Negligence: Breach

Question 1

Name the various tools to measure breach in a negligence case

Answer 1

1) Learned Hand Formula
2) Reasonable Person Standard
3) Custom
4) Statutes
5) Res Ipsa Loquitur

Question 2

What is the Hand Formula? How would it be applied? What are the pros and cons?

Answer 2

If B< PL → unreasonable
If B>PL → reasonable

B = burden (cost) of adequate precautions
P = probability that an accident will occur
L = gravity of the resulting injury

Pros: Low cost burdens will be taken, encourages rational decision making, better off to forego if cost of prevention greater than cost of accident

Cons: difficult to quantify, cannot use as exact formula
Restatement has adopted, but not hard and fast rule → usually RP

Question 3

How would you define the Reasonable Person (RP standard)?

Answer 3

External, objective standard; will look at the circumstances, but not the individual’s capacity.

RP is the basic traditional negligence standard of care, which takes into account:

1) the circumstances with which the actor was actually confronted when the accident occurred
2) includes the reasonably perceivable risk and gravity of harm to others
3) any special relationship of dependency between the victim and the actor.

Question 4

What are subjective exceptions in the RP standard of negligence?

Explain these exceptions to the objective RP standard

Answer 4

Subjective exceptions to RP standard:
1) Common Carrier: Duty to use the highest degree of care that human prudence and foresight can suggest in the maintenance of its vehicles and equipment for the safety of its passengers. Higher standard for policy reasons, but still fault and less than strict liability

2) Children: Must exercise care that a reasonable child of that age, intelligence, and experience would exercise (more subjective) UNLESS: child engaging in an adult activity, then held to reasonable person standard.
3) Physical Disability: R.3d §11: Conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability. NOT mental disabilities/illness … they are held to reasonable person standard.
4) Expert Attributes/Knowledge/Skill: Minority of jurisdictions look at expert attributes. Beginners of an activity are NOT held to a lesser standard.

Question 5

Does the common carrier apply to most jurisdictions?

Answer 5

Yes, including Colorado. But it’s not everywhere, so be careful and look into the particular jurisdiction.

Question 6

True or false: If a physical disability exception to RP standard is applied, it’s up to the defendant with the disability to explain how a reasonable person with the same disability would behave.

Answer 6

True. Defendant has duty to educate the jury about what a reasonable person with that disability would do.

Question 7

Explain the policy why mental illness is NOT a physical disability exception to the RP standard.

Answer 7

Rehabilitation policy:
+ If a person is going to live in the outside world, they should conform to societal norms
+ It’s easier to allow people with varying mental incapacities to live in society if we are assured that they must adhere to a RP standard of care

+ $ damages (vs. criminal liability)
+ Could be easy to fake mental issues
+ Clarity: better to have uniform standard
+ Fairness to innocent plaintiff, and hard to draw lines between mental disabilities and differences between individuals

Question 8

Why is gender not an exception to the RP standard?

Answer 8

Not neutral → “reasonable man” up until 1970’s
+ If you were to parse out male/female, it’s messy and can lead to more marginalization
What does gender have to do with RP standard in torts?
+ Ex: harassment in the workplace
Does “under the circumstances” take gender/race/education into account?

Question 9

What are some arguments for and against custom as a tool for measuring negligence?

Answer 9

Pro:

1) if an industry adheres to a single way of doing something, the court may be wary of plaintiff’s assertion that there are safer ways to do it
2) even if plaintiff can show a feasible alternative, the fact that it may not have been in use anywhere else may suggest that it was not unreasonable for the defendant to be unaware of the possibility
3) the existence of a custom that involves large fixed costs may warn the court of the social impact of a jury or court decision that determines the custom to be unreasonable

Con:
1) Plaintiff can use defendant’s deviation from custom as proof of negligence
2) P knew that there was a safer way to behave and they ignored a substantial risk
3) Competitors were able to find a safer alternative, why couldn’t D?
If there was ample time to find an alternative, why wouldn’t D do it?

Question 10

Can a jury use custom to show that the defendant was, in fact, negligent?

Answer 10

Yes. Though custom is not conclusive.

Even if a Defendant successfully demonstrates that they were practicing common industry custom, the jury could decide that whole industry is negligent by following custom

Question 11

If a statute is being used to prove negligence, what are the TWO questions that must be applied?

Answer 11

Q1: Can the statute be used to assess the standard of care?
Q2: If yes, what jurisdiction are you in?

Question 12

What are the four elements for statutes to determine the standard of care?

Answer 12

R.2d §286:

1) CLASS: Protect a class of persons which includes the one whose interest is invaded
2) INTEREST: Protect the particular interest which is being invaded
3) HARM: Protect the interest against the kind of harm which has resulted
4) RISK: Protect that interest against the particular hazard from which the harm results → what risks lead to the harm?

Question 13

What are the three jurisdictions used to establish a statute’s standard of care in a breach?

Answer 13

1) Negligence Per Se: Most Strict towards D
+ P wants this real bad
+ Judge will determine –> once judge determines the statute applicable and jury determines statute violated, it is unreasonable conduct UNLESS excused by judge.

2) Rebuttable Presumption
+ Presumption that unreasonable conduct created by violating statute BUT
+ Violator can rebut by proving that a reasonable person in those circumstances would do the same thing
+ opens up any excuse, not just the 5 under negligence per se.
+ Shifts burden to D

3) Evidence of Negligence
+ “It’s a consideration” or a permissive inference
+ Jury can consider the violation along with other evidence.

Question 14

What are the exceptions to negligence per se jurisdictional standards?

Answer 14

Negligence per se: Once judge determines the statute applicable and jury determines statute violated, it is unreasonable conduct UNLESS excused by (judge will determine if excuse to be presented to jury),

R.3d §15

a) childhood, physical disability, physical incapacitation
b) attempted to comply (reasonable care)
c) lack of knowledge of NOT complying
d) confusing way statute is worded
e) compliance would be more dangerous

Question 15

True of false: Compliance in a statute relieves a defendant from a negligence claim

Answer 15

False. Compliance with statute usually the floor… can comply and still be negligent

Question 16

True or false: Res Ipsa collapses breach, duty, and actual cause

Answer 16

True.

RIL collapses duty, breach, and actual cause (checks it off of P’s list)

Question 17

What are the three conditions necessary for RIL to apply?

Answer 17

1) Accident must be of a kind which ordinarily does not occur in absence of negligence; (common experience, this does not occur)
2) It must be caused by agency or instrumentality within the exclusive control of the defendant; (if many people in control, all must be named defendants)
3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Question 18

Name at least one case in class that addressed RIL and why it applied (or didn’t apply)

Answer 18

1) Bryne v. Boadle → Classic RIL/Seminal Case
+ Neither the plaintiff nor any of the witnesses testified as to anything done by the defendant that could have led to the barrel falling.
+ Yet the court allowed the case to proceed because of the nature of the harm-causing event and the defendant’s relationship to it.

2) Ybarra v. Spangard → Broad Interpretation/Classic RIL
+ Permitting P to proceed even when he could show neither who was the responsible party nor what was the harm-causing instrumentality.
+ The court applied res ipsa loquitur as a means of “smoking out” evidence from the defendants, shifting to them the burden of proof.
+ Facts create compelling case for judicial creativity: an unconscious patient, probable negligence, an unwillingness on the part of anyone to come forward to claim responsibility perhaps due to a tradition of refusal to testify against other medical professionals, and solvent, well-insured defendants.

4) Inouye v. Black → D wasn’t negligent under RIL
\+ D rebutted the presumption
\+ Issue with instrumentality/control:
\+ There could have been staff error
\+ There could have been a mfg error 
\+ P must sue all possible entities

Question 19

How does constructive notice play a factor into proof of breach?

Answer 19

Constructive Notice:
+ a defect must be visible and apparent and it must exist for sufficient length of time prior to accident to permit defendant’s employees to discover and remedy

Ex: Negri v. Stop and Shop, Inc. → Constructive notice demonstrated
Ex: Gordon v Museum of Natural History → no constructive notice found

Question 20

What is the difference between burden of production and burden of persuasion in a torts case?

Answer 20

Burden of Production →
+ Burden on party to produce more than a scintilla of evidence to prove what he/she wants to show
+ Defendant burden of production of evidence for affirmative defenses

Burden of Persuasion →
+ P must persuade the court that it is more likely than not that each of the elements of negligence has been met
+ Each element must be proven by a preponderance of the evidence
+ Defendant must prove any defense in response to the plaintiff’s prima facie case by a preponderance of the evidence

Question 21

There are three different jurisdictions in RIL cases – If the evidence is strong enough, the factfinder can find in favor of P due to RIL as a matter of law

What are the jurisdictions?

Answer 21

1) Inference of Negligence
+ Jury may but not need to find D negligent
+ Plaintiff retains burden of production and persuasion to demonstrate D was “more likely than not” negligent

2) Rebuttable Presumption - Weak (against D)
+ Jury must find D negligent unless D presents plausible rebutting evidence
+ Burden of production shifts to defendant to prove was NOT negligent
+ Ultimate burden of persuasion still rests with plaintiff to show D was “more likely than not” negligent
+ Defendant must bring forth some evidence that was not negligent or else they are liable
+ Ex: Colorado

3) Rebuttable Presumption - Strong (against D)
+ Minority, ex: LA and MS
+ Jury must find D negligent UNLESS persuaded that D was not negligent
+ Shifts burdens of production AND persuasion to defendant (very rare to shift burden of persuasion to defendant!)
+ Defendant must show by preponderance of the evidence that was not negligent AND must persuade court that his side wins more likely than plaintiff’s

Question 22

What are the locality rules for med malpractice and introducing expert witnesses?

Answer 22

Locality Rules: affects the standard of care for policy reasons
1) Strict Locality: expert witnesses must be from the same town. Standards may be different in small towns versus large cities
Problem: conspiracy of silence

2) Same or Similar Locality: expert witnesses must be from the same town or a similar town

3) National Standard
Most jurisdictions moving toward this
Pro: put more heat on doctors to stay up with current medical practices
Con: maybe fewer doctors willing to practice in smaller, rural towns

Question 23

Name at least one case discussed in class that dealt with med malpractice and expert testimony.

Answer 23

1) Sheeley
+ Similar v. strict locality rule examined → expanded view than strict
+ National standard of care applied → level up the standard of care across all regions
+ Expert allowed because she had the prerequisite “knowledge, skill, experience, training or education in the field”

2) Sides v. St. Anthony
Expert testimony can be used to determine RIL to bridge + the gap b/t jury knowledge and expertise → What isn’t supposed to happen?
Not always allowed in every jurisdiction

3) Arpin v US
+ Residents are held to the same standard of care as physicians who have completed their residency in the same field.

Question 24

What are the policy arguments for and against strict liability?

Answer 24

Holmes: Criticizing strict liability
+ not fair to defendants –> they can’t foresee everything
+ since we don’t have universal insurance in the US, that’s really unfair to defendants

Posner: Judicial economy
+ if D’s don’t think ahead before taking a risk, they should be blamed for their actions that harm others
+ It’s a burden for the courts to take on cases where D’s could have made better choices

Misc. reasons against:
+ negligence allows for a finder of fact to determine D’s liability
+ tort cases usually involve complicated fact patterns, thus strict liability doesn’t always align with the reality of what happened

Question 25

What is the general definition of negligence?

Answer 25

Conduct that breaches the standard of reasonable care.

Question 26

What was the outcome in Adams v Bullock and what was the court’s rationale?

Answer 26

Trolley company not negligent.

+ No duty owed to little boy who was shocked by the overhead wires.
+ Not foreseeable, unusual accident
+ Costs to cover the wires was too high - beyond reasonable

Question 27

Is duty a question of law or fact?

Answer 27

Question of law, but can be conflated by question of fact
+ There are cases where there’s a mixed question of law and fact
+ Courts are moving for ways to extend a general duty to specific circumstances

Question 28

How would the Learned Hand formula apply to the shuttering of businesses during COVID?

Answer 28

Balancing between monetary costs and bodily harm

Is the burden of losing money more than risking customer and staff lives? Social distancing policies do not constitute an overreaction to COVID-19, the economic benefits of lives saved outweigh the value of the projected losses of GDP.

BUT did the Trump admin agree? They likely had to make a rough Hand-like calculation when deciding NOT to shut down the country from a federal level, leaving the decision to each state. They had to estimate how many lives would be lost if they didn’t mandate much, and made the decision that keeping businesses open was more important.

Question 29

True or false: degree of risk is how some courts measure reasonable care

Answer 29

True.
Bolton v. Stone: Risk of a golf ball making it to a neighboring cricket field so small, golf club should disregard it. It has only happened a few times over many years, so it wasn’t a big concern. Foreseeability alone cannot determine degree of risk or standard of care.

Question 30

How does a court define reasonable standard of care?

Answer 30

D’s legal duty to conform behavior to particular standard of care to protect P from unreasonable risk of injury as a result of D’s behavior

Question 31

If, during a negligence case, D is making exceptions to RP standard (beyond the CL exceptions), how can they argue such?

Answer 31

Instead of an exception to RP standard, the D would claim that the circumstances were such that a reasonable person in his situation would have behaved the same way.

P would then argue that D is making the RP standard too subjective.

Fact finder would determine