Class 18

Negligent Torts (recap)

5 elements
Duty
Breach of Duty
Cause in Fact
Proximate Cause
Actual Harm

Major diff btw intentional torts and ngelignece, you must allege and prove actual harm - real injury. Intentional torts don't need real injury. It can be offensive.

Foreseeability. You owe a duty of care to those whom you can foreseeably injure.

Expansion of duty of care. Ex: Accounting firm (E&W) doctored the books of EL Jackson in order for them to buy steel on credit from Bethlehem Steel. BS sued E&W for negligence. Supreme court of Tennessee ruled that it was foreseeable that Bethlehem Steel and like companies may be injured by the negligent actions of E&W.

In certain situations, it's difficult to establish negligence. Especially, medical malpractice. If the instrumentality that caused harm is under the sole control of the accused and if the harm normally doesn't occur unless someone is negligent, then the rule of res ipsa loquitur applies and the burden of proof shifts to the accused - to prove that s/he was not negligence.

"But for" analysis. Prove that but-for the negligence, the person would not have been harmed.

Contributory/comparative negligence - we'll talk about that later.

Proximate cause is not the same as cause in fact. Proximate cause refers to foreseeability of the type of harm. Classic case: Palsgraf. There was no foreseeability of that harm happening. Another example: Chicago fire, caused by Mrs. O'leary's cow. That much harm was not foreseeable.

Intervening Conduct - if the causal connection is broken. Goldberg v Florida Power (pg 131) See also the Jay-Z example on pg 133.

Attractive nuisance - a nuisance that creates a danger. An uncovered swimming pool. An open construction site.

Defenses To Negligence

Assumption of Risk - it is a defense to negligence. by engaging in certain conduct, you assume some risk. But the accused person must prove that you knew of the risk.

Some places require that people assume risk by signing a waiver. Exculpatory clause. Ex: paintball case McCune v Myrtle Beach Indoor Shooting Range. Ex: drag racing, riding shotgun. Ex: smoking cigarettes with warning labels.

Exculpatory clause: you can't negate your own responsibility for your own negligence. Ex: apartment lease - landlord not responsible for any negligence. These clauses are invalid. Ex: Valet parking. It's a bailment and they're responsible at a higher level of care if you're paying them.

Comparative negligence: not so much a defense as it is a reduction of damages. Illinois was formerly (thru mid 1970s) a contributory negligence state. If the injured party was in any way negligent, they would not be able to recover anything. Ex: if you were walking against the light and a reckless driver hits you, you couldn't recover anythign from the driver. Now, Illinois goes according to comparative negligence where they judge the percentage of responsibility and recovery goes according to the percentage.

See wassell v adams. Wassell was 97% negligent, but recovered 3%. Current law is that if you are more than half negligent yourself, you can't collect any damages at all.

Preview:

Chapter 7: Business Torts: fraud, product liability. Under current law, the manufacturer, distributor, or seller may be liable for product liability.
defective product
failure to warn
design defect