRIER owes both a DUTY of utmost care
and vigilance of a very cautious person towards its passengers.
c. Announcement/warning industry standard
d. P made a SUFF CASE to OVERCOME SJ
e. A jury could find D failed to do “all that human care, vigilance and
foresight reas can do under all the circ”
f. Given awareness of hazard, D may not have done everything tech
permits & prudence dictates to elim it.
g. Jurors well equipped to decide whether D had a duty to do more
than warn passengers.
4. Good Samaritan Laws – protect doctors from neg claims req proof of
recklessness/gross neg in order to subject them to liability for damages.
b. Role of Custom
1. Trimarco v Klein NY 82 – P was badly cut when he fell through the glass
door that enclosed his tub in Ds apt bldg. (door ordinary thin glass –
installed in 1953) Ct REVERSED/DISMISSAL/ORDERED NEW TRIAL –
error in admitting certain evidence hurting defense.
a. Since the 50s a practice of using shatterproof glass in bathroom
enclosures had come into common use GLASS NO LONGER
CONFORMED to accepted safety standards.
b. Even if there was custom/usage; there was NO COMMON LAW
DUTY on D to replace unless prior notice had come to D from P or
by reason of similar accident.
c. Garthe v. Ruppert – P slipped on wet brewery floor & tried to
show it was FEASIBLE to keep floor dry by demonstrating ONE TORTS OUTLINE
brewery had a tech for keeping floors from getting wed. CT HELD
i. When certain dangers have been removed by a custom
way of doing things safely, this custom may be proved to
show that D has fallen below the required standard.
d. Proof of accept practice + evidence D conf = DC
e. Proof of accept practice + evidence D ignored + PC of accident =
f. Question in each instance is whether it meets the test of
REASONABLENESS of Ds cond under all the circ.
g. “?” for jury to det. whether or not the evidence does est. a general
custom or practice
2. T.J. Hooper 32 – A tug plying the Atlantic Coast sank in a storm, causing
the loss of barges it was towing and their cargoes. No radio to learn of
storm in time to avoid.
a. Lack of radios standard of care?
b. General practice sets the standard?
c. Hand: there are precautions so imperative that even their
universal disregard will not excuse their omission
d. Here there was NO CUSTOM
3. La Valle v. Vermont Motor Inns – P fell in his room during a power
outage @ Ds motel. TC GRANTED DV - held evidence INSUFF as MOL
to show motel owner had failed to exercise ordinary care to P. UPHELD
a. Past power outages but NO INJURIES
b. No motel had emergency lighting in room
c. INDUSTRY CUSTOM NOT conclusive but USEFUL GUIDE
UNLESS under past circ. A REAS PERSON would not conform to
4. Levine v. Russell Blaine Co. – P cut her hand on a rope while operating
a dumbwaiter; infected amputated arm. D owner failed to follow custom
of using smooth rope. TC held if P could show PURPOSE of smooth
rope was to AVOID INJURY ADMISSIBLE
a. P can achieve this by simply proving OTHERS in the industry
developed SAFER techniques than P. [SEE GARTHE ^]
c. Role of Statutes
b. Proof of Negligence
c. Medical Malpractice
III. The Duty Requirement: Physical Injuries [p. 129-217]
A. INTRODUCTION In CH. 2, D did NOT DENY an obligation to behave reasonably toward P. CH 2 is ref to as a “BOD” – a clear indication that SOME DUTY must EXIST
before a D can be said to have committed actionable negligence. SPECIAL R/S appeared to be the BASES for IMPOSING DOC.
o EX: inn-keeper/guest, carrier/passenger, highway collision cases –
general obligations of care to others.
o FAILURE to EST a RELATIONAL setting was often FATAL to CLAIM that
D should be held responsible for lack of DC. TORTS OUTLINE Privity Doctrine: Manufacturer of a product generally owed a DOC in its manuf
ONLY to person who ACQUIRED prod from the maker. [NO DUTY to REMOTE
o MacPherson v. Buick Motor Co – Car manuf owed a DODC to
someone who bought a car from an INTERMEDIATE dealer. When its the nature of the thing to place life/limb in peril when
neg. made a thing of danger [CAR] Danger + Knowledge it will be used by persons OTHER than the
purchaser manuf is under duty to make it carefully. DUTY to SAFEGUARD when FORESEEABLE cons.
B. AFFIRMATIVE OBLIGATIONS TO ACT R3T s 40 – Liability for Physical Harm: The “?” of whether any r/s is SUFF to
impose a duty is a “?” for the CT but whether on the facts of the case, such a r/s
exists is a “?” for the JURY!
o Q OF LAW – The EXISTENCE of a DUTY
o Q OF FACT - Some FACTUAL CIRC give RISE to a DUTY Instances where:
o a person is in imminent peril;
o another is subject to a less imminent risk Harper v Herman SC Minn 1993 – TC jud for D; SJ OWED NO DUTY. COA
REVERSED – D, the owner & operator of a private boat on lack had [and
assumed] DUTY to WARN P, a guest on the boat, that water surrounding the
boat was TOO SHALLOW for diving. SC REVERSED/REINSTATED Jud for D.
o ISSUE – Whether a boat owner who is a social host owed a DOC to warn
a guest on the boat that the water is too shallow for diving.
o HOLDING – The fact that an actor realizes or should realize that action
on his part is NEC for another’s aid/protection is NOT itself SUFF to
impose a duty...
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- Spring '16
- Avi Chandra
- Tort Law