Anglo-American


Contract and Torts




Prof. Mark P. Gergen


3. Introduction to Negligence
 The negligence action

Text 16 (Lundmark) § 6, Restatement Third, Torts

1) Duty (2011), Supp 2
2) Breach 1) Failure to exercise reasonable
3) Injury care
4) [Proximate] Causation 2) Factual cause
5) Damages 3) Physical harm
4) Harm within scope of liability

Lundmark improves on the Restatement by addressing pure

economic and emotional loss under the topic of injury (Text
63-68). In the US these are treated as problems of duty.

The Restatement improves on Lundmark by separating the

issues of factual and legal cause. The rule in Restatement §
6 assumes there is a duty if conduct creates a risk of physical
harm.
 1) Duty/Injury
2) Breach
3) Factual cause Proximate
4) Legal cause/scope cause
of liability
5) Harm/Damages
Duty of reasonable care.
Breach: was the defendant’s conduct unreasonable?
Cause in fact: was the plaintiff harmed by the defendant’s
failure to act reasonably?

Scope of liability/legal cause: is the harm among the risks

that made the defendant’s conduct unreasonable?
Injury: was the plaintiff physically harmed or is this in the
limited categories (“pockets”) of cases in which recovery is
available for pure economic or emotional harm?
 1) Duty/Injury
2) Breach
3) Factual cause
4) Legal cause/scope Proximate
of liability cause
5) Damages

Under US law duty* is a question of law for the court.

The others are issues for the jury if reasonable people could
disagree about the answer under the relevant rule or
standard.

* This includes defining the pockets of cases in which a claim is available for
pure economic or emotional loss.
In the 19th century liability for carelessly caused harm existed
in pockets in which care was required by custom, an actor
expressly undertook a duty of care, or an actor controlled a
dangerous instrumentality.

“Duty was repeatedly taken for granted and consisted in the

defendant either having put himself in a position in which any
sensible man would act carefully (e.g. assuming control of
dangerous things) or in having assumed something like a status
which demanded professional skill on his part.”

Percy Winfield, Duty in Tortious Negligence, 34 Colum.
L. Rev. 35, 38 (1934)
Over time courts began to speak of a general duty of
care breach of which was actionable negligence.

Different principles have been offered to define this

general duty of care.

The “neighbour principle” in Donoghue v. Stevenson

(A.C. 1932) is an influential statement:

“You must take reasonable care to avoid acts
or omissions which you can reasonably foresee
would be likely to injure your neighbor . . . .
[meaning] persons who are so closely and
directly affected by my act that I ought
reasonably to have them in contemplation as
being so affected . . . .” (Text 16)
Lundmark collects some more expansive formulations of
criterion of duty . . . . these became popular as the ambit
of negligence liability expanded.

The three factor test (Text 16):

1) Was the injury reasonably forseeable?
2) Was there a sufficient relationship of proximity
between the parties?
3) Is it just and reasonable to impose a duty on
the defendant?

This test was popular in England until 1991 and remains

popular in the commonwealth. The usual reference is to a
similar two factor test in Anns v. Merton London Borough
Council (H.L. 1978).
U.S. v. Carroll Towing Co., Inc. (1947), Text 17,
introduces the “Hand formula” and cost-benefit
balancing.

“if the probability be called P; the injury, L; and the

burden, B; liability depends upon whether P is less than L
multiplied by P: i.e., whether B is less than PL.”

So it is negligent not to have a crewman aboard a moored

barge if the burden of having him there is less than the
losses he can avert by being aboard discounted by the
probability that the circumstances in which he can avert
such losses will arise.

In the US, the Hand formula is thought to bear on the

standard of care and not on duty.