Chapter 5 Negligence, Professional Liability and
Insurance (another type of tort)
(and a little bit of chapter 4) 1/30/2013 6:38:00 PM
How are you going to solve intentional torts?
prove the elements of the tort if you’re the plaintiff
then it is up to the defendant to either disprove the elements AND/OR
defend his case
What’s the standard of proof for a tort case?
balance of probabilities it is a CIVIL CASE
it is up to the PLAINTIFF AND DEFENDANT.
What are the elements of defamation (one example of intentional tort)
False statement of a factual statement publicly broadcast
is it a false statement of factual nature? Has it been publicly broadcasted?
defenses against defamation: qualified privilege, absolute privilege, it’s
true, it’s a matter of opinion.
What are the elements of battery?
Is there in fact actual contact
Every negligence case is proven the same way
this is a different type of tort
this is still a civil case
Dona Hue Stevenson’s case Two female friends go to the club. One of the women got a divorce, lost
her job and had a bad day. So the friend goes and buys the ginger beer
in an opaque (dark) glass.
What legal transaction just took place? we have a contract really
important piece of the story
both sides have to give something in order to have a contract
so the friend has a legal contract
so the friend hands the ginger beer to the friend (who is having a bad
day) what legal transaction just took place? a gift a gift is
something you get without giving back anything does this woman (who
is having a bad day) have a legal contract with anyone? NO
This woman drinks a beer that has a decomposing snail at the bottom of
This lawyer convinces this woman to sue because she has been injured
the woman is reluctant the lawyer says this is the perfect case, please
let me do it. sues the bar and the manufacturer does not sue the
she wouldn’t be able to sue the friend because you can’t sue someone
for giving you a gift
this has been one of the biggest cases in the century there are times in
our lives, even if we don’t have a contract with somebody, they might still
owe a DUTY TO BE CAREFUL and this was revolutionary, because up to
this point you would never get damages (you would never get money) if
you didn’t have a contract
we all owe someone a duty to care because we are all in this life
together. we should take in this amount of care this idea is
there is a certain standard of care that we have to meet
and if someone is injured and there has been some kind of loss, then the
court will recognize this and grant damages.
if it wasn’t for dona hue Stevenson then we wouldn’t have any of these
this idea turned the legal profession
main concepts: the women who got injured DID NOT have a contract with anybody.
if the woman who bought the drink and HAS A contract with the bar and
sued the bar then what would she sue for? breach of contract.
*****exam might have a case VERY SIMILAR to dona hue Stevenson’s.
inadvertent, careless conduct causes injury to another we don’t care if
it was unintentional
every negligence case is proven the same way
Essential Elements (Negligence)
1. Did the defendant owe you a duty of care was there a duty of care?
if the answer of duty to care is NO then you don’t have a case YOU HAVE
TO PROVE A DUTY TO CARE. duty to care
2. Did the defendant breach of the standard of care? what does this
obligation look like in terms of action
1. Says is there a duty of care. 2. Says what were the actions to the duty
to care? Did they fall short? If the answer to 2. Is no then you don’t have
**you have to answer yes to all of these questions.
3. Causation it was the DIRECT CAUSATION. if this is no then you
don’t have a case.
4. Were there in fact damages? damages there has to be a loss. In
the world of negligence, there HAS TO BE A loss.
***there is going to be a question in the exam. An extremely long case
and it’s going to say there is no damages then the answer is that there
is no case!!!!!
Is a Duty Owed? Are the two of people in the same story? Are they driving on the same
road at the same time of night? Are their paths somehow going to
intersect? Are these two people somehow in the same story?
when will a duty not be owed? if you’re driving on one of the road and
the other person is at the other side then the duty is not owed because
we are not in the same story.
Anns case (no need to know the details but need to use this term***)
let’s not go crazy over this duty of care. LIMIT THE DUTY
****privity of contract the fact that you’re not in a contract with
someone does not defeat negligence which means that just because
you don’t have a contract does NOT mean that you CANNOT sue for
Duty to Exercise Care Must Exist
Misfeasance should have done something
Misfeasance you don’t have a legal obligation to do something most of
the time but if you do DO something then YOU CAN’T BE NEGLIGENT.
ex: on the ground, a person is bleeding and I choose to stop and help you
then I can’t make it worse.
You have no legal obligation to help. So if you don’t help that is
Breach of Standard of Care
If I owe you a duty of care what does this duty of care look in term of
actions ex: I’m in a car, driving late at night and we are on the same
path. Is it going to be hard to prove that you have a duty to care? no
because we are on the same road. You are in the same story. no limit
to this duty because this you have a duty to drive safely around other
people. you have to drive slow and be aware of your surroundings,
have snow tired. Don’t be drunk, have windshields.
Reasonable Person Test
A reasonable person is someone who is better than average but not
perfect. Someone who is prudent and aware. Create this reasonable
person and base the cases on this
Liability for Children
what is the standard of care for kids? What would have a reasonable child
would have done in that case?
you take people as you find them if the person you are suing has a
limited mental capacity then what would a person with a limited mental
capacity would have done?
are the parents ever liable for their children's torts? sometimes
because if you can prove that the parents were responsible for their
children’s torts parents have money.
Causation and Damages
make a list of their actions
did the person fall below the standard? Now we have to say, were there
causation in actions?
not happening at the same time. IT HAS TO BE A CAUSE.
THERE BETTER BE DAMAGES. IF THERE ARE NO DAMAGES THEN THERE
IS NO CASE.
“But for” Te