#17543 - Torts Negligence Notes - Tort Law

NEGLIGENCE

General

• Even in absence of an act, could be liable if behavior was faulty

• Some individuals held to a higher standard that others

  • Common carriers and innkeepers

    • Extraordinary care

    • Responsibility to “common folk” - they hold themselves open to everyone

      • Because they are accepting money from them for services, we can hold you to a duty to cover nonfeasance (non-action)

• Policy Arguments

  • Growth of Negligence and Economic Growth

    • Subsidy for the protection of smaller/new industries

      • Create immunities from legal liability

• Plaintiff usually tries to show that some inexpensive precaution (such as a fence) could have prevented some likely serious injury

• While the defendant tries to show that the precaution was excessively costly, redundant, ineffective or downright dangerous

1. Duty

General Standard of Care

Fault Based Liability

• You did something imprudently, incautiously, unreasonably and caused harm

• Only will be liable if you failed to act prudently and cautiously and then will need to pay

  • If you acted reasonably, prudently, as the ordinary person, then no need to pay

  • Need to act with ordinary care = no liability

    • It is the plaintiff’s burden to show otherwise

• If you are defendant, you prefer this way because now you have a chance to prove/defend yourself

• Standard: Ordinary reasonable care

• Innkeepers and Common carriers – extraordinary care

• No general duty to rescue – no duty to nonfeasance

  • If you do something dangerous that puts plaintiff in danger, then duty to rescue owes

• Brown v. Kendall

  • Facts:

    • Two dogs, owned by Brown (plaintiff) and Kendall (defendant), were fighting in front of their masters. Kendall took a large stick and began beating the dogs for the purpose of separating them. Brown was standing behind Kendall watching. Kendall took a step back and raised the stick over his head with the intent to strike the dogs. In doing so, Kendall struck Brown in the eye and caused him severe injury.Brown sued Kendall in an action of trespass for assault and battery.

  • Holding:

    • A person will be liable for injures caused by trespass only if his intent is unlawful, or he is at fault.

      • Act with fault – failure to act in a certain way

  • Reasoning:

    • Defendant wont be liable if he can prove he was exercising extraordinary care – DEFENDANT HAS TO PROVE IT

      • Defendant would be liable if he didn’t use extraordinary care

    • No liability for injuries occurring incidentally to the action

    • Plaintiff must come prepared with evidence to show either that the intention was unlawful, or that defendant was at fault

      • Need to show there was no exercise of due care

      • for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will NOT be held liable

    • If act was lawful and it’s purely an accident = NO liability

    • If plaintiff and defendant were both using ordinary care, or the defendant was using ordinary care, or both were not using ordinary care

      • NO Recovery for plaintiff

    • Ordinary care

      • Kind of degree of care, which prudent and cautious men would use, such as required by the exigency of the case, and such as is necessary to guard against the probable danger

        • Defendant in this way – YES (No liability) NO (liability)

    • Contributory negligence = at this time, NO recovery

    • Kendall’s actions, in attempting to part fighting dogs, one of which he owned, was lawful. If, in performing this act, he used ordinary care in attempting to avoid injury to others, he cannot be held liable for Brown’s injuries. The burden of proof of showing that Kendall did not use ordinary care is on Brown. This is a question that must ultimately be resolved by a jury, and a new trial is ordered.

• Brown v. Collins

  • Facts:

    • Brown (plaintiff) owned a stone post that contained a street lamp. Collins (defendant) was operating a horse-drawn wagon loaded with grain near Brown’s post. Collins was stopped near a railroad track. Anengine passed and frightened Collins’ horses. The horses became uncontrollable and bolted from the tracks. Collins was thrown from his seat, and the horses and wagon crashed into Brown’s post, causing damage. Brown sued Collins for trespass.

  • Holding:

    • Negligence is required for liability for damages caused by the escape of something one lawfully brings onto his own property.

  • Reasoning:

    • Contrary to Rylands v. Fletcher

      • No basis for distinguishing natural and unnatural use of land

    • Preserve natural structure of society

      • Strict liability for these kind of damages discourages people from building up their property, since everything has ability to escape from the property

        • Need an industrial society – everyone benefits

          • If it is “pool”, you become a better member of society because you are more productive, because you got to relax

      • Strict liability pays no attention to the actual elements for fault

    • Because Brown has not shown that Collins acted negligently, it was without his actual fault in the defendant, his horses broke from his control, ran away with him, went upon the plaintiff’s landand did damage there, against his will, intent and desire of the defendant. Collins is not liable for damage caused to Brown’s property.

• In line of Brown v. Collins

  • Losee v. Buchanan

    • Plaintiff sued for damages that resulted when the defendant’sboiler, while being operated with all care and skill, exploded and flew into neighbor’s land, which caused damage to the buildings located there

    • Court said the action is denied. Industrial time and need to build our society and civilization. Allowed to have these items on my premises, and if they are not a nuisance and are handled in a way that they do not become a nuisance, then I am not responsible for any damage they accidentally andunavoidably cause to my neighbor

Holmes on Negligence

• Provide a theory of liability – provide an opportunity to predict the circumstances in which you should know that you will be held liable for your wrong

  • Austin Theory – theory of the criminalist (punishment) (moral shortcoming)

    • The law exists because kings exist, kings will punish you if break the law

  • Strict Liability

    • Never been our law, but if it had, Brown v. Kendall is good innovation

    • If acting creates liability, everyone is a “cause” of something else

      • Indefinite string of events

    • Puts punishment on choice to act, but we make choices all the time, shouldn’t have to think about liability for everyone all the rime

      • If don’t want this, think about what acts give rise to liability

        • Need to act BADLY

  • Fault Based Liability

    • You went ahead in the face of foreseeable consequences and risk of others; it is this which matters

    • Acting is beneficial, so if we impose strict liability, we are basically doing a wealth transfer from those who are acting and those who are not

      • Taxing people that are making things better – not how we want the country to work

    • Predictability when you are going to be liable

      • Alter your behavior to be what is reasonable, you will nicer be held liable

Liability based on whether there was a foreseeable risk of harm to the plaintiff (OVERRULED – but good counter argument)

• If the defendant’s behavior created a foreseeable risk of harm to the plaintiff, then they are liable for damages because they have to prevent it

• If there is a foreseeable risk and you don’t prevent it, you are subject to liability

• Bolton v. Stone (#1)

  • Facts:

    • Bessie Stone (plaintiff) lived on Beckenham Road near a cricket ground owned by Bolton (defendant). One day, she was walking in her yard and was hit on the head and injured by a stray ball hit by a visiting player on the cricket ground. Stone sued Bolton, the home cricket club and its members, on theories that the cricket ground constituted a public nuisance, and that the ground’s owners acted with common law negligence.Fornegligence sheclaimed that they had failed to erect a fence of sufficient height to prevent balls from being hit onto the road, and that they had otherwisefailed to insure that cricket balls would not be hit into the road. At trial, witnesses testified that in the thirty years of the ground’s operation prior to the incident, only six or seven balls had been hit onto Beckenham Road. Additionally, the ground was surrounded by seventeen feet of fence rising above the road.

  • Holding:

    • Negligence may exist when a defendant fails to act or prevent all reasonably foreseeable risks

  • Reasoning:

    • Hitting of the ball outside the cricket ground was a reasonably foreseeable risk that Bolton had a duty to prevent.

      • Several balls had been hit outside the cricket year and onto road, the cricket club can FAIRLY ASSUME that it will happen again at some point

        • Defendants were under a duty to prevent it

          • Can well decide its too expensive to take corrective measures, and to just not play there

    • No liability when harm is caused by an unprecedented outcome

No legal duty to prevent harm exists when the risk of damage to a person is so small that a reasonable man in the same position, considering the matter from the point of view of safety, would have it right to refrain from corrective action

• Defendant...