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Law Outlines Torts (Duke Beskind) Outlines

Negligence Outline

Updated Negligence Notes

Torts (Duke Beskind) Outlines

Torts (Duke Beskind)

Approximately 79 pages

Professor Beskind's Torts outline...

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Negligence

Elements of Negligence

  1. Negligence is the conduct that falls below the standard established by law to protect others from unreasonable risk of harm.

  2. Injury: quantifiable as damage at trial

  3. Fault:

    1. Duty: to take due care to prevent a foreseeable and unreasonable risk

    2. Breach: of the duty by acting carelessly or by inaction

  4. Causation

    1. Actual cause

    2. Proximate cause

  5. Burden of proof: on plaintiff, generally by preponderance of evidence

Duty (Question of law for the judge)

  1. Roadmap

    1. Risk creating activity?

      1. No. Special relationship? Rescuer? Risk creator?

      2. Yes. Foreseeability of harm? Of plaintiff?

    2. Policy?

      1. Danger of multiple lawsuits?

Risk creation + foreseeability (Misfeasance)

  1. R3d §7 (a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.

  2. Risk creation

    1. An actor's conduct creates a risk when the actor's conduct results in greater risk to another than the other would have faced absent the conduct. (exposure to natural disaster)

  3. Foreseeability

    1. Foreseeable harm

    2. Foreseeable class of plaintiff (most jurisdictions)

  4. no countervailing policy/ principle

Affirmative duty to warn and rescue (Nonfeasance)

  1. General rule: No duty to rescue or protect others

  2. Exceptions/ Affirmative duty

    1. Special relationship

    2. Prior promise to aid, or start of aid

    3. D created the risk requiring aid

    4. D had special relationship to 3rd party who caused harm

    5. Statutory duty

  3. Misfeasance v. nonfeasance FORK

Special relationship

  1. R3d §40 (a) An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.

  2. Special duty:

    1. common carrier with its passengers

    2. an innkeeper with its guests

    3. a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises

    4. an employer with its employees who are:

      1. In imminent danger, or

      2. Injured or ill while at work and thereby rendered helpless

    5. a school with its students

    6. a landlord with its tenants

    7. a custodian with those in its custody if

      1. The custodian is required by law to take custody or voluntarily takes custody of the other; and

      2. The custodian has a superior ability to protect the other

  3. Arguments for imposing a special relationship

    1. Differing information: who’s in the better position to appreciate the risk?

    2. Trust: fiduciary duty or contractual duty to take due care

    3. Conflict of interest: purpose of the study is to watch as people get poisoned

  4. Who decides the duty?

    1. Whether a special relationship gives rise to duty – question of law: judge

    2. Whether parties are in that special relationship – question of fact: jury

Volunteer rescuer

  1. R3d §44 (a) An actor who, despite no duty to do so, takes charge of another has a duty to exercise reasonable care while the other is within the actor's charge.

  2. (b) An actor who discontinues aid or protection cannot put the other in a worse position than existed before the actor took charge of the other and, if the other reasonably appears to be in imminent peril of serious bodily harm at the time of termination, the actor has to exercise reasonable care with regard to the peril before terminating the rescue. (no worse position, when imminent peril- exercise reasonable care before termination)

  3. Increasing the risk FORK

    1. Majority approach:

      1. Not to have done so unreasonably; and

      2. To warn, protect, or rescue the person from that increased risk

    2. Minority approach:

      1. The rescuer must increase the risk to be liable in tort

  4. Promise to rescue:

    1. There is liability in tort for negligent failure to perform a gratuitous undertaking if there is at least some partial performance and the failure to perform increases the risk of harm or leads to harm because of reliance on the promise.

    2. Opportunity cost: others could have come to aid the victim had he not promised to help

  5. Good-samaritan statute protecting rescuers from liability

Risk creator

  1. R3d §39 When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.

    1. A driver whose truck suddenly becomes disabled on the road has a duty to warn other drivers

  2. Continuing duty: if the risk that D created is of a continuing nature, the duty to protect against that risk continues

Special relationship with third party

  1. R3d §41: (a) An actor in a special relationship with another owes a duty of reasonable care to third persons with regard to risks posed by the other that arise within the scope of the relationship.

  2. (b) Special relationships include:

    1. a parent with dependent children,

    2. a custodian with those in its custody,

    3. an employer with employees when the employment facilitates the employee's causing harm to third parties, and

    4. a mental-health professional with patients

      1. risk to a particular person/ large, ill-defined class of people

      2. doctor in a better position to prevent harm

      3. confidentiality between the patient and the doctor

      4. a narrow duty: to warn the patient of the infectious nature of the disease

Statutes that create affirmative duty

  1. When a statute is silent on whether it creates a private right of action, a court looks at three factors to determine whether a duty is implied

    1. P part of protected class

    2. Allowing duty promotes the legislative purpose

    3. Creating duty consistent with the legislative scheme

      1. Creation of enforcement mechanism in a statute suggests that a private right of action is not necessary

Arguments for/ against new rule

  1. HARM:

    1. The activities/ related issue are extremely dangerous

      1. Magnitude

      2. Frequency

      3. Likelihood of injury

    2. Globalization of a harm (Haley, on behalf of every blind people)

    3. Parades of horrible argument: if not negligence, people can do horrible things.

      1. Loss of livelihood

      2. Dependence on welfare system

      3. Less productive

  2. BALANCE:

    1. Cost- benefit analysis

      1. Cost: economic/...

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