extracted_text:
Учет денежных
средств и расчетов

Семинар
№9
Тема:
«Учет операций по расчетному счету».
Цель: Научиться обрабатывать выписки банка с расчетного
счета, отражать по ним хозяйственные операции на счетах бухгалтерского учета,
составлять учетные регистры к счету 51 «Расчетные счета».
Задание:
1.
Проставить   корреспонденцию    счетов    в    журнале    хозяйственных
операций.
2.
Открыть учетные регистры к счету
51»Расчетные счета»: ведомость №2 и журнал-ордер №2, отразить на них операции
за месяц.
3.
Вывести остаток по счету 51
«Расчетные счета» на конец отчетного периода.
Исходные данные:
1.
Остаток  денежных  средств  на
расчетном  счете  организации  на    1
апреля … года — 85
000 рублей.
2.
Содержание хозяйственных операций
по выпискам из расчетного счета.

№ п/п

Наименование документа и содержание хозяйственной
  операции

Сумма, руб.

Дт

Кт

1.

Выписка из расчетного счета за 1.04.

Зачислено на расчетный счет:

- от покупателей за реализованную продукцию

48 500

- краткосрочная ссуда банка

250 000

- депонированная заработная плата

4 000

Итого зачислено:

Списано с расчетного счета

- в оплату счетов поставщиков

9 000

- по чеку для выдачи заработной платы за март

28 700

Итого списано:

2.

Выписка из расчетного счета за 2.04.

Зачислено на расчетный счет:

- Из кассы предприятия по объявлению

32 000

-от прочих дебиторов в погашение задолженности

15 000

Итого зачислено:

Списано с расчетного счета:

- в погашение задолженности по налогам в бюджет

6 900

-в погашение краткосрочной ссуды банка

2 000

Итого списано:

3.
Ведомость №2 по дебету счета №51
«Расчетные счета» за апрель … года.
Сальдо на начало
месяца … руб.

Дата

С
  кредита счетов в дебет счета 51

Итого

50

62

76

…

…
…
…
Итого

Сальдо на конец месяца … руб.
4.
Журнал-ордер №2 по кредиту счета
51 в дебет счетов за апрель … года.

Дата

С
  кредита счета 51 в дебет счетов

Итого

50

60

68

…

…
…
…
Итого

Скачано с www.znanio.ru

alt: Учет денежных средств и расчетов


extracted_text:
Thomson/West have created this publication
to provide you with accurate and authoritative information concerning the
subject matter covered. However, this publication was not necessarily prepared
by persons licensed to practice law in a particular jurisdiction. Thomson/West
are not engaged in rendering legal or other professional advice, and this
publication is not a substitute for the advice of an attorney. If you require
legal or other expert advice, you should seek the services of a competent
attorney or other professional.
Black Letter Series and
Black Letter Series design appearing on the front cover are trademarks
registered in the U.S. Patent and Trademark Office.

©
1988, 1993 West Publishing Co.
© 2002 by West Group
© 2006 Thomson/West
610 Opperman Drive
P.O. Box 64526
St. Paul, MN 55164−0526
800−328−9352
ISBN–13: 978−0−314−15414−9
ISBN–10: 0−314−15414−0

Capsule Summary of
Tort
Law

■
PART ONE: INTRODUCTION
I.   GENERAL
CONSIDERATIONS

“Torts” is a general classification encompassing several
different civil causes of action providing a private remedy (usually money
damages) for an injury to P caused by the tortious conduct of D. Each tort
cause of action is separately named and defined, each with its own rules of
liability, defenses, and damages. There is no useful general definition of
“tort” or “tortious conduct.”
Tort
law is primarily judge-made law, and no American jurisdiction has yet adopted a
tort “code.” However, tort law is being increasingly modified by statute.
In tort litigation, judges and juries have distinct
functions. Juries decide questions of fact, such as (1) what happened, (2)
certain legal consequences of those facts (e.g., was D negligent, was P an
invitee), and (3) P’s damages. Judges decide issues of law, such as (1) whether
D had a duty to P and the nature and extent of that duty, (2) the elements of
the cause of action or defense, and (3) whether certain legal rules apply
(e.g., can a particular statute be used to set the standard of care). The judge
also can decide fact issues if she determines that the evidence overwhelmingly
favors one conclusion. The judge also applies rules of civil procedure and
evidence.
■
PART TWO: INTENTIONAL TORTS
                           II.    LIABILITY
RULES FOR INTENTIONAL TORTS

                           A.    Intent
                                     1.    Rule
In tort law, conduct is intentional if the actor (a)
desires to cause the consequences of his act, or (b) believes that the
consequences are certain to result from it.
                                     2.    Proof
of Intent
D will be presumed to have intended the natural and
probable consequences of his conduct.
                                     3.    Intent
Distinguished From Motive
Intent is the desire to cause certain immediate
consequences; motive is the actor’s reason for having that desire. Motive is
usually irrelevant on the issue of liability.
4.    Intentional Conduct
Distinguished From Negligent or Reckless Conduct
If harm is intended, the tort is intentional. If not, and
D’s conduct merely creates a foreseeable risk of harm, then D’s conduct is
either negligent or reckless depending upon the magnitude and probability of
the risk and D’s consciousness of it.
           5.    Children
Young children may be found capable of intentional torts
even though too young to be capable of negligence.
           6.    Mentally Incompetent
Persons
In most jurisdictions, a mentally incompetent or insane
person is liable for his intentional torts, even when incapable of forming a
purpose or understanding the consequences of his conduct.
           7.    Transferred Intent
D’s intent to commit any one of the original
trespass-based torts (assault, battery, false imprisonment, trespass to land or
chattels) automatically supplies the intent for any of the other four. It also
transfers from X (D’s intended victim) to P (D’s actual but unintended victim).
           8.    Scope of Liability (Proximate
Cause)
Broader scope of liability rules apply to intentional
torts.
B.    Battery
           1.    Rule
Battery is a harmful or offensive contact (direct or
indirect) with P’s person, caused by D, with the required intent. D must have
acted intending to cause a harmful or offensive contact with P (or another), or
an apprehension of such a contact.
           2.    P’s Person
P’s “person” includes his body and those things in contact
with it or closely associated with it.
           3.    P’s Awareness
P need not have been aware of the contact at the time.
                                     4.    No
Harm Intended
D need only have intended the contact. It does not matter
that D intended no harm or offense.
                                     5.    Harmful
or Offensive Contact
A harmful contact is one which produces bodily harm. An
offensive contact is one which offends a reasonable sense of personal dignity,
as by being hostile, insulting, loathsome, or unduly personal.
                                     6.    Consent
If P consents to the contact, D is privileged to make it
and there is no tort.
                           C.    Assault
                                     1.    Rule
Assault is an act by D, done with the required intent,
which arouses in P a reasonable apprehension of an imminent battery. D must
have acted intending to cause a harmful or offensive contact with P (or
another), or to cause an imminent apprehension of such a contact.
                                     2.    Apprehension
P must have been aware of D’s threatening act at the time,
before it is terminated. Apprehension is all that is required; P need not be
afraid. If D’s assault is directed against P, D is subject to liability even
though P’s apprehension is unreasonable.
An assault may occur even when D’s act is directed against
a third person, or when it is apparent to P that D intended only an assault,
provided P reasonably perceives the threat of a battery to P.
                                     3.    Imminent
The contact must be perceived as imminent. There must be
an apparent intent and apparent present ability to carry out the threat
immediately.
Mere words, unaccompanied by a physical act, are not an
assault. But words may give meaning to movement. A conditional threat may be an
assault, unless D is privileged to enforce the condition.
D.    False
Imprisonment
           1.    Rule
False imprisonment occurs when D, intending to confine P
(or another) within boundaries fixed by D, so confines P, and P is conscious of
the confinement or is harmed by it.
           2.    Intent
The requisite intent is merely the intent to confine. A
mistake of identity is no excuse, nor is a good faith belief that the
confinement is justified.
           3.    Confinement
Confinement occurs when P is prevented from leaving a
given area, even when that area is relatively large. The confinement must be
complete, and P must have no reasonable or safe exit or escape known to him.
The confinement may be by means of actual or apparent physical barriers,
physical force, or credible threats of physical force, or duress sufficient to
vitiate P’s consent, as where D threatens to harm another or P’s valuable
property, or restrains such property. However, merely moral or social pressure
is not sufficient. Refusal to release from a once-valid confinement is also
sufficient.
Confinement by color of legal authority is sometimes
called false arrest. If D has or purports to have legal authority to take P
into custody, exercises it, P believes that D has or may have such authority,
and P submits against his will, there is confinement. P must be aware of the
confinement, unless P suffers physical harm from it.
           4.    Shoplifters
Shopkeepers may have a privilege to detain persons
suspected of shoplifting for a reasonable time for the purpose of conducting an
investigation.
                                     5.    Accessories
To be liable for false imprisonment, D must have been an
active and knowing participant in procuring or instigating the confinement,
including its wrongful aspect.
                           E.    Intentional or Reckless Infliction
of Emotional Distress
                                     1.    Rule
When D, by extreme and outrageous conduct, intentionally
or recklessly causes severe emotional distress to P, D is subject to liability
to P for that emotional distress and for any resulting bodily harm.
                                     2.    D’s
Conduct
D’s conduct must be extreme, outrageous, intolerable, and
not merely insulting, profane, abusive, annoying, or even threatening. Unless D
knows of some special sensitivity of P, mere verbal abuse, namecalling,
rudeness, insolence, and threats to do what D has a legal right to do are
generally not actionable, absent circumstances of aggravation.
                                     3.    P’s
Response
Only severe emotional distress is actionable. Mere
unhappiness, humiliation, or mild despondency for a short time is not
sufficient. However, most jurisdictions no longer require that the mental
suffering have a physical manifestation or result in bodily harm.
                                     4.    Abuse of
Power
A common fact situation resulting in liability involves an
abuse by D of some relation or status which gives him actual or apparent power
to damage P’s interests, where D’s threats go beyond the ordinary demands or
means of persuasion and become flagrant abuses of power in the nature of
extortion.
                                     5.    Conduct
Directed At Third Persons
D’s distress-producing conduct directed at a third person
(T) is actionable by P if D intentionally or recklessly causes severe emotional
distress to P by such conduct, provided either: (1) P witnesses D’s
conduct, T knows of P’s presence, and T is a member of P’s immediate family; or
(3) P’s severe emotional distress results in bodily harm. In compelling
cases, the presence requirement may be relaxed.
           6.    Proximate Cause
The “eggshell plaintiff” rule does not apply to this tort.
D is liable only to the extent that P’s emotional response is within the bounds
of normal human reactions to D’s conduct, unless D knew that P was
extraordinarily sensitive.
           7.    Transferred Intent
The doctrine of transferred intent does not apply insofar
as D’s intent was to commit some other intentional tort.
           8.    Public Official and
Public Figure Plaintiffs
“Public officials” and “public figures” may not recover
for emotional distress resulting from a media publication unless the
publication contains a false statement of fact that was made with “actual
malice” (under the NY Times standard).
           9.    Mishandling of a Corpse
Next of kin may have a claim for intentional or reckless
mishandling of a corpse.
F.    Trespass
to Land
           1.    Rule
D trespasses on P’s land when he intentionally (a) himself
enters the land or causes a thing or third person to do so, (b) remains on the
land after his privilege to be there has expired, or (c) fails to remove from
the land a thing which he is under a duty to remove. P may sue in trespass only
if P is in possession of the land or is entitled to immediate possession.
                                     2.    Intent
The intent required is merely to enter upon the land,
cause the entry, or remain. D’s good faith (but erroneous) belief that he has a
right to be there, or his reasonable mistake concerning title, right to
possession, consent, or privilege, is no defense.
                                     3.    Manner
The trespass may be directly or indirectly caused.
Vertical Boundaries. The boundaries of land extend
above and below the surface, and therefore the trespass may be by an intrusion
at, above or beneath the surface.
Exception: Aircraft. Aircraft flights over private
property present a special problem. Several theories are used to balance the
possessor’s rights against the needs of aviation.
Causing Trespass by Things. It is no less a
trespass if D does not personally enter the land but merely causes some thing
to do so.
                                     4.    Damages
If the trespass is intentional, the tort is complete
without proof of any actual harm. Of course, P may recover for all harm
resulting to his property, and persons and things upon it, and a broad range of
consequential damage.
                                     5.    Reckless
or Negligent Intrusions
An intrusion upon P’s land may result from D’s negligent
conduct or abnormally dangerous activity. In such cases liability is determined
in the usual fashion by the rules of those other torts. Actual harm must be
shown.
                           G.    Chattels
                                     1.    Trespass
to Chattels
Rule. D commits a trespass to P’s chattel when he
intentionally interferes with it, either by physical contact or by
dispossession. P must be in possession or entitled to future possession of the
chattel.
Intent. No wrongful motive is necessary. The intent
required is merely to act upon the chattel. Thus, D’s good faith, reasonable
(but mistaken) belief that he owns the chattel or for some other reason is
privileged to deal with it is no defense.
Interference by Physical Contact. One form of
trespass is interference by physical contact, which may be direct or indirect,
and consists of any impairment of the chattel’s condition, quality or value.
Dispossession. A dispossession consists of taking a
chattel from P’s possession without his consent, or by fraud or duress, or into
custody of the law; barring P’s access to the chattel; or destroying it while
it is in P’s possession. Dispossession even for a short time is still a
trespass.
Damages. If the trespass consists of physical
contact, P must prove actual damages. But any dispossession is a trespass for
which at least nominal damages may be awarded.
           2.    Conversion
Rule. Conversion is an intentional exercise of
dominion or control over a chattel which so seriously interferes with P’s right
to control it that D may justly be required to pay P its full value. It is a
trespass to the chattel which is so serious, aggravated, or of such magnitude
as to justify forcing D to purchase it.
Test. There is no simple test for determining when
the interference is so aggravated as to constitute a conversion. The important
factors are: (1) the extent and duration of D’s exercise of dominion or
control; (2) D’s intent to assert a right which is in fact inconsistent with
P’s right of control; (3) D’s good faith; (4) the extent and duration of the
resulting interference with P’s right of control; (5) the harm done to the
chattel; and (6) the inconvenience and expense caused to P.
Intent. While D’s beliefs, motives and intentions
may be relevant in assessing the seriousness of his interference, the only
intent required for the tort is an intent to exercise dominion or control over
the chattel. Thus, D’s good faith or honest mistake is no defense if the
interference is sufficiently great (e.g., destruction).
Ways In Which Conversion May Occur. A conversion
may occur when D (1) acquires possession, (2) moves the chattel, (3) makes an
unauthorized transfer, delivery, or disposal, (4) withholds possession, (5)
destroys or materially alters the chattel, or (6) under certain circumstances,
merely uses the chattel.
Types of Chattels. Originally, only tangible
chattels could be converted. Today, most courts have extended it to include
intangible personal property represented by, or merged into, a document.
Damages. Damages include the full value of the
chattel at the time of conversion, plus interest. Under the prevailing view, P
is never required to (but may) accept a tender of the chattel’s return in
mitigation of damages.
                                     3.    Trespass
and Conversion Distinguished
A conversion is a trespass to a chattel that is so serious
that D can be forced to buy it. In such cases, P may choose either action.
                           III.    DEFENSES
TO LIABILITY FOR INTENTIONAL TORTS: PRIVILEGES

                           A.    Privilege
                                     1.    Introduction
“Privilege”
is the general term applied to various defenses in which special circumstances
justify conduct which would otherwise be tortious.
                                     2.    Other
Defenses Distinguished
Privileges differ from other defenses such as contributory
negligence and immunities which operate to reduce or bar P’s recovery but do
not negate the tortious character of D’s conduct. Privileges do.
                                     3.    Types
Privileges may be divided into two general categories: (a)
consent, and (b) privileges created by law irrespective of consent. Today, both
types are affirmative defenses.
           4.    Mistake
In general, D’s mistaken belief that he has a privilege is
per se no defense to an intentional tort, nor does it negate the required
intent. However, D’s mistake may be relevant in determining the existence of a
privilege.
B.    Consent
           1.    In General
Consent is a defense to almost any tort, but it is applied
most frequently to the intentional torts.
           2.    Existence
There is consent when one is, in fact, willing for conduct
to occur. It is a matter of P’s subjective state of mind. It is valid whether
or not communicated.
           3.    Apparent Consent
P’s words or conduct manifesting consent are sufficient to
create a privilege to D to act in light of the apparent consent, even if P’s
actual (but undisclosed) state of mind was to the contrary.
           4.    Conduct
Conduct can manifest consent. Even silence and inaction
may indicate consent when such conduct would ordinarily be so interpreted.
           5.    Custom, Prior Relationship
Consent may be inferred from custom and usage, from prior
dealings between the parties, or from the existence between them of some
relationship.
           6.    Capacity to Consent
Consent can only be given by one having the capacity to do
so, or one authorized to consent for him. Infancy, intoxication, or mental
incapacity normally will vitiate effective consent.
                                     7.    Implied
Consent
When an emergency actually or apparently threatens death
or serious bodily harm and there is no time or opportunity to obtain consent,
consent will be implied.
                                     8.    Scope of
Consent
The consent is to D’s conduct, and once given, P cannot complain
of the consequences of that conduct, however unforeseen. But D’s privilege is
limited to the conduct consented to or acts substantially similar. The consent
may be conditioned or limited as to time, place, duration, area, and extent.
                                     9.    Mistake, Ignorance,
Misrepresentation
Even though given pursuant to P’s material mistake,
misunderstanding or ignorance as to the nature or character of D’s proposed
conduct or the extent of the harm to be expected from it, P’s consent is
effective as manifested unless D knows of the mistake or induced it by his
misrepresentation.
                                     10.    Informed
Consent
Under the doctrine of informed consent, if D (e.g., a
physician) misrepresents or fails to disclose to P the material risks and
possible consequences of his conduct (e.g., a medical procedure), P’s consent
is not an informed one. Under the prevailing view, the failure to disclose mere
risks is deemed collateral, and therefore a matter of negligence only. It does
not vitiate the consent and therefore there is no battery.
                                     11.    Duress
Consent given under duress is not effective. Duress
includes threats of immediate harm directed against P, his family or valuable
property, but usually not threats of future harm or of economic duress.
                                     12.    Consent
to Crime
Under the majority view, the consent is not effective if
the conduct consented to is a crime, at least in battery cases. The minority
and Restatement view is that consent to criminal conduct is valid unless in
violation of a statute making conduct criminal to protect a class of persons
irrespective of their consent.
C.    Self–Defense
and Defense of Others
           1.    Self–Defense
D has a privilege to use so much force as reasonably
appears to be immediately necessary to protect himself against imminent
physical harm threatened by the intentional or negligent conduct of another. D
may use force likely to inflict death or serious bodily harm only when (a) he
reasonably believes that he is in danger of similar harm, and (b) he is not
required to retreat or escape.
The privilege exists even when D reasonably but mistakenly
believes that self-defense is necessary. The reasonableness of D’s belief is
judged by the objective standard of the reasonable person of average courage.
           2.    Defense of Third
Persons
Rule.
D is privileged to come to the defense of any other person under the same
conditions and by the same means as he would be privileged to defend himself.
Effect of Mistake. Under the majority view, D’s
privilege exists only if and to the extent that the third person in fact had a
right of self-defense.
           3.    Duty to Protect
If D is under a duty to protect another or his land or
chattels, he is privileged to use reasonable force or confinement to do so.
D.    Defense
and Recovery of Property
           1.    Defense of Property
Rule. A possessor is privileged to use reasonable
force to expel another or a chattel from his land, or to prevent another’s
imminent intrusion upon or interference with his land or chattels, or to
prevent his dispossession, even though such conduct would otherwise be a tort.
Request. The possessor must first request that the
intruder desist, unless it appears that the request would be useless or cannot
be made before substantial harm is done.
Amount of Force. D may then use force or the threat
of force, but only such actual force as is minimally required to prevent or
terminate the intrusion. Force likely to cause death or great bodily harm is
not privileged. The intruder is not privileged to resist.
Watchdogs, Spring Guns. Spring guns, concealed
traps, and other mechanical devices, and vicious animals, used to defend D’s
property, are used at D’s risk. D is subject to liability for harm they cause
to an intruder which he would not have been privileged to inflict himself if
present.
Effect of Mistake. If the intruder in fact has one
of these privileges, D has no privilege to defend his property, even though D
through ignorance or mistake reasonably believes that the intruder has no
privilege, unless the intruder himself was responsible for that mistake.
Conversely, the intruder’s mistake does not defeat D’s privilege unless the
mistake was caused by D’s fault.
Property of Others. There is a similar privilege to
defend the property of others, at least if the third person is a member of D’s
immediate family or household or is one whose possession D has a duty to
protect.
                                     2.    Forcible
Retaking of Chattels
There is a limited self-help privilege to use force or
threats of force to recapture D’s chattel, wrongfully and forcibly taken from
D’s possession, even under claim of right, or obtained by fraud or duress. D
must be in fresh pursuit, and first demand its return. Then, only reasonable
force may be used.
                                     3.    Possession
of Land
D, who is entitled to the immediate possession of land,
may peacefully enter and retake possession without liability for trespass, and
thereafter defend his possession.
E.    Necessity
           1.    Rule
The privilege of necessity may be invoked when D, in the
course of defending himself or his property (or others or their property) from
some threat of imminent serious harm for which P is not responsible,
intentionally does some act reasonably deemed necessary toward that end, which
results in injury to P’s property and which would otherwise be a trespass or
conversion.
           2.    Public Necessity
If the danger affects an entire community, or so many
persons that the public interest is involved, the privilege is complete and D’s
tort liability is entirely excused.
           3.    Private Necessity
If the danger threatens only harm to D or his property (or
to a third person or his property), D is privileged to commit the act which
causes the trespass or conversion, but he is subject to liability for
compensatory damages for any resulting actual physical harm.
           4.    Scope of Privilege
D’s reasonable belief that his act is necessary is
sufficient; but his conduct must be reasonable considering the extent of the
threatened harm in relation to the foreseeable damage to P’s property.
F.    Authority
of Law
           1.    Rule
One acting under authority of law is privileged, under
certain circumstances, to commit acts which would otherwise constitute an
assault, battery, confinement, trespass, or conversion. The scope of the
privilege varies according to the type of authority being exercised and other
factors.
                                     2.    Scope:
Ministerial vs. Discretionary Acts
If D must exercise significant judgment or discretion in
determining whether or how to act, the act is privileged if done in good faith.
Ministerial acts are not privileged if done improperly, regardless of D’s good
faith.
                                     3.    Scope:
Jurisdiction
Acts done without jurisdiction are not privileged. But
acts merely “in excess of” D’s jurisdiction are privileged if done in good
faith.
                                     4.    Types
of Acts
The most common types of such acts are arrest and
prevention of a crime; execution of civil process, writs, or court orders; and
acts required or authorized by legislation.
                                     5.    Use
of Force
Whether D is privileged to break and enter an enclosure or
building, or to use force against P’s person, and the amount of such force
permitted, depends upon the source and nature of the privilege being exercised.
                           G.    Discipline
Parents.
A parent is privileged to apply such reasonable force or to impose such
reasonable confinement upon his child as he reasonably believes to be necessary
for the child’s proper control, training, or education.
Loco Parentis. The privilege extends to persons having
responsibility for the custody, control, training, or education of the child,
except so far as the parent has restricted their authority to do so.
Reasonableness. The reasonableness of the force or
confinement depends upon: (1) whether D is a parent; (2) the age, sex, physical
and mental condition of the child; (3) the nature of the offense and D’s
apparent motive; (4) the influence of the child’s example; (5) its necessity
and appropriateness to compel obedience to a proper command; and (6) whether disproportionate
to the offense, unnecessarily degrading, or likely to cause serious or
permanent harm.
Purpose. It must be administered in good faith, for
a proper purpose, and without malice.
■ PART THREE: NEGLIGENCE
IV.   NEGLIGENCE
LIABILITY RULES

A.    The Elements of the
Negligence Cause of Action
“Negligence” is both (1) the name of a tort cause of
action, and (2) the term given to conduct which falls below the
standard which the law requires. The elements of a negligence cause of
action (prima facie case) are:
(1)
A duty by D to act or refrain from acting;
(2)
A breach of that duty by D’s failure to conform his conduct to the
required standard (i.e., “negligence”);
(3)
A sufficient causal connection between the negligent conduct and P’s
injury; and
(4)
Actual (provable) harm—i.e., harm which the law says is measurable and
compensable in money damages.
It is sometimes said that there is a fifth element,
“proximate cause”—the harm must be within the scope of liability. Strictly
speaking, this is not an element of the negligence cause of action but a
liability limitation that cuts off recovery, similar to a duty limitation, even
when the four traditional elements are established. In some cases, the court
determines the scope of D’s liability as a matter of law. But in some cases,
the jury determines whether D’s negligence was a “proximate cause” of P’s harm.
B.    Characteristics
of Negligent Conduct
           1.    Definition
“Negligence” is conduct which falls below the standard
established by law for the protection of others against unreasonable risks of
harm.
                                     2.    Objective
Test
The test for negligence is objective—not whether D
intended to exercise due care, nor whether D did the best he could to be
careful, but whether D’s conduct was that of a hypothetical “reasonably prudent
person” placed in the same or similar circumstances.
                                     3.    Care
Required
The standard is “reasonable care” (sometimes called
“ordinary care” or “due care”) under the circumstances. The law does not
require D to be perfect, but only to behave as a reasonably prudent person
would behave. And D need only protect others against unreasonable risks of
harm.
                                     4.    Attributes
of the Reasonable Person
Knowledge, Experience and Perception. In judging
D’s conduct, D will be charged with what he actually knew and observed, and
also with those things which a reasonable person would have known and
perceived. And if D has superior intelligence, memory perception, knowledge, or
judgment, he will be held to that standard. But D’s deficiency in any of these
attributes is ignored; he is still held to the standard of the reasonable (i.e.
normal) person.
Knowledge Common to Community. The reasonable
person knows those things which at that time are common knowledge in the
community— commonly known qualities, habits, and characteristics of human
beings, animals, and things.
Activities Requiring Skill. If D chooses to engage
in an activity requiring learned skills or certain knowledge, his conduct is
measured against the hypothetical person who is reasonably skilled and
knowledgeable in that activity.
Physicians. In most jurisdictions, the standard of
care of medical doctors (and sometimes other professionals) is conclusively
established by the customary practice of reasonably well-qualified
practitioners in that field.
Physicians or others who are certified specialists, or who
hold themselves out as specialists, are held to the standards of that
specialty.
Physical Characteristics. The “reasonable person”
standard is subjective to the extent that if D has a physical deficiency or
disability, his conduct is measured against that of a reasonably prudent person
with his physical characteristics.
Mental Capacity. In judging D’s conduct, no
allowance is made for deficiencies in D’s mental capacity to conform to the
“reasonable person” standard of care. The fact that D is mentally deficient,
voluntarily intoxicated, or even insane does not matter. His conduct is
measured against the reasonably prudent sane, sober and normal person. A few
courts apply a subjective standard to insane or mentally disabled persons.
Minors. Minors are an exception. If D is a minor,
the test is what is reasonable conduct for a child of D’s age, intelligence,
and experience under the circumstances. But this exception does not apply to
minors engaging in “adult” activities requiring special skills and training,
such as driving a car or flying an airplane. Below a certain age (in some
states, arbitrarily fixed at seven), a young child is incapable of negligence
because he or she lacks the mental maturity and experience to assess and
respond to risks.
           5.    Conduct in Emergencies
The fact that D is confronted with a sudden emergency
which requires rapid decision is a factor which may be taken into account in
determining the reasonableness of his choice of action. However, D may have
been negligent in (a) failing to anticipate the emergency or (b) creating the
emergency; as to such negligence, this rule would not apply.
           6.    Sudden Incapacity
D’s conduct during a period of sudden incapacitation or
loss of consciousness resulting from physical illness is negligent only if D
ought to have foreseen such an incapacity and was negligent in failing to take
reasonable precautions to prevent its occurrence
           7.    Anticipating Conduct of
Others
The reasonable person will regulate his conduct in light
of what he can anticipate others will do.
                                     8.    Failure
to Warn or Instruct
It may be negligent to fail to warn or instruct another so
that he can take proper precautions for his own safety. Conversely, D’s
exercise of reasonable care to give others an adequate warning of a danger does
not necessarily prevent D’s conduct (the subject of the warning) from being
negligent. If there is an unreasonable risk of harm inherent in D’s conduct, D
must reduce that risk so far as reasonably possible; only then will an adequate
warning of the remaining risk constitute “reasonable care.”
                                     9.    Other
Types of Negligent Conduct
Any conduct may be negligent under the circumstances.
Negligence may consist of an act or a failure to act, lack of competence, or
lack of preparation, or a misrepresentation. It may be negligence to prevent
protective action by another; to use an incompetent, defective or inappropriate
instrumentality; or to permit another to use a thing or engage in an activity
under D’s control so as to subject another to an unreasonable risk of harm.
                                     10.    When Is a Risk “Unreasonable”?
Under the classic formulation, a risk is unreasonable when
the foreseeable probability and gravity of the harm outweigh the burden to D of
alternative conduct that would have prevented the harm. This is the classic
“Hand” test.
Magnitude of Risk. The probability or likelihood
that the harm will result, in conjunction with the gravity or seriousness of
the potential harm, are placed on one side of the scale. The gravity of the
harm includes both the extent of the damage and the relative societal value of
the protected interest.
Burden of Alternative Conduct. The burden of
reducing or eliminating the risk by alternative conduct is placed on the other
side of the scale. Factors relevant in assessing this cost include: (1) the
importance or social value of the activity or goal of which D’s conduct is a
part; (2) the utility of the conduct as a means to that end; (3) the
feasibility of alternative, safer conduct; (4) the relative cost of safer
conduct; (5) the relative utility of safer conduct; and (6) the relative safety
of alternative conduct.
           11.    Judge and Jury
Whether conduct was or was not negligent is a question of
fact for the trier of fact.
C.    Sources
of Standards of Care
           1.    Rules of Law
Appellate courts, reviewing fact situations and deciding
that there was or was not sufficient evidence of negligence, often state that
given conduct is or is not negligent. Such statements may be either (a)
guidelines for the review of jury determinations of an issue of fact, or (b)
fixed rules of law that given conduct is or is not negligent as a matter of
law.
Some such rules of law may be desirable and lend stability
to the law, so long as they are not immutable and admit exceptions. But better
results are usually achieved if negligence is treated as a question of fact for
the jury, and such “rules” are merely regarded as guidelines for the courts in
determining that certain conduct in certain recurring situations so clearly is
(or is not) negligent that the question may be taken from the jury.
           2.    Legislation
In General. Legislation (statutes, ordinances,
regulations) often prescribe standards of conduct for the protection of others
from harm. For tort law purposes, two types may be distinguished:
(1)      legislation
which (a) expressly or (b) by necessary implication creates a civil remedy for
damages for violation (e.g., F.E.L.A.,
F.S.A.A.); and
(2)
legislation which does not (limited to criminal penalties).
Courts routinely use legislation of the second type in
negligence cases as evidence of, or as establishing, the standard of care which
D was required to meet.
Legislative Purpose. Legislation is relevant on the
standard of care in a negligence case only if the statute was intended, at
least in part, to protect a class of persons which includes P against the
particular hazard and kind of harm which resulted.
Licensing Statutes. Violation of a statute requiring a
license to engage in a particular trade, profession or activity is generally
not admissible to show that D was negligent on a particular occasion.
Effect
of Violation
Majority Rule. Most courts hold that violation of a
relevant statute is prima facie negligence or negligence per se. This means
that if D introduces no evidence to excuse the violation, D’s negligence is
conclusively established.
Minority View. In some jurisdictions, violation is
merely evidence of negligence, which the jury can consider along with all other
evidence in determining whether D was negligent. This is the rule in all
jurisdictions when a minor violates a relevant statute.
Cause. A violation does not per se establish a
sufficient causal relation between the violation and P’s injury.
Children. A minor’s violation of a statute is only
evidence of negligence, not negligence per se.
Defenses. Contributory negligence and assumption of
risk defenses (if otherwise available) apply, except in the case of statutes
intended to protect a class of persons against their own inability to protect
themselves.
Excused
Violations
Certain Safety Statutes. A few statutes having a
strong safety purpose (e.g., F.S.A.A., child labor laws, some factory and
construction safety acts, pure food acts, some motor vehicle equipment and
maintenance laws) permit no excused violations.
Other Statutes. As to most other statutes, courts
will permit excuses for violations to be shown to rebut the per se or prima
facie negligence. These include (a) physical circumstances beyond D’s control;
(b) innocent ignorance of facts which make the statute applicable; (c) sudden
emergencies not of D’s making; (d) situations in which it would be more
dangerous to comply with the statute than to violate it; (e) violations that
are reasonable in light of D’s childhood, physical disability, or physical
incapacity; and (f) D used reasonable care in attempting to comply with the
statute. In jurisdictions where the statute is merely evidence of negligence,
any proof tending to excuse or make reasonable the violation would be relevant.
Compliance With Statute. D may ordinarily show
compliance with a statute as evidence of his reasonable care, but such
compliance is not conclusive since a reasonable person might have taken
precautions greater than the statutory minimum.
D.    Proof
of Negligence
           1.    Burden of Proof
P must introduce sufficient evidence to support a finding
by a preponderance of the evidence on each element of his cause of action—duty,
negligence, causation, damages. Whether a duty exists is usually an issue of
law for the court; the trier of fact determines the other elements.
           2.    Presumptions
Each jurisdiction’s tort law has its own set of legal
presumptions, which are codified rules of circumstantial evidence.
           3.    Experts and Opinion
Evidence
In a large number of tort cases, expert testimony is
necessary or desirable to furnish the jury facts beyond its common knowledge.
Expert testimony may be required to establish the standard of care in
professional negligence cases. Expert witnesses are permitted to testify to
opinions when they will be helpful to the jury.
           4.    Res Ipsa Loquitur
Like presumptions, res ipsa loquitur (“the thing
speaks for itself”) is basically a rule of circumstantial evidence.
Rule.
If P can establish a prima facie res ipsa loquitur case, he need not
prove by direct or other evidence the specific conduct of D which was
negligent. If P makes a prima facie showing that (1) his injury was caused by
an instrumentality or condition which was under D’s exclusive management or
control at the relevant time(s), and (2) in the ordinary course of events, P’s
harm would not have occurred unless D was then and there negligent, then the
jury is instructed on res ipsa loquitur and may infer that D was
negligent.
Control by D. D need not have been in control of the
injury-causing instrumentality at the time of P’s injury. P need only establish
that D’s negligence, if any, must have occurred while the instrumentality was
in D’s control.
Multiple Defendants. The exclusive control requirement
ordinarily precludes use of RIL against multiple defendants. However in a few
cases, the courts have applied a variation of the doctrine and required each
defendant to prove that he was not negligent. If there are multiple defendants
but their relationship was such that they were jointly responsible for the
instrumentality at the relevant time, or one would be vicariously liable for
the conduct of the other, then the doctrine may be applied.
Inference of Negligence. P need not show that D’s
negligence was the only possible explanation, only that the inference that it
was D’s negligence outweighs the sum of the other possible causes.
P’s Conduct. At one time, P was required to prove that
his injury was not due to any “voluntary act” by P, or that P’s own conduct was
not a significant causative factor, or, most recently, that P was not
contributorily negligent. However, with the adoption of comparative negligence,
this requirement has been eliminated in most jurisdictions.
Procedural Effect. Once the court determines that P
has established a prima facie res ipsa case, the issue becomes one for
the jury to determine whether or not to draw the inference, taking into
consideration D’s contrary evidence (if any). Both res ipsa and specific
negligence theories may go to the jury, so long as the two are not
inconsistent.
Products Liability Cases. There
is an analogous circumstantial evidence rule in strict product liability cases.
P need not prove the specific defect in the product, so long as the evidence
tends to show that the product malfunctioned in such a way that the existence
of a defect may be inferred and also tends to exclude possible causes other than
a product defect.
           5.    Custom, Character
Custom and Usage. In determining whether conduct is
negligent, the customary conduct of the community, industry, profession, or
other relevant group in similar circumstances is relevant but not conclusive. Exception:
In professional negligence cases involving physicians and certain other
professionals, customary conduct usually is conclusive as to the standard of
care.
Character. Evidence that D or P was or was not a
careful person is not admissible to prove that he acted or failed to act
carefully on the occasion in question.
           6.    Trade Rules and Standards
Rules and standards for the conduct of an activity
promulgated by authoritative groups, if relevant and recognized as
authoritative, are similar to custom and often admitted as some evidence of the
standard of care.
           7.    D’s Own Rules and Standards
D’s own rules and standards are admissible but not
conclusive as evidence of the appropriate standard of care.
E.    Degrees
of Negligence
           1.    Degrees of Care
The duty of those who conduct certain dangerous activities
is sometimes stated as greater than “ordinary” or “reasonable” care.
In some jurisdictions, common carriers (operators of
airplanes, ships, buses, trains, taxicabs, and even elevators, escalators and
amusement devices) are said to owe their passengers “the highest degree of care
consistent with the mode of conveyance used and the practical operation of
their business.” In some jurisdictions, persons responsible for certain dangerous
instrumentalities (e.g., high-voltage electricity, explosives) must
exercise a “high degree of care,” commensurate with the danger.
The trend is to reject such special duty rules, holding
that “under the circumstances” achieves the same result without modifying the
standard duty.
                                     2.    Degrees
of Negligence
Occasionally, efforts have been made to subdivide the
negligence concept into finer gradations—“slight,” “ordinary,” and “gross”
negligence. These distinctions have proved unworkable and are rarely used.
                           F.    Reckless Conduct (“Wilful and
Wanton Misconduct”)
                                     1.    Definition
Conduct is in “reckless disregard of the safety of
another” (also called “wilful and wanton misconduct”) when D knows or has
reason to know that (1) it creates an unreasonable risk of harm and (2) the
risk is relatively high, either in degree or in the probability that harm will
occur.
                                     2.    Distinguished
From Negligent Conduct
Negligent conduct merely creates an unreasonable risk; no
awareness of that risk is required. For conduct to be reckless, D must be
conscious (or a reasonable person in D’s situation would have been conscious)
that it creates a relatively high risk of harm to another.
                                     3.    Distinguished
From Intentional Torts
Conduct is intentional when D either intends to bring
about the consequences or knows that they are substantially certain to occur.
Reckless conduct lacks that certainty of result.
                                     4.    When
Required
Certain
statutes and common law rules exempt D from liability for ordinary negligence,
thereby requiring proof of reckless conduct for liability.
                                     5.    Effect
Defenses. In some jurisdictions, ordinary
contributory negligence is not a defense or damage-reducing factor if D’s
conduct is found to be reckless. However, in the majority of comparative
negligence jurisdictions, P’s contributory negligence will reduce his recovery
even against D’s reckless conduct. Assumption of the risk was formerly a
defense to reckless conduct, but in many jurisdictions it is now merely a
damagereducing factor.
Punitive Damages. In most jurisdictions, reckless
conduct will support an award of punitive damages.
G.    Duty
Concepts and General Limitations
           1.    In General
In negligence law, D’s duty can best be analyzed as a
general principle with exceptions and limitations, rather than as a collection
of specific duties. In general, D has a duty to exercise reasonable care to
avoid subjecting others (and their property) to unreasonable risks of physical
harm. Specific limitations on that duty are sprinkled throughout the law of
torts. The most common general duty limitations include the following.
           2.    Relationship Between P
and D
Negligence law has traditionally held that D is not
subject to liability to P unless D breached a duty owed to P and not to someone
else. Cf. Palsgraf v. Long Island R. Co. (N.Y. 1928). “Negligence in the
air, so to speak, will not do.” No simple formula exists for determining when
this duty exists. The most important factors include (a) a pre-existing
relationship between P and D, (b) foreseeability of harm, (c) the nexus between
D and P’s injury, and (d) reliance by P upon D to protect him.
           3.    Nature and Scope of the
Risk
Conduct may be negligent because it foreseeably threatens
property damage, but it actually causes some unforeseen personal injury. Or
conduct may be negligent because it foreseeably threatens one type of harm to
P, but it actually causes another type of harm, as to which the risk was not
unreasonable. Some courts will hold that there was no duty to protect against
the harm which actually resulted. Other courts will reach the same result under
proximate cause principles.
                                     4.    Interest
Invaded
Certain types of interests are given less than full
protection against negligent invasion, such as (1) pecuniary loss alone,
unaccompanied by physical harm, (2) harm to the unborn, and (3) psychic trauma.
                                     5.    Misfeasance
vs. Nonfeasance
Tort law traditionally distinguished between “misfeasance”
(tortious conduct consisting of an affirmative act) and “nonfeasance” (inaction
which results in, or allows, harm to P). As a general rule, D is not liable for
harm to P resulting from his mere failure to intervene to aid or protect P
unless there is some pre-existing relationship between P and D sufficient to
create the duty, or unless D is responsible for P’s situation.
Rescue. Absent a pre-existing relationship between
P and D or a duty to act arising from some other source, D has no duty to
protect or aid P, who D realizes is in a position of danger.
First Aid. Absent a pre-existing relationship
between P and D, or unless D was responsible for P’s injury, D has no duty to
render aid or assistance to an injured or otherwise needy P.
Relationships Creating Duty. Pre-existing
relationships which will support a duty to aid or protect another include
carrier-passenger, innkeeper-guest, landowner-lawful entrant,
employer-employee, jailerprisoner, school-student, parent-child, husband-wife,
store-customer, and host-guest. A duty has even been found as to friends
engaged in a joint social outing.
Responsible for Peril or Injury. The duty arises
when D is responsible for P’s injury or position of peril, whether or not D was
negligent.
Aid to Helpless. One who undertakes to render aid
or to protect P, who is helpless to adequately aid or protect himself, must do
so with reasonable care. And, having undertaken this duty, he may not abandon P
and leave him worse off. This rule has led to “Good Samaritan” statutes in many
states which relieve physicians (and others) who render emergency medical aid
from all liability for negligence.
Services. When D (gratuitously or otherwise)
undertakes to render services which he knows or should know are for P’s
protection, D must perform those services with reasonable care, at least if (a)
his failure to do so increases the risk of harm to P or (b) P’s injury results
from his reliance on D.
Duty Arising Ex Post Facto. If D does an act, not
tortious at the time, and later discovers that his act creates an unreasonable
risk of harm to P, D must exercise reasonable care to prevent the risk from
taking effect.
Statutory Duty of Protection. When a statute requires
one to act for the protection of another, the court may (or may not) use the
statute as a basis for an affirmative duty and its scope. This is different
from using a statute to establish the standard of care when a duty already
exists, or statutes that expressly or impliedly create a cause of action.
Duty to Control Conduct of Another. Certain
relationships carry with them a duty by D, the dominant or custodial member, to
use reasonable care to regulate the conduct of (1) the person within his
custody or control so as to protect third persons or (2) third persons so as to
protect the person in his custody or care.
Parent-Child. A parent must exercise reasonable care
to prevent tortious conduct by his child, provided the parent knows or has
reason to know he has the ability, and knows or should know of the necessity
and opportunity to exercise such control.
Master-Servant. A master has a similar duty with
respect to a servant; this even extends to one acting outside the scope of his
employment, if the servant is on the master’s premises or is using his chattel.
Person on D’s Land. D has a similar duty with respect
to a person using his land or his chattel in his presence and with his
permission.
Custodian of Dangerous Person. If D has custody of a
person D knows to have dangerous propensities, D must exercise reasonable care
to prevent that person from doing harm.
Duty to Protect Person in
Custody. If D has custody of P under circumstances such that (a) P is
deprived of his normal power of self-protection or (b) P must associate with
persons likely to harm him, then D has a duty to exercise reasonable care to
prevent tortious conduct against P.
                           H.    Duty: Tort and Contract
                                     1.    Parties
to the Contract
One
possible source of D’s duty to P is a contract between them under which D
agrees to perform certain services. If D breaches that contract and as a result
P sustains physical or other harm, special rules apply to determine whether
that breach may give rise to tort liability.
General Rule: Misfeasance vs. Nonfeasance. Where
D’s duty to act arises because of a contractual relation between D and P, D is
not liable in tort for harm caused by his breach of that contract where the
breach consists merely of his failure to commence performance at all. But once
having begun to perform, he will be liable for his tortious misperformance,
whether consisting of acts or omissions to act.
Exceptions:
Liability for Nonfeasance
Public Callings. Those engaged in the public or
“common” callings— common carriers, innkeepers, public warehousemen, public
utilities, and public officers—are subject to tort liability for
nonperformance.
Other Relationships. Other relationships, which may
or may not be based on contract, impose a duty of affirmative action.
Fraud. A promise made without any intent to perform
it may be fraud for which a tort action in deceit will lie.
                                     2.    Third
Persons Not Parties to the Contract
Common Law Rule. The general common law rule was
that P, not a party to a contract between D and another, had no cause of action
in tort for harm sustained as a result of D’s misperformance or nonperformance.
P was not in “privity of contract” with D.
Exceptions: Nonfeasance. In the case of
nonfeasance, various exceptions to the privity rule have developed, such as (1)
the failure of a telegraph company to transmit a telegram; (2) the
nonperformance by an agent of his contractual duty to supervise property or
persons over which he has been given control, or to take certain precautions
for the safety of third persons; (3) nonperformance of a contract to maintain,
inspect, or repair an instrumentality which foreseeably creates a substantial
risk of harm to third persons; (4) nonperformance by a landlord of his contract
to repair the premises; and (5) in some cases, where D undertakes to render
services to reduce the risk of harm to a third person if (a) the failure to
exercise reasonable care increases the risk of harm beyond that which existed
without the undertaking, (b) D has undertaken to perform a duty owed by the
other to the third person, or (c) the person to whom the services are rendered,
the third party, or another relies on D’s exercising reasonable care in the
undertaking.
Exceptions: Misfeasance. Where D’s negligence consists
of misperformance after having begun to perform, the privity rule is now
obsolete, and the overwhelming majority of courts will subject D to liability
to P.
V.   DEFENSES TO
NEGLIGENCE AND OTHER LIABILITY

A.    Contributory
and Comparative Negligence
           1.    Rule
Contributory
negligence is conduct by P which creates an unreasonable risk of harm to P, and
which combines with D’s negligence to cause P’s injury.
           2.    Burden of Proof
Contributory negligence is an affirmative defense.
           3.    Applicable Rules
In general, contributory negligence uses the same rules
and tests as negligence.
           4.    Effect of Plaintiff’s
Contributory Fault
Complete Bar vs. Mitigation of Damages. Contributory
negligence was once a complete defense that totally barred P’s recovery. Now,
in most jurisdictions it merely reduces his damages pro tanto, although it can
still be a complete bar.
Comparative Negligence. All but four states and the
District of Columbia have finally accepted the doctrine of comparative
negligence. Under this rule, P’s contributory negligence is not a complete bar
to his recovery. Instead, P’s damages are calculated and then reduced by the
proportion which P’s fault bears to the total causative fault of P’s harm.
Types of Comparative Negligence. Under the pure form
(minority rule), P may recover a portion of his damages no matter how great his
negligence in comparison to that of D. Under the modified form (most
jurisdictions), P recovers nothing if his negligence was “as great as” (50%) or
“greater than” (51%) that of the defendant (or defendants collectively).
Factors for Assigning Shares. In deciding how to
assign percentage shares of responsibility, the trier of fact should consider
(1) the duty owed by each person, (2) the extent to which each person’s conduct
deviated from that duty, and (3) the extent to which the tortious conduct of each
person caused the injury in question.
Intentional or Reckless Conduct. Traditionally,
ordinary contributory negligence was not a defense to an intentional tort or to
reckless conduct (but contributory reckless conduct was a defense to the
latter). In most comparative negligence jurisdictions, P’s contributory
negligence will reduce his recovery even though D’s conduct was reckless, but
not if it was intentional.
Strict Liability. Prior to the adoption of comparative
negligence, mere contributory negligence was not a defense to a strict
liability action. Some comparative negligence jurisdictions permit P’s ordinary
contributory negligence to reduce his damages; others reduce his damages only
for assumption of the risk.
Safety Statutes. Contributory negligence is not a
defense to actions founded upon certain types of safety statutes intended to
protect a class of persons from dangers against which they are incapable of
protecting themselves. Some statutes expressly prohibit this defense.
Serious Misconduct. In some
jurisdictions, if P’s contributory fault was seriously unlawful or immoral
conduct, he will be barred from recovery altogether.
           5.    Causal Relation
The same rules of causation apply as in the case of
negligent conduct. And the defense is not available unless P’s harm results
from the risk which made P’s conduct negligent.
           6.    Imputed Contributory Negligence
General Rule. With three exceptions, the negligence
of a third person will not be imputed to P so as to reduce or bar P’s recovery
for injuries caused by D’s negligence.
Exception: Master–Servant. A master’s recovery
against a negligent D is reduced (or barred) by the negligence of his servant
acting within the scope of his employment.
Exception: Joint Enterprise. P, a member of a joint
enterprise, is injured by the concurrent negligence of D, a third person
outside the enterprise, and M, another member of the enterprise. P’s recovery
against D is reduced by M’s negligence.
Exception: Consequential Damages. Where P has a
cause of action based upon personal injuries to another (A), P’s recovery is
reduced by A’s contributory negligence.
           7.    P’s Negligent Failure to Exercise
Control
In General. If P has a duty to control the conduct of A
and negligently fails to do so, A’s contributory negligence (combined with that
of P) reduces or bars P’s recovery against D whose negligence was also a cause
of P’s injury.
Parent. A parent’s (P’s) recovery from D for
injuries to P’s child caused by D’s negligence may be reduced or barred by P’s
negligence in protecting or supervising his child.
B.    Last Clear Chance
The doctrine of “last clear chance” is now primarily of
historical interest; it survives in a dwindling minority of jurisdictions.
The doctrine applies only when D’s negligence is later in
time than P’s contributory negligence. In essence, P (or P’s property) is in a
zone of danger from which he cannot escape in time, leaving D with the last
opportunity to do something to prevent the harm which otherwise will occur. If
D then negligently fails to act to prevent the harm, he is not permitted to use
P’s prior negligence as a defense.
                           C.    Assumption of Risk
                                     1.    Rule
Under the traditional common law rule, if P voluntarily
assumes a risk of harm arising from the negligent or reckless conduct of D, P
cannot recover for such harm. Assumption of the risk is an affirmative defense.
Until recently, most (but not all) jurisdictions
recognized this defense, some by a different name. A few have limited it to (1)
master-servant and (2) express assumption cases. Some courts analyze P’s
assumption of risk as affecting D’s duty, e.g., negating D’s duty to exercise
care for P’s safety.
                                     2.    Meanings
of Term
The term “assumption of risk” can mean different things,
some of which are not truly defenses to negligent conduct. The term is used to
describe several different situations:
Express. P expressly agrees in advance (usually in
a written contract) to relieve D of D’s duty to exercise care for P’s safety
with respect to a known or possible risk.
Inherent Hazards Not Arising From Negligence. P
chooses to engage in an activity which has certain inherent and commonly
accepted risks, even though the others involved exercise proper care. As to
these risks, there is no negligence, and therefore the doctrine does not
properly apply. Some courts call this “primary” assumption of risk.
Risk of Future Negligence. P voluntarily enters
into a relationship with D knowing that there is a risk that D will act
negligently. Here, the true basis of liability is P’s unreasonable conduct in
entering into the relationship (i.e., contributory negligence).
Assumption of Existing Negligently–Created Risk. P,
aware of a risk created by the negligence of D, proceeds or continues
voluntarily to encounter it. This is true implied assumption of risk.
           3.    Contributory Negligence
Distinguished
In theory, implied assumption of the risk is P’s implied
voluntary consent to encounter a known danger created by D’s negligence.
Contributory negligence is unreasonable conduct. The former is a subjective
test; the test for the latter is objective.
           4.    Express Assumption of Risk
Rule. If P, by contract or otherwise, expressly
agrees to accept a risk of harm arising from D’s negligent conduct, P cannot
recover for such harm, unless the agreement is invalid as contrary to public
policy.
Construction. Such agreements are strictly
construed against D, and are not enforceable if P reasonably was ignorant of
that term. They are unenforceable as to intentional torts, and some courts will
not enforce them as to reckless conduct.
Public Policy. Such agreements are unenforceable
when contrary to public policy. In general, they will not be enforced in favor
of employers, those charged with a duty of public service, and those having a
significantly superior bargaining position as compared to P.
           5.    Implied Assumption of Risk
Rule. If P knows, appreciates, and understands the
risk of harm created by D’s negligent or reckless conduct, and nevertheless
voluntarily subjects himself to the risk by conduct which impliedly manifests
his consent to accept the risk, then he is subject to the assumption of risk
defense. The effect of the defense varies.
Elements: Manifestation of Consent. The essence of
the defense is consent to accept the risk, and therefore P’s conduct must
impliedly manifest that consent.
Elements: Knowledge and Appreciation of Risk. The
consent must be an informed one, and therefore D must show that P knew of the
existence of the risk, and understood and appreciated its unreasonable
character.
Elements: Voluntariness. P’s assumption of the risk
must be voluntary. However, P’s conduct in proceeding into the zone of danger,
even reluctantly or under protest, ordinarily may be deemed voluntary. Even if
P has no reasonable alternative but to encounter the risk, his doing so is
voluntary unless D’s tortious conduct is responsible for P’s predicament and
other conditions are met. Additionally, many courts have held that mere
economic duress does not make encountering the risk involuntary.
Violation of Statute. P’s assumption of risk bars
or reduces his recovery based on D’s violation of a statute, unless this result
would defeat a policy of the statute. Some statutory torts expressly exclude
the defense.
Modern Status of the Defense. There is a strong
trend to abolish the defense of implied assumption of risk as a separate
defense in negligence cases on the ground that it overlaps completely with the
doctrine of contributory negligence. In particular, jurisdictions adopting
comparative negligence frequently merge the defenses of contributory negligence
and assumption of risk under a general “comparative fault” concept.
Participation in Sporting Events. In many
jurisdictions, those who participate in professional or amateur sporting events
assume the risk of injuries resulting from other players’ misconduct, even when
violations of rules of the game having a safety purpose, unless the violation
was more than carelessness incident to the play of the game. But D may be
liable if he intentionally or recklessly injures P. This may also be analyzed
as a limited duty rule.
                           D.    Statutes of Limitations and Repose
                                     1.    Statutes
of Limitations
In General. A statute of limitations is a statutory
time period within which P must file his lawsuit.
Classification. Since there are different time periods
for different causes of action, the courts must classify actions for purposes
of determining which time period applies. P’s characterization in his complaint
is not controlling.
Procedural Effect. A statute of limitations is
usually an affirmative defense that is waived if not asserted.
Commencement of Running: General
Rule. The statute of limitations begins to run on the date the cause of
action “accrues,” usually the date on which the injury occurs. In wrongful
death cases, this is the date of death.
Concealment. D’s fraudulent
concealment or nondisclosure of the existence of the cause of action from P
tolls the running of the statute.
Continuing Duty or Negligence. In
some contexts, the courts will extend the available time by finding a
continuing duty to disclose or continuing negligence or other tort. In medical
negligence cases, some courts hold that the statute does not begin to run until
P’s course of treatment has been concluded. If D’s conduct constitutes a
continuing nuisance, the statute may not start to run until D’s conduct in
creating the nuisance ceases, or it may not start to run as long as the harm
continues.
Discovery Rule. Most
jurisdictions have adopted a “discovery” rule whereby tort statutes of
limitations do not begin to run until P discovers (or by the exercise of
reasonable care should discover) that (a) he is injured and (b) the injury is
the result of someone’s tortious conduct.
Minors and Others Under
Disability. A statute of limitations normally does not run against a minor
or person under some other legal disability.
Death Cases. In wrongful
death cases, the statute begins to run on the date of death, even though the
fatal injury occurred earlier.
Latent Potential Harm. Where
P may have been exposed to a toxic material resulting in no present symptoms or
minor symptoms but a measurable risk that P may contract a serious or fatal
illness at some uncertain time in the future, some courts will allow recovery
now for the present symptoms or medical monitoring and either (1) damages for
the potential future harm times the probability of its occurrence or (2) allow
a later suit if and when the potential future harm actually occurs.
Repressed Childhood Sexual
Abuse. Some courts have permitted the statute of limitations to be tolled
during the time when P has repressed her memory of childhood sexual abuse
(assuming the repression began before the applicable statute expired). Others
have rejected the defense, holding that whatever “repression” is, it does not
toll the statute of limitations. Some legislatures have adopted extended
statute of limitations in such cases.
Estoppel. If D actively induces P not to take
timely legal action on a claim, and P reasonably relies on D’s inducement, D
may be estopped to assert the statute of limitations defense.
                                     2.    Statutes
of Repose
Statutes of repose are special limitation periods which
supplement and override statutes of limitations, the discovery rule, and other
similar rules and exceptions. They set an outer limit beyond which D can no
longer be held responsible for a completed activity, irrespective of whether an
injury has occurred.
                                     3.    Notice
of Claim Statutes
In suits against state or local governments, statutes
sometimes require P to give notice to the potential D within a certain time
period.
                           E.    Immunities
                                     1.    Government
and Its Employees: Sovereign Immunity
Prior Common Law. At one time, all levels of
government were entirely immune from tort liability.
U.S.: Federal Tort Claims Act. The United States
has waived its tort immunity for damages “caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the scope
of his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C.A. § 1346(b).
FTCA Exceptions. In addition to exceptions for
specified activities, there are two important general exceptions:
Specified Torts. The U.S. is not liable for (1)
assault, battery, false imprisonment, false arrest, or malicious prosecution,
except in the case of investigative or law enforcement officers; or (2) abuse
of process, libel, slander, misrepresentation, deceit, or interference with
contract rights. Nor is it subject to strict tort liability in any form.
Discretionary Acts. The U.S. is not liable for acts
done with due care in the execution of a statute or regulation (even though
invalid), or for “an act or omission . . . based upon the exercise or
performance or the failure to exercise or perform a discretionary function or
duty . . . , whether or not the discretion be abused.”
Current Rule: State and Local Government. Most
states have largely abolished state and local governmental sovereign immunity.
However, there is limited liability for certain governmental functions.
Judicial and legislative functions and executive policy decisions remain
immune.
Governmental Officers and Employees. Governmental
officers and employees are immune when exercising a judicial or legislative
function. The highest executive officers are absolutely immune except when
acting clearly beyond the bounds of their authority. Lower level executive and
administrative employees have a qualified immunity for the good faith exercise
of a discretionary function, but are liable for their tortious ministerial
acts.
           2.    Charities
The common law tort immunity of charitable, educational,
religious, and benevolent organizations is no more, except in a few
jurisdictions that retain vestiges. However, legislation is recreating
immunities for particular charitable activities or for individuals engaged in
certain charitable activities.
           3.    Spouses, Parents and Children
Husband and Wife. At one time, the general common
law rule was that husband and wife were each immune from tort liability to the
other spouse for torts committed during coverture. The majority of states have
now abolished this immunity; most of the rest recognize exceptions.
Parent and Child. At common law, a parent and his
unemancipated minor child were each immune from suit by the other for a
personal tort, whether intentional or negligent. Some states have largely
abolished this immunity. The remainder increasingly recognize exceptions, such
as for (a) intentional or reckless conduct, (b) torts occurring during D’s
business activity, (c) breach of a duty external to the family relationship,
and (d) suits after the parent-minor child relationship has ended, as by
emancipation of the child or the death of either party. Some states have
abolished the immunity in certain classes of cases (e.g., auto). Among the
states that have abolished the immunity, some hold that the parent cannot be
held liable for negligent supervision, or the exercise of parental authority,
or where the negligent act involves the exercise of parental discretion with
respect to the provision of food, clothing, housing, medical and dental
services, and other care.
                                     4.    Infants
and Incompetents
Infants. Assuming that the requisite mental state
(if any) can be proved, an infant or minor is not ordinarily immune from tort
liability.
Incompetents. One with deficient mental capacity is
not for that reason alone immune from tort liability. Particularly in torts
involving physical harm, the incompetent D is held to the same standard as a
normal person. However, D’s mental condition may sometimes be relevant in
determining whether any tort has been committed.
                           F.   Preemption
Under the supremacy clause of the U.S. Constitution, when
a federal statute or regulations expressly or impliedly preempt a particular
field, state tort law either cannot regulate the field at all or cannot impose
a higher standard than the applicable federal law. Whether (and the extent to
which) a federal statute or regulation is preemptive is a question of statutory
interpretation for the court.
■ PART FOUR: CAUSATION
                           VI.   CAUSATION

                           A.    Overview of
Causation Issues
Causation problems may be analyzed in two categories:
1.
Proximate cause, also called “legal cause” or scope of
liability. Some courts and writers use these terms to encompass all causal
relation issues. Others distinguish between (a) proximate or legal cause and
(b) cause in fact. Many now categorize proximate cause issues under the term
“scope of liability,” completely separating proximate cause issues from the
issue of factual causation. This is the preferred approach.
2.
Cause in fact exists when the “cause-and-effect” chain of
events leading to P’s injury includes D’s tortious conduct.
Proximate (legal) cause (scope of liability)
concepts may be used to cut off D’s liability when the court decides that it
would be unjust under the circumstances, despite the fact that D’s tortious
conduct was a cause in fact of P’s injury. Courts sometimes treat the same or
similar scope of liability problems as duty issues or fault issues.
B.    Cause
In Fact
           1.    General Rule
Cause in fact is a question of fact, requiring that the
injury would not have occurred “but for” D’s conduct (the ‘’sine qua non”
rule).
Earlier, many courts added a second element: that D’s
tortious conduct was a “substantial factor” (or sometimes “a material element
[and] [or] a substantial factor”) in bringing about P’s injury. Increasingly,
this factor has been discredited, and many courts now reject the ‘’substantial
factor” element as part of the definition of factual causation, while retaining
it as a scope of liability issue.
           2.    Proof
Most cause in fact problems are nothing more than fact
questions involving the adequacy of P’s circumstantial evidence linking P’s
injury and D’s tortious conduct.
           3.    Multiple Causes
Concurrent Tortfeasors, Indivisible Injury. If the
tortious conduct of Dl and D2 concur and both are causes in fact of P’s injury,
either or both are subject to liability in full for all of P’s damages. It does
not matter that Dl and D2 did not act in concert, or that neither’s conduct by
itself would have caused P’s injury.
Concurrent
Tortfeasors, Divisible Injury
General Rule. If D1 and D2 each cause separate parts
of P’s harm, each will be liable only for the part he caused if it is even
theoretically possible to determine who caused which part.
Exception: Concert of Action. Both D1 and D2 are
liable for all of P’s damages, even though divisible, if they were acting in concert
or engaged in a joint enterprise.
Exception: Risk of Further Injury. If D’s tortious
conduct injures P and also foreseeably exposes P to the risk of further injury
by another, D is liable both for the injury he caused and also for such further
injury.
Burden of Proof. Traditionally, the burden was on P to
prove which part of his injury was attributable to which defendant, at the risk
of failing to recover against any. Today, in some circumstances defendants may
have the burden of proof on apportionment.
Concurrent Independent Tortfeasors, One Cause. Suppose
the tortious conduct of D1 and D2 (acting independently) occurs so that either
D1 or D2 (but not both) was the cause in fact of P’s injury, but P cannot prove
which one. Traditionally, P would lose. Today, each defendant may be required
to prove that he was not the cause.
Enterprise Liability. Courts may impose “enterprise
liability” when: (1) the injury-causing product was manufactured by one of a
small number of defendants in an industry; (2) the defendants had joint
knowledge of the risks in inherent in the product and possessed a joint
capacity to reduce those risks; (3) each defendant failed to take steps to
reduce this risk, delegating this responsibility to a trade association; and
(4) most, if not all, of the manufacturers are joined as defendants. Liability
is joint and several. A manufacturer can escape liability only by proving that
its product could not have been the one that injured the plaintiff.
Market Share Liability. A few courts permit “market
share” liability when a person was injured by a product (such as a drug) that
was produced and sold by multiple manufacturers, but the plaintiff cannot now
identify the particular manufacturer that sold the product that caused her
injury. Manufacturers representing a substantial share of the relevant market
at the time the product was used or consumed can be sued jointly and held
severally liable for a proportional part of the plaintiff’s damages. The
operative details vary among jurisdictions, but in general the plaintiff must
join enough manufacturers to encompass the great majority of the relevant
market, and prove their relevant market shares. A manufacturer can then escape
liability by proving that its product could not have been the one that injured
the plaintiff.
Liability for Reduced Chance. Some courts will
permit recovery for tortious conduct that did not cause P’s harm but merely
reduced P’s chances of a favorable outcome. Some deny all recovery unless the
victim’s chances were initially over 50%; some allow damages based on the
jury’s determination that the defendant’s negligence was a “substantial factor”
in hastening or precipitating the adverse result; and some allow damages based
on the percentage difference attributable to the defendant’s negligence times
the plaintiff’s total damages.
C.    Scope
of Liability (Proximate Cause)
           1.    General Principle
Rules of proximate or legal cause limit D’s liability to
persons and consequences that bear some reasonable relationship to D’s tortious
conduct. Whether and how proximate cause rules shall be applied is a question
of law for the court. However, in some instances the jury is allowed to decide
whether the scope of liability in a particular case extends to P’s harm.
Proximate cause rules can be grouped into two categories:
(1) unforeseeable or remote or indirect consequences; and (2) intervening
causes.
           2.    Unforeseeable Consequences
Majority View: The Risk Principle. Under the
majority view, sometimes called the “risk principle” or the “foreseeable-risk
rule,” D’s liability is limited (1) to those consequences, the foreseeability
of which made D’s conduct tortious in the first place, and (2) to persons
within that foreseeable zone of danger.
Minority View: The Direct Consequences Rule. Under
the minority view, D is subject to liability for consequences which are a
direct result of his tortious conduct, whether or not foreseeable. The result
is direct if it follows in an unbroken natural sequence from the effect of D’s
act upon conditions existing and forces already in operation at the time,
without the intervention of any external forces which were not then in active
operation. The Restatement (Second) of Torts § 435 adopted a modified direct
consequences rule. D is subject to liability if he could have foreseen any harm
from his tortious conduct, even though the manner or extent of the harm was
unforeseeable, unless the court finds it “highly extraordinary” that the
conduct should have brought about the harm.
The Duty–Risk Rule. Some have proposed that all
questions of scope of liability or “proximate cause” should be treated as duty
issues, to be decided by the court based on a variety of factors: social
policy, fairness, expediency, etc. This approach, known as the “duty-risk
rule,” has won few adherents in principle, but it is not uncommon for courts to
rule against plaintiffs on the ground that D had no “duty” to protect P against
a particular risk or that D owed no “duty” to P. See, e.g., Judge Cardozo’s
opinion in the Palsgraf case.
Current Status of the Risk Principle. Although most
courts follow Cardozo’s approach in the Palsgraf case and limit D’s
liability to the foreseeable risks which made his conduct negligent, many tend
to allow juries to determine when the harm realized is too remote from D’s
negligence. They tend to see all causation issues as for the jury, and
questions as to whether the risk realized is too disproportionate or different
from the risk that made D’s conduct tortious as questions of duty for the
court.
Elasticity of “Foreseeable.” Under the majority view,
courts can expand or contract the bounds of D’s liability by expansive or
constrictive rulings on the foreseeability question.
Elasticity of “Hazard.” The bounds of D’s liability
may also be expanded or contracted depending on how the court defines the
hazard or risk that makes D’s conduct tortious.
Rescuers. The intervention of would-be rescuers is
usually deemed foreseeable.
Physical Consequences. Under the
so-called “’thin-skulled” or “eggshell” plaintiff rule, D is liable for the
full consequences of P’s injury even though, due to P’s peculiar susceptibility
(of which D was unaware), those consequences were more severe than they would
have been in a normal person.
Intentional Torts; Strict Liability. Courts tend to
expand the limits of foreseeability when D’s conduct amounts to an intentional
tort, and conversely confine liability to foreseeable consequences when
liability is strict.
           3.    Intervening Cause
Definition. An intervening cause is conduct by some
third person (or an event which occurs) after D’s tortious conduct, and
operates with or upon D’s conduct to produce P’s injury.
General Rule. If (1) an intervening cause was
foreseeable, or (2) the intervening cause was not foreseeable but the consequences
were of the type which D could foresee, the intervening cause will not operate
to relieve D of liability. But if both the intervening cause and the resulting
consequences were not foreseeable, it is called a superseding cause and
D’s tortious conduct is not deemed a proximate cause of P’s injury.
Types of Intervening Causes. An intervening cause
may consist of either human conduct or any other natural force or event.
Foreseeable Intervening Causes. Foreseeable
intervening causes may include (1) foreseeable weather conditions; (2)
negligence by third persons; (3) criminal conduct or intentional torts by third
persons, provided D’s conduct exposes P to a greater-than-normal risk of such
conduct, or if the exposure to such risks is what makes D’s conduct tortious;
(4) P’s self-inflicted harm while insane; (5) acts by rescuers; (6) efforts by
P to mitigate the effects of his injury; and (7) disease or subsequent injuries
resulting from the impairment of P’s health caused by the original injury.
Foreseeable Consequences. If the result is
foreseeably within the risk created by D’s tortious conduct, then even an
unforeseeable intervening cause does not supersede D’s liability, unless (1)
the unforeseeable intervening cause is the criminal act of a third person, or
(2) a third person, who has a duty to act, discovers the danger and has
sufficient time and opportunity to prevent the harm but fails to do so.
           4.    Substantial Factor
The “substantial factor” requirement has been eliminated
as part of the definition of cause in fact, but it may be relevant as a scope
of liability issue. When D’s negligent conduct makes only a trivial
contribution to multiple factual causes of P’s harm, the harm is not within the
scope of D’s liability. However, this rule does not apply if the trivial
contributing cause is necessary for the outcome; it only applies when the
outcome is overdetermined.
The
remainder of this outline has been omitted.
Please see the book for
the full outline.

.

alt: Capsule Summary of Tort Law ■

alt: D’s consciousness of it. 5

alt: Apprehension P must have been aware of

alt: Public Official and Public Figure

alt: Trespass and Conversion Distinguished

alt: Scope of Consent The consent is to

alt: Self–Defense D has a privilege to use so much force as reasonably appears to be immediately necessary to protect himself against imminent physical harm threatened…

alt: Amount of Force. D may then use force or the threat of force, but only such actual force as is minimally required to prevent or…

alt: Scope: Ministerial vs. Discretionary

alt: B. Characteristics of Negligent

alt: Physicians. In most jurisdictions, the standard of care of medical doctors (and sometimes other professionals) is conclusively established by the customary practice of reasonably well-qualified…

alt: Anticipating Conduct of Others

alt: D’s conduct is a part; (2) the utility of the conduct as a means to that end; (3) the feasibility of alternative, safer conduct; (4)…

alt: D’s contrary evidence (if any)

alt: Distinguished From Intentional

alt: Relationship Between P and D

alt: Parent-Child. A parent must exercise reasonable care to prevent tortious conduct by his child, provided the parent knows or has reason to know he has…

alt: Exceptions: Liability for Nonfeasance

alt: V. DEFENSES TO NEGLIGENCE AND

alt: Intentional or Reckless Conduct

alt: Exception: Joint Enterprise.

alt: Express Assumption of Risk Rule

alt: Modern Status of the Defense.

alt: Governmental Officers and Employees

alt: Infants and Incompetents Infants

alt: Concurrent Tortfeasors, Divisible

alt: Intervening Cause Definition

title: Гражданское право США (11 класс)