Liability and compensation




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particularly helpful at summary judgment/directed verdict stages

  • Jury Instructions - Calculus is rarely given in jury instructions – jury might be instructed to consider the elements

  • Untaken Precautions - Mark F. Grady (1989)

    1. court asks, in light of precautions that had been taken, whether some particular precaution promised benefits greater than associated costs

    2. Breach of Duty

      1. ∏'s burden to suggest untaken precautions to be basis for his case

      2. any risk can be included in the calculations as long as it would be reduced by the untaken precaution in question and as long as it was foreseeable

    3. Restatement (Second) - "conduct is negligent because it tends to subject the interests of another to an unreasonable risk of harm. Such a risk may be made up of a number of different hazards, which frequently are of a more or less definite character. The actor's negligence lies in subjecting the other to the aggregate of such hazards."

    McCarty v. Pheasant Run (7C 1987) ∏ was attacked at ∆'s resort when her room was broken into by an intruder, ∏ alleged ∆ had not taken adequate precautions to prevent her injury. ∏ 's motion for j.n.o.v. was properly denied because plaintiff failed to file a motion for directed verdict on the issue of defendant's negligence. The court held that judge is not obligated to admit evidence which does not necessarily support plaintiff's claim that ∆ failed to take adequate precautions to prevent her injury. (Hand Rule)

    1. Role of Custom – generally allowed to guide juries determining reasonableness of conduct

      1. Custom evidence can be used in two ways in negligence cases

        1. ∏ plaintiff may introduce the ∆'s deviation from custom as evidence of ∆'s unreasonable conduct

        2. ∆ may introduce evidence of customary practice to show that their own compliance with custom demonstrates reasonableness

      2. custom evidence points to what a reasonable person would do - if there's a custom that a community of people have come to over a period of time, that's important

      3. if a party wants to introduce custom evidence - you need an expert to testify

    Hagerman Construction, Inc. v. Copeland (INAP 1998) Copeland fell to his death through an uncovered opening on a construction site where he was working. Hagerman objected to witnesses re: industry standards & customs. Court held, "The conduct of other persons in substantially similar conditions may be relevant to the reasonableness, under the circumstances, of a particular individual's acts or omissions. It is therefore proper to receive evidence of others' conduct from which the jury may determine that the conduct under consideration was or was not reasonable in light of all the circumstances."
    Trimarco v. Klein (NYSU 1982) ∏ was severely injured when his bathtub enclosure, which was made of real glass instead of safety glass, shattered. ∆ objected to the admission of testimony regarding custom and usage. Court held evidence of custom and usage "by others engaged in the same business" is submissible in negligence cases. Court reversed b/c of admission of a statute that did not apply to ∆.

      1. Prof Clarence Morris (Custom & Negligence, 1942) - custom has three-fold relevancy

        1. alerts fact finder to the impact on business institutions of a finding of negligence

        2. addresses the feasibility & practicality of alternatives

        3. demonstrates the opportunity or lack thereof to learn of other safeguards

      2. in addition to proving the existence of a well-established custom and defendant's deviation therefrom, the plaintiff must also show that the purpose of the custom is to protect against the kind of harm suffered by the plaintiff

        1. Levine v. Blaine - plaintiff suffered severe injuries when stiff bristles from hand rope used to operate a dumb-waiter lodged in her finger, wanted evidence that the custom was to use smooth rope - court said no, could be other reasons

      3. Customary Security Practices - Anderson v. Malloy - Anderson sexually assaulted in motel room, wanted evidence of security measures at other hotels, court said yes, "circumstances surrounding the usual practice need not be precisely the same as those surrounding the situation at issue; it is sufficient if they are substantially similar" Anderson also wanted evidence that after the incident, defendant installed peep holes & safety chains, admitted because the defendants had contended that such security devises were infeasible

      4. Duncan v. Corbetta - plaintiff injured walking down stairway when step collapsed, wanted evidence that customary practice was to construct w/pressure treated lumber, court allowed as the customary practice may be to make greater safety efforts than those required by minimum safety requirements of the statute

    The T.J.Hooper (2C 1932) (Hand) 2 tugs & 2 barges of coal were lost in a gale, neither tug had a working radio receiver, argued that there is no such industry custom to supply tugs with such receivers. Court held that a lack of custom to take a certain precaution does not preclude liability for negligence.

      1. Rejection of a Patently Unreasonable Custom - mine hole cut without warning or notice (as was the custom) a contractor fell down such a hole and was injured, court held that such a custom would not show that the act was consistent with ordinary prudence - grossly careless - Mayhew v. Sullivan Mining Co.

      2. Mrs. Baird's Bakeries, Inc. v. Roberts - evidence of custom that violates a statute

      3. custom and reasonableness do not necessarily come together

      4. Malpractice - custom evidence in malpractice is typically conclusive on due care issue




      1. ALTERNATIVES TO THE REASONABLE CARE STANDARD (p.150)

    1. Specific Judicial Standards - in directed verdict, a judge determines that no reasonable juror could find that a breach of duty existed or that all reasonable jurors would have to find the existence of a breach of duty - implicitly making judgment re: reasonable conduct under the circumstances

      1. proposal for minimum standards of care to be evolved by judges to substitute for the reasonable care standard (Holmes supported this)

        1. benefits

          1. consistency of verdicts

          2. reliance of insights by seasoned judges

          3. effective deterrence as rules become known

          4. greater efficiency in jury trials

        2. Cardozo - standards would not take into consideration all the variables

    Baltimore & Ohio R.R. Co. v. Goodman (US 1927) (Holmes) - Goodman was crossing a railroad track in his truck when he was hit and killed by a train. His vision was limited but he could see the train for sufficient distance for him to take precautions. Court held burden on man to take precaution. More controversially, it held, "In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look."…
    Pokora v. Wabash Ry. Co. (US 1934) (Cardozo) - Pokora was hit by a train going 25-20 mph driving across a track crossing. The train was obscured from sight by a number of box cars sitting on nearby tracks and the train did not whistle or ring a bell as it approached the crossing. A directed verdict was granted for the ∆ and upheld on Appeal. Supreme Court reversed, holding, "in default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury."

    1. Safety Statutes and Regulations as Standards

      1. quasi-criminal laws - violators pay a fine - often relevant to negligence actions

        1. in most states - the unexcused violation of a safety statute is considered sufficient to satisfy the breach element

        2. may be circumstances when a reasonable person would violate such a rule

    Ferrell v. Baxter (AKSU 1971) - woman's car collided with mack truck on icy road, her passenger sued. She objected to jury instructions which included statutes relevant to traffic regulations. When there is sufficient evidence for a jury to determine that a traffic statute might have been violated, it is relevant to the case. Before a plaintiff is entitled to an instruction defining the violation [of a statute] as a negligence per se, he must first demonstrate that he is among the protected class and, second, that the injury was caused by a harm against which the law was designed to protect. (TWO STEP RELEVANCY TEST) Dissent, better to go with common law tradition of letting jury define the reasonable person.

      1. Statutes – generally silent about civil liability, however…

        1. where legislature explicitly creates civil liability via statute, a court must follow the statute provided it is constitutional

        2. two step relevancy test

          1. demonstrate plaintiff is among the protected class

          2. injury caused by harm against which the law was designed to protect

        3. Judicial discretion -courts are frequently drawn into analyzing the "purpose" of the statute from other sources, such as legislative history or context

        4. Clinkscales v. Carver - if city didn't file the proper documents for a stop sign, statutory negligence still applies – no technicalities

    Wright v. Brown (CTSU 1975) - a dog which had not been properly quarantined after a bite attacked ∏ who sued ∆ for damages. Court held the quarantine statute was intended to protect the general public or, "members of the community, however, the second half of the test fails because the injury is not of the type that the statute was intended to prevent.

      1. Relationship of Statutory Standards to the Reasonable Care Standard

        1. Procedural Effect – different for each jurisdiction

          1. negligence per se (Ferrell) - statute becomes standard of care and violation of the statute constitutes a breach of the standard unless a judicially recognized excuse is proven - limited situations where no excuses are allowed at all

          2. evidence of negligence (Ferrell) - standard of care remains the reasonable person standard and the violation of the relevant statute may be considered by the jury in its breach determination

          3. Presumption of Negligence –violator can rebut by showing the reasonable person would have acted the same way

        2. Compliance - evidence of due care but is not conclusive proof of due care

          1. Restatement 2d - "Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions."

          2. Restatement 3d - "If an actor's adoption of a precaution would require the actor to violate a statute, the actor cannot be found negligent for failing to adopt that precaution."

      2. The Role of Excuses (vary A LOT from jurisdiction to jurisdiction)

        1. Ferrell - "an excused violation of a legislative enactment or an administrative regulation is not negligence" - 5 potential reasons

          1. violation reasonable due to incapacity

          2. actor doesn't know nor should know of occasion for compliance

          3. unable after reasonable diligence to comply

          4. confronted by emergency not due to his own misconduct

          5. compliance would involve greater risk of harm to himself or others

        2. Restatement 2d - In cases where reasonable persons may differ as to the sufficiency of the excuse, it is for the jury to determine whether the conduct is excused under the particular circumstances, under proper instructions from the court."

        3. No-Excuse situations - strict negligence per se applications

          1. child labor laws

          2. pure food and drug laws

          3. hazardous materials safety rules

        4. Getchell v. Lodge (2003 AK) - court upheld jury determination that ∆ driving in lane of oncoming traffic was excused because she was skidding on ice as a result of braking to avoid a moose in her lane of traffic

        5. Sikora v. Wenzel (OH 2000) - ∆ contractor negligence b/c violated a state building code that led to the collapse of a deck - excused b/c contractor neither knew nor had reason to know the factual circumstances that caused the violation

        6. Framework for Using Statutes in Negligence Cases p.172

      3. Negligence Per Se & Child Standard of Care

    Bauman v. Crawford (WASU 1995) - Child on bike at night without a headlight (violation of ordinance) collided with a driver and sued for damages. Judge instructed on special child standard and negligence per se. Court held that the violation can only be used as evidence if it applies at all. Concurrence, negligence per se is stupid, negligence is an issue of fact.


      1. PROOF OF NEGLIGENCE (p.178)

    has the burden to prove breach of duty by a preponderance of the evidence

    1. Circumstantial Proof

    Clark v. Kmart Corp (MISU 2001)- ∏ slipped on a smushed grape on the floor of ∆'s store. Jury awarded her damages, reversed on appeal b/c ∏ had "constructive notice" was there. Court held that where the ∆ had approximately one hour to discover the grape and clean it up, there was sufficient evidence for the jury to decide the negligence issue

      1. Circumstantial Evidence in Negligence

        1. fact finder must make inferences from circumstantial evidence as to a particular negligent act

        2. test, whether jury may legitimately draw and inference: where from the proven facts the nonexistence of the fact to be inferred appears to be just as probable as its existence (or more probable than its existence), then the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be allowed to draw it.

    1. Res Ipsa Loquitur – the thing speaks for itself (standard of evidence, not a doctrine)

      1. circumstantial evidence, based on evidence about the accident, allows jury to infer there must have been some negligent act

    Byrne v. Boadle (EngRep 1863) - ∏ was walking down the street when struck and seriously injured by a barrel of flour falling from ∆'s warehouse. Nobody really knows what happened. Court held that the accident alone can be prima facie evidence of negligence, not likely that negligence wasn’t an issue, and if any facts inconsistent with negligence, it is for the ∆ to prove them.
    Eaton v. Eaton (NJSU 1990) - ∏ killed in car accident. ∆ denied being driver and claimed they had been avoiding an oncoming car, this was likely untrue. Given that ∆ was found to be the driver and that there was no acceptable reason for the car to go off the road and flip, a res ipsa loquitur instruction was appropriate.

      1. Restatement 2d test for res ipsa loquitur:

        1. the event is of a kind which ordinarily doesn’t occur w/o negligence

        2. other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence (possibility doesn't have to be completely eliminated, but likelihood must be so reduced that a jury can reasonably find negligence lies at ∆'s door)

        3. the indicated negligence is within the scope of the ’s duty to the

      2. Bottom Line - the harm probably was caused by negligence and the defendant was probably the responsible party – allows ∏ to get to the jury without proving a specific act of negligence - jury MAY infer negligence, but is NOT REQUIRED to infer

    Harder v. Clinton (OKSU 1997) ∏'s sister became very ill after an overdose of a medication while living at a nursing home. The court held that the ∏ had met the requirements for res ipsa loquitur to be an option, trier of fact decides between favorable inferences and any refutational evidence presented by ∆. Trial judge should not have granted demurrer.

      1. Res Ipsa Defenses

        1. defeat the existence of res ipsa loquitur by showing that one of the elements cannot be established

        2. show that they exercised due care

        3. show the actual cause of the accident

        4. burden of production - ∆ has to say SOMETHING, but doesn’t have to prove anything

      2. The Defendant's Responsibility - The "Control" Element

        1. ∏ must connect the ∆ to the harm-causing event, ∏ has burden of proof

        2. Control doesn’t need to be exclusive - party's negligence may be inferred when 'other responsible causes are sufficiently eliminated by the evidence.'

          1. Parillo v. Giroux - ∏, bartender, seriously injured when a bottle of grenadine exploded in his hand when he tried to open it - court held that a ∏ didn't need to exclude all possible conclusions beyond a reasonable doubt - enough to make out a case from which the jury may reasonably conclude that the negligence was, more probably than not, that of the ∆

          2. Giles v. City of New Haven - ∏ injured when elevator fell - permitted to show the ∆'s control even though many others used the elevator

      3. Elements of Res Ipsa Loquitur

        1. Inference that Someone was Negligent

          1. accident ordinarily doesn't occur without someone's negligence

          2. proof: facts of accident, common knowledge, common sense, experts

          3. ∆ would usually be in better position for info than ∏

        2. Inference that ∆ was Negligent -

          1. apparent cause of the accident is such that the ∆ would be responsible for any negligence connected with it

          2. jury must be able to find that more likely than not the ∆'s negligent conduct or omission caused the accident

          3. proof: evidence of ∆'s exclusive control, if possible; evidence that negligence likely occurred when instrumentality was under the control of the ∆; disprove possible negligence of third parties; remove the ∏ as a possible contributor (or at least less than 50% responsible in comparative negligence)

    Ybarra v. Spangard (CASU 1944) - after ∏ had appendectomy, he suffered paralysis and atrophy from a shoulder injury, he sued several ∆'s for negligence - ∆s argued that the blame could not be scattered amongst them all & ∏ needed to be specific about exclusive control. Court held that where a ∏ receives unusual injuries while unconscious and in the course of medical treatment, all those ∆s who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. Res ipsa loquitur fits.

      1. Maki v. Murray - hospital cases are exceptional and res ipsa loquitur should apply with equal force where doctors and nurses take the place of machinery and can injure patients who are then in no position to say who injured them

      2. G - this case is famous, Barrett v. Emanuel Hosp. - rejected Ybarra - "The only inference res ipsa loquitur permits is the ultimate fact of negligence, and that inference is permitted only when the ∏ is able to establish by proof, inter alia, the probability that a particular ∆'s conduct was the cause of the ∏'s harm."

    2.08 STANDARD OF CARE IN PROFESSIONAL MALPRACTICE (p.204)



    1. Overview

      1. negligence law treats professionals differently than "non-professionals"

      2. custom sets the standard of care - deviation from custom constitutes breach of duty

      3. G - to succeed with either malpractice claim, ∏ must have all five elements of negligence

    2. Negligence Medical Performance

    Velazquez v. Portadin (NJSU 2000) ∏'s daughter was delivered after Pitocin had been administered for 1 1/2 hours. While Pitocin is administered the mother must be closely monitored to prevent injury to the baby. ∏ alleged that ∆s had deviated from the accepted standard while administering the drug to ∏. Trial court held for ∆ and Appellate affirmed. Here the court remanded b/c jury instruction had not taken into account each issue that was raised with regard to the accepted practice and the actual behavior of the ∆s. Stated, "trial court's failure to untangle the facts in relation to the medical judgment charge left the jury free to excuse ∆s based on the evidence of judgment in areas where no judgment was exercised." – ensuring readable results/detecting distress aren’t choices

      1. when a doctor selects one of two courses, either one of which has substantial support as proper practice, a claim of malpractice cannot be predicated solely on the course pursued.

      2. a doctor who departs from standard medical practice where no judgment is permitted cannot excuse himself from by saying that it wan an exercise of judgment

      3. Expert Testimony, ∏ must provide expert testimony to show:

        1. customary practice

        2. ∆'s deviation from customary practice

        3. expert must show that she has knowledge of the customary practice in the area of medicine practiced by the ∆ in the relevant geographical area - whether the allegations of negligence concern matters within his knowledge and observation

      4. Common Knowledge - jury is permitted to find negligence based on nature of the events that brought about the harm without expert testimony - often these common knowledge exceptions involve proof by res ipsa loquitur

      5. Medical res ipsa – expert can be needed to show it doesn’t usually happen

      6. Locality Test – somewhat abandoned – national standard for specialists

      7. Inherent Risks – professional is not negligent for risks inherent in treatment unless there’s an indication that the risk has been likely to be the result of negligence

    1. The Doctrine of Informed Consent

    Phillips v. Hull (MISU 1987) ∏ was a diabetic and was sterilized by ∆ because pregnancy would be very risky to her and the baby. ∏ thereafter became pregnant and delivered a baby who she claims has cerebral palsy. ∏ sued claiming that ∆ was negligent in performing the procedures of delivery & sterilization and that the ∆ failed to secure informed consent. ∏ produced no expert witnesses so trial court granted ∆ summary judgment. Court held w/o experts the negligent performance claim couldn't go forward but informed consent was an issue of fact. The test for informed consent is whether or not a reasonably prudent patient, fully advised of the material known risks, would have consented to the suggested treatment.

      1. Canterbury v. Spence - "every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits and assault for which he is liable in damages.” (Cardozo)

      2. prudent patient standard - a physician must disclose those known risks which would be material to a prudent patient in determining whether or not to undergo the treatment

        1. two approaches - these speak to causation

          1. objective - would a reasonable person have made a different decision had the information been disclosed - experts would have to speak about risks/consequence

          2. subjective - would THIS person have made a different decision had the information been disclosed - ∏ takes the stand – credibility questions - experts speak to whether the individual is believable

      3. Disclosure should include: Diagnosis; nature & purpose of proposed treatment; risks & consequences of the proposed treatment; probability that the proposed treatment will be successful; feasible treatment alternatives; prognosis if the proposed treatment is not given

      4. Emergencies Are DIFFERENT

      5. don’t need medical expert affidavits to go forward with informed consent

    1. Legal Malpractice & Liability of Other Professionals

      1. non-medical professionals are largely expected to conform to the customary practices of their profession - failure to do so is negligence

      2. expert testimony typically required to establish the custom and the ∆'s deviation therefrom

    Smith v. Lewis (CASU 1975) ∏ employed ∆ to represent her in divorce proceedings. ∆ did not include federal and state retirement benefits in his filing until ∆ forced him to, at which time it was too late. The court held that the ∆ was negligent in not knowing the state benefits were considered community property and not adequately researching the federal benefits issue. It was properly left to the jury to determine whether this negligence caused the damages to the ∏. “There is nothing strategic or tactical about ignorance.”

      1. Experts - generally required, some acts of legal malpractice, such as failing to file a complaint within the statute of limitations, may be so clearly wrong that they fall within a common knowledge exception

      2. G - cause in fact hurdle - you have to show that your lawyer fell beneath his duty and that ALSO if he hadn't you would have won

    3.01 GENERAL DUTY OF REASONABLE CARE (p.240)



    1. Development of general duty principle

      1. before negligence became an independent tort - liability for inadvertent harm only existed in narrow situations where a party's assumption of a status towards another carried with it the obligation to exercise reasonable care - public callings - innkeeper, surgeon, attorney, etc

      2. certain contexts, no duty at all, or very limited duty - landowner's duty to persons entering

      3. G - existence of duty is for the court to determine, not the jury

      4. G - historical backdrop of duty the exception, not duty the rule - now complete flip flop

    2. General Duty of Reasonable Care

    MacPherson v. Buick Motor Co (NYSU 1916) (Cardozo) - ∆, car manufacturer, sold car to dealer, who sold car to ∏. car's defective wheel broke and ∏ was injured. Court held that the presence of a known danger, attendant upon a known use, makes vigilance a duty. Test: there must be knowledge of probable danger, must be knowledge that in the usual course of events the danger will be shared by others than the buyer, manufacturer must fail in his duty of inspection. (birth of modern product liability)Dissent - this is the same as long history of cases that demand privity, there is no privity here.

    Thomas v. Winchester - poison falsely labeled, ∆'s negligence put human life in imminent danger (Majority)

    Winterbottom v. Wright - mail coach driver was injured when coach collapsed because of improper maintenance of the vehicle - court decided that the coach driver couldn’t sue the repair service operator, despite his likely negligence, because there was no privity of contract

      1. 2 Cooley - "general rule is that a contractor, manufacturer, vender, or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of such article." (Dissent)

      2. NOW - generally speaking, there's a duty, but there are still pockets where there is no duty

      3. Duty Goals: allocation of loss, fairness, deterrence or accident avoidance, economic considerations, administrative concerns related to the legal process, legislative considerations - Considerations: foreseeability, morality

    1. American System of Precedent

      1. Precedent as a Rule - allowance must be made for distinguishing cases, modifying holdings, and the occasional overruling of cases

      2. Binding Nature of Precedent - two options for judges

        1. rule spelled out in the language of the earlier court

        2. rule based on what the court did in the case despite use of broader language

        3. judges may use one for making use of precedents that are helpful and the other for dealing with precedents that are troublesome

    3.02 LIMITED DUTY RULES (p.254)



    1. Limited Duty: Duty to Act, Assist, or Rescue

      1. duty of reasonable care if ∆ has engaged in affirmative conduct that created the risks of harm that resulted in an accident

        1. misfeasance - risks of harm arose out of one's conduct

        2. nonfeasance - risks of harm do not arise out of one's conduct

        3. courts allow claims on misfeasance and disallow claims premised on nonfeasance

      2. exceptions to misfeasance/nonfeasance rule

        1. special relationships (with perpetrator or victim)

          1. dependency & interdependency (parent/child, teacher/student)

          2. contractual relationships where party has agreed to provide aid

        2. situations where a party has voluntarily begun to assist (two approaches)

          1. no liability if volunteer quits, leaving the party no worse off than before

          2. volunteer held to standard of reasonable care, can’t quit that’s unreasonable

        3. where statute imposes a duty to assist (helping police/fire, accidents, reporting)

        4. innocent prior conduct creating the risk

        5. reliance on a gratuitous promise

        6. intentional prevention of aid by others

    Yania v. Bigan (PASU 1959) ∏ went to discuss business with ∆, ∆ asked ∏ for help with a pump. ∆ verbally cajoled ∏ into jumping into more than 8 ft of water, ∏ drown. Court held that ∆ was under no duty to help him and that, because ∏ was a fully capable adult, ∆ was not guilty for cajoling him to jump. "The result of his ignorance, or of his mistake, must rest with himself-and cannot be charged to the defendants."
    Farwell v. Keaton (MISU 1976) - ∏ and ∆ went out drinking, ∏ got in an altercation and suffered a serious head injury. ∆ gave ∏ ice and drove around for awhile before ∏ fell asleep in the back seat and ∆ left the car in ∏'s driveway. ∏ was discovered in the morning and died three days later. Court held that whether there was a duty or not was a fact issue for the jury and that the
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