1. Negligence Elements Duty Breach of duty (negligent conduct) Actual harm Cause-in-fact Proximate cause / Scope of risk

2. Brown v. Stiel problem Stiel Co. chose a design with steel components, rejecting concrete because steel was cheaper and quicker. Stiel knew that steel beam construction generally caused more accidents (death/ serious injury) during construction than did concrete. Stats predicted 3 injuries with steel construction. During construction, some steel beams collapsed. White (ee) injured; Brown also injured.

3. Breach of duty: How to judge whether conduct is negligent >Identify the allegedly negligent conduct: 1)Spilling gas when filling tank 2)Starting mower inside garage 3)Failing to push flaming mower out of garage >Ask whether alternative conduct would have avoided the harm >Balance the foreseeable risks of engaging in the conduct versus the “cost” of avoiding it (as by engaging in alternative conduct)

4. Judging negligent conduct Negligent conduct is conduct that is unreasonably risky – conduct that a RPP under SSC would not engage in because of foreseeable risks of harm. Balance foreseeable risks with foreseeable burden of avoiding the harm Balance foreseeable risks with the social benefits of the activity engaged in

5. Carroll Towing’s formula Negligence = B < P x L Conduct is negligent when the Burden of avoiding the harm is less than the Probability of the harm occurring times the foreseeable Liability (extent of the harm), and the actor fails to act to avoid the harm.

6. Assessing responsibility when more than one person is negligent Jury fixes percentages of fault (or responsibility) Two major allocation options, depending on jurisdiction: –(1) Joint and several liability with contribution –(2) Several liability only, with comparative fault (or “comparative responsibility”) apportionment

7. Fixing responsibility on multiple parties in negligence cases

8. Proving and Evaluating Conduct Some Real-World Problems

9. Negligence: Proving and Evaluating Conduct What role do lawyers play? When are expert witnesses helpful?

10. Evaluating Conduct: Inferences and Circumstantial Evidence

11. Evidence of Custom Used by the plaintiff: admissible to prove that the defendant’s conduct was negligent –Custom may help establish what “ordinary care” is in a particular situation –Custom indicates that particular alternative conduct is feasible Used by the defendant: admissible to prove that defendant’s conduct was reasonable –But what is “customary” does not always set the standard of what is “reasonable”

12. Res ipsa loquitur (“The thing speaks for itself”) A rule concerning permissible inferences that may be drawn from a small amount of circumstantial evidence

13. When res ipsa loquitur may be used: Restatement and “traditional” tests Restatement (2d): It may be inferred that P’s harm is caused by D’s negligence when: (1)Event is of a kind which ordinarily does not occur w/o negligence; (2)Other responsible causes are sufficiently eliminated by the evidence; and (3)Indicated negligence is w/in scope of D’s duty “Traditional” requirements: (1)Same as (1) in Restatement (2)Instrumentality which caused the accident was under the defendant’s “exclusive control”; and (3)The injury-causing event was not caused or contributed to by any act or neglect on the part of the injured person.

14. Procedural effects of res ipsa Majority rule: If judge determines that res ipsa requirements are met, the jury is allowed to decide the case either way (for P or D) Minority approach: If judge determines that res ipsa requirements are met, a rebuttable presumption arises and the jury must find for P unless D comes forward with sufficient evidence to rebut the inference