Breach of a duty to exercise reasonable care under the circumstances. Four elements must be present to establish negligence. Duty, Breach, Causation and Damages.

What a reasonable person does under the circumstances.

Duty can be established two ways:

1.  Violation of ordinance, statute or regulation.

2.  Or a reasonable person stand point, where a reasonable person's actions are weighed against the acts of the Plaintiff to determine if they demonstrate a lack of reasonable care.

1. Foreseeable likelihood that the action will cause harm

2. Foreseeable severity of the harm

3. How difficult to eliminate the risk of harm

P has to prove that D's conduct imposed an unreasonable risk of harm on P.

"Where an act is one which a reasonable person would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done."

Test: Grave injury v. Likelihood

1.  Warnings of danger can reduce risk of liability to D, useful when removing the danger is too costly for D or just impossible.

2.  Warnings do not make D immune.

3.  Failure to warn can be negligent. 

Establishing Reasonableness

(Two Main Ways)

Reasonable Person of Ordinary Prudence

(Objective Standard)

Question of fact, "Did D behave reasonably under the circumstances ?"

Industry custom is analyzed under Reasonable Person Standard.

Judicial Interpretion of Legislative Standard

(Violation of Statute, Ordinace, or Regulation)

Negligence Per Se is violation of statute

Primi Facia Negligence is violation of Oridinace or Regulation.

It is an objective standard.

When analyzing Duty, the question is whether D behaved reasonably under the circumstances.

If D has physical disability, then D is compared to  reasonable person of that same disability.

The mental capacity of D, if he is more stupid or less stupid is not a defense.

Voluntary intoxication not a defense, D held to sober person standards.

Negligence as a matter of Law

Violation of Statute

Statute must exist, then it must be violated.

If violated, does it establish duty under civil context?, two step analysis.

1.  Whether plaintiff was in the class of persons meant to be protected under the statute.

2.  Was the harm cause the kind that the statute was

meant to prevent. 

This establishes Duty and Breach once found, and cannot be rubutted by the defendant.

Defendant can only defend on Causation and Damages after this point.

Violation of City or County Ordinance or Administrative Regulation

Rebuttable Presumption of negligence.

Based on the violation alone with no other evidentiary requirements on the plaintiff needed, duty and breach are assumed.  

The defendant can rebutt the duty and breach.

Conformance with custom is some evidence of reasonableness.

Conformance with custom does not conclusively

establish lack of negligence.

Conformance with customary practice is evidence of reasonable unless the facts and circumstances show that greater precautions are required.

Premisis Liability and Constructive Notice

(Banana Peel Cases)

The reasonable conduct of the defendant is based on the defendants notice of the condition and his ability to remedy the condition.

Constructive notice is based on facts and circumstances.

DEFINED

Such notice as is implied or imputed by law. Notice with which a person is charged by reason of the nature of the thing to be noticed.

RELEVANT CONSIDERATIONS

Discoloration or Alteration

Proximity (employee)

Opportunity to Discover

Absence of Inspection

Prior Occurrences

RES IPSA LOQUITUR

(the thing speaks for itself)

Allows the plaintiff to create an inference the D was negligent just from the event/accident without any specifics of his behavior to get in front of a Jury.

Used when evidence that could point to behavior has been destroyed or is not available, like the injured party being incapacitated.  

FACTORS

(1)  the character of the accident is such that it would not ordinarily occur in the absence of negligence; and

(2) the instrumentality causing the injury is shown to have been under the management and exclusive control of the defendant.

EFFECT

(1)Rebuttable presumption of negligence – D must present evidence of no negligence

(2)Shifts BOP to D – must prove no negligence

(3)Permissible inference of negligence

Applicable to multiple D’s when there is joint control of the risk

Causation

Plaintiff must prove both:

Cause in fact

and

Legal/Proximate Cause

Establishing Cause in Fact

("But for")

"But for" Test

A showing that D's failure to act with reasonable care was the "cause in fact" of the injury to plaintiff.  Generally, "cause in fact" means a "but for" cause the majority of the time, i.e., a cause without which the injury wouldn't have occured.  

"Had D not acted negligently, P's injuries would not have resulted."

Does not work in all situations.

Establishing Cause in Fact

(Independantly Sufficient Causes)

When two events concur to cause harm.

Happens when two or more defendants are the cause in fact of the incident but not the "but for" cause.

Both Defendant's are Responsible.

Ex. Fire case, two seperate fires combined.  Either one could have burned down the house.

Establishing Cause in Fact

(Multiple Fault)

When P cand prove multiple parties are involved in causing the harm, the burden of proof shifts to each defendant to show that the other caused the harm.

The burden of proof on factual causation shifts to the defendants if:

1)Each is shown to have acted tortiously;

2)The actual wrongdoer is one of the small number of defendants before the court; and

3)The nature of the accident makes it impossible for the plaintiff to prove causation

Ex. Two people both shoot and kill P, up to both of the D's to prove which one of them did it or else they are both liable. 

CONCERTED ACTION LIABILITY

Concerted action liability rests upon the principle that [a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him.

An injured plaintiff may pursue any one joint tortfeasor on a concerted action theory.

Such tortfeasor may, in turn, seek contribution from others who acted in concert with him.

Establishing Cause in Fact

(Substantial Factor Test)

The “substantial factor” test requires that the defendant materially contributed to the plaintiff's injury.  

The substantial factor test is used by many courts as a supplement to the “but for” test when redundant multiple causes would preclude liability under the “but for” analysis.

In the fire case, neither fire is the "but for" cause.  Each fire is however a cause in fact.  The "but for" test will fail to prove causation.  In order to avoid this inequitable result, the substantial factor test is allowed as an alternative proof of causation for redundant causes.

Establishing a Cause in Fact

(Alternative Liability)

ALTERNATIVE LIABILITY

Small Number of Tortfeasors – all acted negligently either in concert or independantly.  

All tortfeasors in which P can prove have breached a duty of care are joined in the suit.

Plaintiff cannot prove specific cause

Shifts burden of proof of causation to Defendant, the Defendants have to sort out which one is respobsible.

Civil Conspiracy

(Concerted Action Liability)

ELEMENTS

1)An agreement between two or more persons

2)To do . . .

a)An unlawful act, or

b)A lawful act in an unlawful manner

3)Harm caused by the overt act of one party to the agreement

4)Overt act done in furtherance of the common scheme

Agreement – tacit or explicit – is the key distinguishing factor of civil conspiracy.

A conspirator is liable for acts done in furtherance of, or within the scope of, the conspiracy.

ELEMENTS

1)A wrongful act by the principal causing injury

2)General awareness by the defendant of his or her role in the overall illegal activity

3)Substantial assistance

BASIC IDEA:

One who assists a tortious act is liable for reasonably foreseeable acts done in connection with it.

ELEMENTS

1)Express or implied agreement among members of a group

2)Common purpose to be carried out by the group

3)Members have a community of pecuniary interest

4)All members have equal right of voice and control

“Unofficial” partnership

CONSIDERATIONS

1)D’s level of culpability

2)First Amendment protections for D’s words/acts

3)Foreseeability

Proximate Cause

Second part of Cause analysis

Question of Fairness

"Are we going to hold this defendant liable for this particular result/injury to this particular plaintiff in the context of the facts and cirumstances of the defendants actions."

Determined using a Forseeability analysis

The real issuse happens when the harm the plaintiff suffered does not seem to be a natural flow from the defendants conduct or the situation is unusual or bizarre and arguable the defendant is not directly responsible.

RESULT WITHIN THE RISK

(Proximate Cause)

Liability limited to harms arising from the risks

created by the tortious conduct.

Ex. D spilled oil in the wharf, oil then caught fire and burned P's dock.

Risk was oil junking up the wharf, not the burning of the dock.

D not liable.

Egg-shell skull

Thus if P, unbeknownst to D, has a very thin skull (a skull of "egg-shell thinness"),  and D negligently inflicts a minor impact on this skull, D will be held if, because of the hidden skull defect, P dies.  The defendant "takes his plaintiff as he finds him."

FORESEEABILITY TEST

(Proximate Cause)

In essence, the foreseeable harm test requires (1) a reasonably foreseeable result or type of harm, and (2) no superseding intervening force. 

Result/Type of harm must be foreseeable BUT the precise manner of the harm and the extent of the harm need not be foreseeable.

The leading test for proximate cause focuses on whether the defendant should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the plaintiff. 

Unforseeable Plaintiff

(Proximate Cause)

D is only responsible for forseeable plaintiffs.  

Ex. Train platform case, the fireworks exploded and caused a scale to fall on someone.  D was not liable to that person because his conduct did not involve an unreasonable risk of harm.

Two Exceptions:

General class of harm but not same manner.  

Ex. Gun drop case. 

Plaintiff part of forseeable class

Ex. Ship floods riverbank case.  

Intervening Cause

(Proximate Cause)

An intervening case is a force which takes effect after D's negligence, and which controbutes to that negligence in producing P's injury. 

Superceding Cause

(Proximate Cause)

Some, but not all, intervening causes are sufficient to prevent D's negligence from being held to be the proximate cause of the injury.  Intervening causes that are sufficient to prevent D from being negligent are called "superseding" causes, since they supersede or cancel D's liability.

Courts use a foreseeability rule to determine whether a particular intervening cause is superseding.

Test:  If D should have foreseen the possibility that the intervening cause (or one like it) might occur, or if the kind of harm suffered by P was foreseeable (even if the intervening cause was not itself foreseeable), D's conduct will nonetheless be the proximate cause.  But if neither the intervening cause nor the kind of harm was foreseeable, the intervening cause will be a superseding one, relieving D of liability.  

Rescue Doctrine

Requirements

Imminent peril – apparent not actual

An act of intervention – not investigation

Tortious conduct by the defendant

The doctrine governs liability for losses

subsequent to intervention.

Issues

Variations of the Doctrine

Superseding causation

Original D can be liable to victim for harm caused by rescuer

Liability of rescuer to victim

Good Samaritan Statutes

Liability of creator of the peril to rescuer

Contributory negligence of rescuer

Liability of third-party to rescuer

Rule of 7's 

(NC only Rule)

•<7 . . . cannot be negligent

•7-14 . . . Rebuttable presumption of no capacity to be negligent

•14-17 . . . Rebuttable presumption of capacity to be negligent . . . Child of “similar age, intelligence and experience”

R2T -- <5 no negligence

Factors for determining

“Substantial Assistance/encouragement”

1)Nature of the act encouraged

2)Amount of assistance given – suggestive words may be enough

3)Defendant’s presence or absence at the time

4)Defendant’s relation to the tortfeasor

5)Defendant’s state of mind

6)Duration of the assistance