Torts 2012 Pro.

Smith
I. Tort Liability
A. Definition: civil wrong other than breach of contract, for which a remedy may be obtained.
1. Tort law supplies a medium between two extreme alternatives: no liability (rejected because
injury prevention/fairness) and social insurance (rejected because limited resources)
B. Issues:
1. How to define injury?
2. When are we going to hold someone legally responsible for his or her conduct?
3. May be morally reprehensible but may be legally allowed?

C. Three Theories of Recovery each must be proven beyond preponderance of the evidence
1. Negligence
a.
b.
c.
d.

Duty (question of law)

Breach (question of fact)
Causation
Damages

2. Intentional
a. Purposeful
b. Knowing to a substantial certainty

3. Strict Liability
a. Liability without fault
i. Ex wild animals & extremely dangerous behavior
b. Vicarious Liability

D. Defenses
II. Goals of Tort Law
A. Compensation
1. For the person injured
2. Who are the parties that can do that?
B. Deterrence
C. Punishment
D. Fairness
1. Shifting burden on those who can afford them

III. Burdens of Proof

A. Production Partys duty to introduce enough evidence to have decision by fact-finder rather than summary
judgment/directed verdict. Evidence.
B. Persuasion Duty to convince the fact-finder to view facts in a way that favors party, show that its more
likely than not Usually by a preponderance of the evidence

IV. Exam Approach

A.
B.
C.
D.
E.

V.

Issue
Rule
Analysis
Conclusion
POLICY!!

Negligence
Issue Spot: what is the nature of Ds conduct? Has he failed to conform his conduct to a particular standard of
care? Looking at the Ds conduct not what they knew or intended, whether they should have known, and what
a Reasonable Person in those circumstances.

Unintended Injury and when loses should be shifted from an injury

Vehicle Accident
Failure to Warn
Issue of Custom = Evidence of reasonable care
Negligence is antecedent, not carelessness before the accident. Ds negligence lies in having put himself in a dangerous

position by engaging in the activity in the first place, not in carrying out the activity carelessly (epileptic driving)
Standard of care for Children

Definition:
Addresses when a persons unintentional and unreasonable conduct creates an unreasonable risk.
Requires proof that the defendant breached the standard of care which is a duty of care on all human activity:
Must act as ordinary, prudent, reasonable person, which assumes an ordinary person would take precautions against creating
an unreasonable risk
Requires: duty (question of law), breach (question of fact for the jury), proximate and actual cause (fact for the jury), and
damages (jury decides and judge acts as 13th juror to weigh-in).
P must prove all but D must only disprove one.

Rule Statement: In order to establish a prima facie case against D for negligence, P must establish:

Duty P must show that D owed a duty of care to the P (question of law)
Breach P must show that Ds conduct fell below the standard of care owed to P (question of fact)
Causation Ds unreasonable conduct caused injury to the P
Damages P must show that his injury constitutes recoverable damages under the law
Defenses Anticipate any defenses that D might raise (i.e, contributory)

I. Definition
A. Conduct which falls below a standard established by the law for the protection of others against
unreasonable risk of harm
B. Any conduct that falls below the legal standard established to protect others against unreasonable risk of
harm.
1. Should have known
C. Reasonable Person Standard The failure to exercise the reasonable standard of care that a reasonably
prudent person would have exercised in a similar situation.
1. Difference between Intent?
a. Look at Ds Conduct not what they knew or intended
i. Whether they should have known
ii. Reasonable Person in those circumstances
D. Objective Test in civil liability
II. Exam Approach:
A. P must establish prima facie case: [1. Duty 2. Breach 3. Causation 4. Damages] 5. Possible Defenses
B. What is the act or actionable omission?
C. Duty?
1. Relationship between the P and the D?

D. Breach?
E. Causation
1. Must establish both actual causation (cause in fact) and proximate cause (legal cause)
III. Elements of Negligence
A. Act or Actionable Omission by Defendant
B. Duty of Due Care
C. Breach of Duty (Lack of due care)
D. Actual Cause (Cause in Fact)
E. Proximate Cause (Legal Cause)
F. Damages

IV.

Duty the legal obligation of the defendant to conform his conduct to a particular standard of care to avoid
unreasonable risk to others. ***Duty is a question of Law***
Issue Spotter:
(1) Has the defendant committed an affirmative act that has caused harm to another?
(2) Does the Defendant owe a duty of care?

Sources of Duty:
1. Default Rule Creation of Unreasonable Risk
a. Duty of Reasonable Care for conduct that creates a risk of harm to another
b. Duty and Breach collapse
i. Breach question of fact for a jury to decide
1. It is the failure to use ordinary or reasonable care.
c. If court determines the case as a matter of law Judges grants a directed verdict and will dismiss
d. If court finds that case is a matter of fact Judge will determine that duty is established and send it to a jury
to decide whether D breached that duty; D was the actual and proximate cause of the injury; and damages
for P

Misfeasance Creation of an unreasonable risk, active conduct that created a peril or changed the nature
of the existing risk
2. Affirmative Conduct courts decide the existence and scope of a duty pursuant to a different set of rules:
a. General Rule: Generally, there is a no affirmative duty rule, but the following exceptions may impose a duty:
see below
b. Where the plaintiff alleges that it was the defendants nonfeasance, or failure to act, that caused the
plaintiffs harm;
c. Where the plaintiff asserts purely emotional or economic injury; or
d. Where the status of the defendant (e.g., as a government entity or landowner) raises additional policy
considerations.

3. Affirmative Misrepresentation/Fraud an entity that intentionally or negligently provides false information

to another entity owes a duty to a third party, despite the fact that the third party never received the false information
and had no relationship with the entity providing it. (could also apply to *third-party duty).
a. General Rule the duty not to misrepresent the facts that runs the substantial and foreseeable risk that the
third party would be physically injured. Factors to consider are:
i. Foreseeability
ii. Causality
iii. Moral Blame
iv. Availability of insurance or alternative courses of conduct; and
v. Public Policy Considerations

Nonfeasance or omission, where D has no duty to rescue P or no duty to act

1. Good Samaritan Statutes establishes a duty to rescue if able. Failure to rescue could give rise to a statutory
violation with the resulting fines and penalties

a. Most Jurisdictions limits liability of someone who does affirmatively attempt to rescue P but harms P
in the process, often apply to those who have specialized training such as medical professionals or firemen.

2. Peril Created or Danger invites Rescue

a. If P is injured by an undertaking by D
3. Special relationship: An actor in a special relationship with another owes the other a duty of reasonable care with
regard to risks that arise within the scope of the relationship. Special relationships giving rise to the duty include:
a. A common carrier with its passengers
b. An innkeeper with its guests
c. A business or other possessor of land that holds its premises open to the public with those who are lawfully
on the premises
i. Businesses and other possessors of land who hold their land open to the public owe a duty of
reasonable care to persons lawfully on their land who become ill or endangered by risks created by
third parties.
d. School with its students is in addition to the ordinary duty of a school to exercise reasonable care in its
operations for the safety of its students
i. Limitations: to those activities within the school
e. A landlord with its tenants, and
f. A custodian with those in its custody, if:
i. The custodian is required by law to take custody or voluntarily takes custody of the other; and
ii. The custodian has a superior ability to protect the other.
iii. Rule: a duty of reasonable care on custodians to protect others from risks created by those in custody
Imposing an affirmative duty include that between:
1. A day-care center and the children for whom it cares
2. Hospitals with their patients
3. Nursing homes with their residents
4. Camps with their campers, parents with their dependent minor children, and
5. Jailer-inmate relationship.
g. Common carrier
h. Innkeeper
i. Own land & hold open to public
j. Custody of others in which person is deprived of normal opportunities of self-protection (usually a monetary
gain)
Immediate family
Social co-adventurers
Doctor/patient
Co-adventurers people who embark on a dangerous activity together with the understanding that they
are dependent on each other for their safety.
i. Friends Farwell case extends this doctrine to friends, because society recognizes that friends
engage in common social activity are dependent on each other for their safety and gave a moral duty
to come to each others aid in an emergency.
ii. Duty to restrain drunk drivers duty to restrain drunk driver before his negligence injured others
due to drugs and alcohol, even though D was sober.
iii. Jury Decision if relationship is sufficient to establish a duty
4. Statute (test to determine if able to sue when silent statute if right to private action)
k.
l.
m.
n.

a. Sheely Prong Analysis:

i. Class of persons
ii. Interest (legislative purpose)
iii. Consistent with legislative scheme

5. Voluntarily assuming a duty

a. Rule statement: Every person is subject to the legal duty to avoid any affirmative actions that could worsen
the situation involving a person in distress. In a case such as this one, where the existence of a duty of care is
a question for the jury to answer, the jury must first determine whether the D tried to help the victim. If he
did, the defendant is required to act as a reasonable person.
b. Performance has clearly begun

c. Liable if:
i. Fail to exercise reasonable care to secure safety
ii. Discontinue aid/protection (leave in worse condition)

6. Non negligent creation of risk

a. Liable to warn others

7. Creation of unreasonable risk

a. Misfeasance: lawful act performed in wrongful manner
b. Malfeasance: wrongful/unlawful act-negligent behavior
c. Nonfeasance: fail to act when duty to act existed

8. Promise and Reliance; Contract

a. Promise duty to exercise due care in performing that promise (could also apply to assumption of care)
b. Promissory Estoppel
c. Misrepresenation/Fraud/Nondisclosure

9. Land owners and occupiers

a. Trespasser: until possessor gives permission to enter
i. No duty of care, with exceptions:
ii. Frequent
iii. Expected
iv. Children
v. Discover (artificial [traps]/hidden dangers)
vi. Open/obvious danger
vii. Recreational use of land
viii. Willfully set traps
b. Licensee: enter with permission
i. Duty to make safe dangers known by possessor but hidden to licensee
c. Invitee: enter with permission & possessor has interest in visit
i. Duty to protect against known and should have known
ii. Public: there for purpose property is held open
iii. Private/Business: owner receives economic gain
d. Minority: Jurisdictions that do not use factors: exercise reasonable care for protection of lawful visitors
i. Foreseeability of harm
ii. Purpose entered premises
iii. Circumstances
iv. Use of premises
v. Reasonableness of repair/warning
vi. Opportunity of repair/warning
vii. Burden on land occupier
10. Governmental Entities: generally immune
a. Governmental functions: agencys conduct thats expressly or impliedly mandated/authorized by statute/law.
i. Benefits the general population.
ii. Little or no duty: Police, traffic lights.
b. Proprietary functions: municipalitys conduct that is performed for the benefit of the municipality, not general
public
i. Traditionally done by private corporations
ii. Small duty may exist: Hospitals, transit, etc.
c. Cuffy Test: special relationship between police
i. Assumption by municipality through promises/actions of duty
ii. Knowledge that inaction could lead to harm
iii. Direct contact between municipalitys agents and injured party
iv. Partys justifiable reliance on municipality
d. Ministerial-decision that executes a policy/obedience to laws: conduct requiring adherence to a government
rule; mandatory. May be liable.
e. Discretionary-judgment call: conduct involving exercise of reasonable judgment. Not liable even if negligent
conduct.

f.

Policy considerations:
i.
ii.
iii.
iv.

Courts do not want to force liability on police

Government has limited resources
Executive & Legislative branch should be ones to impose liability not Judicial branch
Potential flood of litigation in areas of high crime

11. 3rd Parties

a. Doctor-Patient: people who are foreseeably endangered by conduct (psychiatrist/Tarasoff)
i. Warn if you predict/should have predicted injury to others
ii. Special relationship to patient or victim
iii. Be aware of the threat
iv. Identifiable victim
b. Parent-child
i. Vicarious Liability Hold the liable by virtue of public policy and their relationships (respondent
superior)
ii. Negligence if parent had control over childs conduct and was aware that his conduct was creating
an unreasonable risk and refused to prevent child from harming, then apply ordinary negligence
standard
c. Crushing Liability: policy issue that limits liability
i. Not liable is result would crush, collateral estoppel
d. Social Hosts
i. No extension of social host liability to 3rd person injured by intoxicated minors (injured in accident
caused by the minor)
ii. Liable to minor
iii. Commercial vendor could be responsible (better capable of policing patrons, profit motive, better
organized)
e. Negligent Entrustment: act of leaving a dangerous article with a person who the lender knows (or should
know) is likely to use it in an unreasonably risky manner.
i. Common carrier
ii. Innkeeper
iii. Own land & hold open to public
iv. Custody of others in which person is deprived of normal opportunities of self-protection (usually a
monetary gain)
v. Immediate family
vi. Social co-adventurers
vii. Doctor/patient

Breach It is the failure to use ordinary or reasonable care. Failure to

General Rule: is the doing of something that a reasonably prudent person would not do, or the failure to do something
that a reasonably prudent person would do, under circumstances similar to those shown by the evidence.

Issue Spotter:
(1) Has the defendant committed an affirmative act or voluntary omission exposing others to unreasonable
risk?
(2) Has defendant caused an unreasonable risk of harm?
1. Standard of Care what we expect from people in terms of their conduct?
a. Reasonable Person Standard
i. Everybody owes a duty to behave as a reasonable person would under the same or similar
circumstances
ii. Unreasonable Conduct foreseeable risk
b. Negligence vs. Absolute Liability
2. Unreasonable Conduct Foreseeable Risk
a. How do we Measure that conduct?
b. Learned Hand Test
i. Cost of avoiding the injury > the risk of the accident occurring/preventing it (B < PL)
1. Magnitude of the loss if an accident occurs
2. Probability of the accident occurring
3. Burden of taking precautions that would advert it
c. Utility of Conduct

3. Custom
4. Statutory Violation
a. Negligence Per Se Breach of affirmative duties based on statutes.
i. If a court determines that a statute creates an affirmative tort duty, breach of that duty often follows
without further consideration.
ii. If the statute contains specific prescriptions that the actor violated, there is no independent breach
inquiry.
1. In these instances, the statute provides the basis for an affirmative duty, and violation of the
statute's prescribed conduct is negligence per se.
2. Factual causation must also exist for liability to be imposed. Consideration of whether the
statute is designed to promote safety for a class including the plaintiff also resolves any
scope-of-liability issue.

5. Unreasonable Risk
a. Foreseeable Risk foreseeable harm to others
i. Factors
1. Not within the range of prudent foresight
a. Negligence: is the doing of something that a reasonably prudent person would not do,
or the failure to do something that a reasonably prudent person would do, under
circumstances similar to those shown by the evidence.
i. It is the failure to use ordinary or reasonable care.
2. Reasonable Alternatives
3. No like accident had occurred before
4. No custom had been disregarded

ii. One that is not an extraordinary occurrence (kid swinging wire and hitting train cable)
b. However, a party is not required to take every possible precaution to protect the welfare of others.
i. Rule: A duty exists to adopt all reasonable precautions to minimize possible perils.
1. A party is not negligent for not providing protection against an unforeseeable, extraordinary
injury that would be extremely difficult to prevent.
2. Ordinary caution does not involve forethought of extraordinary peril.
3. One is not guilty of negligence when one fails to foresee the unusual and remote conduct of
others.

******* Who

is a reasonable person? *******

1. Objective Standard which measures reasonable conduct

a. External and Objective Standard of a reasonable person under the circumstances.
i. Ordinarily measured by what the reasonably prudent person would do in the circumstances.
ii. This reasonably prudent person is not infallible or perfect
iii. He is the general average of the community
iv. The standard represent the general level of moral judgment of the community, what it feels ought
ordinarily to be done, and not necessarily what is ordinarily done, although in practice the two would
very often come to the same thing.
b. Industry custom provides context as to whether it was reasonable within those circumstances

c. Learned Hand Test

d. Statutes: Whether reasonable
e. Med Mal Practice: Standard of care of a doctor standing in their field.
i. Regulate their own conduct
2. *Whether reasonable care should be based on an external standard or the defendants own capacity for care.
a. Raises two threshold questions:
i. Whether the salient measuring stick of due care is the conduct or the state of mind of the defendant?
ii. If the Ds conduct is the determining factor
1. Is whether it is to be measured against the Ds own capacity or against an external standard.
a. These suggest that the Ds conduct is the critical determinant, and that the conduct is
to be measured against external objective norms, rather than subjective ability.
b.

Holmes: The standards of the law are standard of general application.

i. When men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a
certain point, is necessary to the general welfare.
ii. Society requires every individual to come up to their standard, and the courts which they establish decline to
take his personal equation into account.
iii. Generally, the rule that the law does determine liability by blameworthiness is subject to the limitation that
minuet differences of character are not allowed for.
iv. What would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines
liability by that?
v. When an intelligent and prudent man fails to exercise the foresight of which he is capable, or exercises it with
evil intent, he is answerable for the consequences.

c.

Exceptions: There are exceptions to the principle that every man is presumed to possess ordinary capacity to avoid
harm to his neighbors and the moral basis of liability
i. When a man has a distinct defect of such nature that it is impossible for him to make certain precautions
1. EX- blind person taking precautions to see
ii. However, he is bound to consider his infirmity in regulating his actions, yet if he properly finds himself in a
certain situation, the neglect of precautions requiring that which he cannot control would not prevent his
recovering for an injury to himself, nor would it make him liable for injuring another.
iii. That person is bound to take the precautions of which others in his situation are capable.

iv. Unless a man of ordinary intelligence and forethought would have been to blame for acting as he did, the law
does not in general hold him liable for unintentional injury.
1. The law presumes or requires a man to possess ordinary capacity to avoid capacity to avoid harming
his neighbors, unless a clear and manifest incapacity be shown.
d.

Standards of law are external standards, and, however much it may take moral considerations into account, it does so

e.

only for the purpose of drawing a line between such bodily motions and rests as it permits, and such as it does not.
What the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy
or not.

Exceptions To the Reasonable Person Standard

1. Gender: that recognizing difference may lead to marginalization, while ignoring difference may lead to inequitable
results.
2.

Mental Ability: Vaughan v. Menlove (1837), D wanted court to substitute standard of ordinary prudence with whether D
acted to the best of his judgment since measure of prudence varies so with the varying faculties of men is was impossible to say
what was negligence with reference to the standard of what is called ordinary prudence.
a. Court unanimously rejected the argument because it would leave so vague a line as to afford no rule at all, the degree of
b.

judgment belonging to each individual being infinitely various.

Mental Disability Adults with mental deficiencies are judged by the reasonable person standard without any
allowance for their mental deficiency. Hence, although a childs intelligence is taken into account in determining whether
he was negligent (supra), an adults is not! This is true whether the defendants limitation is subnormal intelligence or
outright insanity.
i. Rationale:
1. The fear of fraud,
2. Difficulty of determining what kind of mental aberration will lessen the care owed
3. Difficulty of applying any reduced standard
4. Fear of complicating tort law the way the insanity defense has complicated criminal trials are some of

c.

3.

the reasons for this rule.

Distinguishcontributory negligence
i. Few cases allow evidence of the plaintiffs low intelligence in determining whether his conduct was

Physical

contributorily negligent
Disability: Persons with physical disabilities (crippled, blind, deaf, etc.) are held to the reasonable person

standard, with their disability as one of the circumstances.

a. Knowledge of disability one of the circumstances such persons are charged with knowledge that they have a
disability, and may be found negligent for engaging in any activity that a reasonable person with the same disability
would not have attempted
i. Roberts 73 year old defendant who experienced strike before driving and getting into accident, was held to
ordinary negligence because he was in sufficient possession of his faculties: (i) to have some, though impaired,
awareness of his surroundings and traffic conditions & (ii) to make a series of deliberate and voluntary
though inefficient movements of his hands and legs to manipulate the controls of his car.
1. Ct. held that D could only escape liability if his actions at the relevant time were wholly beyond his
control, but if he retained some control, albeit imperfect control, and his driving, judged objectively,
b.

was below the required standard, he remains liable.

Distinguishtreated conditions Even with knowledge, if the defendant is using due care to treat his condition, he
will not necessarily be held liable for injuries resulting from the condition. [Hammontree v. Jenner epileptic carefully
treating his condition, which was under control, was not liable for crashing his car into a storefront during an
unanticipated epileptic seizure]

4.

Temporary Illness: If the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to
avoid being negligent is that of a reasonable man under like disability. /Unless the actor is a child, his insanity or other mental

deficiencies do not relieve the actor from liability for conduct, which does not conform to the standard of a reasonable man under
like circumstances.
a. Hard to draw a line between mental deficiencies and the variations of temperament, intellect, and emotional balance.
b. Mental deficiencies can be easily feigned
c. If mental deficiency is to live in this world, they should pay for the damages it creates and harm to innocent parties
d. Will create incentive for those in charge of those individuals to look after them, keep them in order, and see that they do
not do harm.
5.

Superior Attributes: 289(b) provides that the D, in addition to exercising the attention, perception of the
circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as would a reasonable person, must
also exercise such superior attributes on the listed items as the actor himself has.
a. Special Knowledge and Skills All persons are held to certain minimum standards in their activities.
i. If they have acquired special competence, they are held to a standard that takes account of their superior
knowledge or skills.
ii. Exception As opposed to particular knowledge or skill, higher-than-average natural abilities such as
b.
c.

d.

intelligence or athleticism are typically not considered.

Learners versus Beginners held to the same standard of care as an experienced reasonable person [Stevens]
i. Rationale: Those who engage in such activitiesrather than the innocent victimshould bear the risk of loss.
Profession/Trade: If the defendant undertakes to render any service in a recognized profession or trade (builder,
attorney, plumber, etc.), she is held, at a minimum, to the standard of care customarily exercised by members of that
profession or tradewhether or not she personally possesses such skills.
i. General rulesame or similar community standard
Medical Profession
i. Old View local standard (community or locality)
ii. Modern View Same or similar community standard
1. Modern courts are holding that physicians must meet at least the standard of care existing in the same
or similar communitiesand experts from such communities may testify as to the appropriate
standards (i.e., country doctors will be held to the same standard of care as other country doctors, but
not necessarily to the same standard as big-city doctors
2. Trend toward National Certification
3. Specified medical practice OBGYN versus General Practitioner
4. Excpetion: Obvious occurrence such as toxic chemical coming into contact with eye
iii. Establishing a standard To prevail, the plaintiff must establish:
1. The particular standard of medical care that is required and
2. Show a departure from that standard.
a. Because the standard is measured in relation to professional understandings, the plaintiff must
generally present expert testimony to establish the standard
iv. Opposing Views and Practices court allows doctor to:
1. Use which ever he chooses; or
2. Most reputable and respected
v. Informed Consent
1. Standard of Disclosure
2. Exceptions:
a. Emergencies
b. Therapeutic Privilege distraught patient and physicial reasonably believes that full

3.

6.

Children:

disclosure would be detrimental

c. Doctors Experience how long has he practiced
Causation In informed consent cases, most courts follow the objective view and hold that the patient
must show that if properly informed neither the patient nor a reasonable person in similar
circumstances would have undergone the procedure.
a. Minority Jurisdiction Subjective Requirement requires plaintiffs establish causation by
persuading the trier of fact that the plaintiff personally would not have consented to the
procedure.
Consent may be revoked

4.
5.
Many state statutes make parents vicariously liable for the actions and injuries committed by their children.

Traditionally, children have been held to a blended standard one that recognizes their age and abilities, but also an objective

component: children must exercise the care that a reasonable child of their actual age, intelligence, and experience would
exercise.
a. The general view is that below some age, usually around four, a child simply cannot make the calculations needed to
establish negligence.

b. Exceptions:
i. Adult Activities activities which the courts categorize as adult driving and those which are not adult
7.

Emergency

(skiing), then no special allowance is made.

Doctrine: That a person confronting an emergency not of his or her own making, is required to exhibit only

an honest exercise of judgment.

a. Purpose: Purpose of the rule was the a person confronted with a sudden and unforeseeable occurrence, because of the
shortness of time in which to react, should not be held to the same standard of care as someone confronted with a
foreseeable occurrence.
i. Arg: Parties are certainly allowed to introduce evidence of an emergency, however, this is only a factor for
which the jury to consider in the ordinary course of conduct under the traditional rule. The negligence standard
focuses on whether a person acted reasonable care to avoid harm to others, in light of all the circumstances,
including any emergency.

8. Common Carrier Standard Issue Spotter: Does a common carrier, owe its passengers the highest degree of
care or some measure of? Should a duty of heist care continue to be applied, as a matter of law, to common carriers?
a. Rule A single standard of reasonable care applies. The special duty imposed on common carriers is no
longer viable in modern society
i. Objective Reasonable Person Standard in basic traditional negligence theory necessarily takes into
account the circumstances with which the actor was actually confronted when the accident occurred
including:
1. The reasonably perceivable risk and
2. Gravity of harm to others and
3. Any special relationship of dependency between the victim and the actor.
ii. Constructive Notice Such notice as in implied or imputed by law, usually on the basis that the
information is part of a public record.
1. Under that standard, there is no stratification of degrees of care as a matter of law.
2. Rather, there are only different amounts of care as a matter of fact.
b. Theory of negligence presupposes some uniform standard of behavior
i. Yet, infinite variety of situations that arise make it impossible to fix definite rules in advance for all
conceivable human conduct.
c. The standard of conduct that the community demands must be an external and objective one, rather than the
individual judgment, good or bad, of the particular actor. Reasonable Person of ordinary prudence

1.

Causation

Damages

Intentional Torts
I. Definition
A. Purposeful or conscious objective
1. Desire for a specific consequence
2. Purpose or desire to cause consequences
B. Knowledge to a substantial certainty
1. Substantial Knowledge

Defenses
1. What is the issue?
a. Was there contributory negligence to divide the cost?
b. How to measure the Standard of Care:
i. Industry custom
ii. Learned Hand Test
1. Burden of Prevention
a. Burden of Prevention < Potential Loss
2. Gravity of Harm:
a. Life
b. Economic Loss
3. Burden of Prevention:
a. Having a bargee on board at all times = low cost
c. Critique:
i. Social Welfare shouldnt be quantified
ii. Cant quantify life or limbs
d. Most jurisdictions use the reasonable person standard.
e. A tool to prove whether the party acted unreasonably under the circumstances
2. Contributory damages
a. Must prove that the other person was negligent and contributed to the accident
b. Unreasonable conduct was that the bargee was absence.
i. If he had warned them, then they could have saved the tanker.

Strict Liability
I. Liability without fault