recuperation of damages that one is owed when his property is used in such a way to help another.The Court decided that this was not a case where life or property was menaced by any object belonging to the P, the destruction of which became necessary to prevent the threatened disaster. It is one where the D prudently and advisedly availed himself of the P’s property for the purpose of preserving his own more valuable property and the P are entitled to compensation for injury done. In a dissent given by Lewis, J. He asserts that the boat was lawfully moored at the time the storm broke out and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat was the result of an inevitable accident. He also is of the opinion that the dock owner knowingly takes the risk when building his dock that there may be a time where a vessel is unable to unmoor and will cause damage to his dock. 13
DutyThe Fault Basis of LiabilityNegligence as a fault based systemThe general principal of law is that loss from accident must lie where it falls, and this principle isnot affected by the fact that a human being is the instrument of Misfortune. But relatively to a given human being anything is accident which he could not fairly have been expected to contemplate as possible, and therefore avoid. Negligence may be any conduct that creates an unreasonable risk of harm to others.Five Elements must be established for Negligence:The D owed the P a legal dutyThe D, by behaving negligently, breached that dutyThe P suffered actual damageThe D’s negligence was an actual cause of this damage; andThe D’s negligence was a “proximate cause” of this damageStewart v Motts: The issue in this case is whether there exists a higher standard of “extraordinary care” for the use of dangerous instrumentalities over and above the standard “reasonable care” such that the trial court erred for failing to give an instruction to the jury that the Appellee should have used a “high degree of care” in handling gasoline. The rule in this case deals with care to be applied to negligence in which the Restatement says “The care required is always reasonable care. The standard never varies, but the care which is reasonable to require of the actor varies with the danger involved in his act and is proportional to it. The greater the danger the greater the care which must be exercised.” The facts are that the P who was going to D’s auto repair shop to get his car fixed suffered injuries when pouring gas into the carburetor to get it to start. When the engine backfired the gasoline exploded and burned the P. In the TC the P asked for a jury instruction stating “that gasoline in due to its inflammability is a very dangerous substance if not properly handled…and under the circumstance there should be a higher degree of care.
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- Spring '08