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97 Cards in this Set
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R(2nd) Negligence |
[Negligence] {R(2nd) 282} [N]egligence is conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. |
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Brown v. Kendall (1850) |
[Negligence][Reasonable Person] The plaintiff must prove that the defendant either (i) acted intentionally to harm her or (ii) was at fault because he failed to exercise ordinary care. |
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Ordinary Care in Brown v. Kendall (1850) |
[Negligence][Reasonable Person] In general, the kind and degree of care which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. |
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Reasonable Person Standard
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[Negligence][Reasonable Person] {R(2nd) 291} Where an act is one which a reasonable man 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. |
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Factors Considered in Determining Utility of Actor's Conduct |
[Negligence][Reasonable Person] {R(2nd) 292} In determining what the law regards as the utility of the actor's conduct for the purpose of determining whether the actor is negligent, the following factors are important: (a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct; (b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct; (c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct. |
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Factors Considered in Determining Magnitude of Risk |
[Negligence][Reasonable Person] {R(2nd) 293} In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important: (a) the social value which the law attaches to the interests which are imperiled; (b) the extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member; (c) the extent of the harm likely to be caused to the interest imperiled; (d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm. |
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R(3rd)(LPEH) Negligence |
[Negligence] {R(3rd)(LPEH) 3} A person 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. |
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United States v. Carroll Towing Co. (1947) |
[Negligence][B>PL] D is liable in negligence for failing to take precautions if: the burden of taking such precautions (B) is less than the probability of injury (P) multiplied by the gravity of any resulting injury (L). If B>PL, then no liability to D. |
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Burden Variable Formula in B>PL |
[Negligence][Reasonable Person] {Professor Ainsworth} B = information costs + costs to change conduct + lost opportunity cost + costs of new conduct |
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Washington v. Louisiana Power and Light Co. (1990) |
[Negligence][B>PL] P was low, because the risk that someone would move the antenna and carry it near the line was low. L was very high, because it resulted in death. B was very high, because D would have to relocate or insulate all potential lines where this risk was present. |
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Weirum v. RKO General, Inc. (1975) |
[Negligence][B>PL] D argues that the risk of harm to P was unforeseeable, but that is wrong. D is negligent when his actions foreseeably cause 3rd parties to act negligently, which results in an unreasonable risk of harm to P. |
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Effect of Violation [of a Safety Statute] R(2nd) |
[Negligence][Negligence Per Se] {R(2nd) 288B} (1) The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself. (2) The unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligent conduct. |
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Statutory Violations as Negligence Per Se R(3rd)(LPEH) |
[Negligence][Negligence Per Se] {R(3rd)(LPEH) 14} An actor is negligent if, without cause, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. |
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Martin v. Herzog (1920) |
[Negligence][Negligence Per Se] P was injured in a car accident with D. P's car did not have headlights and D failed to keep his car in his line, both of which were violations of the state Highway Law. The state supreme court stated two inconsistent rules: (1) that a violation of a safety statute is negligence per se; (2) that a "wholly unexcused" violation of a safety statute is negligence per se. |
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Tedla v. Ellman (1939) |
[Negligence][Negligence Per Se] "Pedestrians on the Wrong Side of the Road Case" The court distinguishes two types of safety statutes: (1) rules which always make persons safer if followed; (2) rules which typically make persons safer if followed, except in special circumstances. Type (1) rules must always be followed or the violator is negligent per se. Type (2) rules must generally be followed, unless following the rule would place the actor in more danger. |
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Brown v. Shyne (1926) |
[Negligence][Negligence Per Se] "The Unlicensed Doctor Case" Violation of a licensing safety statute alone cannot be the basis of negligence per se. Violation of a duty imposed by a safety statute may be evidence of negligence only if there is some logical connection (like proximate cause) between the proven violation and the alleged negligence. |
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Table of Negligence and Safety Statutes: (1) Irrebuttable Presumption of Negligence |
[Negligence][Negligence Per Se] (a) Martin v. Herzog (1920) ("[A violation] is more than some evidence of negligence. It is negligence in itself.") (b) Medical Malpractice Standard |
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Table of Negligence and Safety Statutes: (2) Rebuttable Presumption of Negligence [Majority Rule] |
[Negligence][Negligence Per Se] (a) Martin v. Herzog (1920) (a "wholly unexcused" violation is negligence per se) (b) Tedla v. Ellman (1939) (c) Statute the NY legislature enacted after Brown (d) R(2nd) 288B (e) R(3rd)(LPEH) 14 |
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Table of Negligence and Safety Statutes: (3) Some Evidence of Negligence |
[Negligence][Negligence Per Se] (a) Trial Court of Martin v. Herzog (1920) (b) Trial Court of Brown v. Shyne (1926) (c) Trial Court of Trimarco v. Klein (1982) (d) Washington State Standard |
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Table of Negligence and Safety Statutes: (4) Irrelevant with Regard to Negligence |
[Negligence][Negligence Per Se] (a) Brown v. Shyne (1926) |
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Custom |
[Negligence][Custom] {R(2nd) 295A} In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them. |
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Trimarco v. Klein (1982) |
[Negligence][Custom] "The Shattered Glass Shower Case" Failure to adhere to custom is some evidence (but nothing more) that the actor has fallen below the required standard. The custom doesn't have to be universal; it is sufficient if it is fairly well-defined and in the same business so that "the actor may be charged with knowledge of it or negligent ignorance." See R(2nd) 295A Cmt. a. |
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The T.J. Hooper (1932) |
[Negligence][Custom] "The Radio Barge Case" In many industries, the custom of the industry is the standard of care honored by the law. Indeed in most cases, common care is reasonable care - but it is never its measure. An entire industry may have unduly lagged in the adoption of new and available standards. Ultimately, the court sets the standard. |
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Helling v. Carey (1974) |
[Negligence][Custom] "The Undiagnosed Glaucoma Case" Citing The T.J. Hooper, the court overrode the medical community's standard and practice, and held that the correct standard was reasonable prudence. The court performed a B>PL analysis and found that D were negligent. |
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Table of Adherence to Customs |
[Negligence][Custom] (1) Irrebuttable Presumption of Non-Negligence - Medical Malpractice Standard (2) Rebuttable Presumption of Non-Negligence - Quasi-Medical Malpractice Standard (3) Some Evidence of Non-Negligence - The T.J. Hooper (1932) (4) Irrelevant with Regard to Non-Negligence - Helling v. Carey (1974) |
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Res Ipsa Loquitur R(2nd) |
[Negligence][Res Ipsa Loquitur] {R(2nd) 382D} (1) It may be inferred that harm suffered by P is caused by the negligence of D when: (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of P and 3rd persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of D's duty to P.... |
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Res Ipsa Loquitur R(3rd)(LPEH) |
[Negligence][Res Ipsa Loquitur] {R(3rd)(LPEH) 17} The factfinder may infer that D has been negligent when the accident causing P's harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which D is the relevant member. |
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Boyer v. Iowa High School Athletic Association (1967) |
[Negligence][Res Ipsa Loquitur] "The Collapsed Bleacher Case" Res ipsa requires proving the factual predicate. Although one justification underlying res ipsa is that the doctrine is well-suited for cases where evidence of the negligence is accessible to D and not to P, this is not an element of the res ipsa analysis. |
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Res Ipsa Loquitur Definition in Boyer |
[Negligence][Res Ipsa Loquitur] Res Ipsa Loquitur: Where injury occurs by (1) an instrumentality under the exclusive control and management of D and (2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used, the happening of the injury permits but does not compel an inference that D was negligent. |
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Shutt v. Kafuman's, Inc. (1968) |
[Negligence][Res Ipsa Loquitur] "The Unstable Shoe Stand Case" D had a duty to exercise reasonable care for the safety of business visitors (like P), but D is not absolutely liable. The mere happening of an accident raises no presumption of negligence except under circumstances where res ipsa is applicable. P wanted to apply res ipsa because the harm was unforeseeable to her. But foreseeability is not the res ipsa test. P should have gathered facts to prove D's specific negligence. |
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City of Louisville v. Humphrey (1970) |
[Negligence][Res Ipsa Loquitur] "The Alcoholic Killed in Jail Case" Even assuming P sustained his injuries after arrest, P did not show whether the injuries were inflicted at the hands of a city employee or from a fellow prisoner. Even if the injuries were from a fellow prisoner, P still had to prove that D was negligent in permitting those injuries. To the contrary, the court finds that the arresting officers exercised a degree of care higher than ordinary care. [Really? :/] |
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Escola v. Coca Cola Bottling Co. (1944) |
[Negligence][Res Ipsa Loquitur] Res ipsa may still be applied if D had control at the time of the alleged negligent act, even if D was not in control at the time of the accident. P must prove that the condition of the instrumentality had not been changed after it left D's possession. |
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Table of Specific Negligence/Res Ipsa Loquitur Approaches |
[Negligence][Res Ipsa Loquitur] GENEROUS (LOWER PLEADING) (1) Res ipsa is always available (and there is no need to separately plead) if the factual predicate exists - Boyer v. Iowa High School Athletic Association (1967) (2) Res ipsa is available but P must plead separately to put D on notice - Supreme Court of Marrero v. Goldsmith (1986) (3) Res ipsa is available, unless P has shown specific evidence of all the elements of specific negligence - R(3rd)(LPEH) 17 Cmt. g (4) Res ipsa is not available if P has alleged specific negligence - Trial Court of Marrero v. Goldsmith (1986) (5) Res ipsa is not available if P could have proved specific negligence - Shutt v. Kaufman's, Inc. (1968) SPARING (HIGHER PLEADING) |
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Duty to Act for Protection of Others |
[Negligence][Duty to Rescue] {R(2nd) 314} The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action. |
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KISS Ass |
[Negligence][Duty to Rescue] D has an affirmative duty to exercise reasonable care to P when: K (C)ontract Imperiling Another {R(2nd) 322} - where D's conduct results bodily harm to P, who is imperiled and helpless Special Status Relationship {R(3rd)(LPEH) 40(a)} Statute Assuming a Duty Voluntarily {R(3rd)(LPEH) 44}{R(2nd) 323 and R(3rd)(LPEH) 42 [Undertakings and the "Loss of Chance" Rule]} |
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"Loss of Chance" Rule |
[Negligence][Duty to Rescue] {R(2nd) 323}{R(3rd)(LPEH) 42}{See Cahoon v. Cummings (2000)} One who undertakes to render services to another and knows or should know that the services will reduce the risk of harm to the other has a duty to exercise reasonable care in conducting the undertaking if: (a) the failure to exercise such reasonable care increases the risk of such harm [R(3rd) beyond that which existed without the undertaking]; or (b) the harm is suffered because of the other's reliance upon the undertaking. |
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Erie Railroad Co. v. Stewart (1930) |
[Negligence][Duty to Rescue] A party's failure to undertake voluntary but well-established security measures, when the company has created an expectation (i.e., reliance) of such security measures in the public, may constitute negligence. |
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Tubbs v. Argus (1967) |
[Negligence][Duty to Rescue] P was injured and rendered helpless when D (innocently) crashed the car they were in. Under R(2nd) 322 [imperiling another], D is liable for the aggravation of P's injuries when he abandoned her. |
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Tarasoff v. Regents of University of California (1976) |
[Negligence][Duty to Rescue] When a therapist learns from his patient about intent to harm a 3rd party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger. He is not required to disclose every threat; he may use his professional discretion, but it must always conform to the medical standard. |
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Rescuers |
[Negligence][Liability to Rescuers] {R(3rd)(LPEH) 32} [I]f an actor's tortious conduct imperils another or the property of another, the scope of the actor's liability includes any harm to a person resulting from that person's efforts to aid or protect the imperiled person or property, so long as the harm arises from a risk that inheres in the effort to provide aid. |
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Firefighter's Rule |
[Negligence][Liability to Rescuers] Bars recovery by professional rescuers for injuries incurred in the course of their duties. But importantly, the rule generally does not bar emergency personnel from recovering based on unreasonable risks that are separate from the reason for their presence at an emergency scene. |
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Solomon v. Shuell (1990) |
[Negligence][Liability to Rescuers] "The Father Shot While 'Rescuing' Son Case" The Rescue Doctrine does not require actual danger, but rather a reasonableness standard. There is a 2-step analysis: (1) The trier of fact must determine whether a reasonable person under the same or similar circumstances would have acted as did the rescuer. (2) The trier of fact must determine whether the rescuer carried out the rescue attempt in a reasonable manner. |
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"Sudden Emergency" Doctrine |
[Negligence][Sudden Emergency Doctrine] {Kappelman v. Lutz (Wash. 2009} A person who is suddenly confronted by an emergency through no negligence of her own, and who is compelled to decide instantly how to avoid injury, and who makes such a choice as a reasonably careful person placed in such a position might make, is not negligent even though it was not the wisest choice. |
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"Sudden Emergency" Doctrine to Avoid Liability from Violation of a Safety Statute |
[Negligence][Sudden Emergency Doctrine] {James v. Greater Dayton RTA (Ohio Ct. App. 2010} If proven, this doctrine is some evidence that the factfinder may use in assessing negligence. The party seeking to avoid liability must show: (1) compliance with the safety statute was rendered impossible (2) by a sudden emergency (3) that arose without the fault of the party asserting the excuse (4) because of circumstances over which the party asserting the excuse had no control, and (5) the party asserting the excuse exercise such care as a reasonably prudent person would have under the circumstances. |
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Emergency |
[Negligence][Sudden Emergency Doctrine] {R(3rd)(LPEH) 9} If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actor's resulting conduct is that of the reasonably careful person. |
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Hoyt v. Jeffers (1874) |
[Actual Causation] "The Ember Case" We know D is doing something, did D do this? A jury may (but is not compelled to) consider and base its decision upon circumstantial evidence of causation where direct evidence is unavailable or has not been introduced. |
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Smith v. Rapid Transit, Inc. (1945) |
[Actual Causation] "The Phantom Bus Case" Who Dunnit? It is not enough that chances mathematically favor P's assertion of causation - P must prove by the appropriate standard that D caused the injury. |
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Joint and Several Liability: Concertive Action |
[Actual Causation][Alternative Liability]
Where D acted in concert to cause the harm. This is a form of vicarious liability in which all D will be responsible for harm actually caused by only one of them. Example: If A and B engaged in a public street race and A runs over P, then B will (just as much as A) be liable for P's harm. |
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Joint and Several Liability: Independent and Indivisible |
[Actual Causation][Alternative Liability] Where D acted independently but caused indivisible harm. Example: If P were a passenger in A's car which collided with B's car due to the fault of both drivers, then A and B will be jointly and severally liable for P's harm. |
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Contribution |
[Actual Causation][Alternative Liability] Traditionally, if P sued just one joint tortfeasor and recovered, that D had no legal recourse against the other joint tortfeasors to compel them to share liability. Modernly, most states provide for contribution among joint tortfeasors, either by statute or judicial decision. ~30 states have adopted some version of the Uniform Contribution Among Tortfeasors Act. |
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Summers v. Tice (1948) |
[Actual Causation][Alternative Liability] "The Overdetermined Hunter Case" Because P proved that both D were negligent and that both D caused the entire harm, the burden shifts to D to absolve themselves of liability: "let them [D] be the ones to apportion it among themselves." |
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Ybarra v. Spanguard (1944) |
[Actual Causation][Alternative Liability] Every D in whose custody unconscious-P was placed had a duty to exercise reasonable care to see that no unnecessary harm came to him; each D is liable for negligence of this duty. At one time or another, each of the agents/instrumentalities that may have caused P's harm was in the hands of every D. Therefore, P can bring a res ipsa claim against D - the burden shifts to D. |
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Table of Alternative Liability Tests |
[Actual Causation][Alternative Liability] Summers v. Tice (1948): (A + B + ... + N at fault) + (A or B or ... or N caused the harm) = A + B + ... + N can be liable Ybarra v. Spanguard (1944): (A or B or ... or N at fault) + (A or B or ... or N caused the harm) = A + B + ... N can be liable |
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"Direct Consequences" Test |
[Proximate Causation] [Mostly Abandoned]{In re Polemis (1921)} The fact that the injury caused is not the type of damage one would expect/foresee is irrelevant, so long as the injury is in fact directly traceable to the negligent act. |
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"Foreseeable Consequences" Test |
[Proximate Causation] {See Palsgraf v. Long Island R.R. (1928)} D is only liable for negligence if he violates a legally protected interest of P and if the resulting harm itself was reasonably foreseeable. |
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"Substantial Factor" Test |
[Proximate Causation] {R(2nd) 431} The actor's negligent conduct is a legal cause of harm to another if: (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. |
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Considerations Important in Determining Whether Negligent Conduct is a Substantial Factor in Producing Harm |
[Proximate Causation] {R(2nd) 433} The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial factor in bringing about the harm to another: (b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time. |
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R(3rd)(LPEH) Approach to Proximate Causation |
[Proximate Causation] {R(3rd)(LPEH) 29} An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious. |
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CSX Transportation, Inc. v. McBride (2011) |
[Proximate Causation] No need to impose a proximate cause requirement here. The FELA statute already provides for itself some of the limits proximate cause would impose. For one, the statute limits who may sue (injured employees) so there are no unforeseeable P. For another, the statute limits already limits injuries that have a tenuous causal relationship to railroad negligence by restricting causes to injuries at work. |
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Cahoon v. Cummings (2000) |
[Proximate Causation] In this jurisdiction, for a "loss of chance" action, P is not required to prove by a preponderance of the evidence that D's conduct was the proximate cause of injury. See R(2nd) 323 or R(3rd)(LPEH) 42. In a loss of chance case, the damages awarded must be proportional to the risk attributable to D. |
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Palsgraf v. Long Island R.R. (1928) |
[Proximate Causation] Majority: In this case, there was no foreseeable link between D's conduct and P's injuries. The package did not outwardly appear to be dangerous, so D's act of throwing the package was not unlawful. D's act of pulling the man on the train did not cause P bodily harm. Since P has not proved that D breached a duty owed to her, she has no cause of action. Dissent: One does not have a legal duty to protect only those in a nearby "zone of danger" from harmful acts. Rather, one has a duty to refrain from acts that may unreasonably threaten the safety of others. There are no fixed rules to govern proximate cause; "There are simply matters of which we may take account." At the very least, there must be a "natural and continuous" sequence between cause and harm, with few if any intervening causes. |
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Marshall v. Nugent (1955) |
[Proximate Causation] "The Off-the-Road Snow Case" P was a passenger in A's car. A was forced off the road by B. P went up the road to warn oncoming traffic and was struck by C. B argues that even if they were negligent in forcing A/P off the road, P was not harmed by this. But in car accidents, one should reasonably foresee a variety of risks; although B's particular act of negligence was over and done, the consequences of B's action were still in effect. |
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Table of Proximate Cause Tests |
[Proximate Causation] (0) No Proximate Cause Requirement (a) CSX Transportation, Inc. v. McBride (2011) (b) "Loss of Chance" Rule: Cahoon v. Cummings (2000); R(2nd) 323 and R(3rd)(LPEH) 42 (1) Direct Consequences (a) "Direct Consequences" Test: In re Polemis (1921) (2) Balance of Factors ("Add Factors and Stir") (a) "Substantial Factor" Test: R(2nd) 431 and 433 (b) Dissent in Palsgraf v. Long Island R.R. (1928) (c) Washington State Rule (3) Foreseeable Harm to Foreseeable P (a) Marshall v. Nugent (1955) (4) Broad Foreseeability (a) "Foreseeable Consequences" Test: Majority in Palsgraf v. Long Island R.R. (1928) |
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Abnormally Dangerous Animals |
[Strict Liability][Animals] {R(3rd)(LPEH) 23} An owner or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal's category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency. |
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Liability for Trespass by Livestock |
[Strict Liability][Animals] {R(2nd) 504}{R(3rd)(LPEH) 21} An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion. |
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"Fencing In" vs. "Fencing Out" Rule |
[Strict Liability][Animals] "Fencing In" Rule: The owner of livestock is strictly liable for their harm upon escape unless he has fenced them in. "Fencing Out" Rule: The owner of livestock is strictly liable for their harm upon escape if, but only if, the injured party has fenced the livestock out. |
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Wild Animals |
[Strict Liability][Animals] {R(3rd)(LPEH) 22} (a) An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal. (b) A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are likely, unless restrained, to cause personal injury. |
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General Principle [of Abnormally Dangerous Activities] R(2nd) |
[Strict Liability][A.D.A.] {R(2nd) 519} (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting form the activity, although he has exercised the utmost care to prevent the harm. (2) This strict liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous. |
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Abnormally Dangerous Activities R(2nd) |
[Strict Liability][A.D.A.] {R(2nd) 520} In determining whether an activity is abnormally dangerous, the following factors are to be considered: (b) likelihood that the harm results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. |
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Abnormally Dangerous Activities R(3rd)(LPEH) |
[Strict Liability][A.D.A.] {R(3rd)(LPEH) 20} (a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity; (b) An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage. |
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Assumption of Risk [in Abnormally Dangerous Activities] |
[Strict Liability][A.D.A.] {R(2nd) 523} P's assumption of risk of harm from an abnormally dangerous activity bars his recovery for the harm. |
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Contributory Negligence [in Abnormally Dangerous Activities] |
[Strict Liability][A.D.A] {R(2nd) 524} (1) Except as stated in Subsection (2), the contributory negligence of P is not a defense to the strict liability of one who carries on an abnormally dangerous activity. (2) P's contributory negligence in knowingly and unreasonably subjecting himself to the risk of harm from the activity [i.e., assumption of risk] is a defense to the strict liability. |
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Plaintiff's Abnormally Sensitive Activity |
[Strict Liability][A.D.A.] {R(2nd) 524A} There is no strict liability for harm caused by an abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of P's activity. |
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Fletcher v. Rylands (1866) |
[Strict Liability][A.D.A.] If D brings an unnatural (man-made) thing onto his lands that will cause damage if it escapes, he must keep it at his peril. If it does in fact escape, D is strictly liable for all the damage which is the natural consequence of its escape. |
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Rylands v. Fletcher (1868) |
[Strict Liability][A.D.A.] Same rules as in Fletcher, but unnatural is defined as uncommon, atypical, abnormal. |
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Turner v. Big Lake Oil Co. (1936) |
[Strict Liability][A.D.A.] Applying Rylands (1969), the court found that D's land use (salt ponds from oil extraction) was natural because it was common for the region. The court strangely equated the common storage of rainwater and the storage of run-off salt water. Thus, D is not strictly liable for the escape and harm of the salt ponds. |
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Siegler v. Kuhlman (1972) |
[Strict Liability][A.D.A.] Applying R(2nd) 519-520, the court found that hauling gas as freight on a highway was not unnatural but was extraordinarily dangerous because of the quantity, bulk, and weight of the gas, all of which is compounded by moving along highways. Additionally, gas is likely to destroy evidence of negligence in fire or explosion. Therefore, D is strictly liable to P. |
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Foster v. Preston Mill Co. (1954) |
[Strict Liability][A.D.A.] "The Infanticidal Mink Case" D is not strictly liable to P because it is the abnormally sensitive nature of P's activity that makes D's activities dangerous. |
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Special Liability of Seller of Product for Physical Harm to User or Consumer |
[Products Liability] {R(2nd) 402A} (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if: (a) the seller is engaged in the business of selling such a product; and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although: (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. |
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Contributory Negligence Defined |
[Contributory Fault][Contributory Negligence] {R(2nd) 463} Contributory negligence is conduct on the part of P which falls below the standard to which he should conform for his own protection [i.e., reasonableness - see 464], and which is a legally contributing cause co-operating with the negligence of D in bringing about P's harm [i.e., "substantial factor" - see 465]. |
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Bar Against Negligent Defendant |
[Contributory Fault][Contributory Negligence] {R(2nd) 467} Except where D has the last clear chance, P's contributory negligence bars recovery against a D whose negligent conduct would otherwise make him liable to P for the harm sustained by him. |
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Butterfield v. Forrester (1809) |
[Contributory Fault][Contributory Negligence] P cannot recover for injury from D's negligence if P does not exercise common and ordinary care. One person being in fault will not dispense with another's using ordinary care for himself. |
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"Last Clear Chance" Rule |
[Contributory Fault][Contributory Negligence] [Majority Rule] P's contributory negligence will not defeat her negligence claim if D, by the exercise of reasonable care, could have avoided the consequence of P's negligence. |
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Davies v. Mann (1842) |
[Contributory Fault][Contributory Negligence] P was negligent per se in leaving his donkey shackled on a highway. D was negligent in driving his wagon too fast. Here, even though P was negligent, D had the "last clear chance" to avoid the consequence of that negligence. |
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"Antecedent Last Clear Chance" Rule |
[Contributory Fault][Contributory Negligence] {British Columbia Electric Railway v. Loach (1916)} D's train left the station with defective brakes. P had negligently stalled his wagon the tracks and was hit. The court held that D was still liable even though the last clear chance was antecedent to P's negligence. Otherwise, D "would be in a better position when they supplied a bad brake but a good [engineer] than when the [engineer] was careless but the brake efficient." |
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Express Assumption of Risk |
[Contributory Fault][Assumption of Risk] {R(2nd) 496B} A P who by contract or otherwise expressly agrees to accept a risk of harm arising form D's negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy. |
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Implied Assumption of Risk |
[Contributory Fault][Assumption of Risk] {R(2nd) 496C} (1) A P who fully understands a risk of harm to himself or his things caused by D's conduct or by the condition of D's land or chattels, and who nevertheless voluntarily chooses to enter or remain, or to permit his things to enter or remain within the area of risk, under circumstances manifesting his willingness to accept it, is not entitled to recover for harm within that risk. (2) The rule stated in Subsection (1) does not apply in any situation in which an express agreement to accept the risk would be invalid as contrary to public policy. |
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Assumption of Risk Test |
[Contributory Fault][Assumption of Risk] {Professor Ainsworth, R(3rd)(AoL)} (1) In order for assumption of risk to bar recovery, P must have actual and full knowledge of a danger. It is not enough for a reasonable person to have knowledge of the risk, it must be P. (2) P must voluntarily assume the risk. If there is no meaningful choice, P cannot assume the risk. (3) P's choice to continue in the face of the risk must be unreasonable (i.e., negligent). |
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Meistrich v. Casino Arena Attractions, Inc. (1959) |
[Contributory Fault][Assumption of Risk] "The Ice Skating Case" There is no separate affirmative defense for assumption of risk (explicitly rejecting R(2nd) 496C). Each case must be analyzed to determine whether the pivotal question of risk goes to (1) D's negligence or (2) P's contributory negligence. (1) If the focus is on D, then the primary sense is being used: the term is merely a denial and the burden of proof is on P. (2) If the focus is on P, then the secondary sense is being used: the term is equivalent to an affirmative defense of contributory negligence and the burden of proof is on D. |
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Williams v. Bright (1997) |
[Damages][Medical Expenses] The trial court instructed that the jury must consider P's religion, which essentially directed a verdict for P on the issue. On remand, the state supreme court held that the correct standard was that the jury may consider P's religion in assessing whether she was reasonable in failing to mitigate damages. |
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Factors for Loss of Earning Capacity |
[Damages][Loss of Earnings] {Casebook} (1) P's basic earning capacity (2) the % by which P's earning capacity has been diminished (3) the expected duration of the disability (4) the life expectancy of P if the disability is permanent |
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Ruzzi v. Butler Petroleum Co. (1991) |
[Damages][Loss of Earnings] D argues that the damages for lost earning capacity were erroneous because P was still employed by his old company in a less demanding job for the same pay. But D confuses lost earnings and lost earning capacity. Parity of wages is not dispositive. The test is: Has P's economic horizon been shortened because of the injuries sustained as a result of D's negligence? |
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Mauro v. Raymark Industries, Inc. (1989) |
[Damages][Loss of Earnings] Majority: [Traditional Rule] The longstanding rule in most jurisdictions is that damages are not recoverable unless they are reasonably probable to occur. The court agrees in this case, although it removed the statute of limitations and single controversy doctrine as a bar to suit when the disease for which P is at risk actually occurs. Dissent: [Some States] Some states (as would the dissent) permit P to recover damages for harm with a smaller probability of occurring, so long as P presents adequate evidence to establish that probability. |
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Grayson v. Irvmar Realty Corp. (1959) |
[Damages][Loss of Earnings] "The Budding Opera Singer Case" P's damages for lost earning capacity are not confined by prior earnings. But where a P possesses rare and special talents, she may recover damages for injury to the development of those talents only if there was a measurable potential of success. In assessing the probability of P's future success, the factfinder may consider: (1) the gifts attributed to P; (2) the training P has received and is likely to receive; (3) the opportunities and recognition P has already had and is likely to have in the future; (4) the realization that such opportunities are limited to a very few and that there are many risks and contingencies. |
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Loss of Enjoyment of Life |
[Damages][Pain and Suffering] [Majority Rule] Most states include loss of enjoyment of life as encompassed under pain and suffering. See McDougald v. Garber (1989). [Minority Rule] Some states hold that damages for loss of enjoyment of life is a separate item of recovery. |
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Walters v. Hitchcock (1985) |
[Damages][Pain and Suffering] An appellate court will overturn damages if the award amount shocks the conscience of the court. Here, although P's condition cannot be helped by further medical treatment, medical expenses alone will not restore her to her original condition. Considering P's injuries, the court concludes that the pain and suffering damages are not excessive. |
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McDougald v. Garber (1989) |
[Damages][Pain and Suffering] Loss of life is encompassed in the pain and suffering category and is not a separate category of damages. An award for loss of enjoyment of life requires P to have some degree of cognitive awareness. Money damages in a situation where the victim is unconscious have no meaning, consolation, or utility to the injured person. |
