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Torts Rules of Law

The following contains the Rules of Law you'll need for the Torts Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Defenses to Negligence


The prima facie case for negligence requires:

Duty is owed to the plaintiff by the defendant
Breach of the Duty
Causation: The defendant caused the harm to occur.
Damages: The plaintiff suffers harm.

In order to hold a defendant liable for negligence, the defendant must owe a duty of reasonable care to the plaintiff. Two issues arise in terms of duty of reasonable care:

  1. Foreseeability
  2. Standard of Care

The duty of care must be toward a foreseeable plaintiff.

Test for foreseeability: A plaintiff is foreseeable if he was in the zone of danger created by the defendant.

Standard of Care
The Standard of care that the defendant must exercise towards the plaintiff is that of a reasonable, ordinary and prudent person in the same or similar circumstances.

Factors to consider that may or may not modify the circumstances include:

Physical characteristics
A person who has great physical strength will be judged according to an ordinary person of great physical strength. Likewise, a weak person will be judged according to a standard of what an ordinary weak person would do.

Average Mental Ability
Everyone is judged as being of average mental ability and no accommodation is made for being extraordinarily intelligent.

Same knowledge as an average member of community
Presumed to have common knowledge about known dangers in the community.

Professionals are judged according to other professionals in same community.

Children are judged according to children of same age, education, intelligence and experience.

Breach of the Duty
In order to be held liable for negligence the action by plaintiff must fall below standard of care.

The primary issue is where to draw the line as to the standard of care. Factors to consider in drawing the line are:

  1. Custom in the community

  2. Violation of statute (negligence per se)
    Violating a statute creates a rebuttable presumption of negligence. Defendant is presumed to be liable for negligence if he breaks a law and cause harm to the plaintiff but he can rebut that presumption by showing that there was a custom to break the law.

  3. Res Ipsa Loquitur
    Latin for "The thing speaks for itself." This doctrine draws an inference of liability because the thing that caused the accident was in the exclusive control of the defendant. In other words, it couldn't be anyone but the defendant who caused the harm.

The defendant caused the harm to occur. There are two types of causation:

  1. Actual Causation

  2. and Proximate Causation.

Actual Causation: Did the defendant actually cause the harm to occur? There are two different tests you can use.

"But for" Test: Ask yourself the question: "But for the defendant's actions, would the plaintiff's harm have occurred?"

Substantial Factor Test: If several causes could have caused the harm, then any cause that was a substantial factor is held to be liable.

Proximate Causation: This sometimes difficult to grasp concept is actually very simple on most exams. Be sure to check with your professor but if in doubt, use the following generally accepted test:

Foreseeability Test: If harm is unforeseeable, then defendant is not held liable by reason that there is no proximate causation.

Famous Proximate Cause Case: Palsgraf v. Long Island RR. Judge Cardoza. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff so no proximate cause.

The plaintiff must suffer some harm. Two issues arise:

  1. Was there actual harm?

  2. Did plaintiff attempt to mitigate the harm?

Actual harm or injury: Can be shown by the following:

  1. Personal Injury

  2. Property Damage
    Plaintiff gets Cost of repair OR fair market value

  3. Punitive Damages
    Extra damages beyond actual damage is available if the defendant's behavior was wanton and willful, reckless or malicious

Duty to mitigate: Plaintiff must not act in a manner that makes damages worse - i.e. not going to the doctor to get well. Defendant is not liable for damages where plaintiff did not mitigate.

Defenses to Negligence

Even if a defendant is found liable for negligence, he can argue to be relieved of or share liability because of a valid defense. Defenses include:

Contributory Negligence
In these circumstance, the plaintiff contributed to the negligent act. The defendant must prove the plaintiff was negligent using the negligence test above.

Under common law, if both parties are negligent, then the one with the last clear chance to prevent the accident is liable; otherwise both plaintiff and defendant share liability.

Assumption of Risk
If plaintiff knew the risk and voluntarily assumed the risk by engaging in the behavior then the plaintiff will be denied recovery.

Emergency Doctrine
Allows defendant to lower standard of care because an emergency required them to act rashly in order to avoid a greater harm from occurring.

Custom can be used to show that behavior was in line with the behavior of everyone else, thus resulting in no breach. E.g. Everyone drives at 50 MPH on that particular stretch of the highway even though it is posted at 30 MPH.

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