Negligence

Question 1

Elements of Negligence

Answer 1

1. Duty- obligation to conform to a standard of conduct for others
2. Breach of duty- negligence, breaching standard of care
3. Causation- but-for and proximate
4. Compensable- injury tort law cares about

Question 2

Breach Approach: Economic Analysis

Answer 2

1. If risk of harm is not foreseeable, no need to take precautions against it (Adams v. Bullcock with the dumbass kid swinging the wire into the trolley line)
2. Hand Formula, B<PL (Caroll Towing)
   i. B=Burden of Precaution
   ii. P=probability of injury
   iii. L= gravity of injury (liability)
   iiii. If the burden of precaution is less than that of the probability of injury and the gravity of injury, you should take the precaution
   a. If B>PL, then not liable
   b. If B<PL, then liable

Question 3

Breach Approach: Reasonable Person Standard

Answer 3

1. Objective standard that applies common sense and experience
2. Exceptions to make more subjective:
   i. Children (unless doing adult activites)
   ii. Physically disabled/superabled
   ex: if blind can help you, If you have extraordinary strength that can be used against you
3. Elevated or Heightened standards
   i. Professionals and people of specialized skill
   ii. Common carriers elevated (Bethel v. NYC Transit pulled this back in NY to be only reasonable under the circumstances)

Question 4

Breach Approach: Custom

Answer 4

1. Proof of evidence, but not dispositive of standard of care issue
2. Standard remains reasonable person
3. Exception: Professional Liability (medical malpractice, custom is dispositive)

Trimarco v. Klein shower door used different kind of glass, custom was not dispositive but was probative evidence, court held landlord was negligent of custom

Hooper v. Northern Bridge tug boat not having a radio was custom, some precautions are so important that their universal disregard is no excuse

Question 5

Breach Approach: Statute (negligence per se)

Answer 5

Violation of a statute is negligence per se if:

1. Without excuse the actor violates a statute
2. that is designed to protect against that kind of accident the actor causes
3. and the accident victim is within the protected class of the statute

reasonable care does not appply

Question 6

Negligence per se exceptions

Answer 6

1. Childhood, physical disability, or incapacitation
2. Reasonable care in attempting to comply
3. Actor neither knows nor should know of the circumstances that render the statute applicable
4. Confusing way in which statute requirements are presented
5. Compliance with the statute would involve a greater risk of physical harm to actor or others than non-compliance

Question 7

General Negligence Proof

Answer 7

Preponderance (51% or more), with direct and circumstantial evidence

Must meet prima facie (at first look) burden

Question 8

Res Ipsa Loquitor (It speaks for itself) proof of Negligence: Pre-requisites

Answer 8

1. Event doesn’t happen w/o negligence
2. Actor had exclusive control over property used to cause the harm
   i. modern trend would just be more likely than not
3. Within scope of duty; or no contribution by plaintiff

Question 9

Res Ipsa Loquitor (it speaks for itself) Procedural Effect

Answer 9

Majority: Gives rise to INFERENCE (implied) of negligence

Minority: Gives rise to PRESUMPTION (mandatory) of negligence

Both shift proof burden to defendant

Question 10

Res Ipsa Loquitor (it speaks for itself) Doctrine Extension

Answer 10

Ybarra v. Spangard: patients lost use of arm and didn’t know who controlled instrument of harm so he sued all doctors. Court held all doctors could be liable

Stubbs v Rochester: poison drinking water, one of many possibilities of harm. Court held Plaintiff need not eliminate every possibility, D having just one of them could be acceptable.