Negligence
What kind of proof is required to establish 'Negligence per se'?
(1) a statute was in fact violated
(2) the statute was designed to protect against this kind of harm
(3) the violation was unexcused
Holly buys a new kettle for brewing her morning tea. This kettle has a heat resistant strip wrapped around the base to keep the outside cool enough to touch. However, the kettle is manufactured with a small area not covered by the strip located under where the handle of the kettle sits. One morning, Holly's roommate heats up some water in the kettle for her because Holly herself has woken up late for work. As Holly rushes to grab the kettle and pour her tea, Holly's hand touches the area not covered by the heat resistant strip, and she suffers a severe burn on her hand. After filing a complaint to the company, the manufacturer takes action to have the heat resistant strip to extend to this one bare area. In suit against the company, Holly uses this update as evidence that the manufacturer was negligent in leaving that area without the strip. Is this admissible evidence? Why or why not?
Post-Accident Repairs or Subsequent remedial measures are generally inadmissible because it is believed that allowing them as evidence will discourage defendants from adopting measures important for public safety.
This type of strict liability usually entitles the plaintiff to have the court order injunctive relief as well as damages, when they have suffered an unreasonable interference with their property rights.
Nuisance
What are the 3 distinct "but-for" cause exceptions?
(1) Where the actors identity is unknown
(2) Where the plaintiff would probably have been injured
(3) Where an accumulation of causes resulted in the injury and a strict application of the but-for test would exonerate all defendants
When are punitive damages appropriate?
When evidence of negligence is destroyed in accident, what three criteria must be met in order to invoke res ipsa loquitur?
(1) the accident was the type that normally doesn't occur except when there has been negligence\
(2) the defendant had exclusive control of instrumentality or process that caused the injury
(3) potential causes (third parties) have been sufficiently eliminated
Under the doctrine of vicarious liability, an employer is liable for the acts of an employee committed while during the course and scope of employment. What is meant by "course" and "scope"?
Course: "on the clock," whether the employee was at work when negligent act was committed
Scope: whether the employee was doing something to further the employer's business
What are the (6) criteria for establishing 'Abnormally Dangerous Activity'?
(1) Whether activity poses high risk of harm
(2) Whether harm, if occurs, is likely to be great
(3) Whether accidents occur even when reasonable care is exercised
(4) Whether activity is common
(5) Whether activity is appropriate to the place where it is carried on
(6) Whether activity is of low value to the community
A patient suffered unusual symptoms following a surgery. An investigation revealed that a surgical instrument had been left inside the patient. Any one of four surgeons who participated in the surgery could have been responsible. The patient brought a negligence lawsuit against all four surgeons. Which doctrine should the court apply?
Alternative liability (Summers v. Tice)
A smoker negligently started a fire in an office building. When the fire alarms and sprinkler systems went off, the people inside the building rushed for the exits. A woman running down a stairwell negligently tripped and fell into a man as she rushed to get to the exit. The man fell down the stairs, suffering injuries. In the ensuing lawsuit, the smoker asserted that the woman’s negligence was a superseding cause relieving him of liability. Is the smoker liable for the man’s injuries?
Yes, because the woman was NOT a superseding cause. The defendant's negligence remained connected to to the injury by a "direct and unbroken sequence."
A skier rented a pair of skis from a ski-rental shop. Contrary to protocol, the rental shop failed to adjust the ski bindings for the skier’s weight. As a result, the ski bindings failed to release properly when the skier fell, causing an injury to the skier. The skier sued the rental shop for negligence. What doctrine could be used to establish negligence?
Company Rulebooks
What are the two ways 'custom of the industry' can be argued in negligence cases?
(1) to establish activity is what reasonable person would engage in when in same circumstances
(2) to establish activity is negligent because the whole industry is lax in adopting appropriate modern safety measures
A corporation operated a dynamite production plant in an industrial area several miles outside a city. One day, the driver of a truck carrying dynamite from the plant to a purchaser was distracted by a text message and hit a pedestrian on a busy city street. Two weeks later, a truck carrying dynamite from the plant to a purchaser was involved in a car accident on a busy city street through no fault of the truck driver. In this accident, the truck turned over, causing an explosion that resulted in significant property damage to nearby homeowners. For which of these injuries, if any, is the plant likely to be found strictly liable on the ground that it was engaged in an abnormally dangerous activity?
For the injuries in to the property in the second accident.
At 35 weeks pregnant, Laura goes to her obstetrician, Dr. Patel, complaining of sharp abdominal pain and spotting. Dr. Patel performs a routine blood pressure check, finds nothing alarming, and sends Laura home without ordering an ultrasound or blood tests. The next day, Laura suffers a placental abruption and is rushed to the hospital. An emergency C-section is performed, and her baby, Mia, is delivered alive but with severe respiratory complications due to oxygen deprivation during the abruption. Mia spends several weeks in the neonatal ICU and now suffers from chronic asthma and reduced lung capacity. Expert testimony shows that if Laura would have been tested and admitted at her appointment, doctors could have performed an earlier C-section, giving Mia a 35% chance of being born without long-term respiratory problems. Which theory might Laura be able to recover damages for Dr. Patel's negligence?
Loss of a chance theory
Maria parks her car in front of her house on a quiet suburban street. While texting and driving, David runs a stop sign and crashes into Maria’s parked car. Maria’s car, a two-year-old Toyota Camry, suffers a smashed front bumper, broken headlights, and a bent axle. The total repair estimate comes to $8,000. The car’s fair market value before the accident was $15,000, and after the accident, it dropped to $6,000. Maria sues David for negligence and seeks recovery for her property damage. What is the amount of damages will the court likely award her?
The repair costs is $8,000 and the diminution in value is $9,000.
The court will likely award $8,000, since it is the lesser of the two.
A company is transporting salmon from a port in Anchorage, Alaska down to San Diego California. The containers used to transport the salmon are worn, and some of the crew members believe the bottom may give way to the weight of the fish, during transport. The crew members stated they have seen this happen on another transporting ship. How should the company determine whether to implement a new measure to prevent salmon from slipping out of the container.
Learned Hand's test of economic efficiency should be used to determine if the burden of implementing the new measure is less than the economic loss of salmon multiplied by the probability the container will give way to the weight.
One evening, Sam is driving when an ambulance comes up rapidly behind him with lights flashing. Sam sees that the right-hand curb is blocked by a large group of pedestrians waiting for a bus. Instead of pulling into the curb, Sam carefully steers to the left into a wide, clear median. The ambulance safely passes, but Sam’s maneuver violates the statute of requiring cars to pull into the right curb when emergency vehicles are passing. A few minutes later, his car lightly collides with another vehicle in the median. Can the plaintiff request that the judge invoke negligence per se?
No, because this would be considered an excused violation. There would have been a higher danger in compliance. (Tedla v. Ellman)
For the past 30 years, Green Valley Farm has operated a large dairy farm in a rural county. The farm produces significant odors, flies, and noise from machinery, though it complies with all local regulations. Recently, a real estate developer built a new subdivision called Sunrise Estates directly adjacent to the farm. Families quickly moved in, attracted by the low prices. Within a year, several homeowners filed suit against Green Valley Farm, alleging that the odors, flies, and late-night tractor noise substantially interfered with their use and enjoyment of their property. They seek damages and an injunction to shut down the farm’s operations. What defense could Green Valley Farm bring up in court?
Several major smart home device manufacturers sell internet-connected door locks that allow homeowners to unlock their doors remotely with a smartphone app.
All of the companies use the same software protocol to operate the locks, which was developed through their joint industry consortium. The consortium agreed on uniform safety and security standards, marketing claims, and firmware updates. A consumer, Jordan, installs one of these locks in her home. A hacker exploits a vulnerability in the programming, and uses it to access Jordan's home and steals some valuable property.
The lock was purchased through a third-party retailer, and the packaging did not clearly identify which company’s lock she received, because multiple manufacturers used identical hardware and white-label distribution channels. What doctrine should be applied to recover for her losses?
Enterprise Liability
What is the difference between a 'wrongful death' statute and a 'survival' statute'?
A wrongful death statute focuses on the injury suffered by the immediate family of the decedent, and usually measures the economic loss suffered by the family as a result of the premature death.
A survival statute focuses on the decedent's estate, and usually measures damages by calculating the amount the decedent would have been able to collect had he lived.
Connie was planting native flowers along a pathway in her local park. One of the species she chose was pokeweed, a plant with poisonous berries. There is a local ordinance against planting any type of plant in along public pathways due to the problem of potential overgrowth and pathway obstruction. A week after Connie plants the native flowers, the Smiths are walking with their small child along the path. While Mrs. Smith stops to take a picture of her husband, the couple's two year old ingests some of the pokeweed's berries. She then becomes seriously ill and is taken to the hospital where she recovers after a few days of treatment. Does negligence per se apply in this case? Why or why not?
No, it does not apply. While the statute was in fact violated, it was not designed to protect against this type of injury.
Dana, who owns a small bakery, hires Leo, an independent contractor electrician, to rewire the bakery’s lighting system. While doing the job, Leo negligently leaves exposed wires on the floor, causing a customer to trip and suffer serious injuries. The injured customer sues Dana, claiming that Dana, as the business owner, should be held vicariously liable for Leo’s negligence. Will the court rule in favor of the customer?
No. Vicarious liability does not apply to independent contractors.
Liam, an experienced surfer, ignored the posted red flag warnings at a California beach indicating dangerous surf conditions. Despite lifeguards’ repeated warnings to stay out of the water, Liam paddled out into the heavy waves. While attempting a risky maneuver on a large wave, Liam lost control of his board. His board shot forward and struck Ben, another surfer who was lawfully and carefully paddling in the lineup. Ben suffered multiple facial fractures and permanent scarring. Ben sues Liam for negligence. Liam argues that the rough surf and Ben’s decision to surf on a red flag day was responsible for the injuries, not his own conduct.
Despite the harsh surf conditions, Liam was a 'substantial factor' in causing the injuries. (California Test)
A driver negligently sideswiped a bicyclist, causing the bicyclist to veer off the side of the road and hit a fence. The bicycle was badly damaged, but the bicyclist landed unhurt. The driver saw that the bicyclist was not hurt and drove away, leaving the bicyclist on the side of the road. The bicyclist attempted to fix the bicycle but could not make it rideable. After an hour, the bicyclist started walking home when a sudden windstorm started. The windstorm broke a tree branch, which fell on the bicyclist, causing a shoulder injury. Is the driver’s negligence a proximate cause of the bicyclist’s shoulder injury? Why or why not?
No, the windstorm was unforeseeable and a superseding cause. (Liney v. Chestnut Motors)
Maria Lopez was walking home from work one evening in a residential neighborhood. A delivery driver for RapidEats, Inc., while rushing to make his deliveries within a strict 20-minute guarantee window, ran a stop sign and struck Maria in a crosswalk. Maria died at the scene. Maria is survived by her husband Carlos, and two minor children. She was the primary caretaker of the children and contributed significantly to the family’s household income. Carlos files suit under the state’s Wrongful Death Statute, which allows the decedent’s surviving spouse and children to recover for: (1) loss of the decedent's financial support, (2) loss of companionship and guidance, and (3) funeral and burial expenses. Maria's mother, Lupe, who also lived with her and depended on her care is also seeking recovery. What aspect included in the statute will Lupe be able to recover for?
NONE. The statute does not include parents. Only Carlos and the two children can recover.