Torts (Negligence - Breach of Duty)

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I. The General Standard of Care (Breach)

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1. Black Letter Law / Rule

• Prima Facie Element: To prove negligence, the plaintiff must show Breach, which is defined as conduct falling below the standard of care of a reasonable, prudent person under the circumstances.
  • This mantra must be applied specifically to the facts (e.g., “reasonable prudent driver,” “reasonable prudent doctor”) [cite: 128-130].
  • Fluidity in stating this rule is essential for bar exam success [cite: 179-181].

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2. Key Cases

• Davison v. Snohomish County
  • Facts: Plaintiffs were injured when their car broke through a wooden guardrail on a bridge. The county had not built the rail strong enough to withstand the impact.
  • Holding/Rule: The court found no negligence as a matter of law. Building guardrails strong enough to stop cars at high speeds creates a prohibitive cost burden relative to the risk [cite: 143-145]. The construction did not fall below the standard of care under the circumstances (financial feasibility is a circumstance).

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3. Nuance & Policy

• JNOV (Judgment Notwithstanding the Verdict): A motion asking the judge to overrule the jury’s verdict because, as a matter of law, the winning party failed to prove their case. It is a high threshold [cite: 161-163].

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II. The Learned Hand Formula (Calculus of Risk)

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1. Black Letter Law / Rule

• Determination of whether conduct is reasonable is done by balancing risks against the cost of prevention. This is known as the Learned Hand Formula.
• The Formula: $B < P \times L$
  • P: The Probability that the risk of harm will manifest (accident occurring).
  • L: The Gravity of Harm (damages) that results if the accident occurs.
  • B: The Burden/Cost of adequate precautions (remedial measures) to prevent the harm.
• Application: If the Cost of Precautions ($B$) is less than the Probability multiplied by the Gravity of Harm ($P \times L$), the failure to take that precaution is a Breach [cite: 315, 319-320].

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2. Key Cases

• United States v. Carroll Towing Co.
  • Facts: A barge broke loose; the question was whether the bargee (attendant) should have been on board.
  • Holding/Rule: Judge Learned Hand introduced the balancing test to determine negligence.

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3. Hypotheticals & Examples

• The Jet Ski/Snowmobile Example:
  • Scenario: A “dead man’s switch” (safety feature that stops the engine if the rider falls off) costs $500 ($B$). The probability of a rider falling and the vehicle hitting someone is 1$P$). The average damage caused by a runaway vehicle is$100,000 ($L$) [cite: 217, 223, 227-229].
  • Calculation: $P \times L$ = $1,000 (1$B$=$500.
  • Outcome: Since $500 < 1,000$, the failure to install the switch is a breach of duty.
• Disposable Lighter:
  • Scenario: A safety latch costs 5 cents. The risk of a lighter igniting in a pocket is 1%, causing $10,000 in car fire damages.
  • Outcome: 5 cents < $100 ($10k \times 1%). Failure to install is a breach [cite: 331-335].

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4. Nuance & Policy

• This formula is primarily used in cases with an economic aspect, such as product liability (design defects), rather than everyday negligence like driving too fast or leaving a golf club out.

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III. The Objective Standard & Physical/Mental Characteristics

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1. Black Letter Law / Rule

• Objective Standard: Tort law uses an objective standard. We compare the defendant’s conduct to a “reasonable, prudent person,” not to what the defendant thought was reasonable (Subjective Standard) [cite: 401-404, 412].
• Physical Characteristics: The physical characteristics of the defendant (e.g., blindness, physical disability) ARE taken into account. The standard becomes “a reasonable person with the same physical disability under the circumstances”.
• Mental Illness: Mental illness is NOT taken into account. A mentally ill person is held to the standard of a reasonable person without mental illness.
  • Exception: If a person is adjudicated insane (judicially determined), they may be institutionalized, but generally, for civil liability, mental illness is no defense.

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2. Key Cases

• Vaughan v. Menlove (1837)
  • Facts: Defendant stacked hay in a way that caused it to ignite and burn neighbor’s cottages. Defendant argued he acted in “good faith” and did his best given his limited intelligence.
  • Holding/Rule: The court rejected the “good faith” argument. The standard is objective: what a reasonable, prudent farmer would have done, not what the specific defendant believed was right.
• Delair v. McAdoo
  • Facts: Defendant drove on tires so worn the fabric was showing and caused a blowout/accident. Defendant claimed he didn’t know the tires were dangerous.
  • Holding/Rule: Drivers are charged with constructive knowledge. A driver is deemed to know what a reasonable person would know (that bald tires are dangerous), regardless of actual knowledge.
• Roberts v. State of Louisiana
  • Facts: A blind man bumped into the plaintiff at a concession stand. He was not using his cane at that specific moment [cite: 541-543].
  • Holding/Rule: A disabled person is not held to the standard of a sighting person, but to the standard of a reasonable blind person under the circumstances.
• Breunig v. American Family Insurance Co.
  • Facts: Driver believed she could fly (Batman delusion) and drove into a truck.
  • Holding/Rule: Mental illness is not an exception. She was held to the objective reasonable person standard.

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3. Nuance & Policy

• Public Safety Policy: We do not allow mental illness as a defense because innocent victims need compensation, and it incentivizes guardians to care for the mentally ill [cite: 650-652].

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IV. The Emergency Doctrine

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1. Black Letter Law / Rule

• If a defendant is confronted with a sudden emergency (not of their own making), their conduct is compared to a reasonable, prudent person under those specific emergency circumstances.
• Conduct that might be negligent ordinarily (e.g., jumping out of a moving car) may be reasonable under life-threatening circumstances.

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2. Key Cases

• Cordas v. Peerless Transportation Co.
  • Facts: A taxi driver had a gun pointed at him by a thief. He jumped out of the moving cab to escape; the unmanned cab hit pedestrians [cite: 501-503].
  • Holding/Rule: The driver was not liable. Under the circumstances (gun pointed at head), his conduct did not fall below the standard of care.

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V. Minors

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1. Black Letter Law / Rule

• General Rule: A minor is compared to a reasonable minor of like age, intelligence, and experience under the circumstances.
• Exception (Adult Activity): If the minor is engaged in an adult activity (e.g., driving a car, operating a motor vehicle), they are held to the standard of a reasonable, prudent adult.

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2. Key Cases

• Robinson v. Lindsay
  • Facts: A 13-year-old was driving a snowmobile and severed the plaintiff’s thumb [cite: 577-579].
  • Holding/Rule: Because operating a snowmobile is an adult activity, the minor is held to the adult standard of care.

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3. Hypotheticals & Examples

• Frisbee vs. Driving: If a 13-year-old throws a frisbee and hits someone, use the “like age/experience” standard. If they are driving a car or hunting, use the “reasonable adult” standard [cite: 610-611].

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VI. Custom and Usage

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1. Black Letter Law / Rule

• Rule: Evidence of industry custom or practice is admissible as evidence of what a reasonable person would do, but it is not conclusive [cite: 851-852, 882].
• A jury can find that an entire industry’s custom is negligent if it lags behind reasonable safety standards.

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2. Key Cases

• Trimarco v. Klein
  • Facts: Plaintiff was injured when a glass shower door shattered. Plaintiff argued the custom was to use safety glass; landlord argued custom was only to replace broken glass with safety glass, not retrofit existing ones [cite: 826-830].
  • Holding/Rule: Custom is relevant evidence but not dispositive. A landlord (or industry) cannot shield themselves solely by saying “everyone else does it this way” if the practice itself is unsafe.

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3. Hypotheticals & Examples

• Auto Industry: In the 1950s, no manufacturers installed seatbelts. If a manufacturer was sued, they couldn’t simply argue “nobody else does it” as a complete defense if the technology was available and reasonable [cite: 866-871].

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VII. Professionals (Malpractice)

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1. Black Letter Law / Rule

• Standard of Care: A professional is held to the standard of an ordinary member of the profession in good standing under the circumstances.
• No “Novice” Defense: The standard is objective. It does not adjust for lack of experience. A brand new lawyer/doctor is held to the same standard as a reasonable, prudent lawyer/doctor.
• Specialists: If a professional is Board Certified or a specialist, they are held to the higher standard of a reasonable specialist in that field.
• Expert Testimony: Because professional standards are often beyond the knowledge of lay jurors, expert testimony is generally required to establish the standard of care and breach.

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2. Key Cases

• Heath v. Swift Wings, Inc.
  • Facts: A pilot crashed. The trial court instructed the jury to consider the pilot’s specific training and experience.
  • Holding/Rule: Incorrect instruction. The standard is a reasonable, prudent pilot, not a pilot with this defendant’s specific experience. Experience is not a defense.
• Hodges v. Carter
  • Facts: Lawyers served process by mail (customary practice) rather than personal service (statutory requirement), leading to dismissal of the client’s case [cite: 1088-1090].
  • Holding/Rule: Professionals are not liable for mere errors in judgment if they acted in accordance with professional custom. Since the lawyers followed the accepted custom, they were not liable.
• Boyce v. Brown
  • Facts: Doctor used a metal screw for a fracture. Years later, he treated pain with tape/support but did not X-ray. Another doctor later X-rayed and found necrosis [cite: 1114-1123].
  • Holding/Rule: To prove malpractice, the plaintiff needs expert testimony stating the defendant breached the standard. The second doctor would not testify that the standard required an X-ray at that time (1936), only that he would have done it. Personal opinion is not the standard of care.

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3. Nuance & Policy

• Licensed Activity Only: The professional standard only applies when the actor is engaged in their profession. A cardiologist driving a car is held to the standard of a reasonable driver, not a reasonable cardiologist [cite: 975-979].

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VIII. Informed Consent

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1. Black Letter Law / Rule

• Traditional Rule (Physician-Focused): Did the doctor disclose what a reasonable doctor would disclose?.
• Modern Rule (Patient-Focused): The standard is what a reasonable patient would want to know regarding the material risks and consequences before consenting to treatment.

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2. Key Cases

• Scott v. Bradford (Oklahoma Case)
  • Facts: Plaintiff had a hysterectomy causing incontinence. She claimed she wasn’t told of the risks/alternatives.
  • Holding/Rule: Adopted the patient-focused standard. It is irrelevant what the doctor thought was appropriate to tell; the focus is on the patient’s right to know material risks to make an informed decision [cite: 1247-1248].

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IX. Defenses to Intentional Torts (Review)

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1. Public vs. Private Necessity

• Public Necessity: Where an act is for the public good (e.g., destroying a building to stop a fire spreading to the city). The defense is absolute, and the actor does not have to pay for damages [cite: 1270-1271].
• Private Necessity: Where a defendant acts to save their own interest/property (e.g., tying a ship to a dock during a storm). The actor is relieved of the technical tort of trespass but must pay for actual damages caused.