BCOR 3000 1nd Edition Lecture 8 Outline of Last Lecture I. What is tort?II. DamagesIII. General Types of TortOutline of Current Lecture I. Unintentional TortII. NegligenceIII. DefensesCurrent LectureChapter 4—Torts-Unintentional (2-Sub types)- Negligence: “fault” involved; were not careful enough; not doing what you are supposed to be doingo “Unintentional torts”o Unlimited circumstanceso Very general requirementso Usually involves accidental carelessness that injures anothero Can recover only if all 5 requirements are meto 5 Requirements:1. Duty—have a duty to not pose risk of injury to others2. Breach of that Duty—the physical act of posing risk of injury to someone3. Injury—injury occurs; victim claims injury due to breach of duty4. Actual Causation—who was the cause of the accident; what this defendant “a cause” for the lawsuit “but for” test—if you remove the breach/the conduct of the defendant would the accident happen anyways? Would it have happened anyway?These notes represent a detailed interpretation of the professor’s lecture. GradeBuddy is best used as a supplement to your own notes, not as a substitute.5. Proximate Causation—foreseeability; can you predict the consequences of actions? You are not responsible for the unforeseeable consequences of your actions Tortfeasor—this is the one being sued; if the tortfeasor couldnot see the outcome—not liable and not responsible for actions/consequences - Example: Palsgraff Case (p.115) Railroad conductor helped passenger onto departing train Violated a work rule in doing so Caused passenger to drop package wrapped in newspaper Fireworks in package exploded Scales in a distant part of the stations fell onto Ms. Palsgraff Ms. Palsgraff files a lawsuit against—the railroad, the passenger carrying fireworks, the conductor, the person whosold the fireworks, the manufacturer of the fireworks- Who would Ms. Palsgraff sue? Conductor, railroad, passenger, seller, manufacturer- Who engaged in “bad” conduct? Railroad?; Conductor?; Seller? Manufacturer?- Why did RR have rule against helping passengers onto trains once they started moving? In the case of something going wrong which could affect the railroad- What should conductor consider before doing so? Examine the 5 requirements- Requirements Example with Case:1. Duty: Follow all the work rules; Railroad had a duty that all the employees follow work rules2. Breach of Duty: The conductor who works for the railroad breached the duty by breaking the rules of the railroad3. Injury: Ms. Palsgraff was injured by scales set off by the explosion of fireworks4. Actual Causation: Yes; w/o conductor there would have been no accident—there for the defendant is “a cause”; the passenger is also “a cause” b/c if they had properly gotten on the train on time and wrapped the fireworks correctly then the accident would not have happened5. Proximate Causation: conductor could not foresee his consequences ofhis actions he is not held liable for what happened at the railroad and to Ms. PalsgraffDefenses• Defendant wins (avoids liability) if can prove the existence of a defense even if plaintiff has proven the 5 elements• Assumption of risk—if the plaintiff knowingly understand AND voluntarily can assume the risk then there is no recovery even if the plaintiff can prove it • Ex: car with bad breaks; keeps driving with bad breaks knowing that they are faulty; gets in accident and admits he knew about the bad breaks; no case and no recovery• Superseding cause or event— the chain of causation at some point should be cut off• Ex: come to college and got into 2 schools (CU and Harvard); must go to CU;walking around the Hill and get attacked; saw who attacked you but sue parents for making you attend CU; even if you could link this to the parents it would til be cut off• Contributory negligence—where plaintiff is partly at fault too- All of nothing—all the railroad had to prove was that you were 1% responsible for your injury then you could not recovery- Any plaintiff negligence eliminated ability to recover—very harsh rule - TODAY: we use comparative negligence• Comparative—compared between plaintiff and defendant (% based)- most states now use this- Plaintiff’s recovery reduced in proportion to plaintiff’s relative fault (50/50,60/40, 90/10)- If you are more than ½ at fault—you cannot recover- Defense between plaintiff and defendant- Strict Liability-fault is not an issueo Applies in only a few circumstanceso Even if you didn’t do anything wrong, but if you engaged in it you are responsible for everything that “flows” from