Accidental Torts – Notes and Cases

Accidental Torts

Brown v Kendall
Judge Shaw

The first half of the century there were not many tort cases, mostly settled out of court.
Nearing the industrial revolution torts became more common
What was Judge Shaw doing, what was the outcome, how did he get there
Shaw – The P can not recover if both the P and D were negligent Contributory Negligence
P has to come prepared to prove negligence, and also the D didng excersise ordinary care. P must also prove the he (P) used ordinary care and was not negligent.
If immidiate then > tresspass
if consequential only not immediate then > case only
Once you choose trespass or case then now what? Now YOU MUST PROVE NEGLIGENCE, trespass or case is strictly procedural
-you cannot asume there is recoverry in etirher case until you prove negligence lack of ordinary care, AND prove that You used ordinary care also
Shaw says once you determine the proper cause trespass/case then you need to prove > negligence.
– Trespass to negligence.
Reynolds case is caught in what remedy for what action. Saying that some one IS at fault, who is it? Should there be any remedy???
Reynolds v Clark
If the harm is immediate the plaintiff should recover because of trespass
Trespass is a accidental injury.
19th century tort law > no liability to anybody no matter what 😉
Some say Gregory thinks of Shaw very lowly
Should Shaw/judges make law
Gregory would probobly have agreed with Treynors strict liability, no need to remove liability for enterprises,
What does Holmes think about Shaw in Brown v Kendall?

Supplement and pg 6-7 of casebook

Look breifly at Posner

moving on to next case with Cardozo


Brown v Kendall
What if Brown v Kendall (dogfight) was in a large crowd? the jury instruction standard would be the same because it is ordinary care or reasonable care to prevent the liability
How could Brown v Kendall be subsidizing industry?
Occured during industrial revolution trains were dangerous, hit people animals cars, derailed cant stop. and cause fires from sparks
All these are TRESPASSES they happen immediately not as a result later.
Designed to impose liability where it will avoid accidents – POSNER
Shaws greatness came from his knowledge of what the community needs not so much his technical knowledge of the system.
OW Holmes
The govt could do many things but here are some
Universal insurance, any time there is an injury then the losses are distributed to the society as a whole
Not used in US but we do have some features of that > Welfare system, social security, medicare, medicaid,
Maybe two individuals who were at fault would split the difference.
Why not shift the loss when society will be in the same position
Because its a drain on society, it wont prevent anything or improve society it simply shifts the damage from one to another
Merely shifitng the loss is expensive
Society needs a reason, so we SHOULD shift the loss when one party is at fault, because it will reduce injuries, but not when purely accidental because nothing will prevent it
The Common Law – Holmes
“The life of the law has not been logic: it has been experience” Supp10
Prevalent moral and political theories, the ideology of the day.
People change, laws change, you cant understand law purely from logic.
Torts – NO Statutes by and large, almost entirely made by judges.
In order to understand the law, you need to understand where the law has been.
BP Oil spill and 9/11
No fault payment fund
In the long run BP will have much less liability less litigation and will save money
Adams (Dumb boy) v Bullock (Trolly Owner)

Learned Hand Test
  1. Magnitude of loss
  2. probability
  3. Burden of precautions


Just a bike race
Two 10 yr olds, one accid veers in front of other,
the other boy skids into street.
elderly man, told by dr not to drive, doesnt see hits kid and breaks arm
First boy looks back to see what happened
this kid is hit by a teenager on a motorcycle who is looking at his cell phone
boy injured by the motorcyclist
No negligence for Charlies accidental swerve, no intent for assault or battery
Old man, no negligence unless DMV or Dr had told him not to drive. possible negligence if he had prior knowledge of his limited ability to drive
Negligent to teen for using cell phone instead of paying attention
Shaw 1830-1860
Holmes 1882-1902, US -1932
Posner 1980-present
Braun Case pg 41
Wires strung way out of reach, until area was developed
Insulation of wires was worn out after three years (they could be insulated whereas trolly wires cannot)
Carpenter was shocked by exposed wires when he moved them out of the way.
If someone walking across train tracks is hit, is the RR negligent?
– What is the probability of this happening, what are the costs to prevent this? Signs, walkways, whistle, etc
Comparative Negligence, if both parties are negligent than the award will be reduced by the plaintiffs negligence
Negligence is doing something a reasonable person would not do, or failing do do something a reasonable person would do pg43
Holmes (1881)
Standards of an Ordinary Person for General Application, we dont care about internal differences
Certain average of conduct in society,
God may be forgiving for physical or mental downfalls, however the court does not it must be an external standard
An average man of ordinary intelligence or prudence
When a man falls below this he acts at his own peril (even if it was unintentional because they were hasty and awkward)
Holmes does give exceptions for major physical deformity blind, deaf etc.
pg 58 exceptions – Disability, Superiority, Children
Two ten year old boys, Charlie and George, were riding their bikes when Charlie accidentally veered in front of George, causing George to swerve into the street in front of a car driven by an elderly, 90 year old man.  The elderly man had very slow reflexes and could not brake in time, and so he hit George causing him to break his arm.  At the same time, Charlie was struck by a teenager (Dylan) on a motorbike who was looking at his cell phone checking messages.

Old man should be held to the reasonable person standard (a standard person with good reflexes)
Children, are an exception, not liable because children arent held to the same standard
Teen, yes liable because hes engaging in adult activities

when driving you have insurance, bicycle you are  not insured

Next class > Goodman and Pecora,     see Holmes and Cardozo interacting.
Find Holmes’ holding, and then compare to what Cardozo did to it. why did he make holmes look stupid


If it costs more to avoid it then to have it occur then we should just let the accident happen.
Shows the role appellate courts play
Held the overhead line could not be insulated and that the probability of the accident was very low
Learned Hand
Probability x Damages ≠ Cost of Avoidance
Posner, generally speaking appelate courts dont usually overturn unless it points to a biased jury
Standard jury instructuion, did the Actor act as a reasonable person
Did he do something a reasonable person wouldnt, or did do what a reasonable person wouldnt
What is an ORP
They dont look at state of mind, they look at conduct
Will attribute physical aspects (blindness etc however a blind person should not drive)
If less than reasonable intelligence –> So what!?!?!
More intelligent, expert –> Is added to ORP so you must be more better
Children held to adult standards if partaking in adult activities, driving, boating, etc

Justice Traynor saw a case where the train had a warning device it passed. Man drove across track without looking both ways. He was hit by second train with broken horn.
Traynor does not give jury the question and rules that he was not negligent
NEXT CLASS = ANDREW 66-69 notice standard of care for common carriers it “Utmost Care” a stricter (Uses Utmost Care standard)
50-52 Bethel case, because Ct of Appeals NY is asked to change Utmost Care to Reasonable care (NY Abolishes Utmost Care for Common Cariers

Andrews v. United Airlines, Inc. (CA) 1994
Suitcase falls on passenger’s head out of overhead compartment
CA court affirms “utmost care standard” for common carriers

Bethel v. New York City Transit Authority 1998

Should we retain the Utmost Care Standard for Common Carriers?
Utmost care no longer viable, Utmost care is essentially strict liability
Replaced with Rreasonable Care

Utmost care was made when things were more dangerous, there have since been technological advancements.
Not consistant with negligence,
Does it ever make sence to use more care than is reasonable
as something gets more hadardous you need to use more care

case 1.
Holmes learning to drive, in 2010, he is 85 years old. Hes driving from SF to SD. The only car rental is a manual, he thinks he can do it. He makes a wrong turn up a large hill. Wonders if he should stop, looks back. A bunch of kindergardners on bicycles are behaind him. He is approaching an intersection, no stop, he doesnt want to slide back and hit kids, so he drives through and is hit by a speeder

case 2. There IS a stop sign

case 3. There IS a stop sign, but it is not effective because the statute that required the stop is void. So it is not Criminal to go through without stopping.

Californi Common Carrier case brought up the question of What Constitutes an Common Carrier?? Indiana Jones at Disneyland a common carrier? Brain anuerism, if it is a Common Carrier then they have to have utmost care. Dland said no other accidents, but that same week i rope came loose on a prop and it fell and killed an employee. Investigation found 255 previous accidents. Reporter took a ride, ended up with a herniated disc.

California Adopted Civil code early
Has an utmost care statute in it, they cant decide to abolish it

New Standard of Utmost care, back in 1872 statutory rule in CA
NY Court, (Not California) of appeals found it was time to abolish utmost care standard due to advances in technology
Common carriers are safer now
The reasonable person standard is enough to take into account the hazards for a situation with incrasing risk and increasing caution
Utmost care jury finds no care. Reasonable care jury instructions find yes care.

Economists say no proof of Utmost care decreasing safety.

Res ipsa loquitor: Defined on page 104

Spreading damages across the public increases prices


Case One:  Holmes, who is in his 80’s, is used to driving around San Diego. He decides to go to San Francisco where it often rains and there are many steep hills. When he goes to pick up his rental car, the only car left is a stick-shift. Holmes had driven a stick-shift once before, in San Diego, and was fine. When he arrives in San Francisco it is rainy and he immediately turns on to a very steep hill. Ahead of him he sees there is a cross street, and behind him, at the bottom of the hill, he sees there is a field trip of Kindergarten kids. He is afraid that if he stops at the cross street he will roll back and hit them. When he looks at the cross street he does not see a car coming. He decides not to stop and when he goes through, another driver hits him. The other driver was being negligent for driving too fast. Is Holmes guilty of contributory negligence?
  • Did Holmes act negligently when approaching and driving through the intersection, this question should go to a jury

Case two: Exactly the same as case one but, there was a stop sign for Holmes, and not for the other driver.
  • Motion for directed verdict for defendant on matter of law that Holmes contributed negligence? Well, was Holmes negligent in not stopping

Case three: Exactly the same as case two but, because of the way the ordinance was passed, the statute that enabled the stop sign was void (essentially saying, it was not illegal to not stop at the stop sign).

Martin v. Herzog 1920
pg 75
Holds that violating a statue is Negligence Per Se (No matter what)
Cardozo said breach of statute definitely implied negligence. No reason for jury to consider it. Buggy owner recovered nothing.

Tedla v. Ellman 1939
Statue says pedestrians should walk facing traffic on the left hand side of the road.
Plaintiffs were walking with traffic, opposite statute
Herzog finds it is not what a reasonable person would do, now its what the statue says
This court finds the statutes purpose is to protect pedestrians and is flexible to be safe\
Maybe two types of statute, one to perserve life and limb, one to set the rules of the road
This statute is a rule of the road that may be more unsafe to follow.
Or maybe better to read the case there is not two types of statutes
Just statutes taht may be excusable under certain circumstances
We cannot assume reasonably that the legislature intended that a statute enacted for preservation of life and limb of pedestrians must be observed when observance would subject them to more imminent danger.
Excuses, emergency, necessity, reasonbly efforts to comply, efferots to comlply present more risk.
  • To get around Martin without overturning it, Cardozo distinguishes two types of statutes:

  1. Safety Standard’ statutes: obedience would in no case add to the danger. Breach is negligence per se, unless excused.
  2. Rules of the Road’ statute: obedience under some circumstances might add to the danger. Breach is acceptable for a good cause.

NEXT CLASS 2 slip and fall cases Negri and Dorgin?Gordon. Then important case on pg 90 in note – how should the bird seed case be decided?? Further discuss in Chiara case note 7

Statute say bus must stop at train tracks

Matin v Herzog establishes if you violate a statute without excuse then it is Negligence Per Se. If it is brought up as contributory the judge can dismiss
Tedla v. Ellman
Says there may be two types of statutes
First to preserve life and limb, certain excuses to break the statute to protect yourself.

Second is rule of the road statute
Which type of statute is this?
Wont have too answer on EXAM because the ANSWER is more research on case law
Unexcused violation of a statute is NEGLIGENCE PER SE (negligence in and of itself)
Excuses emergency, necessity, harm you more not to comply
More recent cases of contributory negligence are plaintiff friendly.
  • To see if breach of a statute is negligence per se:

  1. Check if P is in the class of persons intended to be protected by the statute,
  2. Check if the harm is of the type intended to be prevented by the statute, then
  3. Make sure it is a ‘Safety Standard’ type statute. Breach is negligence per se unless excused by emergency or temporary impossibility.

Note: Just because adherence would have prevented the injury does not mean care was breached. Also, compliance with a statute does not always mean due care was exercised.


Constructive Notice: The danger must be visible and apparant. Its not that the store cause the danger, but that the store failed to adequately inspect and repair the danger. Plaintiff must prove that it was there long enough to be noticed and fixed.
To infer negligence, P must prove that the item slipped upon was visible, apparent and was there long enough to have been noticed and taken care of if the manager had exercised due care.

Length of time is important, must prove that the danger was visible long enough for the store to notice it and fix it

Negri v Stop and Shop pg87 1985
Plaintiff fell backwards
she did not hit the shelf on the way down (important because she didnt knock it off shelf after fall)
There was broken baby food jars on the floor
Customers did not hear any falling/crashing for 15-20 minutes before hand
The baby food was dirty and messy
The aisle may not have been inspected for at least 50 min maybe 2 hours
A reasonable store would inspect more often
Court says to jury “if they can infer the slippery surface was cause by the jars, and the store had sufficiant time to find it”
  • Circumstantial Evidence

D found negligent based on dirty broken baby food jars.

What if there was no evidence of time? You may be able to prove because the baby food was dirty.
Gordon v. American Museum pg88 1986
Plaintiff waling up steps
Slipped and fell, say piece of was paper in the air as he fell
Claims he slipped on wax paper from the concession stand
You need to establish how long the object that caused the accident had been there.
Have to establish inspection procedures were unreasonable
AND that there was constructive notice
Wax paper was pure white, could have just blown on to step seconds earlier
P did not prove constructive notice that wax paper was known OR had been there for any while
Plaintiff cannot recover merely by proving inspection and cleaning process was negligent
BUT must also prove that the object was there long enough to be discovered and fixed. (How long is usually a jury question)
Read Randall on page 90 (dont look at 91) then look at note 7 on the next page to test understanding.

Vermont law governs (Randall [Fed Court Interpretation] uses Vermont Law “Business Practice Rule”) Dont let the EXCEPTION BECOME THE RULE
Chiara  Page 91 tells you “Mode of Operation” Arizona interpretation of Vermont Law

we think traditional rule of constructive notice is TOO defendant friendly. Because it allows negligent defendants to escape liability
We are going to apply and exception to the traditional constructive notice rule. (Exception is stated on page 90)

Going through Randall, Chiara, Lanier, Owens. 90-92

Randall v. K-Mart Corp. pg90 1998
Plaintiff slips on birdseed and cannot prove constructive notice
Tries to apply Business Practice Rule exception to Constructive Notice
Bus Practice Rule – applys to self service stores where you help yourself, origin stores with the produce out like in a market (Stores used to have everything behind counter and the emloyees would get you banana, grape, milk etc)
A merchant using a self serivce method of sale must  bear the burdern of showing what steps were taken to avoid the foreseeable risk of harm pg90

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