Breach of Duty

Question 1

Jury decision

Answer 1

Decide whether or not duty was breached by defendants failure to exercise the requisite amount of care

Question 2

Negligence Def

Answer 2

Overt conduct that creates unreasonable risks that a reasonable person would avoid

Question 3

Jury instructions

Answer 3

Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. Negligence is the failure to act as a reasonably careful person would act under the circumstances.

Question 4

Breach center

Answer 4

Breach is at the heart of the negligence claim

Question 5

Risk of harm unreasonable

Answer 5

Risk of harm is unreasonable when a reasonable and prudent person would foresee that harm might result and would avoid conduct that creates the risk.

Question 6

Foreseeability

Answer 6

Foreseeability of some type of harm is central to the issue of whether a persons conduct breached the standard of reasonable care.
Actor is only negligent if the actors conduct created a foreseeable risk and a reasonable person would have recognized that risk.

Question 7

Foreseeability (repetition)

Answer 7

Can be a complex matter, in some cases, it may come down to asking whether something similar has happened before. Where reasonable people could conclude that harm was foreseeable, this should be left for the jury.

Question 8

Foreseeability
(example)

Answer 8

Example: foreseeable that a driver who is actually distracted by a text message might cause accident and serious injury.
Sender of a text could be

liable if an accident is caused by texting but only if the sender knew or had special reason to know that the recipient would view the text while driving and be distracted

Question 9

Foreseeability (first step)

Answer 9

Foreseeability is first step in breach analysis, jury must determine not only foreseeability but also reasonableness as a whole *

Question 10

Restatement Forseeability

Answer 10

The assessment of the foreseeability of a risk is no longer part of the duty analysis, but is to be considered when the [fact finder] decides if the defendant failed to exercise reasonable care

Some evidence that the risk was foreseeable, the question is typically one for the jury to resolve in terms of breach

Question 11

Harm is unforeseeable

Answer 11

When a reasonable person in defendants circumstance would not have foresee any danger, the defendant is “simply not negligent”

Example: Motorcycle wheels facing left hit from behind, court held lack of foreseeability as a matter of duty.

Question 12

Judge v. Jury

Answer 12

Jury is to decide facts. It is also to make certain value judgements. It also determines credibility of witnesses

Question 13

Specific acts of negligence

Answer 13

When alleging breach, a party must state what the allegedly negligent party should have done differently.

Question 14

Restatement
(Specific acts of negligence)

Answer 14

Usually, the precaution identified by a party in seeking to establish the actors negligence will consist of some way in which the actor could have modified the activity engaged in.

Question 15

Liability of employer

Answer 15

Rests upon the assumption that the employer has a better and more comprehensive knowledge than the employees, and cases to be applicable where the employees’ means of knowledge of the dangers to be incurred is equal to that of the employer

Question 16

Assume reasonable care

Answer 16

Defendant who uses reasonable care can typically assume that others will use reasonable care as well.

Example: Driving

A driver is entitled to assume that another motorist will proceed in a lawful manner and obey the laws of the road- unless it should become apparent to that driver, acting as a reasonably careful person, that the other motorist is not going to obey the laws of the road.

Question 17

Special Expertise
(Employer)

Answer 17

Reasonable for the employer to rely on the person with expertise to take appropriate safety precautions

Question 18

Special Expertise
(Example: worker with experience)

Answer 18

Between a worker with experience in a particular type of work, and an employer in an unrelated field

Employer engages the services of an independent contractor for a task alien to the function of the employers business, the employer is relying upon the special expertise and ability of the contractor to know and obey the application safety standard of that activity.

Example of specialized work
Climbing roofs and ladders, or climbing into the tree itself, to cut branches requires specialized knowledge and skills beyond what is reasonably expected if ordinary property rental business.

Question 19

Independent contractors inferior standard

Answer 19

hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job

Question 20

Independent contractors inferior standard
(Rationales)

Answer 20

Hirers usually have no right to control an independent contractors work

Contractors can factor in the cost of safety precautions and insurances coverage in the contract price.

Contracted are able to obtain workers compensation to cover any on to job injuries

Contractors are typically hired for their expertise, which enables them to perform the contracted for work safely and successfully

Question 21

Independent contractors inferior standard
(Exceptions in which the presumption is overcome)

Answer 21

When the hirer retains control over any part of the independent contracts work and negligently exercise that retained control

If the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn.

Question 22

Employer has more experience than the employee

Answer 22

When an employer sends its own employees into harm’s way to perform any task regardless of the nature of the business, the employer must apprise itself of, and comply with, any safety regulation.

Question 23

Obviousness of danger

Answer 23

The obviousness of a risk may make the likelihood of its materializing so slight that there is no need to try to eliminate the risk

Question 24

Expecting care by third persons

Answer 24

A reasonable person may not breach a duty when the person reasonably relies on another to protect the plaintiff

Question 25

Expecting care by third persons
(Example: Parent)

Answer 25

if parent accompany a child to a backyard party and know of the swimming pool there, the host may reasonably think the risk of injury to the child is low in spite of the dangers of the pool

if at private pool like someone’s house, person will expect parents to take care of the children
if regulation says two life guards and you don’t have it, negligence

Question 26

Negligence factors

Answer 26

In determining breach of duty, the court can consider factors from the defendant which demonstrates if they took the steps necessary to prevent foreseeable harms and risk

Question 27

Negligence factors
(Bernier v. Boston Edison Co.)

Answer 27

Magnitude of the harm and probability of harm and burden of precaution was low

Court looking at the risk and the utilities

The jury decides if the risk outweighs the utility

Question 28

Defendant conduct has social utility

Answer 28

If the conduct of the defendant has a high social utility, their not negligent merely because of their conduct which may cause foreseeable harms

Question 29

(Algebraic) Risk Utility Formula

Answer 29

Imposing liability when B<PL
B - The burden of adequate precautions
P- The probability of harm
L- the gravity of the resulting injury

Imposing liability when the burden of precaution is less than the probability of harm times the magnitude.

Question 30

(Algebraic) Risk Utility Formula
Estimating Risks

Answer 30

Not use of actual numbers in the formula but proposing only a model, an indication about the nature of the decision or estimate we need to make.

Question 31

(Algebraic) Risk Utility Formula
Estimating costs or benefits

Answer 31

Almost any activity has some benefit and almost any safety precaution has some costs, although one safety precaution may be costless (warning of danger)

Question 32

(Algebraic) Risk Utility Formula
What values does formula support

Answer 32

Provides deterrence in the “right” amount
Maximizes community resources for the community is richer if its members do not spend 10 to save someone else’s 5

Question 33

(Algebraic) Risk Utility Formula
Objections

Answer 33

Basic liberties (freedom of action and security) are primarily and take precedence over considerations of wealth.

Security of harm would be weight against freedom of action, one basic liberty against another, but losses of liberty would not be offset by increases in wealth,

Question 34

Alternatives to Risk-Utility

Answer 34

Intuitively that “it seems negligent”

Solely by statutory prescriptions such as speed limits

By hard-and-fast rules developed by judicial prescriptions
Ex: the rule that you are always negligent if you drive so that you cannot stop within the range of your vision

By custom of the community or the business involved

By a moral rule that imposes liability if the defendant did anything more risky than defendant would have done to prevent the same harm to defendants own self or property.

Question 35

Specific Alternative conduct

Answer 35

Party asserting negligence first identifies some specific act of negligence, pointing to what the defendant did or did not do and identifying some specific safer conduct that might have been pursued.

If the alternative conduct was safer, the court will want to know how much safer and something about its costs.

Question 36

Probability of harm

Answer 36

Probability is built into the average,
Reasonable care often required the consideration of unlikely but serious consequences

Question 37

Major factors in analyzing whether conduct is negligent (Restatement)

Answer 37

The foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm

Question 38

More than one person negligent

Answer 38

Liability of one person does not necessarily exclude liability of another

Question 39

Comparative fault

Answer 39

Each faulty party must bear his or her share of the losses. Defendants liability is correspondingly reduced so that they pay less than all of the plaintiffs damages

Recovery is generally reduced in negligence and strict liability cases

Question 40

Joint and Several liability

Answer 40

plaintiff can enforce their tort claim against either tortfeasor. Can obtain judgment against both but she cannot collect more than her full damages. Plaintiff might enforce that judgment entirely against either tortfeasor.

Question 41

Joint and Several liability
(Contribution)

Answer 41

If liability is found in multiple defendants but the plaintiff enforces judgment from one defendant, that defendant is liable for all the losses. The defendant which paid the damages can recoup contribution from other defendants

Question 42

Joint and Several liability
(Insolvent or immune tortfeasor)

Answer 42

If defendant is immune or insolvent, then the plaintiff could not recover from that defendant.

If plaintiff seeks judgment from one of the tortfeasors and that tortfeasor tries to recover form the other defendants and one is insolvent or immune, they cannot recover and must pay for the immune or insolvent tortfeasor.

Question 43

Several liability and comparative fault

Answer 43

Tier of fact makes comparative fault apportionment of liability. Differs from comparative fault in that no tortfeasor is liable for more than his proportionate share. Plaintiff would have to bring judgment against each tortfeasor to collect full damages rather than one.

If a tortfeasor is insolvent or immune, then the plaintiff would bear the losses.

Question 44

Additional Variations
(Type of damages)

Answer 44

Some jurisdictions retain joint and several liability but only for certain elements of damage such as economic harm. Parties are severely liable for non economic harm.

Question 45

Additional Variations
(Threshold Percentage)

Answer 45

Retain joint and several liability only if the defednants assigned percentage of responsibility exceeds a certain threshold percentage

Ex: 50%
If defendant is assigned a lesser percentage of responsibility, several liability would apply

Question 46

Additional Variations
(Reapportionment of uncollectible shares)

Answer 46

Assign responsibility but then reallocate the losses if any allocated share of the damages cannot be collected. If the plaintiff is unable to collect one defendants share of the judgment, that share is reallocated among the remaining parties in the same ratio as that of the percentage shares of fault assigned to them.

Question 47

Burden of proof to establish negligence

Answer 47

Plaintiff has the burden of presenting sufficient evidence to demonstrate the existence of a material question of fact.

Question 48

Circumstantial evidence

Answer 48

Evidence of one fact that permits an inference of another fact is often the most important evidence in tort cases. Can be given as much weight as direct evidence

Evidence of one fact that tends to establish some other fact that tends to establish some other fact.

Question of fact and questions of credibility are dor the jury to decide. Inferences of fact is also the decision maker as to inferences, provided there is room for reasonable persons to draw or reject those inferences.

Question 49

Expert opinions
(Problems)

Answer 49

Can differ on opinion and jury has no way of resolving which to listen to

Witness may not in fact be an expert at all with respect to their particular testimony, or that the expert may be an expert in some sense but still offer an opinion that is only speculation

It may overwhelm the jury

Question 50

Trip and fall case

Answer 50

Plaintiff must show
(1) show that some negligent act of the defendant caused his injury; or
(2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or
(3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.

Question 51

Trip and fall case
(Issue of fact for jury)

Answer 51

Actual knowledge of the alleged dangerous condition

Defendant had constructive knowledge of the alleged dangerous condition

Question 52

Prove defendant negligence when plaintiff slips and falls on foreign substance

Answer 52

Proving either (a) the defendant created and failed to take reasonable actions to abate the hazard as where the waiter spills cause on the floor;
(b) the defendant did not directly create the condition but discovered or should have discovered a condition created by others (often called ‘constructive notice’) and failed to take reasonable steps to prevent injury from that condition;

(C)or the defendant mode or method of business operations made it foreseeable that others would create a dangerous condition, and the defendant failed to take reasonable measure to discover and remove it.

Question 53

Evidence that the defendant should have discovered
(trip and fall etc)

Answer 53

Show that the substance had been there for a relatively long time

Only there for a brief period of time, plaintiff will have failed to prove constructive notice

Another method to show constructive notice is through prior accidents

Question 54

Private standards

Answer 54

Rules and policies may exceed its view of what is required by ordinary care in a given situation. You can set standards for yourself which exceed the ordinary care and the fact you’ve done that shouldnt be used.

There could be a multitude of reasons why this was published which may have nothing to do with safety and ordinary care

Question 55

Private standards
(Restatement)

Answer 55

That practice may be relevant to foreseeability of risk, feasibility of precautions, or the plaintiffs reliance on a particular type of care. However, even when the evidence is admissible “it does not set a higher standard of care for the actor.

Question 56

Custom

Answer 56

Proof of a general custom and usage is admissible because it tends to establish a standard by which ordinary care may be judged even where an ordinance prescribes certain minimum safety requirements which the custom exceeds.

Complying with all the safety requirement of a statue might still be negligent if he failed to follow a safety custom

Question 57

Custom (General Rule)

Answer 57

Evidence that the defendant violated customary safety precautions of the relevant community is usually sufficient to get the plaintiff to the jury.

Question 58

Custom
(Restatement)

Answer 58

Departure from custom of community, or others in like circumstances, in a way that increases the risk is evidence of that persons negligence but does not require a finding of negligence.

Question 59

Custom
(Failed to comply with a statute or ordinance introduce evidence that the law is customarily violated - violating law is reasonable conduct)

Answer 59

Judges generally disfavor such a use of custom evidence

Question 60

Custom
(What custom proves)

Answer 60

Prove that the harm was foreseeable, which is is to say that the activity was recognizably risky

Defendant knew or should have known of the risk

Risk was an unreasonable one unless the customary precaution is taken

an unreasonable risk generally refers to a danger or hazard that is excessive, unnecessary, or not justified by the circumstances

Question 61

Custom
(Safety manuals)

Answer 61

Safety codes were admissible as evidence of what was customarily done, although they did not set the standard of care.

Many city ordinances adopt a building or electrical code prepared by industry. The privately prepared safety code takes on the force of a statute or ordinance and is not only admissible but may set the standard of care

Question 62

Custom
(Custom as a sword)

Answer 62

One my be in compliance with a custom and still be found negligent (T.J. Hooper)

Equipment which would have saved barges but since the custom was to not have radios aboard even though they were available, found negligent for following practice

Question 63

Custom
(Custom as a sword- communty)

Answer 63

An actor’s compliance with the custom of the community or of others in like circumstances is evidence that the actors conduct is not negligent but does not preclude a finding of negligence

What usually is done may be evidence of what out to be done, but what ought to be done is set by the standard of reasonable prudence

Question 64

Compliance with statute

Answer 64

Compliance with a regulation does not constitute due care per se. Compliance with the appropriate regulations is competent evidence of due care, but not conclusive evidence of due care.

Question 65

Compliance with statute
(knew or should have known)

Answer 65

If the defendant knew or should have known of some risk that would be prevented by reasonable measures not required by the regulation, they were negligent if they did not take such measures.

Failure to comply with regulation constitutes prima facie negligence, if an injury approximately follows from the non-compliance and the injury is of the sort the regulation was intended to prevent.

Question 66

Compliance with statute
(Reflect a minimum standard of care not a maximum obligation )

Answer 66

Following a statute or regulation is not a defense, compliance with statue is some evidence of reasonable care, even though it is not conclusive

Question 67

Res Ipsa Loquitur (presumptive negligence)
Requirements:

Answer 67

Ordinarily does not happen absent negligence;

Under exclusive control of defendant;

Not caused by negligence of plaintiff;

Other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence;

The indicated negligence is within the scope of defendant’s duty to plaintiff

Accident a type that ordinarily happens as a result of negligence of class of persons of which defendant is relevant member.

Question 68

Res Ipsa Loquitur (presumptive negligence)
meaning:

Answer 68

The occurrence of the accident is of itself evidence of negligence. Injury is done to the plaintiff, who has no means of knowing whether it was the result of negligence; the defendant, who knows how it was caused, does not think fit to tell the jury.

Question 69

Res Ipsa Loquitur (presumptive negligence)
applied

Answer 69

Applied in the absence of a substantial, significant or probable explanation

Question 70

Res Ipsa Loquitur (presumptive negligence)
survival

Answer 70

Will survive a motion of summary judgment and get to the jury. Once judge determines that reasonable people can conclude that negligence is probably, the jury is permitted to infer negligence but its not required to do so.

Question 71

Res Ipsa Loquitur (presumptive negligence)
does not shift burden

Answer 71

Res ipsa does not shift the burden of persuasion from the plaintiff. The defendant can introduce no evidence at all and the jury may reject the inference and bring verdict for the defendant.

Question 72

Res Ipsa Loquitur (presumptive negligence)
Rebuttal by defendant

Answer 72

The defendant’s rebuttal evidence might be disbelieved by the trier, so the judge cannot appropriately remove res ipsa loquitur from the case merely because the defendant has offered alternative explanations or other rebuttal evidence.

Question 73

Res Ipsa Loquitur (presumptive negligence)
Negligence more probable than not

Answer 73

Judges draw on their common experiences in life, rarely on actual data. No expert will be needed where a lay jury can decide the issue based on common knowledge

Question 74

Res Ipsa Loquitur (presumptive negligence)
Expert needed

Answer 74

When no fund of common knowledge would enable a layperson to reasonable draw such a conclusion, the plaintiff may present expert testimony that such an event usually does not occur without negligence

Defendant expert offering confliction opinions does not rule out res ipsa

Question 75

Res Ipsa Loquitur (presumptive negligence)
Plaintiff does not introduce testimony which has access to

Answer 75

Court could draw inferences against the plaintiff for failure to introduce some testimony where plaintiff apparently has access to evidence but faults to introduce it, an inference may arise that the absent evidence was unfavorable to the plaintiff.

Question 76

Res Ipsa Loquitur (presumptive negligence)
Specific evidence of negligence

Traditional rule

Answer 76

If plaintiff relies on res ipsa but also produces specific evidence of the defendant’s negligence, then the plaintiff loses the res ipsa claim

Question 77

Res Ipsa Loquitur (presumptive negligence)

Specific evidence of negligence

Modern approach

Answer 77

Allows a plaintiff to put on proof of the defendants particular negligent conduct while relying on res ipsa in the alternative as long as the specific evidence does not prove a “complete explanation” of the accident.

Question 78

Res Ipsa Loquitur (presumptive negligence)
Exclusive control by defendant

Answer 78

If the jury could reasonably find that defendants control was sufficient to warrant an inference that the defendant was more likely responsible for the incident than someone else, even in the absence of proof of absolute exclusivity and control over the instrumentality by the defendant, the trial court must allow the jury to draw that inference
Or
(alternative) If the jury could reasonably decide that the defendant had enough control to suggest they were more likely responsible for the incident than anyone else—even without complete control over the situation—the trial court must let the jury consider that possibility.

Question 79

Res Ipsa Loquitur (presumptive negligence)
Public

Answer 79

Numerous persons may have interfered with it, so the defendant is not literally in exclusive control

Question 80

Res Ipsa Loquitur (presumptive negligence)
Accidents

Answer 80

Only applies when a permissible inference arises that the event would not ordinarily occur without negligence., some courts have said res ipsa is inapplicable to ordinary accidents that often occur without negligence