Neglient torts are much more common,

1.

2.
3.

4.

Before negligence there was something that we basically call strict liability
meaning if youcaused something you are liable for it.
The tort of battery orginated from the tort of trespass
Likewise coas for unintended injuries arose from a writ of trespass as well
We find that what the law said, up until the mid 1900s
A SHORT HISTORY OF NEGLIGENCE
a. TRESPASS AND TRESPASS ON THE CASE
This is the first time negligence creeps up with indirect injury
because you had to show that there was some fault at the
indirect act that caused the injury
Most injuries are indirectly caused injuries.
IN England in the 1950s if you acted and it caused an injury you
had to pay for it . Even if you acted carefully
It is a really important switch going from strict liability to
negligence

b. SIGNIFICANCE OF BROWN V. KENDELL

The negligence prima facie case
Establishing the duty of care
a. The reasonable person test (this is the typical way)
b. Statutory standards (the legislature: called NEGLIGENCE PER SE WHEN
A STATTUE OR ADMINISTRAIVE REGULATION SETS THE DUTY OF CARE)
c. The role of custom
d. Special cases
Do you have a duty to help someone in peril when you didnt put
them in peril
The reasonable person standard
a. An objective standard
b. Special cases?
Mentally impaired persons
1. Not special judge like any other persons standard
Children
1. Take into account their age mental maturity
Person with physical impairments
1. Take into account their disability what a reasonable
person with that disability
c. How dose decide what a reasonable person would do?
The carroll Towing Case
d. Ff

Brown v. Kendall and its significance

In England if somebody acted and did not cause an injury the plaintiff wanted
some sort of recovery for an indirect injury The plaintiff had to show act
They took the writ of trespass and turned it into
DECIDEDINTHE SUPREME JUDICIAL COURT OF MASSACHUSSETS WHICH IS
THE HIGHEST COURT IN MASSACHUSSETS
LEMUEL SHAW WAS THE FELLOW THAT WROTE THE OPINION, ONE OF THE
MOST INFLUENTIAL JUDGES OF THE 19 CENTURY
JOHN MARSHALL WAS BY FAR THE MOSTINFLUENTIAL CHIEF JUSTICE
20TH CENT. EARL WARREN
CURRENT ONE
IN THE 19TH CENT. THE MOST IMPORTANT CHIEF JUSTICE WAS MR. SHAW
SHAW HAD A FAMOUS SON IN LAW NAMED MERVIN MELVILLE.THESTORY IS
THAT MELVILLE FASHIONED THE CAPTION AFTER THE JUDGE SHAW. THAT IS
AN INTERESTING COLLECTION TO AMERICAN LITERARY.
SHAW IS A BIG TIME JUDGE. HE DECIDES THIS CASE.
Case:
He puts the guy out
He didnt do it on purpose so we have an unintended injury
There is a battle over jury instructions in the lower courts
What are the jury instructions that the defendant suffered
if both (see yellow highlight in book for what defendant wanted)
Defendant is saying if
I was carefull when doing this, then
Trespass with a direct injury there was no requirement of ??(direct fault)???
The judge states the long history of cases and dismisses them as dicta
THS IS A BIG DIFFERENCE FROM WHAT WE TALKED ABOUT BEFORE IN
TRESPASS AND TRESPASS ON THE CASE YOU HAD TO PROVE FAULT NOW
WITH BORWN V. KENDELL YOU DONT
ONE WHO IS BLAMELESS WITHOUT FAULT, IS NOT LIABLE
CONTRIBUTORY NEGLIGENCE WHERE THE DEFENDANT IS GUILTY BUT SO IS
THE PLAINTIFF
IF THE DEFENDANT WAS CAREFUL THERE WILL BE NO LIABILITY FOR THE
INJURY
DEFINES CARE:
THEY SET THE STANDARD AS WHAT CAUSCIOUS AND PRUDENT PEOPLE
WOULD DO IN THIS CIRCUMSTANCE
THAT IS WHAT BEING CAREFUL
AND FALLING BELOW WHAT A PERSON THAT IS CAUSCIOUS AND PRUDENT
THAT IS CARELESSNESS
RULE: THE does not have to prove that they were careful, the has to
prove that the defendant was careless
IN this opinion we go from strict liability (direct and indirect), there wont be
liability unless there is fault, and there wont be liability unless the plaintiff
can prove that defendant was careless

Appellate courts rapidly follow his lead and then all the courts become on
board with his thinking
What he basically said here is what we have today.
He is saying:
o For unintended injuries you are not liable unless you are careless,
carelessness is below the reasonable person standard and the plaintiff
has the burden to prove this level of carelessness.
This is interesting because it was first presented in a case involving two
fighting dogs

Hypo of train: if we didnt have Brown v. kendell the railroad would be liable for the
spark that would light the farmers field as it was going and letting go sparks. This is
prior to liability insurance. The was liability insurance for somethings like shipping
but for very little else.
With out Brown the railroad company they would be found guilty and they would
bankrupt if we followed the pre brown rule the railroad would always have to pay
and it would go bankrupt With brown v. Kendall as long as the railroad is acting as a
reasonable prudent railroad it wont be liable.
The court would say with brown that the railroad did not act unreasonably because
ther was nothing they could do to stop that. Once spark reducers or whatever they
are called got introduced then they would be lieable if they didnt have it.
THIS CASE FUFILLS TWO GOALS PROMOTING INDUSTRIAL DEVELOPMENTS BUT ALSO
ENCOURAGES INDUSTRIES TO ACT SAFELY WHEN THEY HAVE THE MEANS TO.
REMEMBER THAT DURING THIS TIME THE DEVELOPMENT OF THE RAILROAD WAS
HAPPENING. EVERYONE WANTED A RAILROAD AND IT IS THE INDUSTRIAL
REVOLUTION.
THIS IS CALLED THE COMMON WEALTH THEORY
What historians debate is weather he knew what he was doing and picking this dog
case. In a regioin that wanted to develop the negligence regime took over rather
quickly.
He is setting up to encourage industrial development even though he would never
say that in an opinion.
Prof. is certain that Shaw was keeping the development in mind.

HANDED OUT A PRIMA FACIE CASE FOR NEGLIGENCE WITH THE BASIC ELEMENTS
FOR THE TORT OF NEGLIGENCE

Hypo: someone is driving while texting and hits another

A reasonable prudent person would watch where they were going while
driving
The breach of the duty would be that the person was not paying attention
(this breaches the responsibility)
The rear end ends up getting smashed.the breach of the duty is that

PG. 167 DISCUSSION ON HOW DO WE ESTABLISH THAT THERE IS A DUTY OF CARE

There is a number of ways. The usual standard is exactly what Chief Justice Shaw
said, what would a reasonable prudent person do. Another way is when a legislature
passes a law or an agency, that the court finds sets a duty of care. The role of
custom in setting a standard of care, what effect do custom have what reasonable
person in that industry will do or should do.
We start out by talking about the reasonable person standard. What would an
ordinary person do in the circumstnaces. The reading on page 167 tell us that it is
an objective standard.
Bottom of pg 167 Vaughn v. Melon

Layed his hay in a particular manner so that it would combust and then catch
his neighbors land on fire.
The defendant said he did the best he could when he created that hay stack.
Maybe my neighbors know how to stack it but I did the best that I knew that
is what made my actions careful.
THE COURTS REASONING : IF WE LOOK AT WHAT EACH INDIVIDUAL WOULD
DO, THESE STANDARDS WOULD BE TO VAGUE AND WOULDNT BE A
STANDARD AND ITW OULD DEPEND ON EACH INDIVIDUAL WE INSTEAD HAVE
TO HAVE AS SOCIETAL STANDARD
WE LOOK AT THE JURY AS A SETTER OF THE STANDARD GENERALLY
(EXCECEPT IN SMALL THINGS LIKE A STOP MEANS STOP)

Special Cases
1. Mentally impaired persons
a. There is no special standard for them they are judge like any other
person for a negligent action the standard of care that they need to
uphold is the same as a reasonable person
2. Childrend
a. With children you compare the mental capacity with those of other
children of the same age experience. What a reasonable child of
age and experience would do. This is subjective.

b. We are looking what a reasonable child of the same age and

experience would do
c. With children we are looking at more subjective
d. There is an exception with childrend engaging in a dangerous
activity that is characteristically undertaken by adults they are to
be judge by the standard of care applicable to adults and that
children under the age of five are incapable of negligence.
3. Person with a disability
a. It is an objective standard that takes into account the physical
disabilities
United States v. Carroll Towing Co..

THIS IS A VERY IMPORTANT CASE FOR TORTS, HE SAID EVERY TORT CASE
BOOK HAD THE UNITED STATES V. CARROLL TOWING CO.
JUDGES NAME WAS LEARNED HAND
VERY INFLUENTIAL JUDGE
THIS CASE THE JUDGE IS TRYING TO EXPLAIN WHAT WE MEAN BY WHAT IS
REASONABLE AND UNREASONABLE
THE judges did a lousy job of editing this case so that you may understand it
he is going to have to explain the background
There was a couple of plaintiff one of them was the united stated
There was a load which belonged to the U.S. (flour) the barge owner was the
other
The barge owner is suing because they let it go loose and sink to the bottom
This has to do with law of the sea and there are a lot of special rules that
apply
This case was tried first in the district courts then came to ..(not sure if I
capture this correctly and missed the rest of the sentence)
What the defendant is saying is you were careless too. It is a rule called
Contributory negligence.
In a contributory negligence casewhat we are saying is it takes two to tango,
it takes two people
The plaintiffs are saying you were careless in letting my barge loose and lead
to my barge sinking with the contents
The defendant is saying yeah maybe but you also acted negligently
The defendatnt allegedly let go of the barge when it was being moved.
Barges are usually being pushed or pulled by boats. They are like water
trailer
This was around the time of world war 2
The are really long and flat
The barge owner is saying hey tug company you were careless when you
were moving the ship around and you let it break loose

The tug company is saying that you were negligent in leaving the barge
without a bargee (unattendend) if there had been a bargee then they could
have easily thrown the tug and re attached it
An equation is given by the judge to make a point about the portion of
liability
o B=burden P=probability (that the injury would happen
L= the injury
(THE GRAVITY OF THE LOSS)
o precautions
o B<PL
o What is the burden in this case
Having a bargee be present
o What is the probability of it happening
Very likely middle of world war two, barges being moved a lot,
January
o What is the injury
Great lost valuable cargo and the barge
In a society we take risks, we wouldnt be here, we take risks everyday
The law wants you to take reasonable risks
The law wants us to take reasonable risk and we wont get punished but if we
take unreasonable risks then we will have to pay for the injuries or losses
L really stands for the GRAVITY OF THE LOSS
Who is in the best position here is the U.S bec. It is very likely that the U.S.
can get a recovery from the towing company and the barge owner

LOOK AT SECTION 3 OF RESTATEMENTS PG. 171

DAVIS V. CONSOLIDATED RAIL CORP., 788 F.2D 1260 PG. 172 AND 173
F:
Davis an employee went under the train without putting the blue flags (he is
a train inspector) without any knowledge to him a crew arrives and attaches a train
to the other side and starts it without blowing the whistle.
The judge in this case is part of a legal movement of law and economics. He is
drooling for a case like this to come around. A lot of it is Learned Hand. He wants to
apply Hands theory in his own cases.
The plaintiff is arguing that they should have someone walk the train to check if
someone being under the train. What is the probability of someone being under
train: low what is the probability of an inspector being under the train without the
flag, very low what is the burden ..high.the probability is so low that it would be
an excecissve burden because everyone would have to walk their trains. It would
take a lot of worker hours when the chances of someone being under the train
would be miniscule.

The second thing was that they should alert with a sound a horn. The cost is low you
just push a button, even though the propability of the accient happening is so low
the court is thinking why not apply it if the probability is so low but.
PROF THINKS HE IS CARELESS TO BEC IT IS A VERY LIGHT BURDEN FOR HIM TO PUT
THE FLAG UP
USUALLY IT IS INTUITIVE AND THEN YOU CAN CONFIRM IT WITH B<PL
WHAT IS THE EFFECT OF CONTRIBUTORY NEGLIGENCE

At common law it was a very harsh rule for plaintiff because if the defendant
was careless and contributed to causing and injury and plaintiff was also
negligent plaintiff got nothing. It was an all or nothing proposition. This rule
we are going to find when we get to defensenses it has gone away in most
jurisdictions now we use (missed the term but it is perecentage of
negligence)

(LOOK THIS OVER ALONG WITH LEARNED HAND THEORY)

WE HAVE THREE CASES THAT ARE ALL FROM THE SAME COURT IN NEW YORK SOME
YEARS APART.

DUTY OF CARE WILL BE ON THE FINAL. MAKE SURE TO BRIEF MARTIN V. HERZOG