Torts Practice Midterm

Meep Meep

B>PL Rule

If the burden of taking a precaution is outweighed by the probability of harm multiplied by the gravity of harm, then there is a duty to take precaution. If the precaution is not taken, then it’s a breach of duty.

B>PL Case

US v. Carrol Towing & Washington v. Louisiana Power

General Standard of Conduct

The general standard of conduct that we are all held to is that of a reasonable person.

RPP Standard

The standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances. Used for Children and those with Physical Disabilities.

Custom Rule

Custom establishes a community’s accepted standard of conduct for others. Failure to comply with a custom may be proof of negligence, especially if the custom is that of a reasonable person

Reasonable Foreseeability Rule

A duty may be established if the behavior of an intermediate actor – which is the behavior that causes the harm – is reasonably foreseeable. When an intermediate actor’s behavior is foreseeable, they are called an intervening actor and do not cut off liability to the prior actor. However, if an intermediate actor’s actions are not foreseeable, they are deemed a superseding actor and cut off liability to the original actor.

Reasonable Foreseeability Case

Weirum v. RKO: Radio Station Engagement Campaign. Teenagers are Intermediate Actors.

Intermediate Actor

A third party who plays a role in the chain of events between the plaintiff’s harm and the defendants negligent action.

Res Ipsa Loquitur

Used to establish a duty of care when the plaintiff can’t determine and prove an exact theory of negligence.

To Prove Res Ipsa Loquitur

1. The incident that caused the harm does not generally happen without the defendants negligence

2. The defendant was in exclusive control of the instrumentality that caused harm to the plaintiff.

Contributory Negligence

Plaintiff can also be held responsible if their own negligence contributed to harm. (eg: in torts practice exam, the runner running when he knew it was too hot rather than staying home is contributory negligence).

Excused Violations

Violation of a statute is excused when following the statute would expose a person to more risk than not following the statute

Negligence per se

Violating a statute without an excuse

Tri-Partite Scheme

Invitee, Licensee, Trespasser. Use in any location besides California.

If Location is Ambiguous (Possessor of Land)

Use the tri-partite scheme first, then use rowland v. christian, and then use B<PL analysis

Possessor of Land Liability

A possessor of land can be liable for harm if:

• they know or could discover harmful condition

• they fail to take precautions to mitigate risk of harmful condition

• individual on their land is not aware of the risk (warned of risk)

Invitee

• A business visitor or public invitee

• Duty to inspect (duty to inspect property for harmful conditions)

• Need some inducement or encouragement to occur

Licensee

• Those who have permission to enter but do not rise to the level of invitee (eg. social guest)

• Duty to warn (for risks that can reasonable be discovered)

Trespasser

• Land Possessor has duty to warn trespassers of hazardous artificial conditions

• No duty of care besides not to intentionally hurt trespasser

Circumstantial Evidence

Evidence of a fact or set of facts form which the existence of the fact to be determined may reasonably be inferred.

Rowland v. Christian

• Use if location is California (California disregards tri-partite scheme)

• Everyone is owed a duty of care regardless of their status.

Common Carriers

Higher duty of care towards passengers than reasonable care standards.

Martin v. Herzog

• When establishing contributory negligence, we must determine whether the omission or partaking of the action ultimately contribute to the harm caused.

• An unexcused violation of a safety statute constitutes negligence in itself. A car struck a buggy because, in part, the buggy did not have lights even though lights were required.

Tedla v. Ellman

Statute says that, when walking on freeway, you must be walking towards traffic. Tedla says that her and her brother violated this statute because there was too much traffic on other side of the road and it would have been too dangerous to walk on correct side of the road. Court sided with Tedla and excused violation because it reduced the incidence of danger.

The TJ Hooper

Owner was negligent for failing to equip vessels with working radio receivers because,  had they possessed the receivers, they could have been made aware of storm and potentially avoided it. Even though no custom existed to carry receivers, court still found owner negligent because industry standard of recklessness does not excuse operator.

Helling v. Carey

• A standard of “reasonable prudence” should be followed in medical care and diagnosis even when the industry custom does not require it

• Medical case where defendant’s glaucoma went undiscovered because glaucome tests weren’t typically done until a person reachers 40. People under 40 are entitled to same protection from harm that people over 40 enjoy especially due to glaucoma test being easy to administer and inexpensive.

Boyer v. Iowa HS

• Establishes exclusive control of instrumentality as head custodian and athletic director were the only ones who had control over the bleacers and duty to inpsect.

• Also establishes that bleachers collapsing wouldn’t have occured with the negligence of the high school.

Shutt v. Kaufman

A plaintiff cannot claim negligence through res ipsa loquitur by establishing they could not have foreseen the accident that caused them harm → they must demonstrate that the defendant, through their own negligence, caused the harm

Ybarra v. Spanguard

When a plaintiff receives an unusual injury while unconscious, any defendant (and their agencies or instrumentalities) who had control over the plaintiff’s body that might have caused the injury can be held liable for negligence based on res ipsa loquitur 

• Ybarra went for apendectomy, woke up the next day feeling pain which eventually turned into paralysis

Tubbs v. Argus

Failure to render aid/rescue can constitute actionable negligence if the injury or harm was aggravated through lack of due care

Tarasoff v. UC

Higher duty of care when special relationship exists between two parties (eg. therapist and client or student and teacher).