Week Six, Part 5 - Torts: Boobus Americanus Learns Negligence

In Torts, Professor Rice finishes up the chapter on privileges and begins the next doctrine: negligence. In our casebook, this topic alone consumes over 500 of the 1,200 pages.

Rice jokes: “Though the subject matter cries out for a full and intelligent treatment, I’ll try to keep it simple for Boobus Americanus,”

He happens to be looking at me, though I’m sure it’s coincidental.

Rice turns to the whiteboard and writes:

1. DTY
2. BRCH
3. CSTN
4. DMGS

"These are the four elements of negligence," he explains. “Duty. Breach. Causation. Damages.” Rice combines them in a sentence. “You are negligent if you breach a duty, but you are liable only if the action causes damages.”

He points at DTY. “What is the standard of care? To act like a reasonable man. What would the reasonable guy do? What would he foresee? Would a reasonable man stop at the railroad crossing and look both ways? Yes. With negligence, what’s the test? Foreseeability. That differentiates it from Brian Dailey intent.”

Rice lowers his pen to CSTN. “Now, how do you prove causation? By a probability. Did Dr. Thumb's negligence cause this injury? You need an expert to come in and say ‘more likely than not.’” Rice then comments on the difference between questions of fact and law.

No doubt that after 25 years of teaching, Rice has a clear view of the issues. To me, though, it’s all gobblydegook. I’d much prefer an introduction that’s more systematic, less elliptical. An outline would be nice. With definitions, please. I feel like I’m being left to rot by the side of the road. Whatever happened to "keep it simple"?

Rice calls on a student, Chris Putt, to give the facts in Lubitz v. Wells. It’s an 1955 case from Connecticut. A man left his golf club lying in the backyard where his son (James Wells, Jr.) and nine-year-old Judith Lubitz were playing. The boy picked up the club and swung it without warning. Lubitz was injured and her family sued Mr. Wells for negligence. The trial court ruled against Lubitz. On appeal, the court upheld the ruling: “A person cannot be shouldered with responsibility for acts which portend no harm.”

Rice asks, “Mr. Putt, on what basis could the father be liable?”

My mind is blank and I'm glad I'm not the one on the hot seat.

“If he could have foreseen the danger,” Chris says.

“Good. In your opinion, could the defendant be liable for leaving out a power tool?”

“Yes.”

“A non-power saw?” Rice asks.

“Maybe.”

“A power lawnmower?”

“Probably not.”

“An enclosed backyard pool?”

“No.”

“Ever see a fence that kids couldn't get over?”

We laugh.

Rice buzzes through nine more cases. Blyth v. Birmingham Waterworks. Gulf Refining v. Williams. Chicago B. & Q.R. v. Krayenbuhl. Davison v. Snohomish County. United States v. Carroll Towing. Vaughan v. Menlove. Delair v. McAdoo. Trimarco v. Klein. Cordas v. Peerless Transportation. Whew!

Class ends with, “With these early cases, try to get a sense of a reasonable man. On the exam, just spot the issue and make a judgment about foreseeability.” Rice assigns us another fifty pages in the casebook, then strides out of the classroom.

Like reasonable law students everywhere, we whine ‘n moan to our classmates until we feel better.

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