Torts Outline Essay

I. Negligence: Conduct falling below the standard of care that a reasonable person would demonstrate under similar circumstance.
A. Tort of Negligence: (1) Duty (2) Breach (3) Casual Connection (4) Damages
P has burden of showing that D, more probable than not, breached general duty or in fact caused injury.
If all 4 elements are not shown, jury will not review, instead judge will determine verdict.
1. Duty requiring the defendant to conform to a certain standard of care EE267, LB27/47,
2. Breach of a Standard of Care
Concept of Negligence vs. Tort of Negligence - Courts may apply neg., in a limited sense referring solely to element #2. Although P still possesses burden to establish all four elements of neg., its typically the case that when breach is found = N.
Standard of Reasonable Care ~ “Fault Principle”
Standard of Care remains the same but degree or level of care varies w/the circumstances
‘Know-How’ Special knowledge of particular fact may elevates the level of care
Local not slowing down on a curve he knows is steep. Wld not expect the same level of care to be taken by a non-resident. Living in area w/plentiful water, higher LofC w/re. to water matters.

A. The Reasonable (Prudent) Person Standard (EE118, CT83)
a. Reasonable Person Standard
1. Reasonableness of D’s conduct viewed under an objective standard;
2. RP Standard remains the same unless there are special circumstances
3. Conduct not Intentions - Liable even though intended/thought to behaved carefully
4. Need for expert testimony to establish what the reasonable person knows.
b. Modifications to Reasonably Person Standard
(1) Superior Intelligence/Know-How (Knowledge)
a. If Δ has SI/KH, the standard ratchets upwards - One way click up on the dial
b. We then measure RP person with similar skill or intelligence.
a.i. Δ is a professional racecar driver, he’s held to a higher standard than you or I when driving his sedan to the supermarket.
a.ii. Added Knowledge does not necessarily mean someone needs to be intelligent
a.iii. Can have particular knwldg of a particular fact which elevates level of care
(2) Physical Conditions ~ (Also See under ‘Exceptions’ below)
a. SofC isn’t more lenient but rather, different
a.i. Δ is blind – Apply conduct of Δ to RP standard that’s relative to other blinds
b. D’s behavior/conduct must accord with their physical disability.
a.i. Blind person will not be driving car;
a.ii. Don’t want to preclude physically disabled from participating in particular activity but deter some, fair b/c physically disabled can participate, but lowers compensate
c. Relevance of Physical Condition
a.i. Ex: Δ is unusually tall – Apply such physical condition where/when relevant
a.ii. Whether tall, blind, don’t store kerosene rags in garage during hot summer
c. Applications: (No Exceptions for Mentally Ill, Drunk, Stupid!)
(1) Driving
(2) Customs
(a.i.a) Customs indicative of absence or presence of reasonable care, but is not dispositive. D may be required to anticipate the negligent conduct of others
(a.i.b) Ignoring Common Custom and usage are possible arguments to establish negligence for jury to determine; a specific duty may be created by custom
(3) Mentally Impaired
(a) Most courts do not make any allowance for the mental illness of D; still judged by the standard of the reasonable person
(b) Rest § 283: mental deficiency/insanity is no defense b/c difficult to draw a line, easy to feign, better that their wealth compensate victim, liability will stimulate proper care.
(c) A sudden mental incapacity equivalent in its effects to physical causes should be treated alike and not under the general rule of insanity.
Heart attack, epileptic seizure. Psychiatric conditions may be considered physical
(4) Elderly
Expect sufficient life experience to allow

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