Torts 2 Outline - Torts 2 Outline A. Negligence Review a....

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Torts 2 Outline A. Negligence Review a. Elements of Negligence i. Duty to use reasonable care (actor must conform to a standard of conduct) 1. existence determined by judge 2. for test, “duty to exercise reasonable care under the circumstances to [prevent injury causing act]” – DEFINE CIRCUMSTANCES!!! ii. A breach of the above duty 1. existence determined by jury , unless taken away by SJ 2. can be the existence of something dangerous (project at home) iii. Causation between the breach and the resulting injury 1. need causation in fact a. the action actually caused the event giving rise to liability 2. need legal/proximate cause (much more strict – see below) 3. existence determined by jury , unless taken away by SJ iv. Actual loss or damages 1. no actual loss = no recovery, even if the Δ’s conduct was egregious 2. no actual loss but threatening conduct = injunctive relief (nuisance) 3. amount always determined by jury , if above three are met v. Note that it is often difficult to differentiate between the elements-although the judge decides if there is a duty, it is indirectly considered by the jury b. The Hand Formula i. Promulgated by Judged Learned Hand in U.S. v. Carroll ii. Negligence exists when B < PL 1. B = burden of adequate precautions against injury occurring 2. P = probability that injury causing event will occur if the precaution is not taken (consider forseeability ) 3. L = gravity of the injury that is likely to occur if an event happens a. if very high, P can be low and negligence can still exist B. Proximate Cause a. do not allow a damage claim to proceed if other damages were foreseeable and occurred and the damages complained of were not foreseeable b. Δ liable only for the risks that the Δ could reasonably foresee i. but liable for wages if Π is CEO or garbageman or if Π has thin skull ii. Δ liable even if injury occurred in unlikely manner (rat catching on fire) iii. injury does not have to be likely or probable in order to be foreseeable c. Palsgraf - “The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation; it is risk to another or others within the range of apprehension” i. in other words, the Π’s damages must have reasonably been foreseen 1. this is usually a question for the jury ii. issue in case was whether RR owed duty to Palsgraf d. Proximate Cause’s Relation to Duty i. If there is a duty owed is determined by forseeability – i.e. if the risk (of whatever injury is at issue by however the injury occurred) is reasonably to be perceived. If that analysis determines that there is a duty owed, you Current as of 4/19/2011 Page 1 of 19
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then must determine if there was a breach of that duty. If there was a breach of that duty, then there is proximate cause. e.
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This note was uploaded on 04/18/2011 for the course LAW 101 taught by Professor Many during the Spring '11 term at University of Louisville.

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Torts 2 Outline - Torts 2 Outline A. Negligence Review a....

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