The Fault Principle
I. Systems of Liability and Relationship of Insurance
A. No Liability Rule- would leave no compensation available and might ststencourage vigilantism. You would get 1 party insurance (insure yourself 1)
(US doesn‟t follow this).
B. Universal/ Social Insurance - (US has weak versions of this already) less
incentive to recover quickly but people would probably still act carefully. C. Judicially Administered Liability Rules - are a compromise between no
liability and universal insurance. (US follows this and this is what torts is).
1. Absolute Liability (analogous to Strict Liab) proposed in Hammontree v.
Jenner but rejected in favor of a negligence standard of foreseeability and
reasonable person standard.
2. Courts have developed a complex set of liability rules for determining
allocation of losses – reflects tension between Strict Liab. and Negligence
Absolute Liability – Good for compensation, but not so good for moral fairness or deterrence
II. Judgement and burden of proof
A. Reasons for single-judgement system: efficiency, closure for D, incentive for
P to recover promptly and rehabilitate.
III. Vicarious Liability – „respondeat superior‟
1. At common law, employer only liable for specific/direct commands. Now,
employers liable when employee is acting “within the scope of
2. “Frolic and Detour” – Two tests: subjective intent of the employee (ex.,
sub intent of employee was pleasure ; employer not liable) OR objective
reasonable foreseeability from employer‟s standpoint. Dominant view is
objective reasonable foreseeability of the frolic and detour. If reasonably
foreseeable, then employee may be held liable. (You should talk about
3. Justification: compensation - ability to spread cost by loss and has deep
pockets; price reflects real cost of production including risk; deterrence -
employer in position of control; moral fairness – employer has more
choices and employee less.
B. Employer-Independent Contractor
1. General assumption is that employer not vicariously liable for
2. Exceptions: Non-Delegable Duty – Duties are non-delegable when the
i. Risky or unusual in nature
ii. A danger to the public at large
iii. Prescribed by statutory requirements
See Maloney v. Rath (owner of car held liable for faulty brakes on car
despite mechanic‟s negligence although she was careful in choosing).
3. Justifications: compensation – more places to access compensation;
deterrence – since activity risky, promotes activity substitution
Historical Development of Fault Principle
I. Evolution of writs of case and trespass at common law (classical view)
A. Standard based on physical event which caused injury.
B Case: indirect or consequential injury consequence. Liability is negligence –
have to show carelessness
C. Trespass: direct consequence of an act involving direct application of force.
(Strict Liability, Only defense is „inevitable accident‟).
Trespass case were very limited, so case developed, but you have to show negl.,
there were inequitites in both which were resolved in Brown v. Kendall
II. Unification of the Fault Principle (standard of care) and burden on Plaintiff now.
A. Brown v. Kendall court uses 4 categories:
1. intentional v unintentional (outcome)
2. voluntary v involuntary (ability to control action)
3. lawful v unlawful (prohibited or permitted under statutes)
4. necessary v unnecessary (legally mandated)
Court determines D‟s behavior is voluntary, unintentional, lawful and
unnecessary and D not liable. Not every unlawful act is negligent.
B. Unify trespass and case into negligence with standard being “ordinary” care
C. Justice Shaw was focused on encouraging business to develop and opted for a
standard of negligence rather than S.L. to encourage economic growth. M
says: people will act with the same degree of care regardless of liability
standard; what will change is how one insures.
So in the end, there is only liability when Defendant exercised less than ordinary
care and Plaintiff exercised ordinary care (for Brown)
The Standard of Care
I. Reasonable v. Unreasonable conduct
A. Adams v. Bullock – court looks at the reasonableness of D‟s behavior and
considered: foreseeability of the accident, feasibility of making changes, and
whether franchise is lawful and determine trolley wires not negligently strung
1. Naïve impiricism: anything that has not happened before is unforeseeable
(not adhered to in tort law)
2. Reasonable foreseeability: middle ground where some things are
foreseeable. Note: Ct doesn‟t want to make business an insurer for
anything that might go wrong, regardless of their fault.
3. Omnicism: everything should be foreseeable (not required in tort law)
B. In Braun v. Buffalo Gen. (det. it was foreseeable other buildings would be
built and D failed to ever inspect electric wires whose insulation was only
suppose to last three years)
II. Economic Analysis of Negligence to Determine Reasonable Behavior A. U.S. v. Carroll Towing – considers B,P,L and custom in determining if bargee
should be aboard (found D liable b/c violated custom of having bargee during
B. Judge Hand‟s Formula: Where B > PL not liable, but where B<PL are
considered negligent (B= burden of safety, P= probability of harm, L=
loss/injury). Calculations are made at the margin: If MB<MC you are over-
investing - wasteful. If MB>MC you are under-investing – negligent.
C. Fundamental Assumptions w/ Economic Analysis
1. People are rational maximizers (will try to max pleasure & avoid pain)
2. Actors have perfect information
3. Efficiency is sought to maximize all bnefits
4. Cost efficiency investment in safety
5. Methods – calculate at margins, cost-internalization
D. Effect with SL vs. Negligence.
1. In strict liability, spend up to the equilibrium point, then invest in
insurance above that point.
2. Ex: At 35 mph 1/1000 chance accident cost $200,000 (PL=$200)
At 40 mph 1/750 chance accident cost $300,000 (PL=$400)
$200 additional accident cost for $100 benefit of seeing concert on time is negligent.
Ex: Reduce speed to 30 mph where PL=83.33
$116.67 savings but benefit is $100, therefore over-investment
3. Difference between two liability systems is whether the victim is
responsible for residual costs where adequate care was taken. E. Cost Internalization
1. Cost of item depends on standard of liability. As price up, more producers
willing to supply; as more expensive, fewer bought.
2. Bottle/can prob: (cost bottle less, accident cost higher)
Under NL=make bottle b/c cheaper and no need to internalize costs
Under Neg= making cans you are careful and no need to internalize cost
Under SL= must internalize accident costs so always add ins to each
3. Rationale: worry that under Neg people will under-insure selves b/c
underestimate cost of using, injured go undercompensated. With SL, acc
costs included so “buy right amount” and will be compensated. This
assumes actor is irrational or uninformed.
4. We need liability rules, b/c if we didn‟t have them, then costs would be
externalized instead of internalized, liab rules make us change our
III. The “Reasonable Person” Standard
A. General Rule: “reasonable person under the situation” – tort looks at conduct,
not intentions (in crim, mens rea is considered); it‟s an objective standard –
“community norm” not an average person. Critics of objective standard say it
is unfair to hold people to standard they cannot meet (i.e. low intelligence,
a. Physical – standard of reasonable person with same disability; Don‟t
want to preclude physically disabled from participating in any activity
but deter some, fair b/c physically disabled can participate, but lowers
b. Mental – no exceptions for low intelligence. Most jurisdictions won‟t
permit exception for insanity b/c of difficulty in measuring, but might
make exception when NO MORAL CHOICE & NO CONTROL.
Deterrance Argument: By holding mentally insane people liable, we
hope that will make them get help or have those people around them
get help or take care of him. What if a mental condition mimics a
physical disability (hysterical blindness)? No indicia. We allow
exceptions for physical and not mental b/c of measurability and
susceptibility to fraud.
a. Youth – Old Rule <7 not capable of negl/irrebutable, 7-14 no
negl/rebuttable, 14-21 capable of negl/rebuttable. Now use
“reasonable child of that age” standard (don‟t factor in intelligence)
objectively and jury permitted to consider subnormal intelligence,
experience. Arbitrary lines must be drawn – 18 adult. Youth: old rule
takes away jury‟s ability to distinguish between characteristics but
under modern rule juries can bring in community values. Parents are
not vicariously liable for their children except when they are negligent
b. Adult Activity: Most courts hold child liable when participating in
adult activity, some when activity is inherently dangerous
(snowmobiling) and no exceptions for immaturity or limited
experience. Why fair? Other party unable to make allowances b/c
don‟t know it is a child, undercuts compensation to permit no liability,
fair b/c child chooses to engage and assumed to understand
c. Old Age – no special standard and expect sufficient life experience to
allow different behavior. Old Age req‟mnts deter and encourage
activity substitution, morally fair b/c life experience should deter them. 3. Unusual Skills: Restatement (2d) ?298 – must use facilities of reasonable
person but also superior qualities one has when in professional setting. Justification: deters someone from foregoing special skill, promotes compensation. Otherwise, no use of special skills required, only reasonable actions under the circumstances.
IV. The Emergency Doctrine: application of reasonable person standard, consider if
someone acted reasonably “under the circumstances” of the emergency. Cannot
use emergency doctrine where D‟s conduct contributed to the emergency (i.e.
speeding). Businesses of certain nature should anticipate emergencies and cannot
use the doctrine (ex. Public pool)
Role of Judge & Jury – Proof of Negligence
I. Categorical Rules v. Case by Case Adjudication
A. Baltimore & Ohio RR v Goodman case: Jury found P‟s behavior reasonable
and court of appeals agrees. For J Holmes to overturn must show that (1) as a
matter of law, P contrib negl or (2) no reasonable jury could find for P.
Holmes establishes judge‟s right to make decisions as a matter of law (argues
that when jury decisions are inconsistent, judge should decide b/c judges are
better repeat player to impose a uniform standard and inconsistency will be
remedied by judges.
B. Pokora v. Wabash overturns Goodman since facts of each case need to be
taken into account. Cardozo responds – court in Goodman made good
decision but went too far to say “as a matter of law”.
C. In “factually complex situations” jury is best to decide facts. In comm law –
we don‟t set down categorical rules b/c we want indiv justice.
D. Policy issues: Do we feel court should educate public/send a message? We
don‟t want inconsistent verdicts when facts are the same (Holmes). Efficient
to have a matter of law if juries always come to same decision or is it
unnecessary. If eliminate jury, don‟t allow community input. Akins says our
perceptions change and so a rigid rule is bad. Also, technology changes and
rule of law won‟t keep pace.
E. Problem with categorical rule (“rules of law”): aggregate facts don‟t show
individual circumstances, need to know marker has correlation to negligence,
sometimes P gets a windfall while others have to show specific proof, they are
over inclusive too.
F. Claims of efficiency are exaggerated – if there is inconsistency in verdicts, we
may have more out of court settlements or encourage people to bring more
cases when circumstances slightly different
A. Custom is evidence of standard of care but not dispositive.
B. Trimarco v Klein: landlord failed to install shower door with shatterproof
glass despite custom and enough to get case to a jury and allow them to
C. Custom does not have to a majority practice, just a substantial minority
practice w/in the same calling or business (scope of activity). Customs not
reasonable when there is potential collusion or the industry is marginally
D. Deviation from Custom: If well-established custom and D deviates, may be
strong consideration in breach of duty. Often powerful evidence of breach of
duty but is not dispositive. It relates to risk calculus (probability of the harm
and in response to industry‟s perception of potential risk) and must be shown
that the reason for the custom is to prevent injury sustained by P. Also
suggests that to have undertaken the custom is not too burdensome. E. Compliance with Custom: Often evidence of lack of breach but does not
conclusively establish reasonableness. Jury can find “customary negligence”
if the custom is entirely unreasonable. (ex. Speeding b/c everyone else does)
and may not always be admissible.
F. Restatement ? 286: Elements of statutes to determine statutory tort liability
1. Class of persons
2. Particular interest
3. Kind of harm
4. Particular hazard
G. Should an old plant be held liable to the same standard as a new plant?
- only when the cost isn‟t too high b/c of the fixed costs associated w/
III. Statutory Regulations – Negligence Per Se
A. Legislative Role: some can regulate tort law as long as statute is constitutional.
Civil enactments must be used as a categorical rule while criminal statutes,
admin regulations and municipal ordinances may be used to set standard.
Company Safety Manuals are not basis for Neg Per SeReasons for different
weight – deference to legislature‟s civil statutes, inability to understand intent
in municipal ordinances and variation among areas and there is not as much
B. Rationale for negligence-per-se doctrine: the reasonable person is law abiding.
The statute thus replaces the “reasonable person” standard.
C. Criticisms: Huge impact of being shown to have violated criminal statute
since D liable for all harm proximately caused by their violation. Constricts
the jury‟s role in determining breach of duty and gives judge broad discretion.
Questions as to whether it encroaches on legislative domain in interpreting
intent when legislature does not clearly impose civil liability. D. Criteria for determining negligence per se – statute can be used when the
object (doesn‟t have to be main object) of the regulation is safety. Rest. Says
the legislature needed to intend it to be subject to torts.
1. Martin v Herzog rule: Where the statute is designed for protection of “life
and limb”, liable unless show it is an „unavoidable accident‟. Tedla v.
Elman revises it to show “reasonableness” as excuse for violating statute
intended as a Code of Conduct (not a standard of care). Swallows doctrine
of negl per se in evading categorical rule. nd 2. Tedla v. Ellman and Restatement 2: (1)if statute is designed to protect a
class of persons, (2) to protect a particular interest, (3) from a kind of harm,
(4) in a particular manner – May consider legislative intent and secondary
purposes when analyzing these elements. Effect: only binds jury to find
breach of duty. Must still show causation, damages, any defenses. In
Tedla, the Ct uses statute as “primie facie” (evidenced of negligence as
opposed to neg per se.
3. Secondary purpose: If can show that legislature considered protection
from a type of harm, manner, interest, class as secondary to its intent, may
still be able to establish negligence per se.
E. Licensing Statutes: Should the law allow licensing requirements to be
indicative of standard of care? Majority refuse to establish as standard of care
because purpose is to protect public from those without skill and D‟s lack of
ability should be shown. Most feel goes too far to use licensing statues even
though logic above is not complete. Situation of doctor unlicensed who has
all the requisite skills – not negligent per se.
F. Even if you follow statute, it is not dispositive of reasonable care, you can still
be found to have been liable.
IV. Constructive Notice (circumstantial evidence)
A. Used in slip and fall cases as evidence of negligence by drawing an inference.
To constitute constructive notice, a defect must be visible and apparent and it
must exist for a sufficient length of time prior to the accident. B. “Mode of Operation”: allowed where no evidence that actual or constructive
1. Foreseeability that this type of business will result in types of accidents in
the case and notice is irrelevant.
2. Policy justifications: Compensation – easier to prove and be compensated.
Deterrence – store has control of how runs business and supervisor will
pay more attention.
3. Mode of operation has been mostly used for self-service food. But if no
actual or constructive notice as a matter of law, then not liable. (Gordon,
p slipped on museum steps on waxy paper from concession stand, but d
not liable b/c had no notice of paper being there.)
V. Res Ipsa Loquitur (the thing speaks for itself, circumstantial evidence) begins with Byrne v. Boadle
1. Accident normally does not occur in absence of negligence – frequently
used in medical malpractice but inherent risk will never support use of
2. Exclusive Control of D – must only show it is more likely D and not
necessary to exclude others. Not necessary to be actual (in contracting out
b/c non-delegable duty) in landowner-invitee situation (P has no
knowledge of risks).
3. No voluntary contribution by P – least important element since
comparative fault and contrib negl does not bar suit and linked with
exclusive control. (It is not contrib negl/affirmative defense) B. Once RIL is triggered, it is primie facie negligence (evidence) which
Defendant must rebut.
C. Evidentiary Impact – effects burden of production and persuasion
1. In NY, Nebraska, gives rise to inference of negligence
2. In CA, Weak presumption: D burden of production, P persuasion
(obligates Defendant to give evidence of ordinary care or lose negligence)
3. In LA, Strong presumption: D burden of production and persuasion D. Multiple Instrumentalities/Multiple Defendants Ybarra v Spangard
1. If there is a connection between Ds (surgical team, contract, etc.) can
bring suit under RIL against all – if acting in parallel even if one may be
liable and others not. Generally, if you have lots of Ds and there was not
collective control, then no RIL. (Ybarra diff b/c it was a team)
E. Policy Concerns: RIL serves information-generating function – when
evidence is in the hands of D it will encourage them to speak up as to who is
at fault among them; goal of compensation is satisfied since allows P to
collect for injuries when cannot show specific acts of negligence. Has
COSTS: overdetterence of people who may not have been negligent and not
fair, penalized for silence. However, judicial efficiency is served and may
F. Relationship to Insurance: Encourages some to take care until the point it is
economically reasonable and then insure above that (malpractice, airline
liability for death or injury)
a. not usually due to negligence
b. Defendant was not negligent
c. Instrumentality was not in exclusive control of Defendant
d. Plaintiff contributed to injury
I. Standard of Care (is Custom) (if you meet the standard of care in the profession, then you are acting reasonably)
A. Custom: SCOPE – doctor owes a duty b/c dr-patient relationship. NATURE
– reasonable physician based on customary practices in “same or similar
do 1. Relevant community: private v. public hospital, rural v. urban doctor –
we want to micromanage hospital decisions through decisions of reasonable
care? Jury can take into account circumstances of hospital or clinic in
determining reasonable actions despite national standard (Ct takes into
account the resources of the hospital).
2. Where alternative practice is acceptable among a “substantial minority” it
is the custom and reasonable.
3. If a reasonable patient wants to know, the doctor should tell them. B. Exceptions to Same or Similar Community Standard
1. Board certification: Held to the standard of the national group who is
2. Legislation: Where statute creates a standard of care (rare)
3. Common Knowledge: Where a jury would understand it without special
skill, changes to an “objective standard”.
C. Expert Witnesses: Jones v. O’Young established - Don‟t necessarily have to
be in the same field, just related (b/c hard to get physicians to testify against
each other), can read treatises so no expert has to testify, can use academics to
testify and services who provide expert witnesses. When experts on both
sides, jury can determine which is to be believed and discounted (Hennig v
Thomas – experts for hire ruin credibility w/ jury).
II. Res Ipsa Loquitur in Medical Malpractice
A. Common Law RIL - No expert necessary where behavior so egregious that
layperson would know by “common knowledge” it was unreasonable (i.e.
leaving instrument inside of patient) since jury does not need special skill or
training to know.
B. Court in Connors decided Expert testimony can be used in RIL medical
malpractice cases where jury needs information to understand the procedure
and determine ordinary care.
III. Informed Consent
A. In general: Patient and Doctor in K for (1) transmission of information
(disclosure) – governed by objective or subjective standard - and (2)
performance of the service – governed by custom. W/ malpractice, tort and K
look more similar if you get promises.
1. Divergence between the two in the standards since informed consent
governed by common knowledge and experience while procedure is more
B. Physician Rule
1. Custom sets standard of care doctor must take in disclosing
2. Must have expert testimony showing the relevant customary standard C. Patient Rule (becoming more common) – (more care than customary)
information patient would have wanted if they had control over the contract.
Rationale: there is a trust w/ patient/doctor. Patient relies on doctor and
should be able to make informed decisions b/c dealing w/ her body.
1. Obligated to disclose all material risks that might affect their
i. Issue of diclosing baseline so #s are relevant?: In Korman v.
Mallin one issue is that % risks were irrelevant without
baseline #s to frame them and this may have affected their
ii. “Special interest”: If patient expresses particular concern,
doctor needs to weigh this. However, they are not
obligated to pursue every special interest you have.
a) detrimental effect pyschologically or physically
b) infancy/ incapacity – should transmit info to parent/ guardian
c) patient requested not to be told (subjective, preserves patient autonomy)
d) emergency makes it impractial
e) obvious risk (redundant)
f) physician doesn‟t know or have reason to know about risk
g) remote risk for common procedure
D. Extension of Informed Consent Doctrine
1. Disclosure of risks of foregoing treatment: some courts require this.
Problematic b/c causation must still be shown – that patient would have
undergone if they had been told this info.
IV. Attorney Malpractice
A. Duty established by attorney-client relationship.
B. Standard of care set by the community
C. Breach shown by failure to meet that standard.
D. Must show causation – “but for” the negligent error of attorney, client would
have prevailed in case.
Scope of Duty
A. Three Elements of the Duty Requirement
1) Scope: To whom, if anyone, is a duty owed? (trend toward more general)
2) Nature: What is the nature of the duty?
3) Breach: Was the duty breached?
B. Scope of Duty
If I don‟t owe you a duty, then 3 ways to get a duty:
1) Voluntary Assumption of Risk.
2) Special Relationship – from status
a) familial – at least nuclear family
b) fiduciary duty – based on trust, like doctor-patient
3) Risk Creation
a) traditionally, only when your act is negligent
b) modern/emerging – owe duty even if not negligent
Duty to Rescue
I. General Rule – No duty rescue (act of nonfeasance) even if „easy recue‟.
A. Generally duty for misfeasance – affirmative conduct that creates an
unreasonable risk of harm (cajoling someone into dangerous act), negligent
omission (not paying attention while driving)
B. No duty for nonfeasance – failure to intervene EXCEPT:
1. In Harper v Herman, D found not liable for failure to warn b/c had no duty
in the first place.
C. When there is a Special Relationship based on status
2. Fiduciary – surrender self to care through K or formal custodial duty such
as teacher, guardian, common carrier, innkeeper
C. Affirmative Enhancement of Risk (negligently or not under ?322
Restatement): movement towards imposing rescue obligations on those
connected in any way to the need for rescue, always required when negligence
caused the risk
D. Voluntary Assumption of Duty:
1. Traditional view: Must not leave the person in a worse position
2. Modern view: Restatement ?324 you must act reasonably careful - this
could dissuade some to undertake rescue for fear of liability II. Policy Justifications: to require rescue would eliminate autonomy and cheapens
rescue, might encourage some to undertake dangerous activities expecting rescue