Proof of Negligence Flashcards
Introduction
i. Notes
1) Most modern litigation especially in medical Malpractice and products liability cases, requires expert evidence on matters such as the proper standard of care or causation
2) Res Ipsa Loquitor (RIL)
a) Generally invoked when the P seeks to establish D’s NEG by Circumstantial evidence (proof Doctrine)
i) Accident does not normally happen without presence of NEG
ii) Accident caused by something in exclusive control of
P not Contributory
Byrne v. Boadle
i. Facts
1) P injured by barrel of flour that was apparently being lowered from upper window in D’s establishment
ii. Issues
1) Can the D be held NEG if P is unable to provide any direct evidence of NEG?
iii. Holding
1) Yes
a) Res Ipsa Loquitor - the occurrence itself is evidence of NEG
i) In such cases P does not have to prove beyond a reasonable doubt, just a preponderance of the evidence
ii) If RIL is raised burden of proof transitions from the P to the D such that the D must refute
iii) There is no way the P could produce evidence of D NEG; The D is only one in the position to do that.
iv. Notes
1) RIL cases establish the opportunity for a case to get to the jury by relieving the P of the burden of proof.
2) Barrel could have been thrown by someone other than the D. In this case how do we get rid of the burden of proof?
a) We put the burden on the D to show that it wasn’t them.
b) We do this after the P HAS SHOWN THAT IT IS MORE LIKELY THAT THE D DID IT THAN NOT!!!
3) 51% likely hood of the D causing the injury, in that case it is the D’s job to prove otherwise to the jury that it was someone else.
4) Evidence is therefore Prima Facie
Correct until proven incorrect.
Larson v. St. Francis Hotel
i. Facts
1) P hit by chair thrown from the window of the D’s hotel; Court does not apply RIL
ii. Holding
1) Hotel does not have exclusive control over its furniture (actual or potential), but the 3rd party throwing it does. RIL not met
iii. Notes
Who has physical control of the furniture in the room?
Connolly v. Nicollet Hotel
i. Facts
1) P presumably injured while D’s hotel is taken over by a rowdy convention, the court allows RIL
ii. Holding
1) Law does not require every fact and circumstance which make up a case of NEG to be proved by direct positive evidence
a) Circumstantial evidence alone may authorize a finding of NEG
iii. Notes
This case is differentiable under a different underlying legal doctrine, the duty of care. In Connolly the hotel has a higher duty of care since the hotel “knew” about the antics.
Prosser Test
i. Notes on Prosser
1) Event of a kind which does not ordinarily occur without someone’s negligence; (over 50%)
2) Event must be caused by agent or instrumentality within exclusive control of defendant; AND
3) It must not have been due to any voluntary action or contribution by plaintiff
ii. TL NOTES 1) Apply to the test concerning the pot falling off the balcony a) Is the event more likely than 50% to fall off without NEG? b) It is more likely than 50% that it was the D who had control over the pot. c) It is less likely than 50% that I ran over and put my head into the way of it falling? 2) Choreography of RIL a) Judge approves the Prosser test, b) P escapes the directed verdict and this question is sent to the jury c) D now has the burden to prove to the jury that he wasn't NEG i) If he does prove it wasn't his fault it goes to jury (prima facie) ii) If he doesn’t prove it the judge he may make a directed verdict d) What instruction should the judge give to the jury concerning RIL i) Don't mention RIL just send the case to the jury ii) Tell the jury to use a RIL to decide the case iii) Judge tells them there is such thing as RIL you can but are not obligated to follow it. TL thinks the third is the best option, because confusion favors the P.
SS 2-328
i. Notes
1) NEG on D’s part inferred when
a) Event is of kind which ordinarily does not occur in the absence of NEG
b) Other responsible causes, including conduct by the P and third persons, sufficiently eliminated by evidence; and
c) Indicated NEG is within scope of D’s duty to the P
2) Function of court to determine whether the inference may be reasonably drawn by the jury, or whether it must be necessarily drawn
Function of the Jury to determine whether the inference is to be drawn in any case where different conclusions may be reasonably reached
Walston v. Lambersten
i. Holding
1) No IRL in case of boat lost at sea
a) The sea contains many hazards; inference of liability of the ship-owner should not be lightly drawn
Notes
Newing v. Cheatham
i. Facts
1) P’s Decedent killed in plane crash in Mexico; P’s evidence indicated only possible cause of crash was the D’s NEG in running out of fuel while in flight (visibility was excellent weather was calm, not enough fuel in the plane to start engine, no voluntary contribution to NEG by P).
ii. Issues
1) Is a directed verdict appropriate in the RIL case?
iii. Holding
1) Yes there is no way any reasonable person could find accident occurred without D’s NEG
iv. Notes
At the end of a damn good RIL case, most likely the P may get the Directed verdict
Colmenares vivas v. sun alliance co.
i. Facts
1) P and wife on escalator at the airport when the the handrail stops but the stairs keep moving, leading to the wife losing her balancing and falling, the husband tries to stop her but ends up falling too, both are badly injured. D argues maintenance of escalator is not within exclusive control
ii. Issues
1) Is RIL applicable in case when instrumentality that causes injury not within exclusive physical control of the D?
iii. Holding
1) RIL applies even if the D shares responsibility of instrumentality with others
a) Goal of RIL is to eliminate the possibility that the accident was caused by a third party
b) D unable to delegate responsibility to maintain its duties to others
c) Public entitled to rely on the ports authority, not its agents or contractors, to see that proper management takes place
2) Dissent, Criterion #1 not met don’t know squat about why escalators fail.
iv. Notes
1) Is this a good RIL case?
a) No, once again it is not RIL that dictates the issue, but rather substantive law.
b) The fact that duty of care over the escalators in a don delegable duty, means that its not a good RIL case.
2) Elements of Negligence
i) Duty
ii) Breach
iii) Causation
One. Caused in fact
Two. Proximately caused
iv) Damages
3) In what situation would someone have a duty of care less than the standard duty of care?
a) Kayla asks tommy for a ride and while driving a little faster than the speed limit he goes off the road and Kayla dies.
b) Guest statute is invoked in the state that provides for a lesser standard of care (only in reference to vehicles)
i) The lesser standard is that tommy has to abstain from gross NEG
P duty to abstain from gross NEG not standard NEG. Applying the principle to the first element of IRL “WAS THE INCIDENT ONE THAT WOULD ORDINARILY (OVER 50% LIKELY) OCCUR WITHOUT SOMEONES’ GROSS NEG?”
Holzhauer v. Saks & co.
i. Holding
P cannot invoke IRL. P was on an escalator that all of a sudden stopped and he fell backward and was injured this was due to the fact that the escalator could be stopped at anytime and thus was not more than 50% likely in exclusive control of the D
Kmart v. Bassett
i. Facts
1) P older women walking through automatic door when it closed on her causing her to fall and break her hip
ii. Issue?
1) Is this a good RIL case?
iii. Holding
No
Benedict v. Eppley hote
i. Facts
1) Lady sitting on folding chair for 30 min injured when it collapses on her
ii. Holding
RIL case because the hotel supplied chairs to bingo players, the hotel had exclusive control over the maintenance of the chairs.
Ybarra v. Spangard
i. Facts
1) P referred to doctor to perform an appendectomy; anesthesiologist pulled P body onto the table and laid him against two hard objects at the top of should then administered anesthesia; after the operation P experienced sharp pain between neck and point of the right shoulder; Not experienced pain before; D nurse gave P diathermy treatment but it didn’t work. Pain worsened and eventually it led to paralysis and atrophy of the muscles. Two independent doctors indicated the injury resulted of trauma or injury due to pressure or strain. P wants RIL, D argues P unable to identify either the D or instrumentality that caused P’s injury
ii. Issues
1) Would application of RIL be appropriate when P is unable to identify instrumentality or D?
iii. Holding
1) Yes
a) Particular force and justice of the rule consists in the circumstances that the chief evidence of true cause is practically accessible to D but inaccessible to the P
i) RIL not a rigid formula whos application is precluded in many cases where it is most important that it should be applied
ii) Present comes within the reason and spirit of RIL more fully than any other
iii) P who received injury obviously due to NEG would be unable to recover unless docs voluntarily chose to fess up
One. Purpose of the doctrine is to promote compensation and fairness
b) Number or relationships of D not determinative o RIL application
i) Where master and servant relationship exists, master responsible for servant’s actions
ii) Not necessary for all D to be found liable for RIL to apply
iii) Unreasonable for the P to have to find the exact D who was liable
iv. Notes
1) What if the Appendix burst when he was pulling it out? Is it still a good RIL case?
a) No because it is more likely NEG than IRL
2) Do the Ds had exclusive control of the P?
a) Swift is Respondeat superior
i) Swift is responsible for all of his employees.
b) What if Ybarra sued just swift? Could the court find him more than 50% in exclusive control
i) Probably
c) What if he just sued thompson? Could the court find her more than 50% in exclusive control?
i) Most likely not, she only attended to him the next day
ii) It would only go to the jury if a reasonable person could find the D was responsible… could a reasonable person find against the nurse?
iii) This case provides the holy grail of RIL, because it allows the jury to hear a case where one of the D’s was definitely not in exclusive control.
It allows the case to go to trial, and when on trial, the individuals that were not responsible, will point fingers to who actually did it.
Bardessono v. Michels
i. Facts
1) P paralyzed after series of injections
ii. Holding
1) RIL allowed to go to jury and decided by jury based on common knowledge.
iii. Notes
1) More likely than not NEG exists if weird consequences result from a standard procedure; and
That the doctor continues to administer the shot.
Greenberg v. Michael Reese Hospital
i. Facts
1) P treated with radiation for an issue with her enlarged tonsils. The treatment was discontinued after they found out it could cause tumors. She sues
ii. Holding
The court held that it was custom at the time to issue such a treatment and as such
