Breach of Duty Flashcards
Jury decision
Decide whether or not duty was breached by defendants failure to exercise the requisite amount of care
Negligence Def
Overt conduct that creates unreasonable risks that a reasonable person would avoid
Jury instructions
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.
Breach center
Breach is at the heart of the negligence claim
Risk of harm unreasonable
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.
Foreseeability
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.
Foreseeability (repetition)
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.
Foreseeability
(example)
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
Foreseeability (first step)
Foreseeability is first step in breach analysis, jury must determine not only foreseeability but also reasonableness as a whole *
Restatement Forseeability
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
Harm is unforeseeable
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.
Judge v. Jury
Jury is to decide facts. It is also to make certain value judgements. It also determines credibility of witnesses
Specific acts of negligence
When alleging breach, a party must state what the allegedly negligent party should have done differently.
Restatement
(Specific acts of negligence)
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.
Liability of employer
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
Assume reasonable care
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.
Special Expertise
(Employer)
Reasonable for the employer to rely on the person with expertise to take appropriate safety precautions
Special Expertise
(Example: worker with experience)
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.
Independent contractors inferior standard
hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job
Independent contractors inferior standard
(Rationales)
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
Independent contractors inferior standard
(Exceptions in which the presumption is overcome)
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.
Employer has more experience than the employee
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.
Obviousness of danger
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
Expecting care by third persons
A reasonable person may not breach a duty when the person reasonably relies on another to protect the plaintiff
Expecting care by third persons
(Example: Parent)
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
Negligence factors
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
Negligence factors
(Bernier v. Boston Edison Co.)
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
Defendant conduct has social utility
If the conduct of the defendant has a high social utility, their not negligent merely because of their conduct which may cause foreseeable harms
(Algebraic) Risk Utility Formula
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.
(Algebraic) Risk Utility Formula
Estimating Risks
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.
(Algebraic) Risk Utility Formula
Estimating costs or benefits
Almost any activity has some benefit and almost any safety precaution has some costs, although one safety precaution may be costless (warning of danger)
(Algebraic) Risk Utility Formula
What values does formula support
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
(Algebraic) Risk Utility Formula
Objections
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,
Alternatives to Risk-Utility
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.
Specific Alternative conduct
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.
Probability of harm
Probability is built into the average,
Reasonable care often required the consideration of unlikely but serious consequences
Major factors in analyzing whether conduct is negligent (Restatement)
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
More than one person negligent
Liability of one person does not necessarily exclude liability of another
Comparative fault
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
Joint and Several liability
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.
Joint and Several liability
(Contribution)
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
Joint and Several liability
(Insolvent or immune tortfeasor)
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.
Several liability and comparative fault
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.
Additional Variations
(Type of damages)
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.
Additional Variations
(Threshold Percentage)
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
Additional Variations
(Reapportionment of uncollectible shares)
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.
Burden of proof to establish negligence
Plaintiff has the burden of presenting sufficient evidence to demonstrate the existence of a material question of fact.
Circumstantial evidence
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.
Expert opinions
(Problems)
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
Trip and fall case
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.
Trip and fall case
(Issue of fact for jury)
Actual knowledge of the alleged dangerous condition
Defendant had constructive knowledge of the alleged dangerous condition
Prove defendant negligence when plaintiff slips and falls on foreign substance
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.
Evidence that the defendant should have discovered
(trip and fall etc)
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
Private standards
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
Private standards
(Restatement)
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.
Custom
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
Custom (General Rule)
Evidence that the defendant violated customary safety precautions of the relevant community is usually sufficient to get the plaintiff to the jury.
Custom
(Restatement)
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.
Custom
(Failed to comply with a statute or ordinance introduce evidence that the law is customarily violated - violating law is reasonable conduct)
Judges generally disfavor such a use of custom evidence
Custom
(What custom proves)
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
Custom
(Safety manuals)
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
Custom
(Custom as a sword)
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
Custom
(Custom as a sword- communty)
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
Compliance with statute
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.
Compliance with statute
(knew or should have known)
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.
Compliance with statute
(Reflect a minimum standard of care not a maximum obligation )
Following a statute or regulation is not a defense, compliance with statue is some evidence of reasonable care, even though it is not conclusive
Res Ipsa Loquitur (presumptive negligence)
Requirements:
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.
Res Ipsa Loquitur (presumptive negligence)
meaning:
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.
Res Ipsa Loquitur (presumptive negligence)
applied
Applied in the absence of a substantial, significant or probable explanation
Res Ipsa Loquitur (presumptive negligence)
survival
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.
Res Ipsa Loquitur (presumptive negligence)
does not shift burden
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.
Res Ipsa Loquitur (presumptive negligence)
Rebuttal by defendant
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.
Res Ipsa Loquitur (presumptive negligence)
Negligence more probable than not
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
Res Ipsa Loquitur (presumptive negligence)
Expert needed
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
Res Ipsa Loquitur (presumptive negligence)
Plaintiff does not introduce testimony which has access to
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.
Res Ipsa Loquitur (presumptive negligence)
Specific evidence of negligence
Traditional rule
If plaintiff relies on res ipsa but also produces specific evidence of the defendant’s negligence, then the plaintiff loses the res ipsa claim
Res Ipsa Loquitur (presumptive negligence)
Specific evidence of negligence
Modern approach
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.
Res Ipsa Loquitur (presumptive negligence)
Exclusive control by defendant
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.
Res Ipsa Loquitur (presumptive negligence)
Public
Numerous persons may have interfered with it, so the defendant is not literally in exclusive control
Res Ipsa Loquitur (presumptive negligence)
Accidents
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
