Custom Flashcards
Introduction
i. General principles of negligence afford judges and juries a great deal of latitude
1) Flexibility to apply traditional standards to new situations without having to fundamentally remake the substantive law
2) Introduces large element of uncertainty
a) Custom as a standard of care helps reduce uncertainty
i) Lacks generality of the basis reasonable care standard
Within specific area, provide greater direction than any broad standard can provide.
Titus v. Bradford
i. 1890
ii. Facts
1) P’s descendent was a break operator for a railroad company. His company often transported unloaded cars to other carriers. Some of the cars did not have bottoms that fit the flat beds and were thus unstable when sitting atop the flat top. The D would wire wooden blocks under the cars to level them. On this particular occasion, the wire became loose and when the train turned a corner, the car started rocking loose. The descendent attempted to get off the car and into safety when he jumped he was hit and killed by the care behind.
iii. Issue:
1) Is the D NEG in not better securing Round bottom cars on its flat bottom rail cars?
iv. Holding
1) No
a) Shifting of broad gauge or standard car bodies on narrow gauge tracks is standard business practice for this railroad.
i) Not dangerous or unusual, the D does not have to use a special device or precaution not common in use
b) Descendent had sufficient knowledge of the risks involved with transporting these cars as he had been in the industry for a while.
i) Volenti Non Fit Injuria
One. Is he supposed to understand the risks?
v. Notes TL
1) What was the P argument
a) NEG in using the wrong size bodies on the smaller track.
2) Judge believes we need to use custom to analyze the case.
a) Should we ask the jurors to use BPL analysis?
i) No we should not, Jurors should look to custom and custom will be conclusive
3) Did the D use the same level of care that is custom to the RR industry.
a) If so, then the D was acting in a manner consistent with custom and as such is not liable of NEG.
4) Another reason its right according to the D
a) The industry should be allowed to make the definition of Reasonable behavior, NOT THE JURORS!!!
b) We do not want to give someone who knows nothing about the industry the opportunity to decide something for them
c) Rebuttal
i) We do not want to allow industry to self regulate?
5) This view is the first we will examine, that holds absolute custom
Mayhew v. Sullivan mining co
i. 1884
ii. Facts:
1) The P was an independent contractor who worked for the company, used a platform with a bucket hole for transporting items, but when the company cut a larger ladder whole in its place he was not informed nor was their any reported safety measures put in place. He fell down the larger hole and was seriously injured
iii. Issues:
1) Is the D NEG in cutting hold in P’s platform without notifying him or barricading it
iv. Holding
1) Yes, Jury found D grossly NEG
a) Doesn’t matter if not barricading the hole was custom, act was grossly Neg
v. Notes TL
1) Judge says the custom is irrelevant and thus not admittable to the jury as evidence.
2) This case is the other extreme from Titus
3) This second view we examine is the holds absolute NEG, with no room for custom
TJ Hooper #1
i. 1931 Fed Trial Ct
ii. Facts:
1) P contracted with the D to tow two tugboats, one of the boats and its cargo was lost in a storm while in transit . P is suing the D on claims of NEG for not having a working radio aboard the boat which would have enabled the captain to get safety warnings
iii. Issue:
1) Was it a maritime custom to have properly functioning radios aboard tugboats in which case D would be NEG for losing the tug?
iv. Holding
v. Coxe
1) Tugboat owners supply of radios for boats so common that such was a custom by which owners held owners liable to cargo owners for loss
a) Should the jurors be the ones to decide what weight custom should have?
i) No the judge should give the jurors the instruction as to what degree custom should be important!
vi. Notes TL
1) Should the court find that there is a custom in this field?
2) How much weight should Coxe give custom?
a) He should give conclusive weight to custom in deciding the decision.
But he doesn’t he assumes the reader extracts the view the judge has
e. TJ Hooper #2
i. 1932 Fed Ct of Appeals
ii. Holding
1) Hand
a) Having radios on board is not a custom but B is
Bimberg v. Northern Pacific Ry
i. 1944
ii. Holding
1) Local usage and general custom will not justify or excuse NEG
2) Cannot avail to establish as safe in Law that which is dangerous in fact
iii. Notes TL
Custom is a foxhole that provides shelter but not complete protection
Third Restatement with respect to custom
i. Compliance with the custom of the community is evidence that the actors conduct is not NEG, but does not preclude a finding of NEG
ii. Departure from custom in a way that increases risks is evidence of the actor’s NEG, But does not require a finding of NEG
iii. Takes the Middle Road Approach
Fonda v. St. Paul City RY
i. 1898
ii. Holding
1) Not ok to admit employers rules for employees as evidence of NEG
a) If the adoption of such a course is to be used against him as an admission, he would naturally find it in his interest not to adopt any rules at all = Perverse outcome
iii. Notes TL
If you hold the person/entity to the higher standard, then the person/entity would never implement the higher standard
i. Lucy Web Hayes National Training School v. Perotti
i. 1969
ii. Facts
1) Descendent admitted to hospital as a mental patient escaped and jumped out window to his death
a) Hospital rule to have a new admittee accompanied by hospital attendant
iii. Holding
1) Jury could conclude that hospital was NEG for failure to perform up to the standards it had itself established
j. Trimarco v. Klein
i. Facts
1) P slipped in the bathroom and smashed into his shower door made of regular glass not safety glass, when the D had, had an opportunity to replace it but didn’t take it
ii. Holding
1) BPL analysis for jury with respect to modest cost of replacing regular glass with tempered safety glass
iii. Notes TL
1) Burden of choosing tempered glass today is a different analysis than burden of replacing all the regular glass in all showers that were put in many years ago.
Custom is persuasive but not conclusive in this case.
Lama v Borras
i. Facts
1) The P was experiencing excruciating back pain, he was referred to the D a neurosurgeon. The D diagnosed it as a herniated disk that needed to be repaired. The P was not put on conservative treatment (absolute bed rest) which would have been considered the industry standard for a patient like the P. During surgery the D found the P had an extruded disk and attempted to remove the extruding materials. The P’s original symptoms returned within days, and the D was forced to complete a second surgery. He sent the P home without antibiotics. The nurses notes indicated abnormal situation (one consistent with wound infection) until hospital changed charting system to only report aberrances) P went to the ER and was diagnosed with Discitis an infection between his vertebrae, he was prescribed systemic antibiotics, and hospitalized for months.
ii. Issue
1) Is the care the D provided NEG according to medical standards of care?
2) Is hospital NEG in charting by exception
iii. Holding
1) Conservative bed rest regimen not prescribed or followed
a) Jury concluded the D did not follow medical custom
2) Hospital NEG in charting by exception
a) Regulation required qualitative review and deviation from that could be considered approximate cause.
Morris custom and NEG
i. Why should conformity to the practice protect a physician from liability?
ii. Why is conformity in medical practice more important than say in trucking?
1) It is more complicated
2) Doctors have more to lose
3) Doctors in general are going to try harder to not be Negligent.
a) Doctors are good people
4) Jurors are more likely to convict a doctor, because he has more money.
iii. Because otherwise a prudent man test would enable the ambulance chaser to make a law suit out of any illness.
Jones v Chidester
i. Holding
1) Two schools of thought
a) Considerable number of medical experts (quantitative) vs. Reputable and reasonable Practitioners (qualitative)
b) If 10% follow brachytherapy and 90% follow prostatectomy is 10% sufficient to establish custom?
c) What if 10% of 10,000
d) 1000 could bec considered a large number
e) Should we follow number or percentage?
ii. Notes TL
1) It is insufficient that a small minority agrees with a practice, rather a reasonable number of experts need to prescribe to that school of thought.
2) You can consent to accept a minority treatment like in the example of a trial procedure
Morlino v. Medical Center of Ocean County
i. Facts
1) D’s physician prescribed a medication to the P who was a pregnant women. The next day the baby died
2) The Physicians desk Reference that he consulted warned that the medication should not be given to pregnant women.
3) He prescribed the drug anyways, worried that the potential flu she could carry could compromise her body anyway and still kill the baby.
ii. Holding
1) In affirming a verdict for the D the judge warned “That the package inserts and PDR references alone do not establish standard of care. Therefore, the PDR does not by itself constitute a binding customary document, because there may be reasons to violate the document.
iii. Notes
1) Hearsay rule
a) Force the person relying on the evidence to put the person writing or editing the evidence on the stand instead of just relying on the PDR. The PDR amounts to hearsay
b) PDR was introduced as a custom that doctors don’t typically give the medication
i) Note that PDR states that doctors don’t typically give medication, it is admitted to show the custom of doctors.
Locality rule
i. In accord with custom found in smaller towns, the doctor is not bound to follow the national standard of care but a customary standard likely to be found in smaller towns.
Doctors are only required to follow local customary care standard not a national standard
p. Brune v. Belinkoff
i. Facts
1) D anesthesiologist gave plaintiff a presumably high does of anesthetic; P attempted to get out of bed and fell over receiving injuries. D introduced evidence suggesting that dosage prescribed conformed to medical standard practice of his community.
ii. Holding
1) Jury charge was erroneous as community standard should not apply to high powered specialists
a) No geographic standards in malpractice cases
b) 50% inferior standard in new Bedford relative to Boston is PUKEY = repudiation of locality rule but allows introduction of evidence with respect to difficulties practicing in Beaver
c) Proper standard for general Practitioner is whether the Doc exercise degree of care and skill that the average general practitioner would exercise, taking into account advances in the field.
iii. Notes TL
1) Will I get a better standard of care in Toquerville or Salt Lake City?
a) You probably will
2) For policy reasons we can hold them to a higher standard of care.
a) It is easy to find special witnesses and expert witness in large towns, but it is much harder to do so in small towns. Small town doctors are not willing to testify against each other.
3) In the era of the internet.
a) It could be easier to find someone to testify against smaller doctors, willing to testify.
b) Today custom in the locality rule.
