Negligence

Question 1

What is the hand formula - United States v. Carroll Towing

Answer 1

One way to think about negligence: B < L X P

Conduct is negligent if the burden of preventing the injury is less than the probability of loss times the gravity of loss

This is an old way of talking about negligence but it’s still useful to think about

Question 2

What is the Utility vs. Risk formula with regards to negligence?

Answer 2

Compare the social utility of the activity:

1. likelihood of societal advancement
2. availability of alternatives
3. technical feasibility

Risks of the activity:

1. social value of interests imperiled
2. likelihood of harm
3. extent of the harm
4. number of persons affected

This is another way of thinking about negligence

Question 3

What is the takeaway from - Lubitz v. Wells

Answer 3

The act of leaving items outside in a yard, where children might find and use them, is not negligence unless said items are obviously and intrinsically dangerous

In Lubitz, golf club was not considered intrinsically dangerous

Question 4

What is the takeaway from - Blyth v. Birmingham Waterworks

Answer 4

Basically the difference between negligence and strict liability

One must fail to act in a way that someone of ordinary prudence would for there to be a negligence. Mere fact that a plaintiff is injured doesn’t matter in negligence if the defendant was exercising due care.

Question 5

If a defendant is on notice of a present danger within their control, must they prevent that danger - Piper v. Parsell

Answer 5

Yes, if that present danger would likely result in a harm that the defendant had an initial duty to prevent

In Piper, the defendant driver was on notice of a present danger after one of the passengers attempted to jerk the wheel. After that, the defendant had a duty to eliminate that danger

Question 6

What is the duty of municipalities with regards to the maintenance of roads and bridges - Davison v. Snohomish County

Answer 6

Municipalities have a duty to use ordinary care in the maintenance of their roads and bridges, but they do NOT have a duty to reinforce every single stretch of road such that a car would never be able to veer off.

Question 7

What is Cardozo’s view on the imposition of duty?

Answer 7

You only ow a duty to a particular individual if they are within the zone of foreseeable danger

Question 8

What are some examples of a court imposing a duty on the grounds of public policy?

Answer 8

Kelly v. Gwinnell: New Jersey court held that hosts should be liable for their guests’ drunk driving if they serve the guest alcohol (minority rule)

Enright v. Eli: Court refuses to extend multigenerational liability where grandchildren are affected by their grandmother’s ingestion of DES. Court is worried that such ruling would discourage innovation from drug companies.

Question 9

When will courts impose a duty on individuals to intervene and prevent harm?

Answer 9

1. When that individual has a certain relationship to the victim: family members, common carriers, custody, employment, property ownership.
2. When that individual has a certain relationship to the tortfeasor: children and mental health patients
3. That individual must intervene and prevent further harm if the instrumentality causing the harm is within their complete control - L.S. Ayers v. Hicks

Question 10

What duty do therapists have under - Tarasoff v. Regents of UC

Answer 10

Therapists have a duty to warn others if they think their patient might do harm

Question 11

When will courts impose a duty on individuals to warn others?

Answer 11

1. There must be an imminent probability of harm

2. The harm has to be known or reasonably foreseeable

Question 12

Explain Commonwealth v. Peterson in the context of a duty to warn

Answer 12

Virginia Tech police had no duty to warn other students when they discovered a suspected homicide which turned into a mass shooting. Court held that the mass shooting was unforeseeable and thus no duty to warn

Question 13

Explain Hegel v. Langham in the context of duty to intervene

Answer 13

Court held that university had no duty to intervene and help a student who got involved with a bad crowd and started doing hard drugs

Question 14

What are some factors to consider when deciding whether to impose a duty to intervene and prevent harm - J.S. and M.S. v. RTH

Answer 14

1. Nature of the risk of underlying harm
2. Opportunity and ability to exercise care to prevent the harm
3. Comparative interests of the parties
4. Relationships between the parties
5. Societal interests

In RTH, court determined that a wife had a duty to intervene and report her husband when she likely knows of his alleged child abuse

Question 15

What is the rule about pure economic losses - Southern California Gas Leak Cases

Answer 15

Their is no duty to protect against pure economic losses

Question 16

How are internal policies related to duty - Chicago B v. Krayenbuhl

Answer 16

Internal policies may be used to show that a defendant owed a duty, but are not conclusive. It’s up to the jury to decide.

Question 17

How are common customs and practices related to duty - Trimarco v. Klein

Answer 17

Common customs and practices can be used to show that a defendant owed a duty. Jury must find the practice or custom reasonable.

Question 18

What is the sudden emergency doctrine with regards to duty - Cordas v. Peerless

Answer 18

No duty should be imposed in instances where a defendant acted under threat of death

1. The event must be unforeseen, sudden, and unexpected
2. A judge makes the threshold determination whether the sudden emergency instruction should be given to the jury
3. A defendant still has to comply with what a reasonable person would have done in the same emergency
4. If the emergency was CREATED by the negligence of the actor, then the actor can’t use it as a defense to performing their duty

Question 19

What is the general rule of thumb regarding standards of care for negligence?

Answer 19

Legal standards of care imposed by the court are more urgent when there is no background of experience out of which societal standards have emerged – think about when it would hard to use a reasonably prudent person standard

Question 20

What is the reasonably prudent person standard - Vaughan v. Menlove

Answer 20

One generally has a duty to act as a reasonably prudent person would under similar circumstances

We aren’t concerned with how a particular defendant would act or what they would know in certain circumstances. The standard is objective

Question 21

You owe everyone a general duty of care under the RPP ,but this only extends so far. When do you specifically not owe a duty?

Answer 21

1. There is no duty to rescue
2. There is no duty to protect against pure economic loss
3. H.R Moch - No general duty in tort of contracting parties towards third-parties (misfeasance vs nonfeasance)

Question 22

We have seen two specific instances where the standard of care for drivers has been defined, what are they?

Answer 22

1. Drivers are required to take certain precautions to maintain their vehicles (such as checking the tires) - Delair v. McAdoo
2. There is not duty for drivers to exit their vehicles and surveille the situation when they cannot see at a train crossing - Pokora v. Wabash

Question 23

What is the standard of care for handicapped individuals?

Answer 23

What would a reasonably prudent handicapped person do under similar circumstances?

Roberts v. Lousiana - court found that reasonably prudent blind people often navigate without such a device on short trips

Question 24

What is the standard of care for mentally handicapped / insane people?

Answer 24

The reasonably prudent person standard. Mental illness does not negate the RPP or liability for negligence unless the mental incapacitation is sudden and unforeseeable - Breunig v. American Family Ins.

Question 25

What is the standard of care for children/teenagers?

Answer 25

What is reasonable to expect of children of like age, intelligence, and experience.

Use the RPP standard if the child is engaging in an activity that is normally undertaken only by adult, inherently dangerous, or activities for which adult qualifications are required - Robinson v. Lindsay (riding snowmobile is an adult activity)

Question 26

What duty do landowners typically owe to unknown trespassers?

Answer 26

No duty

Question 27

What duty do land owners typically owe to known trespassers?

Answer 27

Duty to warn of latent dangers on the property

Question 28

What duty do landowners typically owe to licensees?

Answer 28

Duty to warn of known latent dangers and exercise care in active operations

Question 29

What duty do landowners typically owe to invitees?

Answer 29

Duty to warn of known latent dangers, duty to discover and remedy unknown dangers, and duty to exercise care in active operations

Question 30

What does Rowland v. Christian have to say about the traditional categories of land owner duties?

Answer 30

It makes more sense to merge the categories and just use a RPP standard when talking about the duty of landowners to people who come on the land, evaluate based on the circumstances

Question 31

What is the idea of Attractive Nuisance

Answer 31

1. Likelihood that children trespass on defendant’s land
2. Whether a condition on the land poses an unreasonable risk of serious harm
3. Whether children would or would not likely appreciate that risk
4. Whether the condition offers only a slight utility
5. Whether the land owner failed to exercise reasonable care in remedying the danger

Question 32

How to evaluate a negligence per se argument?

Answer 32

1. Whether the plaintiff is a member of the class of person intended to be protected by the statute
2. Whether the harm that resulted was the same type of harm that the statute was intended to protect against
3. Whether it is appropriate to use the statute as a standard of care under the circumstances

Classic example is off statute which prohibits bar owners from serving intoxicated guests - Stachniewicz v. Mar-Cam

Question 33

Why was negligence per se inappropriate in Perry v. S.N. and S.N.?

Answer 33

Imposing a standard of care taken from the Texas family code’s reporting statute would be far too oppressive. Think about how crazy it would be if anyone who witness child abuse and said nothing was automatically negligent.

Question 34

If an “unexcused” violation of a civil or criminal statute applies the facts of a negligence case, what must the judge do?

Answer 34

The judge must evaluate negligence per se regarding the violation of that statute. The question cannot be left to the jury as to how relevant such a violation is.

Question 35

Even though violation of a penal statute creates an assumption of negligence, this may be rebutted. How - Zeni v. Anderson

Answer 35

Violation of a statute may be rebutted in a negligence per se argument if the person violating the statute had a valid excuse.

In Zeni, the plaintiff violated a penal statute by walking in the road instead of on the sidewalk because it was iced over. Valid excuse for violating a statute is if following the statute would be dangerous.

Question 36

What is the easiest way to prove that a defendant breached their duty?

Answer 36

Direct Evidence

Question 37

Why couldn’t the plaintiff prove that the defendant breached their duty in - Goddard v. Boston & Main

Answer 37

The plaintiff slipped on a banana peel and sued defendant railway, court reasoned that anyone getting off the train could have dropped the peel literally one minute before the person slipped because the peel was bright yellow and fresh-looking

Question 38

What is circumstantial evidence and how did the plaintiff use it to prove that the defendant breached their duty in - Anjou v. Boston Railway

Answer 38

Circumstantial evidence is a point which be inferred from other related facts

Banana on the floor was visibly old and likely had been there for a long time, thus it stands to reason that the defendant had ample time to know about the hazard and remove it. By not doing so, they breached their duty

Question 39

What is constructive notice and how has it been used to prove breach of duty in this class (two cases)?

Answer 39

Constructive notice, in the same vein as circumstantial evidence, is a legal fiction whereby someone should have known of a potential harm or liability.

Joye v. Great Atlantic - defendant not liable for slip and fall, jury couldn’t determine how long banana peel had been on the floor, but it was clear the floor had been swept at most 30 minutes before plaintiff fell. Therefore, it was on the ground for a long time the defendant would have known.

Ortega v. Kmart - defendant had constructive knowledge of hazardous milk puddle because store employees have a policy of cleaning the floors every 15-30 minutes, but the milk could have been on the floor for up to 2 hours. There, the defendant should have known.

Question 40

With regards to breach of duty, do you need to show that a defendant was on notice of a harm if they themselves created the harm?

Answer 40

No

Question 41

Why didn’t the plaintiff need to show constructive in Jasko v. F.W. Woolworth

Answer 41

Defendant pizza store created the dangerous condition themselves by serving pizza on wax paper over tile floors. In a sense, they were always aware of the possibility of pizza being on the floor because they created that possibility.

Question 42

With regards to breach of duty, why did the defendant not create a condition which posed an unreasonable risk of harm in HEB v. Resendez

Answer 42

Mere display of produce or food for sampling, without additional evidence, cannot be considered a condition on the premises that poses an unreasonable risk of harm. In HEB, the defendant displayed grapes for sampling on a table that had rails around it over a rubber floor mat.

Question 43

What is the general idea of a Res Ipsa Loquitur claim?

Answer 43

The thing that happened does not normally occur in the absence of negligence - Byrne v. Boadle

Question 44

What do you need to show in a Res Ipsa claim?

Answer 44

1. The object that caused the accident was under the exclusive control and management of the defendant
2. Had the defendant used ordinary care, in the course of ordinary events, the accident would not have occurred

Question 45

Why couldn’t the plaintiff prevail on a Res Ipsa claim in Larson v. St. Francis Hotel

Answer 45

Because even though hotel residents were throwing furniture out the windows of the hotel, the hotel did not exclusively control guest’s use of the furniture

Question 46

Explain the idea of “but for” causation and the possible problems with employing such a doctrine

Answer 46

But for causation is the idea that the accident would not have occurred “but for” the negligent conduct of the defendant

However, if you think about it, everything is a but for cause of everything else. That’s why you have to look at proximate causation as well.

Question 47

What is Loss of a Chance as it relates to actual causation?

Answer 47

Plaintiffs can recover damages by showing that the defendant was a substantial factor in causing the plaintiff to lose a significant chance of escaping the harm in question.

Question 48

When “but for” causation doesn’t work, we often use the substantial factor test. What is it?

Answer 48

For conduct to be a substantial factor in the resulting injuries, the conduct must be either:

1. Indispensable from the injury (indivisible harm)
2. Indecently sufficient to bring about the harm

Question 49

In some instances, we have to use expert testimony to prove actual causation. What is the Daubert standard for expert testimony?

Answer 49

1. The testimony must reflect “scientific knowledge”, the findings must be “derived by the scientific method,” and the work product of the expert amounts to “good science.” (Good science: is the theory generally accepted in the scientific community, has it been subject to peer review, can it be tested or has it been?)
2. The expert testimony must be “relevant to the task at hand,” that is, logically advancing a material aspect of the proposing party’s case

Question 50

How do you determine factual causation where separate acts combine to cause the harm?

Answer 50

1. Where either of the acts alone would be sufficient to bring about such an injury, both are considered actual causes - Anderson v. Minneapolis
2. Where neither of the acts alone would be sufficient to bring about the injury, both of the acts are actual causes if their concurrence was necessary to bring about the harm (indivisible) - Hill v. Edmonds

Question 51

How do you deal with a scenario where multiple defendants acting together cause a harm, but it’s unclear which one of them did it?

Answer 51

The burden rests on defendant’s to prove which one of them caused the injury. If they cannot prove which one did it, all of them may be held joint and severally liable - Summers v. Tice

Question 52

How do you determine factual cause in instances where large enterprises are producing and selling the exact same product?

Answer 52

The court will hold the company liable for the proportional amount (market share) of the product they produced. For example, if a company product 70% of the market share, then they are liable for 70% of the plaintiff’s injuries.

Question 53

What is proximate cause?

Answer 53

An inquiry into the fairness of imposing liability - Atlantic Coast Line Co v. Daniels

Question 54

What are some ways of talking about fairness in the context of proximate cause?

Answer 54

Foreseeability, Direct and Remoteness, Result within the Risk, Andrews Factors

Question 55

What is the unforeseeable plaintiff view of proximate cause?

Answer 55

This is basically Andrew’s take on Cardozo’s opinion. He believes that the zone of foreseeable danger is the proper question to ask during a proximate cause analysis. Was a plaintiff foreseeable?

Question 56

When thinking about attributing proximate cause to a defendant’s conduct, the court may consider the Andrews factors. What are they?

Answer 56

1. Was there a natural and continuous sequence between the cause and effect?
2. Was there a direct connection between them, without too many intervening causes?
3. Is the effect of cause on result not too attenuated?
4. Is the cause likely, in the usual judgement of mankind, to produce the result?
5. By the exercise of prudent foresight, could the result be foreseen?
6. Is the result too remote from the cause, and here we consider remoteness in time and space

Question 57

How does the court address the ideas of directness and remoteness in Ryan v. New York Central RR.

Answer 57

defendant railroad stored wood in a shed which negligently caught fire, fire spread a distance away and caught plaintiffs house on fire, defendant not liable for destruction of plaintiff’s house since the shed fire was too remote a cause, many other factors may have caused the fire to spread from the shed to the house

Courts used to be reluctant to impose liability if defendant’s conduct is too remote from the injury.

Question 58

The traditional view of proximate cause is direct vs. indirect cause. How is this explained in Polemis

Answer 58

defendants negligently allowed a wooden beam to fall on ship carrying kerosene, the beam fell and caused a spark which ignited latent kerosene in the air and blew up the ship, defendants still liable because even though the type of harm was unforeseeable, it was a natural consequence and direct result of the beam falling

Courts have generally found the rule from Polemis to be too harsh

Question 59

What is the eggshell plaintiff rule in the context of proximate cause?

Answer 59

Doesn’t matter if it was unforeseeable that such conduct would injury a particular plaintiff, we take plaintiffs we find them – Bartolone v. Jeckovich

In Jeckovich, defendant was laible for plaintiff’s psychotic break after a car crash even though he had pre-existing schizophrenia

Question 60

In regards to proximate cause, what is the Scope of the Risk Rule (unforeseeable type of harm)

Answer 60

Liability is limited to harms resulting from the risks that made the actors conduct tortious in the first place

Know the Wagon Mound cases. It’s the same issue, but different outcomes because in the first case, the plaintiff’s employees spilled the metal in the harbor, so they didn’t want to argue that the fire was foreseeable.

Question 61

How do intervening causes affect proximate cause liability?

Answer 61

Intervening causes are things that come into paly after the defendant’s tortious conduct and contributes to the production of the harm

Foreseeable intervening causes do not cut off the defendant’s liability - Derdiarian v. Felix Contracting (Intervening cause because it is foreseeable that cars would crash into workers and injure them. Defendant failed to properly protect workers)

Question 62

What is a superseding intervening cause which cuts off all liability from defendants?

Answer 62

It is an intervening cause that is both unforeseeable and bring about unforeseeable results. It has to be something truly bizarre - Yun v. Ford Motor Co

Intentional or criminal conduct of third parties are considered superseding intervening causes and cut off a defendant’s liability

Question 63

Is suicide a superseding intervening cause - Fuller v. Preis

Answer 63

No unless the defendant creates an irresistible impulse for the plaintiff to kill themselves

Question 64

Are extraordinary acts of nature superseding intervening causes?

Answer 64

Yes if they are unforeseeable. Considering a hurricane in Louisiana vs. in Michigan

Question 65

What is the rescue doctrine with regards to proximate cause? What are the requirements?

Answer 65

A defendant is liable for harm to one who reasonable attempts to rescue another imperiled by the defendant’s negligence. Requirements:

1. Defendant was negligent and caused a peril (or appearance of peril)
2. Peril was imminent
3. A RPP would have concluded that peril existed
4. The rescuer acted with reasonable care in doing the rescue