Duty
In order to make out a prima facie case for negligence, the plaintiff must actually prove that under the particular circumstances surrounding the defendant's action, the defendant owed that particular plaintiff a duty under the law not to act negligently.
TRUE or FALSE
TRUE
If D behaves negligently and thereby causes P severe injuries, but it is found that D did not owe P any duty not to behave negligently, then D will not be liable for negligence.
Define breach.
Where the defendant’s conduct falls below the applicable standard of care, the defendant has breached his duty. This means that the defendant created an unreasonable risk of harm.
Define cause-in-fact aka actual cause?
the plaintiff's injury was actually caused by the defendant's negligent conduct.
The negligent conduct of the defendant need not be the only cause of the injury, but it must be a
substantial factor in bringing about the injury.
Thus, it is not enough to prove that the defendant’s conduct was negligent. The plaintiff must also prove that the defendant’s negligent conduct was the cause of the plaintiff’s injury.
the causal relationship between D's conduct and P's injury is close enough that it is fair to hold D liable for the injury.
A 12-year-old child took his father’s car keys, got into the car, started it, and pulled out of the driveway onto a busy street. When the child came to an intersection, he failed to stop at a red light and collided with another car. The other driver was injured.
What is the standard of care that the child most likely owed to the other driver?
A. The care that would be used by a reasonable, prudent adult.
B. The care that would be used by a reasonable, prudent child.
C. The care of a child of the same age, intelligence, and experience.
D. The care of a reasonable, prudent adult in an emergency.
A. The care that would be used by a reasonable, prudent adult.
One of the elements of an ordinary negligence claim is whether the defendant acted with reasonable care under the circumstances. This means, in a negligence action, courts generally measure the defendant’s conduct against that of a reasonable man. If a child is engaged in an activity typically only engaged in by adults, and if the activity is one that creates a significant risk of harm to others, then the child is held to the adult standard of care. Adults are held to an objective reasonable-person standard of care in negligence lawsuits.
Here, driving a car is an activity that typically only adults do and that creates a significant risk of harm to others. Therefore, the child will be held to the adult standard of care while engaged in this typically adult activity: the care that would be used by a reasonable, prudent adult. Answer options B, C, and D are necessarily incorrect for the same reasons.
Answer option B is further incorrect because it does not even state the correct standard of care for a child. Although adults are held to an objective, reasonable-person standard, the standard of care for children is subjective. This means that although some of an adult defendant’s attributes are not considered because they are not part of the objective standard (e.g., insanity or mental disabilities), all of a particular’s child’s attributes are always relevant. A child will be held to the standard of a person of the same age, intelligence, and experience as that particular child. See Restatement (Second) of Torts § 283A. Accordingly, if the child had not been engaged in a typically adult activity here, then the standard set out in answer option C would have been the correct standard (the care of a child of the same age, intelligence, and experience).
Answer option D is further incorrect because the facts do not establish that there was an emergency. However, if there had been an emergency, then the existence of an emergency would have been part of the overall circumstances considered in determining whether the defendant acted reasonably and met the usual standard of care.
(1) D violated a statute
(2) The statute was designed to protect against the same type of accident that D's conduct caused and
(3) The accident victim falls w/in the class of persons the statute was designed to protect.
The duty element is generally determined by reference to the “reasonable person” standard. What does that mean?
This means that the defendant must behave as an ordinary, prudent, reasonable person under the circumstances. It is presumed that an ordinary, prudent, reasonable person will take precautions against creating unreasonable risk of injury to other persons.
What is the Learned Hand Formula?
B < P x L = Negligence
If B (burden of taking precautions) is less than P (the probability of occurrence of injury) multiplied by L (the gravity of injury which may occur), then an individual is liable in negligence for failure to take precautions.
What are the tests for cause-in-fact/actual cause?
(1) But for: But for D's negligent conduct, the harm to P would not have occurred (had D not acted negligently, P’s injuries would not have resulted).
(2) Substantial factor
The proximate cause requirement is based on the rationale that a D even if he
behaved negligently should not be liable for all consequences that are improbable or
far reaching.
TRUE OR FALSE
TRUE
This is the essence of what proximate cause tries to do; it tries to make sure that the causal nexus between the defendant’s conduct and the plaintiff’s injury is not too attenuated or remote to justify imposing liability on the defendant for the plaintiff’s injury.
Mr. Farmer decided that he needed to build a barn on his property. He set it up himself and had the whole thing built in a couple of weeks. While he was building the barn, several neighbors came by and began to make suggestions. Their comments were generally of the nature that they did not believe that the barn was of sturdy construction. In fact, several of the neighbors suggested that the barn was being built in a manner that was substantially different from that which was usually constructed by farmers. It was not of the type generally built in that area. Mr. Farmer, on several occasions, responded, "I'm using my own best judgment on this barn. It will fit my needs."
After the barn had been finished for only a couple of weeks, it all came crashing down one night. Since the barn had been built with logs, those logs went rolling everywhere. It would not have been as much trouble, but several of the logs rolled off Farmer's land, onto the neighbor's land, and did damage to the neighbor's fencing.
A. Farmer will win since he used his own best judgment.
B. Neighbor will win since Farmer failed to use the care of a reasonable person.
C. Farmer will win since he has a privilege to use his property in any way he sees fit.
D. Neighbor will win since Farmer is liable for harm caused by any thing that escapes from his property.
B. Neighbor will win since Farmer failed to use the care of a reasonable person.
The duty in negligence requires that a person exercise the care of a reasonable person. In this case, the failure of Farmer to use reasonable care and his decision to use his own best judgment will lead to liability. This example is similar to the case of Vaughan v. Menlove, 3 Bing. (N.C.) 467, 132 Eng. Rep. 490 (Court of Common Pleas 1837).
The Restatement sets forth the basic rule: “An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious.”
Which restatement is this?
(Restatement (Third) of Torts § 29.)
A man owned a golf club. He left it laying in the backyard of his home. His young son found the club and swung it at a stone. The club struck a girl in the face. She sued both the son and the father for negligence. She alleged the father had a duty not to leave the club in the yard where children would discover and play with it.
The question whether the plaintiff can succeed in an action of negligence against the father will turn on whether he had a duty toward her. She could allege that the father's duty was to remove the golf club from the yard, or to warn his son against use of the club.
Did the defendant father have a duty toward the plaintiff?
A. No duty. The defendant did not create any risk of harm.
B. No duty. The defendant did not create an unreasonable risk of harm.
C. Duty. The defendant created an unreasonable risk of harm.
D. Duty. The defendant created a risk of harm.
B. No duty. The defendant did not create an unreasonable risk of harm.
To be negligent, a person must create an unreasonable risk of harm to another. In that manner, a duty arises.
So, was this risk unreasonable? The court in the old chestnut case Lubitz v. Wells, 19 Conn. Super. 322, 113 A.2d 147 (1955), thought not. One could hardly reasonably foresee that leaving an object not intrinsically dangerous laying about would cause injury. If you don't agree, think of a garden hose. A child could conceivably pick up a hose, twirl it around over his head, and strike a playmate. Would you contend that any person who leaves a garden hose unattended in the yard creates an unreasonable risk of harm to others? Does any person who owns a set of golf clubs create an unreasonable risk by not keeping them locked away in a closet? How about not padlocking the knife drawer in the kitchen?
A builder was building a house in a state that had not had a tornado in 100 years. Due to that fact, the builder decided not to use special roofing nails that were rated to withstand the most severe tornado winds. The special nails would have added $100 to the total cost of the project. The homeowner moved into the house after it was built. A few weeks later, a tornado struck, the nails failed, and the roof was destroyed. The homeowner sued the builder for negligent construction of the roof.
On the issue of breach, the builder is only likely to prevail if the court weighs which of the following factors most heavily?
A. The probability of harm from the builder’s conduct.
B. The severity of the potential harm from the builder’s conduct.
C. The burden on the builder of following a course of conduct that would have prevented the harm.
D. The severity of the actual harm suffered by the homeowner.
A. The probability of harm from the builder’s conduct.
To establish breach, a plaintiff must generally prove three things: (1) what actually transpired at the time of the alleged breach; (2) the standard of care to which the defendant should have conformed his conduct; and (3) that the defendant's conduct was unreasonable (usually proved by establishing that an alternative course of conduct suggested by the plaintiff is reasonable).
To determine if a plaintiff’s suggested alternative course of conduct is reasonable, most courts will engage in an equitable balancing of factors; the classic version of this analysis is the three-factor test laid out by Judge Learned Hand, which weighs (1) the probability of harm from the defendant’s conduct, (2) the potential severity of the harm from the defendant’s conduct, and (3) the costs or burden that would have been incurred by the defendant (and society) from conforming to the suggested alternative.
Here, the low probability of harm from the builder’s course of conduct, because the state had not had a tornado in 100 years, weighs heavily in the builder’s favor on the issue of whether the builder breached a duty owed to the homeowner. Answer option B is incorrect because the potential harm in this case—the roof failing—is severe. This factor would support the homeowner’s case rather than the builder’s case. Answer option C is incorrect because the burden of acting in a manner that would have prevented the harm—using the slightly more expensive special roofing nails—would have been very low. The builder needed to use nails regardless, so it may have made sense to use the special nails rated for tornado winds. Accordingly, this factor also supports the homeowner’s case rather than the builder’s case. Answer option D is incorrect because the severity of the actual harm suffered by a plaintiff is not a factor in determining whether the defendant breached a duty of care. Instead, it is the severity of the potential harm, which should have been foreseeable to the defendant at the time of the allegedly negligent conduct, which is relevant.
When do you apply the "but for" test?
The but for test applies where several acts combined to cause the injury, but none of the
acts standing alone would have been sufficient.
Defendant, driving carelessly, collides with a car driven by X. Unbeknownst to Defendant, the car contains dynamite, which explodes. Ten blocks away, a nurse who is carrying Plaintiff, an infant, is startled by the explosion, and drops the infant.
Will Plaintiff succeed in the claim for negligence against Defendant? Why?
P will not be able to recover against D, because the episode is so far-fetched – it was so unforeseeable that the injury would occur from D’s negligence --that courts will hold that D’s careless driving was not the “proximate cause” of P’s injuries.
A professional truck driver hauling freight was descending a steep mountain pass when his brakes stopped working. Instead of trying to make it to the next runaway truck ramp, the truck driver panicked and dove from the cab of the vehicle before the truck picked up more speed. The truck continued downhill without a driver, causing several accidents before it veered off the roadway and crashed. In the ensuing negligence action, the truck driver argued that his action of diving out of the moving truck met the standard of care under the circumstances because of the emergency situation caused by the brake failure. An investigation revealed that the truck driver had negligently failed to maintain an adequate level of hydraulic braking fluid in the truck, resulting in loss of braking power. This loss of power is what had caused the truck’s brakes to stop working.
Is it likely that the emergency created by the brake failure will affect the court’s determination of whether the trucker’s action of diving from the runaway truck was reasonable?
A. Yes, because the existence of an emergency will alter the standard of care applied by the court.
B. Yes, because the existence of an emergency is part of the overall circumstances in determining whether a defendant acted reasonably, but an emergency does not actually alter the standard of care.
C. No, because the reasonable man always behaves rationally, even in the face of an emergency.
D. No, because the emergency was a reasonably foreseeable result of the truck driver’s negligent failure to maintain adequate brake fluid.
D. No, because the emergency was a reasonably foreseeable result of the truck driver’s negligent failure to maintain adequate brake fluid.
One of the elements of an ordinary negligence claim is whether the defendant acted with reasonable care under the circumstances. A court will determine what is considered reasonable care in the circumstances of a particular case by looking at certain things. For example, although the existence of an emergency does not alter the applicable standard of care (which is typically reasonableness), the existence of an emergency is part of the overall circumstances considered in determining whether the defendant acted reasonably and met the usual standard of care. This makes sense because a reasonable man will alter how he behaves in light of an emergency. Particularly, an emergency usually allows for much less deliberation or reflection than the reasonable man would exercise outside of the emergency situation. Thus, courts usually allow some lenience about what conduct is considered reasonable if a defendant had to make a decision in an emergency situation. However, if the emergency was the reasonably foreseeable result of the defendant’s own negligence, some courts will not consider the emergency situation in evaluating whether the defendant acted reasonably. Thus, courts will not be lenient in deciding what was reasonable conduct under emergency circumstances if the defendant himself negligently caused the emergency.
Here, the emergency situation has no impact on the standard of care that the court will use, but it could potentially impact whether or not the driver met that standard of care. For example, if the driver had not caused the emergency situation, then the court would likely consider the existence of an emergency situation as part of the overall circumstances in determining whether the driver acted reasonably or not when the driver dove from the truck’s cab (and be more likely to find that the driver’s action was reasonable and met the standard of care). However, here, the driver did cause the emergency situation. Specifically, the driver negligently failed to maintain an adequate level of hydraulic braking fluid, which foreseeably resulted in the brake loss and the emergency situation of a runaway truck. Therefore, because the driver himself negligently caused the emergency situation, the emergency created by the brake failure is not likely to affect the court’s determination of whether the driver’s action of diving from the truck was reasonable or not.
Answer options A, B, and C are necessarily incorrect for the reasons discussed above.
What is res ipsa loquitur?
Res ipsa loquitur literally means “the thing speaks for itself.” Res ipsa loquitur is a way to prove breach without knowing exactly what the breach was, or exactly what the defendant did that was negligent.
The elements are:
(1) The kind of accident that occurred only tends to occur if someone in the defendant's position breaches a duty of care to someone in plaintiff's position.
(2) Potential causes of the injury other than the defendant's negligence, especially the plaintiff's negligence or recklessness, are eliminated by the evidence.
What is the "reasonable person" standard for a person with mental disabilities?
Defendant must act as would a person with average mental ability. Unlike the rule as to physical characteristics, individual mental disabilities are not considered, especially if D had some general knowledge of the looming insanity. Generally, insanity is not considered a defense, unless it struck w/o warning.
Plaintiff's decedent was a passenger in defendant's airplane. The plane disappeared over the ocean. Although some wreckage was recovered, no cause of the crash was ever found. The weather was clear and calm. No distress call was broadcast. Physical evidence was inconclusive. When plaintiff estate administrator sued defendant airline for negligence, defendant admitted having a duty of reasonable care. Defendant denied breaching that duty. How will the breach of duty question be resolved?
A. Plaintiff will win because defendant has the burden of production on the issue.
B. Plaintiff will win because of the doctrine of res ipsa loquitur.
C. Defendant will win because plaintiff has the burden of production on the issue.
D. Defendant will win because this is only a trespass on the case.
B. Plaintiff will win because of the doctrine of res ipsa loquitur.
The burden of going forward with the evidence (burden of production) will almost certainly be placed on the plaintiff. Dobbs § 9.5. The doctrine of res ipsa loquitur (the thing speaks for itself) will allow the plaintiff to carry that burden and reach the jury.
When do you apply the substantial factor test?
(1) multiple acts or forces combine, at the same time, to cause an injury, and (2) each would have been sufficient to independently cause the injury.
What are the two types of proximate cause, and the definition?
(1) Intervening Cause a force which takes effect after D’s negligence, and which contributes to that negligence in producing P’s injury.
(2) Superseding Cause an intervening cause that is sufficient to prevent D from being negligent (since it supersedes or cancels D’s liability).
As suggested by the Restatement of Torts, a professional is held to the standard of the skills and training of other qualified professionals.
With that standard in mind, consider the following question.
Ms. Pilot was the head pilot for a charter company called "Wing 'em Air." They would fly anywhere, anytime. On the day of the accident, she was schedule to fly three people from Cincinnati to St. Louis. She loaded the people and checked the plane over. The baggage load was a little heavy for the plane, but Ms. Pilot had flown that amount of weight before. She thought it would be sufficiently safe for that short trip.
As the plane tried to take off, it strained, barely left the ground and then crashed. No one was killed, but everyone suffered serious injuries. Several of the passengers sued Ms. Pilot. In her deposition, Ms. Pilot said that she had being flying for 27 years and had substantial experience in that particular type of aircraft. Although she knew the plane had a heavy load, she stated that from her experience, it should not have been a problem.
An expert hired by the plaintiffs is ready to testify that the load was actually too heavy for the airplane. He will state that other pilots would not have tried to take off with that much weight.
Assuming the finder of facts gives credit to the expert testimony, which of the following is the best answer.
A. Ms. Pilot should win since her judgment was based upon years of experience.
B. Ms. Pilot should lose since she failed to perform as other professionals would have performed.
C. Ms. Pilot should win since she exercised greater skills then the ordinarily, reasonable person.
D. Ms. Pilot should lose since professionals guarantee safe results.
B. Ms. Pilot should lose since she failed to perform as other professionals would have performed.
The standard of care for a professional is the care, skill and training of other professionals. Since there will be testimony that other professionals would not have flown with that weight, Ms. Pilot should not have flown. She will lose.
We have mentioned medical malpractice several times. Before leaving the general professional standard, however, try to apply the general professional negligence material to a medical malpractice question.
Dr. Feelgood was a competent, well known physician in a small, rural community. He had been educated at the finest Medical School in the nation and completed the most demanding practical training. He returned to his small, home town to help the local people. One day, George Farmer came into the doctor's office complaining of a sore knee. It seems that George had twisted his knee while working in the fields. Although most doctors in the larger cities would have immediately x-rayed the knee, Dr. Feelgood knew his patients well. He knew that George would not want to spend the money or the time with such tests. Dr. Feelgood felt the area around the knee and decided it was a minor injury. The doctor suggested that George ice the knee down, and sent George home. About a week later, George was back in Dr. Feelgood's office complaining of a very sore knee. Dr. Feelgood looked at the knee and was concerned. The knee was extremely swollen and turning shades of blue and green. An x-ray revealed the problem. George had torn several ligaments and would require surgery. Because of the delay in proper diagnosis, George will suffer some permanent injury.
Mark the statements below which are correct statements.
(1) Since Dr. Feelgood practices in a small town, he will be held to the standard of care of other small town doctors.
(2) Although he practices medicine in a small town, Dr. Feelgood will be held to the standard of care of the physician practicing on a national level.
(3) Since Dr. Feelgood had the best training available, the court will allow Dr. Feelgood to rely on his own judgment as to what was best for the patient.
(4) Since patients in the rural community would not want to spend the time or money for x-rays, Dr. Feelgood did the right thing in just deciding to avoid the x-ray on the first visit.
(5) The plaintiff, George, will probably need to bring in another doctor to testify that a physician in good standing would have ordered an x-ray on the first visit.
(1) Since Dr. Feelgood practices in a small town, he will be held to the standard of care of other small town doctors. (INCORRECT) Although professionals were once held to a "local" standard, medical professionals are held to national standard. Dr. Feelgood will be measured against other physician on a national basis.
(2) Although he practices medicine in a small town, Dr. Feelgood will be held to the standard of care of the physician practicing on a national level. (CORRECT)
(3) Since Dr. Feelgood had the best training available, the court will allow Dr. Feelgood to rely on his own judgment as to what was best for the patient. (INCORRECT) The law of torts just does not allow people to be judged by their own best judgment. If we assumed that Dr. Feelgood had such wonderful training that he would always do the right thing, we would be allowing him to be judged by his own best judgment. The law will measure Dr. Feelgood's conduct against the usual physician.
(4) Since patients in the rural community would not want to spend the time or money for x-rays, Dr. Feelgood did the right thing in just deciding to avoid the x-ray on the first visit. (INCORRECT) The statement suggests that Dr. Feelgood is entitled to do a little risk/utility analysis for his patients. Since risk/utility seems to be everywhere in tort law, the statement seems right. It is not. Dr. Feelgood cannot make those decisions for his patients. The patient is entitled to make those decisions for himself. In addition, the courts may decide, at times, that some treatment or tests should be run because the risk of future injury is great and the ease of performing the test or treatment is less then the risk. Again, however, the law would not favor allowing Dr. Feelgood to make that decision alone.
(5) The plaintiff, George, will probably need to bring in another doctor to testify that a physician in good standing would have ordered an x-ray on the first visit. (CORRECT) This statement raises that little evidence problem. Since the typical lay juror would not know when it was appropriate to order x-rays, the jury would need the help of an expert witness. George would have to get another doctor to offer evidence of the typical practice and procedure of physicians.
What is the "reasonable person" standard for children?
A child is required to conform to the standard of care of a child of like age, intelligence, and experience. This permits a subjective evaluation of these factors. It is unlikely a court would view a child below the age of five as having the capacity to be negligent, unless a child engages in a potentially dangerous activity that is normally one that only adults engage in.
Julio attended the matinee movie at the Fox Theatre. He sat upstairs in the balcony. After the movie, as he descended the balcony stairway, he fell seriously injuring his head causing loss of consciousness and permanent loss of memory as to how the accident occurred. There were no eyewitnesses to the fall. In Julio's case in chief, his evidence demonstrated that the Fox Theatre negligently failed to light the stairway in a proper manner leaving numerous dark areas and shadows. His evidence also demonstrated that the Fox Theatre had provided no handrails to assist their patrons in ascending or descending the stairs. Fox defended by arguing that even though they may have been negligent, Julio failed to prove that their negligence was a cause in fact of the fall. They further postulate that Julio may have fallen due to his own clumsiness or negligent inattention. Under these facts, could Julio get to a jury and could that jury hold Fox liable for Julio's injuries?
YES OR NO
YES
Of course, it would be more satisfying if the plaintiff could describe fully the event so that the causal connection could be more clearly established. But cases are not necessarily lost simply because direct evidence as to every detail is unavailable. Circumstantial evidence may be sufficient to allow the fact finder to draw an inference of the cause in fact connection. In a case involving facts virtually identical to these, the court in Reynolds v. Texas and Pacific Railway Co., 37 La. Ann. 694 (1885), held:
"...Where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury and the courts, in such matters, consider the natural and ordinary course of events and do not indulge in fanciful suppositions."
What is the Superseding Cause Test?
If D should have foreseen the possibility that the
intervening cause (or one like it) might occur, or if the kind of harm suffered by P was foreseeable (even if the intervening cause was not itself foreseeable), D’s conduct will nonetheless be the proximate cause.
But, if neither the intervening cause nor the kind of harm was foreseeable, the intervening cause will be a superseding one, relieving D of liability.
E.g., D leaves his keys in the ignition, and the car unlocked, while going into the store to do an errand. X comes along, steals the car, and while driving fast to get out of the neighborhood, runs over P. If the court believes that the risk of theft is one of the things that makes leaving one’s keys in the ignition negligent, the court will almost certainly conclude that X’s intervening act was not superseding.
A person is found dead on the tracks after defendant railroad's train has passed. No other evidence is available. The deceased person's administrator brings a wrongful death action against the railroad. Is this sufficient proof for the case to go to the jury?
YES OR NO
NO
Plaintiff must offer evidence to prove negligence, and these bare facts don't do it.
The mere fact that an accident or an injury has occurred, with nothing more, is not evidence of negligence on the part of anyone. The fact that a man is found dead upon a railway track after a train has passed is no proof that the train was run without proper care. . . . As long as the conclusion is a matter of mere conjecture, or where the probabilities are at best evenly balanced between negligence and its absence, it becomes the duty of the court to direct the jury that the burden of proof has not been sustained.
Prosser & Keeton § 39, at 242.
A municipal ordinance required that all commercial building owners keep their properties’ adjacent sidewalks, driveways, and parking lots free from snow and ice. A motorist’s car skidded on a hardware store’s icy driveway and collided with a retaining wall, causing damage to the car. The motorist brought a negligence action against the hardware store.
Which of the following arguments, assuming it is properly supported, would be the hardware store’s strongest argument that the municipal ordinance does NOT replace the general standard of reasonable care?
C. Compliance with the statute was beyond the hardware store’s control.
D. The hardware store’s staff did not know the driveway was icy.
A. The motorist was not within the particular class of persons that the statute was designed to protect.
The hardware store's strongest argument that the municipal ordinance does not replace the general standard of reasonable care (i.e., that negligence per se does not apply) is that the motorist was not within the particular class of persons that the statute was designed to protect. Negligence per se has three prerequisites that must be satisfied in order for a court to properly adopt a statutory standard in place of the usual reasonable-care standard. First, the statute must prohibit or require some conduct. Second, the plaintiff must be within the particular class of persons the statute was designed to protect. Third, the harm that befell the plaintiff must be the specific harm the statute was designed to avert.
See Restatement (Third) of Torts § 14; Restatement (Second) of Torts §§ 286, 288B(1).
Accordingly, the hardware store’s strongest argument here is that the statute was not designed to protect motorists such as the plaintiff. If successful, this argument would bar the use of the negligence per se doctrine in the motorist’s case, and the municipal ordinance would not replace the general standard of reasonable care.
Answer options B, C, and D are all incorrect because they are exceptions to the negligence per se doctrine, which allow courts, in their discretion, to refuse to apply the doctrine even though all of the prerequisites are met. Answer option A presents a stronger argument than any of these exceptions because it concerns one of the prerequisites to the negligence per se doctrine and would therefore preclude the use of the doctrine in the motorist's action.
Lois Lawyer was a hard working member of the legal profession in her town. She tried to limit her practice to those things she knew best. She was a plaintiff's personal injury lawyer. Her case load over the past year included a simple rear end collision automobile case. She was representing the party that had been hit in the rear. When the defendant's insurance company made a very low offer of settlement (they offered to pay for the automobile damage but not the plaintiff's medical bills), Lois recommended to her client that they not accept it. Lois, as did most lawyers in the town, assumed that juries would award higher damages. Her experience indicated that the jury would find the defendant liable and then award damages for the property damages and the personal injury damages. Lois explained all of this to her client, explained that the client gets to decide whether to accept the offer, but suggested that the jury would probably award more. The client agreed, and they went to trial.
The trial was a disaster. Although Lois did an outstanding job, the facts were against them. It turns out that Lois' client had been drinking, was driving erratically, and was a partial cause of the accident. The client's own negligence resulted in the final award being reduced. In fact, the client received less then the amount offered in the settlement.
Now the client is angry and wants to sue Lois for malpractice. If you were consulted by the client with a request to sue Lois, what would be your answer?
A. Lawyers don't sue each other so no one will take the case.
B. When Lois suggested that the client turn down the offer of settlement, she, by implication, guaranteed a higher jury verdict.
C. Since Lois used the care and skill of the lawyers in her community in advising the client and trying the case, there is no valid action against Lois.
D. Since Lois was wrong about the ultimate judgment, she would be liable for the difference between the amount of the offer of settlement and the amount of the final judgment.
C. Since Lois used the care and skill of the lawyers in her community in advising the client and trying the case, there is no valid action against Lois.
Attorneys have a duty to use the care and skill of other attorneys. In this case, Lois used her experience and skill to give the client the best advice that could be given. You should have noticed that the facts indicated that other attorneys would have given much the same advice. Lois did not breach her duty in this case. In every lawsuit, someone loses. Just by losing, that person does not have the right to sue for legal malpractice.
Dorene is cleaning her rifle when it accidentally discharges. The bullet passes through the open window of her apartment toward the street outside. Les is walking across the street while Donald's car is bearing down on him at 50 MPH. Donald has dropped a french fry on the floor and is searching for it instead of watching ahead of his car. In the split-second before Donald's car crushes Les's skull, Dorene's bullet slams into Les's abdomen. Either injury would be fatal, and Les dies from both. Did Dorene's negligence cause Les's death?
A. Yes, but for Dorene's act the death would not have happened.
B. No, the death would have happened without Dorene's act.
C. Yes, Dorene's act was a substantial factor in the death.
D. No, Dorene's act was not a substantial factor in the death.
C. Yes, Dorene's act was a substantial factor in the death.
A person cannot say that the death would not have happened but for the negligence of Dorene, as the facts clearly indicate that Les would have been killed anyway by the negligence of Donald.
In this type of case, courts have fashioned a different causation in fact test: defendant's act is a factual cause when it was a material or substantial element in bringing the event about. Dobbs § 14.6 says in multiple cause cases "many courts have used the substantial factor test endorsed by earlier Restatements." Second Restatement§ 431 provides "The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm [proximate cause rules]." Under this test, both Dorene and Donald are "causes" of the death. That result is certainly superior to the opposite, that neither is a cause of the death.
Plaintiff was standing on a platform of defendant's railroad. A man, carrying a small package covered with newspaper, ran forward to catch a departing train. He jumped aboard the car, but seemed unsteady as if about to fall. Defendant's guard on the platform pushed him onto the train. In this act, the package fell upon the rails. The package contained fireworks, which when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform. The scales struck the plaintiff, causing injuries for which she sues the railroad. Should plaintiff recover?
A. Yes. When defendant commits a negligent act, it wrongs those to whom harm might be expected, and also who is in fact injured.
B. Yes. As a common carrier, defendant is liable for any injury to a passenger on the platform.
C. Yes. Plaintiff did not be sharp with the scales, so she would be flat.
D. No. What the plaintiff must show is a wrong to herself, and not merely a wrong to some one else.
E. No. Any wrong was to a property interest only, and an invasion of bodily security was unforeseeable.
F. No. Defendant's employee was not negligent at all.
D. No. What the plaintiff must show is a wrong to herself, and not merely a wrong to some one else.
Of course this is the celebrated case of Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). And you voted with the majority. "The conduct of the defendant's guard . . . was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. 'Proof of negligence in the air, so to speak, will not do.'"
Well, I vote with you too. Who could vote against prose so beautiful? By the way, the above analysis sounds in duty rather than proximate cause.
Since the defendant takes the plaintiff as she finds him and is liable for all personal injuries reasonably caused by her negligence, does that mean that a plaintiff can sit back and watch the damages mount?
D negligently causes a cut on P's arm. P, being afraid of doctors and also of all things medical, refuses to seek medical help or even to take basic antiseptic measures. An infection develops in the wound and P is eventually hospitalized near death. P misses three weeks work. P recovers and sues D for negligence. What is the proper measure of compensatory damages?
A. P recovers only for the initial cut on the arm.
B. P recovers all injuries caused, including the hospitalization and lost wages.
C. P recovers nothing because of contributory negligence.
A. P recovers only for the initial cut on the arm.
While the defendant takes plaintiff as she finds him, that is not legal license for defendant to sit back and allow the damages to mount. The question does not suggest P has insanity preventing him from seeking treatment. "[O]ne injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort." Second Restatement § 918. This doctrine is sometimes known as avoidable consequences.
After surgery, a patient discovered that a scalpel had been left inside the patient. The patient brought a negligence action against the surgeon and the rest of the surgical team under the theory of res ipsa loquitur.
Assuming the court follows the modern trend, which of the following most accurately describes the showing that the patient must make to have the court apply the doctrine of res ipsa loquitur?
A. The patient must show that leaving a scalpel inside a patient breached the reasonableness standard of care.
B. The patient must show that leaving a scalpel inside a patient violated a statutory standard of care.
C. The patient must show that the scalpel was in the exclusive control of the surgeon or someone else on the surgical team.
D. The patient must show that the surgeon, or someone else on the surgical team, had sufficient control over the scalpel during the surgery that it is more likely than not that the surgeon or someone else on the surgical team (not a third party or the victim) is responsible for leaving the scalpel in the patient.
D. The patient must show that the surgeon, or someone else on the surgical team, had sufficient control over the scalpel during the surgery that it is more likely than not that the surgeon or someone else on the surgical team (not a third party or the victim) is responsible for leaving the scalpel in the patient.
Res ipsa loquitur, meaning “the thing speaks for itself,” is a theory that a plaintiff may use to establish breach, and possibly duty, in a negligence claim. Res ipsa loquitur applies if the plaintiff does not know exactly what the breach was, or exactly what the defendant did that was negligent, but the circumstances indicate that the defendant must have somehow been responsible. To use the doctrine of res ipsa loquitur to establish negligence as a matter of law, a plaintiff must show both that: (1) the kind of accident that occurred only tends to occur if someone in the defendant’s position breaches a duty of care to someone in the plaintiff’s position, and (2) the evidence eliminates any potential causes of the injury other than the defendant’s negligence, especially the plaintiff’s negligence or recklessness.
Often, but not always, the plaintiff establishes that the second element exists by showing that the instrumentality that caused the plaintiff’s injury was within the exclusive control of the defendant or his agents (people working for the defendant). Although some jurisdictions still require that the instrument be in the defendant’s exclusive control, the trend is to require merely that the defendant had sufficient control over the instrument that it is more likely than not that the defendant, as opposed to someone else, is responsible for whatever negligence took place. Thus, under this modern trend, if the plaintiff cannot show that the instrumentality was in the defendant’s exclusive control, the plaintiff may still use res ipsa loquitur if the plaintiff can at least show that the defendant’s control or prerogative of control over the instrument was so great that it is more likely than not that the defendant’s negligence (if anyone’s) caused the injurious event.
Answer options A and B are incorrect because a plaintiff does not need to show that the particular injury breached either the reasonableness standard of care or a statutory standard of care to get a court to apply the doctrine of res ipsa loquitur. Instead, res ipsa loquitur sets its own standard of care that replaces either of those standards. To convince a court to use this alternative standard of care, the plaintiff must show the two elements described above: (1) the actual injury was the kind of injury that does not occur unless someone was negligent and (2) it is more likely than not that the defendant’s negligence caused the injury.
Answer option C is incorrect because, under the modern trend, courts no longer require that the plaintiff show that the instrument that caused the plaintiff’s injury was in the exclusive control of the defendant or his agents. Instead, as discussed above, showing that it is more likely than not that the defendant’s negligence caused the injury will be enough.
What is the "reasonable person" standard for a person with physical disabilities?
The “reasonable person” is considered to have the same physical characteristics as the defendant; is expected to know any of his physical disabilities and; is under a duty to exercise the care of a person with such knowledge; unless his disability has struck for the first time immediately preceding the accident.
Rocky couldn't make up his mind whether to become a lawyer or to play professional baseball, so he decided to burn the candle at both ends while he had his cake and ate it too. Rocky played minor league baseball for the St. Louis Slugs during the summer between his first and second years of school. Unfortunately, the last game of the season was only one day before the first day of classes for his second year of school. Rocky raced off the field, jumped into his car, and roared off at high speed. He drove through the night at speeds often approaching 90 MPH, and never less than 70 MPH, even though the speed limit ranged from 20 to 65 MPH. Reaching the campus, Rocky roared through the main campus entrance at 60 MPH despite the 30 MPH city speed limit. When Rocky was five feet from the faculty arch [at left is an arch typical of so many across the country dedicated to heroic faculties], fellow student Portly stepped into the street. Rocky's car struck Portly, who was severely injured.
When Portly sues Rocky for negligence, who wins?
A. Portly wins as Rocky's negligence caused Portly's injuries.
B. Rocky wins as his negligence did not cause Portly's injuries.
C. The jury will decide whether the negligence caused the injuries.
B. Rocky wins as his negligence did not cause Portly's injuries.
The rule commonly used for factual cause is the "but-for" rule, which is "Conduct is a factual cause of harm when the harm would not have occurred absent the conduct." Restatement § 26. In other words, Rocky could have been traveling 10 MPH, or 30 MPH, or 100 MPH, and would have struck Portly just the same when he stepped out at the exact moment the car reached the arch.
To argue Rocky's car would not have been at that very location had he not been speeding through the night would lose the court in metaphysics. In short, it makes no more sense than saying the accident would not have happened had Rocky not decided to attend school, and no one would argue that decision "caused" the accident. Cause in fact requires more than "the so-called 'philosophic sense,' which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called 'philosophic sense,' yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes." Second Restatement § 431 cmt. a.
For the following scenarios select either Must Know (for matters that all members of the community will be held to know), or Need Not Know (for matters that a reasonable person will not be held to know). Hint: One red herring is on the board and might not belong in either category.
(1) D sits in one position for entire torts class, unaware that leg might fall asleep.
- Neither
- Must Know
- Need Not Know
(2) D strikes match in basement smelling of gas, unaware that an explosion could result.
- Neither
- Must Know
- Need Not Know
(3) D drives car at high speed on icy road, unaware that a skid could result.
- Neither
- Must Know
- Need Not Know
(4) P grasps power line while trimming tree, unaware that electrocution could result.
- Neither
- Must Know
- Need Not Know
(5) P climbs farm fence and approaches to photograph bull, unaware that goring could result.
- Neither
- Must Know
- Need Not Know
(6) D drives car, unaware that his steering mechanism is failing and crash could result.
- Neither
- Must Know
- Need Not Know
For the following scenarios select either Must Know (for matters that all members of the community will be held to know), or Need Not Know (for matters that a reasonable person will not be held to know). Hint: One red herring is on the board and might not belong in either category.
(1) D sits in one position for entire torts class, unaware that leg might fall asleep.
Neither
(2) D strikes match in basement smelling of gas, unaware that an explosion could result.
Must Know
(3)D drives car at high speed on icy road, unaware that a skid could result.
Must Know
(4)P grasps power line while trimming tree, unaware that electrocution could result.
Must Know
(5)P climbs farm fence and approaches to photograph bull, unaware that goring could result.
Must Know
(6) D drives car, unaware that his steering mechanism is failing and crash could result.
Need Not Know