Negligence

Negligence is the failure to exercise the standard of care that a reasonably prudent person
would have exercised in a similar situation in order to prevent harm. The four elements that must be
proven in order to proceed with an action in negligence are duty, breach, causation, and damages.

The duty of care is a legal obligation which is imposed on an individual requiring adherence to a
standard of reasonable care while performing any acts that could foreseeably harm others.

The breach of duty of care. A defendant is said to have breached their duty when they fail to act
with the expected standard of care that a reasonable person would have to prevent the plaintiff from
foreseeable harm. A person’s conduct also lacks reasonable care where the burden to take a precaution
to mitigate harm is less than the probability of the harm occurring combined with the probable severity
of the harm.

Causation is split up into two categories; cause-in-fact and proximate cause. The breach of duty
is established as the cause-in-fact when it is the actual cause of the injury, as determined by the “but
for” test. But for the breach of duty, the injury would have never occurred. Therefore, the breach of
duty is established as the cause-in-fact. The second prong of causation is proximate cause or legal cause,
where the defendant is liable only for the consequences of their negligence which were reasonably
foreseeable at the time of the act. If the consequences are deemed unforeseeable or if there was a
superseding cause, then the act is then considered to not be the proximate cause of the injury.

Injury/damages is the final element of negligence. Actual damages must exist to satisfy this
element.

Negligence Per Se

Negligence Per Se is the unexcused violation of a statutory duty designed to protect a class of
individuals and prevent a particular harm that causes an injury.

The statute must impose a duty that provides additional safeguards above those found in the
common law. Furthermore, it must be readily and rigidly enforced as opposed to being a mere
recommendation to be followed when reasonable.

The harm that results of the violation of the duty must be the type of injury the statute was
designed to protect against, and the plaintiff must have been part of the class of people the statute was
intended to protect.

A violation of the statute is normally considered unexcused except for the following
circumstances: the actor lacks capacity to comply, the actor lacks knowledge to comply due to the
impossibility of knowing the statute, actor is unable to comply due to current circumstances, the actor
was responding to an emergency not of their own making, or compliance with the statute posed greater
risk than violation of it.

The violation of the statute must have directly caused the plaintiff’s injury.
Res Ipsa Loquitur

Res Ipsa Loquitur is the occurrence of an event which produces the inference of negligence
through circumstantial evidence, even without showing of how the defendant behaved. It requires that
there be no direct evidence of negligence, the harm is a kind which ordinarily does not occur without
negligence, the harm is caused by an agency or instrumentality within the defendant’s exclusive control,
and neither plaintiff nor any third persons contributed.

Battery

Battery is the act of intentionally or knowingly making physical contact that is harmful and/or
offensive to the plaintiff.

Intent in this respect is defined as either a will or desire to make contact or to be substantially
certain that a contact will result from an action.

A contact can be body to body, but can also involve touching an object “intimately connected”
to a person.

While harm is clearly about injuries to one’s person, offensiveness is judged under a reasonable
person standard. A contact is deemed offensive if the contact, through the eyes of a reasonable person,
would also see it as violating a person’s sense of dignity.

As opposed to the tort of assault, the plaintiff does not need to be aware of any imminent
contact in order to be battered.

Assault

Assault is the act that intentionally or knowingly inflicts apprehension of imminent harmful or
offensive contact to one’s person.

Intent is defined as either a will or desire to inflict apprehension of imminent harmful or

Apprehension of imminent harmful or offensive contact must be inflicted on the defendant for
assault to occur. Apprehension is the perception or anticipation of a harmful or offensive contact, not a
fright. Fear is not needed, rather that the defendant is consciously aware that they might get battered.

Imminence of the anticipated harmful or offensive contact requires that the defendant expects
they are about to be battered and that the plaintiff has a present ability to carry out the threat.

While harm is clearly about injuries to one’s person, offensiveness is judged under a reasonable
person standard. A contact is deemed offensive if the contact, through the eyes of a reasonable person,
would also see it as violating a person’s sense of dignity.
Trespass to Land

Trespass to land is an intentional act or physical invasion that causes interference with plaintiff’s
exclusive possession of their real property.

The act of physical invasion can occur when the defendant physically enters plaintiff’s land
without permission, or remains on their land without the right to be there, or puts an object on
plaintiff’s land without permission.

Intent in this respect is defined as either a will or desire to enter plaintiff’s land without
permission or to be substantially certain that a physical invasion of plaintiff’s property will result from
their action.

The physical invasion of plaintiff’s property must have been caused by the defendant’s act or
even a series of acts set in motion by the defendant.

Trespass to Chattels

Trespass to chattels is the intentional act of interfering with a plaintiff’s exclusive use or
possession of chattel resulting in damages.

Intent is defined as either a will or desire to interfere with a plaintiff’s exclusive use or
possession of chattel or to be substantially certain that an interference with plaintiff’s chattel will result
from their action.

The act of interference is any physical interference with the chattel, or the causing of a 3rd party
to interfere with the chattel unless the 3rd party acts voluntarily.

Exclusive use or possession refers to the actual owner’s property rights of the chattel and the
loss and or injury that results of the interference.

Damages include physical damages to the chattel or loss of the use of the chattel for a
substantial period of time.

Conversion

Conversion is the intentional interference with plaintiff’s possession of ownership of property

Intent is defined as either a will or desire to take possession or affect of the plaintiff’s chattel or
to be substantially certain that taking possession of or affecting the plaintiff’s chattel will result from
their action.

Nuisance
 Nuisance is the intentional act causing substantial and unreasonable interference with the
owner’s quiet use and enjoyment of the land.

Intent must be present during the willful or purposeful voluntary act to cause interference.

The interference is defined as a non-physical entry.

Quiet use and enjoyment refers to the real property and permanent buildings which are owned
by plaintiff.

An interference is considered substantial and unreasonable by balancing the harm to plaintiff

Negligent Infliction of Emotional Distress

Negligent Infliction of Emotional Distress is the negligent breach of a duty owed by the
defendant to the plaintiff causing severe emotional suffering.

Strict Liability

Strict liability is the imposition of liability on a party without finding a fault because the type of
harm can’t be prevented even through the exercise of ordinary care.

Defendants who own livestock are strictly liable for the foreseeable destruction of property if
their animal trespasses onto another’s land. A person who keeps a wild animal is strictly liable for all
damage done by it, provided the damage results form a dangerous propensity of that species.

Defendants who carry out an abnormally dangerous activity are strictly liable for any damage
that proximately results from the dangerous nature of the activity. They are activities so inherently
dangerous that the level of risk will remain high despite all reasonable efforts to reduce it.

Products Liability

Products liability refers to the liability of the seller of a tangible item which, because of a defect,
causes injury to the purchaser, user, or sometimes a bystander and there are damages as a result.

P must show that that D is a commercial supplier of the particular product in question. A
commercial supplier can be a manufacturer, wholesaler, retailer, or anyone who sells the product in the
regular course of business as long as they are found within the chain of distribution. The sale of the
product must also be a meaningful part of the business.

P must next show that the product has a particular defect which falls under one of the following
categories: a manufacturing defect, design defect, or warning defect.
 A manufacturing defect exists when the defendant is a seller, in the business of selling products
of the type in question whose defective product causes personal injury or property damages, and the
product did not substantially change in condition since leaving the defendant’s possession.

A manufacturing defect is when the product departs from its intended design even though all
possible care was exercised in the preparation and marketing of the product.

A design defect is a defect which creates a foreseeable risk of harm posed by the product that
could have been reduced or avoided by the adoption of a reasonable alternative design such as
structural defects or the lack of safety features.

A warning defect exists when the foreseeable risks of harm posed by the product would have
been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other
distribution, or a processor in the chain of distribution, and the omission of the instructions or warnings
renders the product not reasonably safe.

Defendant as a duty to warn of unsafe risks associated with a product.

A defendant breaches said duty when there was no warning provided when there should have
been, or the warning didn’t contain sufficient information and was either substantively inadequate or
procedurally inadequate.

A warning is substantively inadequate when it fails to provide consumers with necessary

A warning is procedurally inadequate when it fails to make the warning conspicuous in terms of
size or location, fails to use appropriate graph or non-verbal warning, or should require language other
than English.

P must show that they did not know of the danger and that they would have acted different had
they known. The warning defect, not the product alone, must be the cause in fact of P’s injuries. The
danger that D failed to warn about must be the proximate case of P’s injuries.

Miscellaneous Stuff:

Warranty products liability: Refers to liability of seller of a tangible item which because of a defect
cuases injury to the purchaser, user, or sometimes a bystander and damages as a result.

Tangible item

Defect

Defect CAUSES injury to person

Express warranty or implied warranty arguments

Manufacturing defect: exists when D is a seller in business of selling products of that type whose
defective product causes injury or property damage, and product did not CHANGE in condition since
leaving seller’s possession.

Departs from intended design despite all possible care in its creation and design.

DEFENSES: alterations, wear and tear, improper use

Design defect: defect which creates a foreseeable risk of harm posed by product that could have been
reduced or avoided by adoption of reasonable alternative design. May include structural defects, and
lack of safety features.

Nuances come into play in the defense section KEY IE: Adults are held to the standard of care a
reasonable and ordinary person would have in the same or similar circumstances. Children, on the
other hand, are held to a standard of care of a child of similar age, experience, and intellect.

Key is to make a good prima facie case and destroy it

Abnormally dangerous activities – skydiving and mountain climbing hot air balloons

One who carries out an abnormally dangerous activity subject to harm unless he exercises the
utmost care (I was super careful while skydiving but landed accidentally on a powerline and killed
person on my back and on the ground = you STILL Liable because it don’t matter how careful you are its
abnormally dangerous activity)

P will prove…P will say…P will show…P will argue…

Learned hand theory is usually best to mention when money is mentioned

Products liability – products that don’t work, but also that they aren’t being used for what they are
designed for.

Products liability – you can do negligence if emergency case, same bread and butter

Strict products liability – only manufacturing defect are strict liability

Not for warning or design defects (do their reg definitions)

Manufacturing: seller, business of selling, defect in product, causes injury, didn’t change in conditions
since leaving D’s possession.

Design defect: defect creates foreseeable risk of harm that could’ve been avoided with the adoption of
an alternative and reasonable design