TORTS TA SESSION 10/14 &

10/15

B.P. GROSS NEGLIGENCE

Clean Water Act

Statute incorporating tort law

What is gross negligence?

B.P. arg: requires culpable mental state
U.S. arg: does not require culpable mental state, its just regular negligence,
only worse (court agrees)

BPL analysis court finds B.P. was grossly negligent

COMPARATIVE NEGLIGENCE
Contributory negligence
If plaintiff negligent at all, no recovery

Pure comparative negligence

Recovery based on percentage of fault

Modified comparative negligence (50% rule)

Operates as pure comparative negligence until plaintiff more than
50% responsible, then no recovery

Arguments?

DUTY
Remember: Everyone has a duty to exercise ordinary care under the
circumstances; affirmative duties go beyond that.
Affirmative duty
Re-scope act (Moch)
Active omission
Created reliance
Generated risk

Special relationship (Tarasoff)

Statute-created duty (Cuyler)
Duty to warn (Hood)

HYPO
One night at sea, Robb, a former rower but terrible swimmer, falls
overboard. His friend alerts the first crew member that he finds, Cersei,
who laughs and walks away. The second, Tyrion, valiantly activates the
ships safety procedures, including stopping and throwing a lifebuoy.
However, the lifebuoy is not fastened to the rail as required by law, but
instead used as a pillow for the captain and owner, Jaime. This results in a
delay of three minutes before the first lifebuoy can be tossed. Generally,
throwing a lifebuoy has a high probability of success. But Tyrion fails
repeatedly, and Robb drowns. Robbs family sues.
Does Robbs family have a claim against Tyrion? Cersei? Jaime?

WARNINGS
Common knowledge does not get a warning
How specific should warning be?
BPL analysis

Informed consent
Reasonable physician standard
Industry standard malpractice analysis

Reasonable patient standard

How does this handle idiosyncratic patients?

PREEMPTION
Express means statute is straightforward
If theres parallel preemption you cannot be twisting the
statute to fit and you have to make sure its not field
preemption
Implied Field takes over the entire area of law
Implied Conflict directly conflicts with tort law

CAUSATION IN FACT
But-for: The harm would not exist if not for the breach / Absent the
negligent conduct, injury would not have occurred at all / The negligent
conduct was a necessary condition of the harm
Multiple Necessary Causes (If both cars have lights off, accident):

All parties are causes-in-fact, move on to proximate cause analysis to decide if

liable

Multiple Sufficient Causes (If one car has lights off, accident):

Restatement Third 27- multiple sufficient causes all factual causes

Simultaneous, both negligent: both liable
Simultaneous, one negligent: depends on the court
Sequential: First cause is cause-in-fact (pre-emptive cause)

FINAL HYPO
Donald and Hillary are coal miners. They were working in the mines one day, when Hillary decided it
would be hilarious to play a prank on Donald. While Donald was working the drill, Hillary came up behind
him and scared him. Donald, who wasnt wearing his helmet at the time, jumped backwards and slipped on
a banana peel he had thrown on the ground earlier, and drilled a hole in his foot. The drill also
malfunctioned when Donald began drilling his own foot because the drill bit was not intended for such soft
surfaces. Donald could not turn the drill off due to this malfunction. There was a warning on the drill that
indicated the location of the emergency shutoff, but the print was small and blood from Donalds foot had
covered most of the text. Donald eventually lost his foot because he could not turn off the drill.
There is a statutory requirement for miners to wear all appropriate safety gear whenever operating drills.
But the custom in mines is not to wear a helmet unless there is RED alert for tunnel quakes. There was not
an alert on this day.
Donald and Hillary reside in a state that abides by a true comparative negligence regime.
Donald is suing Hillary. What would the theory of his case be?
What defenses does Hillary have?
Who else could Donald sue?