II.

NEGLIGENCE:
Definition: Behavior that falls below the standard established by law for the protection of others against unreasonable risk of harm
EXAM REMINDER: Always identify the alleged negligent act(s) before applying the 5 elements below
COMMON LAW LOUISIANA LAW: “Duty-Risk Formulation”

(1) CAUSE-IN-FACT: Initial inquiry in the Duty-Risk analysis

- “But for”: more probable than not (50%+) that but for alleged breach harm would not have
occurred
- Substantial Factor: Used with multiple causes or “50-50” cases
o Concurrent causes – independent causes occurring together in the chain of causation
Common law begins with Duty o Joint causes – each a “but for” cause
- Unknown source of injury?
o Alternative Liability - Joint-Several (common term)/Solidary (civil term)
 Limited to cases were all ∆’s are joined; “smoke out” evidence
o Market Share – imposed severally on each member of the industry based on their
market share of the product (e.g. Asbestos, DES)
- Lost Chance – shifts the injury when “but for” death would have occurred

(1) DUTY: Traditional (2) DUTY: Traditional – Next inquiry in the Duty-Risk Analysis; is there a duty imposed by
statute or rule of law?
- Traditional: Objective standard asking whether a reasonable, ordinary, prudent person (ROPP) knew or should have known of a duty under the circumstances (not
“average”)
o Special Rules
 Professionals: ROPP w/ particular special knowledge (doctors, lawyers, airplane mechanic, etc. Misuraca)
 Handicapped: ROPP with that disability (Roberts v. State, blind postal worker)
 Children: ROP child of like/similar age or development unless engaged in adult activity.
 Insane Persons: Regular ROPP
 Sudden unconsciousness: Did they know or should have known it may occur
 Sudden Emergency: ROPP in emergency
o Risk-Utility: Is the ∆’s conduct more risky than it is useful?
 Hand Formula from Carrol Towing (e.g. Ford Pinto)
 B<PL – Burden of the precaution (B) LESS than the expected loss (PL)
o Negligence Per Se: Takes an outside source (non-tort statute) where the duty is defined for another purpose
 ∏ within class of persons statute protects
 Risk within class of risks statute enacted to guard against
o Custom: Evidence of what most people do and may be used as either:
 ∏  Sword (show how reasonable person should behave) = STRONG
 ∆  Shield (argue they did what everyone else did) = WEAK (T.J. Hooper, radios)
o Special Duties - ∆ owes “high” or “highest” degree of care to the ∏
 (No real difference – just that a ROPP under certain circumstances, such as being an innkeeper, will require a high degree of care)
- Res Ipsa: Applies in cases where the ∏ uses circumstantial evidence alone to prove negligence by the ∆. “thing speaks for itself”
o Cangelosi elements
 Injury is type of injury that does not occur in the absence of negligence
 Evidence eliminates other more probable causes of the injury
 Within ∆’s scope of the duty to the ∏
  No direct evidence
(2) CAUSATION: Actual Cause
Common law version of La. cause-in-fact
COMMON LAW LOUISIANA LAW: “Duty-Risk Formulation”

(3) CAUSATION: Proximate Cause (3) DUTY: Scope of the Duty

Palsgraf/Andrews Palsgraf/Cardozo
- ∆ should be held liable for proximate causes in a natural and continuous sequence - ∆’s risk should define his duty of care to those foreseeable
- Question of fact  Jury decides - Question of law/policy  Judge decides
- Was the risk of the injury within the ambit of the duty imposed?
Proximate Cause/Scope of the Duty/Scope of the Risk/Duty-Risk Specific Duty-Risk Issues:
1. Are any intervening causes superseding? (CED.RRfall.GPU.MM.HES)
o Direct Cause (old Polemis rule that ∆ responsible for all things they actually causes): Language still used of - Controlling 3rd Parties
“intervening cause” and “superseding” - Employment Relationship
 Gross negligence - Duty to Recue
 Intentional acts (e.g. negligent spilling gas; intentional throwing match) - Duty to Rescuers
 Criminal acts - Slip and Fall
 Bizarre acts - Grossly Neg. Actors
2. Risk Rule (using the dual-analysis of negligence per se) - Providers of Alcohol
o Foreseeable ∏: Necessarily contemplating the person to whom the alleged duty was owed, Palsgraf - Unborn Children
o Foreseeable Risk: Wagon Mound - Mental Anguish
 Have to foresee the general harm and not the specific mechanism (e.g. Egg-shell victims; take the - Misrepresentation
victim as you found them) - Neg. Hiring
3. Ease of Association – between the injury and the breach
- Neg. Entrustment
4. Policy Factors (Pitre)
- Subsequent Injury
o Need for compensation
o Historical precedence
o Moral aspect of ∆’s actions
o Efficient Administration of the law
o Deterrence of future harmful conduct
o Capacity to bear or distribute losses
(4) BREACH
May analyze risk-utility in breach
(5) INJURY:
Some are compensable; others are not. Must mention that injury is required!