Torts

Tort

A civil wrong that causes harm to another person

What is the basic question?

Who should bear the loss - the injured person or the person who caused the injury?

A plaintiff must prove:

Duty, breach, causation, and damages

Duty

The defendant owed the plaintiff a legal obligation

Breach

The defendant failed to meet that obligation

-Breach asks whether the defendant acted less carefully than a reasonable person would have acted under similar circumstances

Causation

The breach actually and legally failed to meet that obligation

Damages

The plaintiff suffered a legally recognized loss

Main level of fault

Negligence, strict liability, intentional tort

Negligence

The defendant failed to use reasonable care

1. The standard of reasonable care in general

2. What evidence establishes negligence?

3. Vicarious liability- Respondeat superior

Strict liability

The defendant may be liable even after using reasonable care

• Did the defendant's activity, animal, or product cause the protected type of harm, even if the defendant was careful?

• Not absolute liability

• Defenses and causation limits still apply

The judge commonly decides whether the defendant's activity fits a recognized strict-liability category. The jury may still have to decide disputed causation and damages.

Intentional tort

The defendant acted with required intent

Railroad Co. v. Stout (attractive-nuisance doctrine)

Simple facts: A six-year-old was injured while playing on an unlocked railroad turntable. The railroad knew children had played there before, and locking it would have been easy.

Rule/holding: A jury could find negligence because a reasonable railroad should foresee that children might be attracted to the dangerous turntable and should take inexpensive precautions.

Why it matters: Foreseeability and the burden of preventing harm help determine reasonable care. This case helped develop the attractive-nuisance doctrine.

United Zinc and Chemical Co. v. Britt (No attractive-nuisance rule)

Simple facts: Children entered private land and were poisoned after swimming in a dangerous chemical pool.

Rule/holding: The landowner was not liable under the attractive-nuisance rule because the dangerous condition did not lure the children onto the property; they entered for another reason and discovered it afterward.

Establishing breach of duty:

Negligence and strict liability

Negligence formula

Duty + breach + actual cause + legal cause + damages

An unavoidable accident is not negligence merely because someone was injured

Bierman v. City of New York (negligence)

Simple facts: Water escaped from a city water main and damaged the plaintiff's property.

Rule/holding: The city was not automatically liable merely because the water main broke. The plaintiff needed evidence that the city failed to use reasonable care.

Why it matters: Injury alone normally does not prove negligence; the plaintiff must connect the harm to unreasonable conduct unless a special doctrine applies.

Hammontree v. Jenner (Emergency Doctrine)

Simple facts: A driver suffered an unexpected epileptic seizure, lost control, and crashed into the plaintiffs' shop. He had followed medical advice and had no warning that a seizure was coming.

Rule/holding: The driver was judged under negligence, not strict liability. Because the seizure was unforeseeable and he had acted reasonably, he was not liable.

Why it matters: Drivers generally are not strictly liable for accidents caused by sudden, unforeseeable medical emergencies.

Reasonable care

The care a reasonable prudent pereson would use under the same or similar circumstances

• Test is usually objective

• The law asks what a reasonable person would have done, not whether this particular defendant personally tried hard

• Circumstances matter. Greater danger generally requires greater care.

Lussan v. Grain Dealers Mutual Insurance Co. (Reasonable care)

Rule/holding: Negligence is conduct that falls below what an ordinarily prudent person would do under similar circumstances.

Why it matters: The ordinary reasonable-person standard is the basic measuring stick for breach.

The Standard of Reasonable Care in General

• A reasonable person

• Customizing the reasonable person standard

• Efficiency (Learned Hand Formula)

Vaughn v. Menlove (A reasonable person)

Simple facts: Menlove repeatedly ignored warnings that his poorly maintained haystack could catch fire. It did and burned his neighbor's property.

Rule/holding: He was judged by the objective reasonable-person standard, not by his own limited judgment or intelligence.

Why it matters: A defendant usually cannot escape negligence by arguing, “I did the best I personally could.”

Adams v. Bullock (Reasonable person)

Simple facts: A boy swinging a long wire from a bridge contacted an overhead trolley wire and was shocked.

Rule/holding: The trolley company was not negligent because it had used ordinary precautions and the unusual accident was not reasonably foreseeable.

Why it matters: Reasonable care does not require guarding against every imaginable accident.

Customizing the Reasonable-Person Standard

• Physical disability

• Mental disability

• Children

• Adult activity exception

• Superior knowledge or skill

Physical disability

Compare the defendant with a reasonable person having the same physical disability

Mental disability

Adults are generally held to the ordinary reasonable-care standard despite mental limitations

Children

Compare a child with a reasonable child of similar age, intelligence, and experience

Adult activity exception

A child performing a dangerous activity normally reserved for adults is held to the adult standard

Superior knowledge or skill

A person with special knowledge may be expected to use it

Robinson v. Lindsay (Customizing the Reasonable-Person Standard)

Simple facts: A minor injured another person while operating a snowmobile.

Rule/holding: Because operating a motorized vehicle is a dangerous adult activity, the minor was held to the adult reasonable-care standard.

Why it matters: The more forgiving child standard does not apply to adult activities.

The Learned Hand Formula

B<P*L

B= Burden or cost of taking the precaution

P= Probability that harm will occur

L= Likely seriousness of the harm

If the burden of prevention is less than the expected harm, failing to take the precaution suggests negligence

The formula is a way to organize reasoning, not a literal calculation in every case

United States v. Towing Co.

Simple facts: A barge broke loose while its attendant was absent during busy working hours, causing cargo to sink.

Rule/holding: The barge owner was partly at fault because the burden of having an attendant present was less than the probability and seriousness of the possible loss.

Why it matters: The Hand formula explains why inexpensive precautions are required when the expected risk is substantial

What evidence establishes negligence?

• Juror experience

• Industry custom

• Statutory violations-negligence per se

• Res Ipsa Loquitur

• Evidence of the Defendant’s Safety Policies

Juror Experience

Jurors normally use common sense and ordinary experience to decide what a reasonable person would do

• Expert evidence becomes important when the issue is outside ordinary knowledge, especially in professional-malpractice cases

Industry Custom

• Custom is evidence, not an automatic rule

• Compliance with custom suggests reasonable care but does not prove it

• Violation of custom suggests negligence but does not automatically establish it

• An entire industry can follow an unreasonable custom

Bennett v. Long Island Railroad Co. (industry custom)

Simple facts: The plaintiff relied on evidence of common railroad practices to show what precautions were ordinarily used.

Rule/holding: Industry practice may help the jury decide reasonable care, but the ultimate issue remains whether the defendant acted reasonably.

Why it matters: Custom informs the standard; it does not control the court.

T.J. Hooper (Industry custom)

Simple facts: Tugboats lacked working radios that could have warned them of a storm. Radios were useful but were not yet universal industry custom.

Rule/holding: The tug owners could be negligent even if the industry generally did not carry radios because reasonable prudence may require precautions before they become customary.

Why it matters: Courts, not industries, ultimately determine reasonable care.

Statutory Violations- Negligence per se

A safety statute may replace the ordinary reasonable-care standard when:

• The plaintiff belongs to the class the statute was designed to protect

• The injury is the type the statute was designed to prevent

• The violation was not legally excused

Negligence per se usually establishes duty and breach only. The plaintiff must still prove causation and damages

Common excuses include impossibility, emergency, incapacity, lack of knowledge despite reasonable care, or greater danger from compliance

Negligence per se

legal doctrine where an unexcused violation of a statute automatically establishes a breach of duty

Two key elements must be met:

1. Intended Harm: The statute must have been intended to prevent the specific type of injury that the plaintiff suffered.

2. Causation is Still Required: Breaking the statute establishes a breach of duty, but it does not automatically establish liability. The plaintiff must still prove that the statutory violation actually caused their injury

Martin v. Herzog (Negligence per se)

Simple facts: A buggy traveled at night without the lights required by statute and collided with a car.

Rule/holding: An unexcused violation of a safety statute is negligence per se when the violation contributes to the protected type of accident.

Why it matters: “Break the safety statute without an excuse = breach,” but causation must still be shown.

Tedla v. Ellman (negligence per se)

Simple facts: Pedestrians walked on the side of the road prohibited by statute because traffic on the legally required side was much heavier and more dangerous.

Rule/holding: The violation was excused because following the statute would have increased the danger the statute sought to prevent.

Why it matters: Negligence per se is not mechanical; a reasonable safety-based excuse may defeat it.

Res Ipsa Loquitur

“The thing speaks for itself.” It permits, but usually does not require, an inference of negligence.

Traditional elements:

• Type of accident: This type of accident does not ordinarily happen without negligence

• Exclusive control: The instrumentality was within the defendant’s control when the likely negligence occurred.

• Other causes excluded: Other responsible causes, including the plaintiff’s conduct, are sufficiently excluded

  • Does not require certainty-The plaintiff only needs to make other responsible explanations unlikely enough to support the inference

Res Ipsa Loquitur elements:

Type of accident

Exclusive control

Other causes excluded

Murphy v. Montgomery Elevator Co. (Res Ipsa Loquitur)

Simple facts: Murphy was injured when a hospital elevator misleveled by approximately two to four inches. Montgomery Elevator had a maintenance contract, but the hospital retained some maintenance responsibilities. Murphy had no direct evidence identifying the exact negligent act.

Rule/holding: Res ipsa did not apply because Murphy could not establish Montgomery Elevator's exclusive control. Either the elevator company or the hospital could have caused the malfunction.

Why it matters: The type of malfunction may suggest that someone was negligent, but that inference cannot fairly be placed on one defendant when another party also controlled the instrumentality.

Workers' compensation connection: Murphy could not simply bring an ordinary tort suit against the hospital because it was her employer. A workplace injury is generally handled through workers' compensation, which provides no-fault but more limited benefits and ordinarily gives the employer tort immunity

Evidence of the Defendant’s Safety Policies

A safety policy that existed before the accident may be evidence that the defendant recognized the risk, but a policy may demand more than ordinary care and is not automatically the legal standard.

A safety improvement made after an accident is generally inadmissible to prove negligence or defect.

Reason: The law wants to encourage repairs and improvements.

Possible permitted uses of later repairs include:

Feasibility

Ownership or control

Impeachment/ opening the door

Feasibility (snowbaord)

Defendant claims the proposed safety change could not be made. Evidence that the defendant later made that exact change can rebut the claim

Ownership or control (food court)

Defendant denies responsibility for the area or object but later repairs or maintains it

Impeachment/ opening the door (grocery store)

Defendant creates a misleading impression about its precautions, making the later measure relevant to correct that impression

Hyjek v. Anthony Industries

Simple facts: Hyjek was injured while using a K2 snowboard. The manufacturer redesigned the snowboard or its bindings after the accident, and Hyjek wanted to use the redesign to prove the earlier design was defective.

Rule/holding: The later redesign could not be used merely to prove that the earlier design was defective. The exclusion applies even when the plaintiff pleads strict products liability instead of ordinary negligence.

Why it matters: Courts do not want companies to avoid improving dangerous products out of fear that the improvement will be treated as an admission of liability.

Stevens v. Boston Elevated Railway Co.

Simple facts: A streetcar company's existing rule required operators to sound a gong at intersections, but the operator failed to do so.

Rule/holding: Violation of a preexisting safety rule could be evidence of negligence.

Why it matters: Existing internal policies can help show what risks the defendant recognized and what care was practical. The employee's violation is strong evidence, but it is not automatically negligence as a matter of law.

Vicarious liability- Respondeat Superior

An employer may be liable for an employee’s tort committed within the course and scope of employment.

• Was the employee on the job?

• Was the conduct sufficiently connected to or intended to further the employer’s business?

Frolic

Major personal departure

Detour

A small personal deviation

Direct Employer Negligence

Even when the employee acted outside the scope of employment, the employer may be directly liable for negligent hiring, retention, or supervision.

The plaintiff must show that the employer knew or should have known the employee posed a danger and failed to take reasonable precautions.

Examples include ignoring previous complaints, obvious warning signs, or known abuse and simply moving the employee to another school, parish, or assignment without warning others.

Hayes v. Far West Services, Inc.

Simple facts: Attorney McGrath spent hours drinking while socializing, promoting his law firm, and discussing a bankruptcy settlement. The firm later billed a client for 2.7 hours of the settlement discussion. At approximately 1:45 a.m., McGrath argued with Hayes in the parking lot and shot him.

Rule/holding: The law firm was not vicariously liable. The court treated the shooting as an unforeseeable personal act rather than conduct within the course and scope of employment.

Why it matters: Being “on the job” during some earlier conduct is not enough. The negligence and resulting harm must have a sufficiently foreseeable connection to the employment.

Professor's criticism: The professor believed foreseeability should have gone to the jury. Alcohol foreseeably impairs judgment; McGrath knew he had a gun in his car; and his adversarial legal work arguably increased the risk of an aggressive confrontation. Distinguish the court's actual holding from this criticism.

Dickinson v. Edwards

Simple facts: An employee became intoxicated at an employer-sponsored party that furthered the employer's interests and later caused a driving accident.

Rule/holding: The employer could be vicariously liable because the employee negligently became intoxicated while acting within the scope of employment, even though the later driving itself was outside the scope.

Comparison with Hayes: Driving after a work party was considered a foreseeable result of the intoxication in Dickinson. The shooting after work-related drinking was considered unforeseeable in Hayes.

Helling v. Carey

Simple facts: Helling developed glaucoma before age 40. Ophthalmologists did not customarily give pressure tests to patients under 40 because glaucoma occurred in only about 1 out of 25,000 younger patients. The test was quick, inexpensive, and already available in the doctors' offices.

Majority rule/holding: The doctors were negligent even though they followed professional custom. Under The T.J. Hooper, a profession's custom is persuasive but not conclusive; courts ultimately decide what reasonable care requires.

Learned Hand analysis:

Burden of the test: approximately $5 and a few minutes.

Probability of glaucoma under 40: approximately 1 in 25,000.

Potential loss: severe and permanent loss of peripheral vision.

Because $5 × 25,000 = $125,000, the precaution is justified if preventing the vision loss is worth more than $125,000.

Concurring opinion: The concurrence agreed that Helling should recover but preferred a strict-liability or loss-spreading rationale. The doctors may have followed professional standards without moral fault, but they and their insurers were better positioned to distribute the catastrophic loss among many patients.

Why it matters: Distinguish the majority's negligence theory from the concurrence's strict-liability/cost-spreading theory.

When is strict liability imposed?

1. Abnormally dangerous activities (governed by Restatement 519)

2. Invasion of property rights- nuisance

3. Animals

4. Statutory strict liability

Abnormally Dangerous Activities (Governed by Restatement 519)

A person carrying on an abnormally dangerous activity may be strictly liable for harm resulting from the danger that makes the activity abnormal.

Abnormally Dangerous Activities Factors

High degree of risk.

Likelihood of very serious harm.

Inability to eliminate the risk through reasonable care.

Activity is uncommon.

Activity is inappropriate for the location.

Danger outweighs the activity's value to the community.

Common example: blasting with explosives.

Siegler v. Kuhlman (Abnormally Dangerous Activities )

Simple facts: Gasoline spilled from a tanker onto a highway and later exploded, killing a driver. The spill destroyed much of the evidence explaining how it escaped.

Rule/holding: Transporting large quantities of gasoline under these circumstances supported strict liability because of the extraordinary danger and proof problems.

Why it matters: Strict liability may be appropriate when even careful activity creates grave, unusual risk.

• Rule/Application: Strict liability is imposed on anyone who engages in an "Abnormally Dangerous Activity"10. Hauling thousands of gallons of bulk gasoline on public highways is abnormally dangerous because the risk of grave harm is high, and the resulting explosion destroys evidence (creating an "eternal mystery" of causation), making strict liability the fair standard

Invasion of Property Rights - Nuisance

Private nuisance

The interference ma involve smoke, odor, noise,, vibration, pollution, or similar conditions

Nuisance focuses on the invasion of the plaintiff’s property inter4est, not simply on whether the defendant acted carelessly

Remedies may include damages, an injunction, or a conditional injunction

Private nuisance

A substantial and unreasonable interference with another person's use and enjoyment of land.

Fletcher v. Rylands / Rylands v. Fletcher (Invasion of Property Rights - Nuisance)

Simple facts: Water stored in a reservoir escaped through unknown mine passages and flooded the plaintiff's mine.

Rule/holding: A person who brings onto land and keeps something likely to cause harm if it escapes may be strictly liable when it escapes from a non-natural use of land.

Why it matters: These decisions are a foundation of strict liability for unusually dangerous land uses.

• Rule/Application: The "Non-Natural Use" Rule11. A landowner is strictly liable for damage caused by the escape of an extraordinary substance that they collected on their land for non-natural/extraordinary purposes, if the substance is "likely to do mischief if it escapes"11. The defendant was held liable as an insurer when water from their reservoir burst into abandoned mine shafts and flooded the plaintiff's colliery

Bohan v. Port Jervis Gas Light Co. (Invasion of Property Rights - Nuisance)

Simple facts: Noxious gas and odors interfered with the plaintiff's use of property.

Rule/holding: A land use may constitute a nuisance when it substantially interferes with neighboring property, even if the business is otherwise lawful.

Why it matters: “Lawful business” does not mean “free to impose serious harm on neighbors.”

• Rule/Application: Sic utere tuo ut alienum non laedas (Use your own property so as not to injure that of another)12. A business can be held strictly liable in nuisance for an unreasonable interference with another's property enjoyment (such as emitting noxious odors), regardless of whether the business is lawful or exercised the highest reasonable care

Boomer v. Atlantic Cement Co. (Invasion of Property Rights - Nuisance)

Simple facts: Dirt, smoke, and vibration from a cement plant created a nuisance, but shutting the plant would cause enormous economic harm.

Rule/holding: The court awarded permanent damages instead of an immediate injunction.

Why it matters: Courts may balance the severity of the nuisance against the social and economic cost of an injunction.

• Rule/Application: "Permanent Damages" in lieu of an injunction12. When a nuisance exists but there is a vast economic disparity between the harm to neighbors and the utility/investment of the defendant's business, a permanent injunction may be denied and replaced with a lump-sum payment of permanent damages (acting as a servitude on the land)