9-11-19 Torts Notes - Professor Leiter PDF

Preview

Summary

Professor Leiter...

Description

Austin Scherer Torts Notes III. Negligence A. Introduction to Negligence History  Scarcely recognized as a separate tort before the early part of the 19th century  Was merely one way of committing any tort, just as some courts, for example, spoke occasionally of a “negligent battery,” meaning a negligent touching that was harmful or offensive.  Started to arise in certain “public” callings o Whom confidence might be reposed, and hence as assuming an obligation to give proper service, for the breach of which, by any negligent conduct, he might be liable.  Around the year 1825, negligence began to emerge out of the action on the case, and to be recognized as a separate basis of tort liability, independent of other causes of action. o Around the time of the Industrial Revolution in England  The disintegration of the old forms of action, and the disappearance of the distinction between direct and indirect injuries found in trespass and case. o Took separate form as the basis for unintended torts Elements of Cause of Action  A duty to use reasonable care o Requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks  Breach of the duty o A failure to conform to the required standard o These two elements make up what the court refers to as negligent behavior, the term is frequently applied to the second alone.  Causation o A reasonably close causal connection between the conduct and the resulting injury  A combination of two elements-causation in fact and legal or “proximate” causation  Actual loss or damage o Pleading and proof of damage was an essential part of the plaintiff’s case  Nominal damages to vindicate a technical right cannot be recovered in a negligence action if no actual damage has occurred. o The question of what constitutes damage is less certain that it once was. o It is misleading to view the elements as discrete o Professor Owen, within book, says to divide torts up to five actions (wait to see what Leiter says in class) o Keep in mind that the standard-reasonable care under the circumstances-applies to all parties, whether they are plaintiffs or defendants in a particular case. Negligence Formula A. Lubitz v. Wells B. Blyth v. Birmingham Waterworks Co.

Austin Scherer Torts Notes III. Negligence A. Introduction to Negligence a. Foreseeability, can play a factor into whether or not negligence actually occurred C. Pipher v. Parsell a. Once an individual becomes aware of a potential hazard caused by either someone or something, they then may become liable for negligence D. Chicago, B. & Q.R. Co. v. Krayenbuhl E. Davison v. Snohomish County a. Experts testified to provide expertise and to assist the parties in establishing the standard of care F. United States v. Carroll Towing Co. a. The degree of care demanded of a person by an occasion is the resultant of three factors: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk Restatement (Third) of Torts: Liability for Physical and Emotional Harm  § 3. Negligence: A persona acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm....