Rise of negligence

Writ system

Trespass

Direct harms

Strict liability

Case

Indirect harms

Negligence

Consequences of incorrect choice

• Choosing the wrong writ caused the P to immediately lose. P’s preferred trespass due to SL instead of having to prove negligence.

Erosion

Direct/indirect (Scott v. Shepherd)

• D threw a lighted squib into a crowded market. It was tossed through several people until it landed and injured the P. D argued that because the harm was not direct, P should have sued in case not trespass. Justice Blackstone agreed with the D.

Abandonment: Brown v. Kendall (fighting dogs)

Trespass/Case affects only form of writ; not substance

P must show intent Or negligence

Want of ordinary care

Ordinary prudence in the circumstances

• Subjective (person by person basis) or Objective (reasonably prudent person)

Objective standard (Vaughn v. Menlove)

• D sued for damage to the P’s cottages resulting from a fire that started in one of the D’s hay stacks. Worked because the jury was reasonably acquainted with farming and could determine what constituted ordinary prudence in the given circumstances.

• Generally, objective standard does not include incapacities. It does not “ratchet down” but can “ratchet up” as in contracts.

• Better than subjective standard because:

• Subjective standard would be infinitely variable for each defendant.

• Subjective standard would encourage fraud and deception.

• If the negligence determination depended on the characteristics of the D, he might have incentive to mislead the jury, understated strengths and overstating weaknesses.

• Because D’s strengths and weaknesses don’t count, the objective standard has greater potential for encouraging the D to exercise all the care and skill that he can.

• Allows members of the public to know that those whose actions they are exposed to will either act with a predictable level of care or be liable for the consequences of failing to do so.

• Asks members of a jury to judge the D based on their own knowledge and experience of the world. They don’t have to “look into the D’s mind.”

But . . .

Old age? (Roberts v. Ring)

• ,A boy of 7 years old was struck and injured by D’s (ages 77 and with sight and hearing defects) automobile. D’s infirmities did not tend to relieve him of the charge of negligence. On the contrary, they weighed against him. D should have taken even greater care in driving or not drive at all since he knew of his disabilities.

• If boy had caused the accident then he would have been judged as an adult. Contributory negligence is asymmetric for minors and other types of people falling outside of the reasonable person standard due to age, illness, or infirmity.

• Example of tort system regulating whether or not an activity is performed rather than just how the activity is performed.

• If so infirm as to be unable to perform the activity with due care, tort system regulates activity level to an extent.

Physical infirmity? (same)

Youth?

• Children under 5 cannot be held negligent for any activities.

• Children above that age are expected to exercise the duty of care that would be reasonable of a child of a similar age (semi-objective standard).

• Concession to the reality that there is a limit to the amount of care that can be expected of a child.

• Further, those who come into contact with children understand this limited care and can exercise additional self-protective care as necessary.

Youth engaged in adult activities? (Daniels v. Evans)

• 19 year old driving motorcycle held to same level of care as adult

• To give legal sanction to the operation of automobiles by teen-agers with less than ordinary care for the safety of others is impractical.

• A person observing children play may anticipate conduct that dos not reach an adult standard of care of prudence. However, one cannot know whether the operator of an approaching automobile is a minor or an adult and usually cannot protect himself against youthful imprudence even if warned.

Beginners?

• Beginners must take precautions consistent with his or her skill level.

• New bicyclist choosing a non-busy road to learn. RST §299

Experts?

• Experts must act with his or her superior knowledge and skill. Must take cost-justified precautions and since he already has the additionally skill, the cost to use those skills is very low.

Insanity? (Breunig)

• Woman who thought her and her car could fly because “ batman does it.” Woman had moments of prior lucidity that meant she should have taken care to prevent herself from driving.

Affect understanding of duty of care?

Affect ability to control?

• For adults, the actor’s mental or emotional illness is not considered in determining whether conduct is negligent.

• Allows excuse for sudden incapacitation or loss of consciousness brought about by illness except when the substandard conduct is reasonably foreseeable.

• Because insanity is usually gradual, the lack of a reduced standard for foreseeable consequences of the insanity encourages people diagnosed with insanity or their family members to take better care of the insane or purchase liability insurance.

Absence of notice?

• If person has moments of lucidity they have a duty to prevent themselves from performing potentially tortious acts.

• Foreseeability Generally

• The known or knowable possibility that there exists a risk that will result in harm.

• A person cannot be held liable for failure to take precautions against an unforeseeable risk or harm.

• Blyth v. Birmingham Waterworks

• Record freeze apparently caused leakage from one of the D’s underground water mains, damaging the P’s house.

• Appellate court ruled that it was not unreasonable to fail to take precaution against a frost that penetrated to depths greater than those found in the polar regions.

• Today, a court would likely let a jury decide the foreseeability. Nothing is as foreseeable as more severe weather than that that is currently occurring.

• Improbability of the...

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