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  • How A Tort Standard of Conduct Is Determined

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    A tort standard of conduct can be established in four ways: (1) through legislative enactment or administrative regulation that explicitly provides the standard; (2) when a court adopts a standard from a legislative enactment or regulation that does not explicitly provide it; (3) by judicial decision; or (4) when applied to the facts of a case by a judge or jury if no enactment, regulation, or decision applies. This document outlines these four methods and notes that the focus will be on establishing a standard through common law negligence, but all four methods will be examined.

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    Restatement 2d

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    A tort standard of conduct can be established in four ways: (1) through legislative enactment or administrative regulation that explicitly provides the standard; (2) when a court adopts a standard from a legislative enactment or regulation that does not explicitly provide it; (3) by judicial decision; or (4) when applied to the facts of a case by a judge or jury if no enactment, regulation, or decision applies. This document outlines these four methods and notes that the focus will be on establishing a standard through common law negligence, but all four methods will be examined.

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    © All Rights Reserved
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    11 views1 page

    How A Tort Standard of Conduct Is Determined

    Uploaded by

    jjleague7507
    A tort standard of conduct can be established in four ways: (1) through legislative enactment or administrative regulation that explicitly provides the standard; (2) when a court adopts a standard from a legislative enactment or regulation that does not explicitly provide it; (3) by judicial decision; or (4) when applied to the facts of a case by a judge or jury if no enactment, regulation, or decision applies. This document outlines these four methods and notes that the focus will be on establishing a standard through common law negligence, but all four methods will be examined.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
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    HOW A TORT STANDARD OF CONDUCT IS DETERMINED

    Restatement (2d) Torts 285


    The standard of conduct may be
    (a).

    established by a legislative enactment or administrative regulation which so


    provides [a statutory tort action: e.g., wrongful death], or

    (b).

    adopted by the court from a legislative enactment or an administrative regulation


    which does not so provide [e.g., negligence per se], or

    (c).

    established by judicial decision [judicially created tort action, e.g., use of a lock
    on a railroad turntable], or

    (d).

    applied to the facts of the case by the trial judge of the jury, if there is no such
    enactment, regulation, or decision [e.g., common law negligence].

    The focus of this class is on (d): common law negligence but we will be looking at all
    four of these ways of establishing a standard of conduct as the course proceeds.

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