Duty and Breach Notes From Fall 2011

Tuesday, February 28, 2012 5:01 PM

Final exam outline

NEGLIGENCE: (definition on page 15 is what she wants to see on the exam (written below)) 4 elements: 1. Duty 2. Breach 3. Causation 4. Damages Negligence is the breach of a duty to exercise reasonable care on behalf of another. Put differently, conduct which foreseeably subjects another to an unreasonable risk of harm is negligent. Negligence: p.15 1. Duty Obligation of defendant Relationship between plaintiff and defendant

2 part test:

Determine whether a duty owed (by plaintiff to defendant) (court is making the determination in part 1) Palsgraf (p.234) 2 views: 1. Majority/ Cardozo (foreseeable plaintiffs 'zone of danger') Courts determine foreseeability by: Balancing Test: Cardoza Andrews-

a.

4 Balancing tests:
1. Past balancing test: Probability: plaintiff must prove that negligence was not merely possible, but probable. It is more likely than not that the defendant could see a risk. The risk reasonably to be perceived defines the duty to be obeyed. Not possibilities, but probabilities. (past) The plaintiff must come with evidence that shows the defendant knew of the probability of the harm. This is the plaintiff's burden of proof. "It is not negligent to 'fail.. To anticipate events occurring only under unusual circumstances'" 1. Future balancing test: ***The test as respects foreseeability is not the balance of probabilities, but the existence of some real likelihood of some damage and the likelihood is of such appreciable weight and moment as to induce, or which reasonably should induce, action to avoid it on the part of a person of a reasonably prudent mind. (future) Foreseeability: is as regards a thing that may happen in the future, and to which the law of negligence holds a party to anticipation as a measure of duty, that inquiry is not whether the thing is to be foreseen or

anticipated as one which will probably happen, but whether it is likely to happen, even though the likelihood may not be sufficient to amount to a comparative probability 1. The learned hand balancing test: conduct is negligent if the Burden of prevention is outweighed by the gravity of the Loss times the Probability of the harm. B<PL The degree of care demanded of a
person by an occasion is the resultant of three factors: the likelihood that his conduct will injure other, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk.

2. UTILITY V. RISK: Negligence as a question of fact: whether a defendant (or plaintiff) was negligent is a question of fact. This means that if it is unclear whether someone acted negligently , the jury (or the trial judge, in a non-jury trial) decides the matter. Because appellate courts do not ordinarily decide questions of fact, a litigant who has lost a trial on the negligence issue cannot hope to win on appeal by arguing that the factfinder's decision was wrong. Although neither the trial judge nor an appellate court can overrule a factfinder's determination about negligence, it may be so clear from the record that the factfinder's decision was wrong that a judge will rule that the part was, or was not, negligent "as a matter of law." The standard for making this kind of decision is whether reasonable persons can differ about whether someone was negligent. A Negligence Formula: UTILITY V. RISK Utility: 1. Social value of the interest to be advanced 2. Likelihood of advancement 3. Availability of alternatives Technical feasibility Economic and other costs Efficacy Risk: 1. Social value of the interest imperiled 2. Likelihood of harm 3. Extent of harm 4. Number of persons affected *** If dangers can be lessened without great expense, precautions should be taken.
1. Dissent/ Andrews (universal duty owed to the world. It is not about the

relationship between the P and the D; proximate cause, fairness determination)

(of the two part test): conduct yourself as a reasonably prudent person. Part two of the two part test is a jury determination. General Duty Rule: asking simply whether the defendant acted as a reasonable, prudent person would have acted under the same or similar circumstances. For the purposes of jury instruction, the reasonable-person standard has a clear advantage over the negligence formula The REASONABLE PRUDENT PERSON STANDARD: o What would a reasonable, prudent person do in the same or similar circumstances. o Are these relevant "circumstances"?

1.

Do they change the standard of care? Physical handicap Mental deficiency Youth Agedness Superior skill, knowledge, or experience Gender Emergency

Things that change the RPP standard: Youth Mental deficiency (minority view) Superior skills, knowledge, training, experience

Four ways establishing what a reasonable person would do: 1. Fact-finder determination: by the trier of fact, based on the facts of the particular case
o

Judge-made standards: by judicial decision, as a matter of law A judge-made standard occurs when the judge takes the issue of reasonableness away from the jury In these cases the judge determines whether or not the D acted unreasonably (i.e., like/unlike the RPP) because a jury trial may not add very must to the determination a. D's conduct ruled Negligent as a matter of law Pros/ Cons of this standard on p. 252 and 293 Restatement 3d support of standard p.294 Case example= Helling v. Carey
o o o o

The finder of fact, guided by applicable rules of law or appropriate instructions, focusing its attention on the circumstances of a single case, may determine on an ad hoc basis whether a particular defendant acted reasonably. Two chief difficulties with this facts-of-the-case approach to determining what is acceptable conduct: By reason of being an after-the-fact determination, a prospective defendant is offered no advance warning of precisely what is expected. Because such decisions are fact-specific and have no precedential force, juries can arrive at inconsistent results in relatively similar cases. On the other hand, the flexibility of the case-by-case approach allows the decision make to take into account numerous factual variables that might be ignored by a more rigid rule of law.

3. Legislatively Determined standards: by legislation expressly or implicitly providing for civil liability
o o

When faced with a problem of a recurring nature, a court may state what conduct is required of a person confronted with those circumstances. The jury will be instructed that if it determines that the defendant failed to take the required steps, it must find that the defendant acted unreasonably and breached its duty of care to the plaintiff. These gives individuals clear notice of what conduct is expected and leads to consistency of results in similar cases. Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace. Defined by a legislative body through an appropriate enactment. This approach not only lends itself to fair notice and uniformity of results, but allows the judiciary to express appropriate deference for the determinations of a co-equal branch of government.

4. Judicially Declared Standards Based on Legislation: by a court relying upon legislation not expressly or implicitly providing for civil liability

Even if a legislative enactment does not expressly or implicitly establish a standard of care, a court may define the standard of care with reference to that legislative enactment if the court finds that the legislation calls for appropriate behavior. It differs from the second approach in that it allows the court to draw upon the legislative history and vote underlying the enactment to support the reasonableness of its decision.

If there is a statute, you dont need to worry about the RPP: Negligence Based on Violation of Statute- overview: Does the statute set the standard of care? o 2 categories Was there an excuse for the violation? What is the effect of an unexcused violation o 3 views Did the violation cause the injury? Can the defendant raise an defense? The effect of unexcused violation of statute: 3 views: Negligence per se (most jurisdictions are negligence per se) Prima facie negligence Some evidence of negligence Emergencies: o Even if there is an emergency, the courts look at "a reasonably prudent person under the circumstances"
o o o

Evidence of an emergency does not change the standard of care. The emergency condition is merely one factor in determining the reasonable character of the defendant's choice of action. ***The sudden emergency doctrine does not impose a lesser standard of care on a person caught in an emergency situation; the individual is still expected to respond to the situation as a reasonably prudent person under the circumstances. The emergency is merely a circumstance to be considered in determining whether the actor's conduct was reasonable thus, a person may be found negligent if his actions are deemed unreasonable, despite the emergency. If reasonable minds can differ as to the preferred course of action in an emergency, a defendant who makes a reasonable choice will not be held liable for having failed to select what an expert or jury might later decide was the best course. An instruction on sudden emergency generally is not available where the crisis is of the defendant's own making. An actor's competence may be the key fact in determining whether it was reasonable for the actor to attempt an activity. An emergency may well justify an attempt to do something despite incompetence. It may be better for an unskilled layperson to give a badly injured person first aid than to let the victim die.

Errors of judgment
o

Creators of emergencies
o o o

3. Competence

Physical Disabilities:
Example: regarding the issue of contributory negligence, the court said that a blind person need no exercise a higher degree of care than a sighted person, but merely the ordinary care that would be exercised by a person who is blind. In other words, the physical handicap was a relevant circumstance, but it did not change the standard of care. The conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability A person who is intoxicated or under the influence of intoxicating liquor is held to the same standard of care as a sober person.

Where intoxication is involuntary, the standard of conduct to which the actor must conform is that of a reasonable man under a like disability where however, the intoxication results from deliberate drinking with knowledge of what is being consumed the policy of the law has refused to make any allowance for the resulting disability. The conduct of an actor during a period of sudden incapacitation of loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or less of consciousness was reasonably foreseeable to the actor.

Age:

Children's standard:
o o o o

A child must normally exercise the degree of care that would be observed by children of similar "age, intelligence, and experience" under the circumstances. We are no longer talking about the "RPP (reasonably prudent person" when we are talking about children under the age of 17. Some courts apply a non-adult standard only to children below 14 years of age. There are certain activities engaged in by minors which are so potentially hazardous as to required that the minor be held to an adult standard of care. Driving a motor vehicle, operating a motor boat, and hunting would ordinarily be classified as such. (activities which require the minor to be license (demonstrate a proficiency) The Restatement provides that a child will be held to an adult standard of care "when the child is engaging in a dangerous activity that is characteristically undertaken by adults". An activity is characteristically engaged in by adults if adults are the primary persons who ordinarily undertake the activity. According to the restatement, a "considerable minority of jurisdictions" take a different approach to addressing the liability of children for negligence. under that approach, for children above 14 there is a rebuttable presumption in favor of the child's capacity to commit negligence; for children between seven and 14, there is a rebuttable presumption against capacity; children under the age of seven are deemed incapable of committing negligence. The Restatement 3d of Torts: rejects this minority approach but endorses a rule that: A child less than five years of age is incapable of negligence. Generally, no allowance is made in the adult standard of care for any mental deficiency of a relatively minor nature. There is still no change in the RPP for severe mental deficiencies. The actor is held to that level of intelligence and stability that would be employed by an ordinary, reasonable person. A few jurisdictions have created exceptions to the general rule that mental deficiency is irrelevant. Old age, by itself is not taken into account in determining whether an actor's conduct was negligent. A few courts hold that if one is unable to control one's actions (as opposed to unable to understand the nature and consequences of one's actions), liability may not be imposed, even if the deficiency in ability to control results from a condition of long standing. Traditionally, courts held that an actor's mental deficiency could be taken into account in determining whether the actor was contributory negligent. A person should be held only to the exercise of such care as he was capable of exercising, i.e., the standard of care of a person of like mental capacity under similar circumstances. ***Amnesia: in some jurisdictions, a plaintiff who suffers from amnesia as a result of the defendant's act is not held to as high a degree of proof in establishing a right to recover as is a plaintiff who can describe the events. The rule does not allow the jury to presume that the plaintiff exercised due care, nor does it shift the burden of proof to the defendant, but the jury is afforded greater latitude in drawing inferences favorable to the plaintiff. If you have a plaintiff who has amnesia but was harmed by a defendant, the jury can draw inferences favorable to the plaintiff who cannot remember the details of what happened.

The dangerous or adult activities exception:

o

3. Presumed incapacity of children:

o

Mental Deficiencies:
o o o o

Insanity: (policy rationales)

Justifications for holding an insane person liable for negligence: As between two innocents, place the loss on the party who caused it

Induce those interested in the actor's estate to exercise control Avoid fictitious claims Avoid intractable inquiries

Superior Skills or Knowledge:

In general: if an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person. General Rule: o A person with superior skill, training, or experience must exercise those abilities. An actor will be found negligent for failing to perform with the degree of knowledge, skill and diligence possessed or exhibited by an ordinary member of the profession in good standing. "Average Professional" is not right. "Not only would this "average" standard put a jury in a predicament as to how to arrive at an "average" but it seems to us that requiring the skill of the "average qualified practitioner" automatically makes approximately one-half of the doctors guilty of malpractice. The question is not one of the "average" or "medium" skill, but of the minimum skill. The RPP changes when superior skills or knowledge comes into play. In a limited range of cases, certain professionals such as doctors, lawyers, architects, accountants, and engineers, are held to a higher standard of care because they possess special skills and knowledge. DUTY: Duty to clients, prospective clients, non-clients, and other attorneys. An attorney's duties to a client generally extend no further than the scope of the representation. BREACH: No good faith exception: the issue is whether a lawyer acted reasonably, not whether a lawyer acted in good faith. If an attorney makes a decision which a reasonably prudent attorney could make in the same or similar circumstance, it is not an act of negligence even if the result is undesirable. Although there is no duty to predict the ultimate resolution of unsettled legal questions, an attorney is obliged to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem. Liability for inadequate settlements: there is a split of authority as to whether an attorney is liable for negligence resulting in the client's acceptance of an inadequate settlement. Some courts hold that to permit such actions would create chaos in the civil litigation system, for lawyers "would be reluctant to settle a case for fear some enterprising attorney representing a disgruntled client will find a way to sue them for something that 'could have been done, but was not". Duty to recommend a specialist if a reasonably careful lawyer would do so. CAUSATION: In a legal malpractice action based on negligence, the plaintiff must prove that the defendant's breach of the applicable standard of care resulted in damage. If an attorney has failed to take appropriate action within the statute of limitations, the plaintiff ordinarily must establish not only that the deadline was missed, but that had the statute not run the plaintiff would have prevailed in the underlying action. The plaintiff is faced with a heavy burden of proof. Transactional errors entail a somewhat different approach to proof of causation of damage because a lawsuit was not planned. Plaintiffs are required to show that but for the defendant's negligence 1) they would have had a more advantageous agreement or 2) they would not have entered into the transaction and therefore would have been better off. DAMAGES: Damages in legal malpractice actions normally include only economic losses suffered by clients. Emotional distress damages are rarely recoverable, and legal malpractice typically does not result in personal injuries, death, or damage to property.

Notes:

3.

4.

Punitive damages for malpractice: if the facts are egregious and therefore establish more than mere negligence, punitive damages based on the attorney's misconduct normally may be recovered in a malpractice action. Liability for "lost" punitive damages: the court refused to recognize this element of malpractice damages, stating: making a negligent attorney liable for lost punitive damages would not serve a societal interest, because the attorney did not commit and had no control over the intentional misconduct justifying the punitive damages award. The court added that permitting recovery of lost punitive damages would also violate the public policy against speculative damages, necessitate an excessively complex standard of proof, and exact a significant social cost in terms of the cost and availability of malpractice insurance.

Legal Malpractice and Medical Malpractice:

A negligence action against a lawyer revolves around the same issues as any other negligence action: duty, breach, causation, damages, and affirmative defenses. The issue is whether a lawyer acted reasonably, not whether a lawyer acted in good faith. Important policies: Utilize talent Foster predictability The defendant is compared to an ordinary member of the profession with the same skills, knowledge, training, and experience. An attorney implicitly represents that he or she: Possesses the ordinary degree of learning, skill, and ability Will exercise his or her bet judgment Will be diligent and careful in using professional skill and knowledge Generally, there is: No liability for a mere error of judgment on which reasonable lawyers may differ No guarantee of success

The locality Rule :the locality rule receives grater recognition in medical malpractice actions than in suits against lawyers. INFORMED CONSENT: Medical Malpractice: informed consent: The failure to obtain informed consent is professional negligence even if treatment is skillfully rendered. A physician must disclose all material risks and alternatives, except if: The information is, or should be, known to the patient Disclosure would be detrimental to the patient's best interests There is an emergency

Informed consent notes p.289 Subjective V. Objective Causation Test: most cases reject a subjective test for causation in informed consent cases. (endorsing the majority objective standard, which requires the jury to find that a reasonable person would have made a different decision). Disclosure of Physician's Interests and Experience: the informed-consent doctrine to require disclosure of the physician's economic or research interests in the proposed medical procedure. Informed-consent statutes: in some states, the common-law doctrine of informed consent in medicine has been augmented or replaced by statutory developments. For example, Texas has adopted detailed legislation which creates a state Medical Disclosure Panel "to determine which risks and hazards related to medical care and surgical procedures must be disclosed by health care providers or physicians". The making or failure to make specified disclosures created certain rebuttable presumptions in litigation. Contributory Negligence in Informed-Consent Cases: The court held that a patient's contributory negligence could be a defense in an action under the state medical informed-consent state. (the

patient must provide information that is as complete and accurate as possible under the circumstances) Informed Consent in Legal Malpractice: informed consent principles apply as readily in law as in medicine. "when a client seeks advice from an attorney, the attorney owes the client "a duty of full and fair disclosure of facts material to the client's interests" This means that the attorney must advise the client of any significant legal risks involved in a contemplated transaction, and must do so in terms sufficiently plain to permit the client to assess both the risks and their potential impact on his situation" Breach of Confidentiality: the unauthorized disclosure of nonpublic medical information relating to a patient may be actionable under a variety of theories, including invasion of privacy, breach of contract, or violation of statute. Some states simply recognize an independent common-law tort action for breach of confidence in the physician-patient setting. Judge-made Standard Notes: 1. Reasonable prudence may sometimes still require a higher standard of care than is followed by other professionals. Standards Created by Statute: 1. Some statutes expressly provide that a violation gives rise to a tort action for damages. There are at least three subcategories: 1. Many of these statutes clearly state what must be done to avoid liability when engaging in an activity. 2. Some statutes prohibit or discourage certain activities by raising a threat of liability. 3. Some statutes refer to the common law duty of reasonable care and make it clear it applies in a particular context and that an injured person can sue for damages. Whenever a legislative enactment expressly creates a tort cause of action, the court's deliberations will normally be confined to questions of the enactment's applicability to the facts at hand and its constitutionality. When dealing with a hypo that involves a statute, ask yourself these 5 questions: o Does the statute set the standard of care? 2 categories Express language 296-97 Statute that the plaintiff or defendant is offering to establish the duty of care: A statute defines the standard of care if: The legislature says that it does so (express/ explicit) 1. Consider: 1. Determine applicability to facts at hand 2. Constitutionality OR 2. The court nevertheless says that it does so (implied/ implicit) 1. Consider: 1. Class of persons intended to be protected AND 2. Type of harm intended to be prevented 3. Other considerations; 1. Causation problems 2. Obsolescence

3. Exclusivity of remedy
o o

o o

Was there an excuse for the violation? What is the effect of an unexcused violation? 3 views Procedural effect of unexcused violations of statute: there are three views as to the procedural effect of evidence establishing an unexcused violation of a standard-setting statute: negligence per se, prima facie negligence, and some evidence of negligence. Some states hold that an unexcused violation of statute is negligence per se (negligence "in itself"). The unexcused violation conclusively establishes that the defendant breached a duty of reasonable care to the plaintiff; the only issues remaining for the jury are causation, defenses, and damages. Other states hold that proof of a violation of a standard-setting statute is prima facie negligence. The evidence of the violation raises a presumption of negligence, and if the presumption is not rebutted by proof of an excuse of other evidence of reasonable case, a breach of duty is established, in which case, again, the only issues remaining for the jury are causation, defenses, and damages. A few states take the position that proof of a violation of a standard-setting statute is only some evidence of negligence which the jury can either accept or reject. Thus, even after the violation is established, the jury must still decide the question of negligence, as well as issues related to causation, defenses, and damages. Did the violation cause the injury? Can the defendant raise a defense?

Standards Adopted by Courts Based on Legislation: Some statutes impose standards of care, but do not expressly make those standards applicable to tort cases. For example, laws establishing speed limits typically provide only for criminal sanctions, such a fine payable to the state. In dealing with this kind of legislative enactment, a court may determine that it will adopt the terms of the statute as embracing the applicable level of care for civil suits. The essential inquiry is whether the statute was intended to protect this class of persons from this type of harm. If so, the court may find it appropriate to say that the statute defines what a reasonable person would do under the circumstances. Courts taking this approach occasionally find that there is implicit legislative intent to create a standard of care. Excused violation of a statute: Possible excuses: Incapacity to comply Ignorance of the need to comply Inability to comply despite diligence Emergency Greater risk of harm There may be other good excuses. Excused violations of a statute:

Restatement 2d section 288(a): An excused violation of a legislative enactment or an administrative regulation is not negligence. Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when The violation is reasonable because of the actor's incapacity. An actor's violation of a statute is excused and not negligent if: The violation is reasonable because of the actor's childhood, physical disability, or physical incapacitation; The actor exercises reasonable care in attempting to comply with the statute; The actor neither knows nor should know of the factual circumstances that render the statute applicable; The actor's violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; OR The actor's compliance with the statute would involve a greater risk of physical harm to that person or to others than non-compliance. Carefully violating a statute: Presumably, there is an important difference between making reasonable efforts to comply with a statute and carefully violating a statute. Suppose that a defendant is innocently delayed in traffic, then, while racing in excess of the speed limit to get to a wedding on time, is involved in an accident. The fact that the driver was really "focused" and trying to be extremely careful while speeding, is probably no excuse in a negligence per se state. If the jurisdiction adheres to a prima facie negligence view, which holds that a statutory violation raises a rebuttable presumption of negligence, could the carefulness of the driver be held to overcome the presumption of lack of care arising from the statutory infraction? Excuse based on Emergency: A sudden emergency could provide an excuse for a violation Matters not amounting to an excuse: It is useful to set forth circumstances that do not count as an excuse. The violation of a statute is not excused by the fact that the person sincerely or reasonably believes that the requirement set by the statute is excessive or unwise; nor is it an excuse if the person is unaware or ignorant of the statutory requirement; nor is it an excuse if there is a custom to depart from the statutory requirement. Compliance with a statute: from mastering torts Compliance with statutory requirement does not necessarily establish that the defendant acted reasonably. If the situation is more hazardous than usual, precautions beyond the statutory minimum maybe reqd. for example, when the road is covered with rain, snow, or ice, it may be unreasonable to drive at the speed limit. If however, the risks of harm are no greater than those ordinary risks which prompted the enactment of the legislation, compliance with the statute may be used to establish the exercise of due care. p. 102 mastering torts. Refusal to Violate a Statute:

An actor's compliance with a pertinent statute, while evidence of non-negligence, does not preclude a finding that the actor is negligent for failing to adopt precautions in addition to those mandated by the statute. If the 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. Examples: o An administrative agency, exercising powers delegated by statute, prohibits a railroad from installing a certain form of warning device at a highway crossing, the railroad cannot be found negligent for not providing that device. If traffic is flowing at 80 miles per hour on a highway whose statutory speed limit is 55 mph, the motorist who chooses to drive at 55 may by doing so significantly disturb traffic flow in a way that could foreseeably lead to an accident; even so, that motorist cannot be found negligent for declining to drive at an illegal speed.

If the statute establishes absolute liability= NO DEFENSES AVAILABLE. Degrees of Negligence: Slight, Ordinary, and Gross (pg. 318) Prevailing View: o Gradations are not useful o Rarely employed, except in connection with: Bailments Common carriers, utilities, innkeepers Some statutes

Breach: defendants conduct fails below the standard of care. (the defendant did not act reasonably.. He acted unreasonably) Types of Evidence: Custom Evidence: Custom does not determine the standard of care. Conformance with custom raises an inference of reasonableness. Departure from custom raises an inference of unreasonableness. Bailee for hire: example: a repair garage operator is required to exercise ordinary or reasonable care to protect vehicles entrusted to his custody for repairs or servicing While courts are ordinarily reluctant to impose upon defendants the duty of proving the non-existence of negligence, an exception is justified in bailment cases. As a general rule, the customs of the community, or of others under like circumstances, are facts to be taken into account in determining whether conduct is negligent. Restatements 2d of torts: "We do not think this is one of the extreme cases where it may be said that the defendant's practices, or those customarily adhered to by others similarly situated, are negligent as a matter of law. In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are facts to e taken into account, but are not controlling where a reasonable man would not follow them. In other words, custom or usage does not determine ordinary care, but the standard is what a reasonably prudent man under like

BREACH:

circumstances would do.. "what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not" Evidence of the past practices of the parties to the action in dealing with each other is admissible, and relevant, as indicating an understood standard of conduct, or the reasonable expectation of each party as to what the other will do. When custom is not controlling: customs which are entirely reasonable under the ordinary circumstances which give rise to them may become quite unreasonable in the light of a single fact in the particular case. Example: It may be negligence to drive on the right side of the road, and it may not be negligence to drive on the left side when the right side is blocked by a dangerous ditch. Whenever the particular circumstances, the risk, or other elements in the case are such that a reasonable man would not conform to the custom, the actor may be found negligent in conforming to it; and whenever a reasonable man would depart from the custom, the actor may be found not to be negligent in so departing. Direct: Evidence which tends directly to support a finding of a fact in issue, such as eyewitness testimony that the defendant's vehicle was traveling in the wrong lane. Evidence of the fact in question (e.g., eyewitness testimony as to the identity of the assailant) Circumstantial: Evidence not of a disputed fact, but of one or more other facts from which the existence or non-existence of the fact in issue may reasonably be inferred. Evidence from which the fact in question may be inferred (e.g., fingerprints, skid marks Example: If a plaintiff cannot prove facts to establish that it is more likely than not that the dangerous condition existed long enough that a proprietor should have known of its presence, there is simply no basis for recovery Example: Evidence of skid marks may be used to prove circumstantially that the defendant's car was traveling faster than the speed limit. Notice: Traditional Approach: (actual & constructive) Actual Constructive Prior occurrence: a jury sometimes may infer constructive notice of a dangerous condition from evidence of similar dangers on previous occasions. Absence of inspection: the absence of an inspection is sometimes relevant to the issue of constructive notice. Some courts hold that proximity to the site of the danger is a basis for concluding that the danger should have been discovered and remedied. Courts also hold: An employee's proximity to a hazard, with no evidence indicating how long the hazard was there, merely indicates that it was possible for the premises owner to discover the condition, not that the premises owner reasonably should have discovered it.

Under the traditional approach to premises liability, the plaintiff is required to prove a grocery store caused a substance, matter, or item to be on the floor; the store operator had actual knowledge of its presence; or the substance, matter, or time had been on the floor so long that the store operator should have been aware of the condition. Traditional premises liability approach: a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and B) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and C) fails to exercise reasonable care to protect them against the danger. Mode of operation Focus on "the nature of the defendant's business that gives rise to a substantial risk of injury to customers from slip and fall accidents. Courts adopting this approach have concluded that where an owner's chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner could be held liable for injuries to an invitee if the plaintiff proves that the store owner failed to take all reasonable precautions necessary to protect invitees from these foreseeable dangerous conditions The plaintiffs burden to prove notice is not eliminated. Instead, the plaintiff satisfies the notice requirement if he establishes that na injury was attributable to a reasonably foreseeable dangerous conditions on the owner's premise that is related to the owner's self-service mode of operation however, the plaintiff.. Is still required to prove that the defendant failed to take reasonable measures commensurate with the risks involved. To prevent injury to invitees and "bears the burden of persuading the jury that the defendant acted unreasonably" This approach removes the burden on the victim of a slip and fall to prove that the owner or the owner's employees had actual or constructive notice of the dangerous condition or to prove the exact failure that caused the accident under the mode of operation approach, a "plaintiff's proof of a particular mode of operation simply substitutes for the traditional elements of a prima facie case- the existence of a dangerous condition and notice of a dangerous conditions" a plaintiff would still be required to present evidence supporting his or her case and to bear the burden of persuading the trier of fact that the defendant acted unreasonably in the circumstances. Burden shifting approach Eliminated the plaintiff's traditional burden of establishing actual or constructive notice of the condition that caused their particular injury. Instead, when a plaintiff proves than an injury occurred resulting from a premise hazard or a transitory foreign substance in a self-service store, a rebuttable presumption of negligence arises. The burden then shifts to the defendant "to show by the greater weight of evidence that it exercised reasonable care in the maintenance of the premise under the circumstances" Recurrent Risk

Pg. 332 If the owner of the premises has taken precautions reasonably necessary to protect its customers, then the owner is not liable to customers injured on the premises. However ,if an owner is aware of the existence of a recurrent condition that poses a potential danger to invitees may not ignore that knowledge and fail to reasonably respond to the foreseeable danger of the likelihood of a recurrence of the condition. Modified Traditional Approach Pg. 330

Under circumstantial you have notice (actual, constructive, mode of operation) most of operation have 3 approaches (traditional premise liability, burden shifting approach, and mode of operation approach)

pg.

330!!!

Evidence of Notice: Liability for negligence depends on foreseeability, not notice. If harm was not otherwise foreseeable, plaintiff must establish that defendant had actual or constructive notice of the danger. Constructive notice is established by evidence that the danger existed so long that it should have been discovered through the exercise of reasonable care. Res Ipsa Loquitur: (falls under the notice section of circumstantial evidence. This is the 4th part of circumstantial evidence (actual, constructive, mode of operation, and RIL all fall under circumstantial evidence) "the thing (accident) speaks for itself" Is one kind of circumstantial evidence which may satisfy the plaintiff's burden of proof on the issues of breach of duty and causation. Under the res ipsa loquitur doctrine, facts establishing the special nature of the accident and the defendant's relationship to it may justify a jury's decision that the defendant more likely than not was negligent. Although authorities vary in articulating the requirements of the doctrine, all agree that the event giving rise to the harm must be of the type which does not ordinarily occur in the absence of negligence. In addition, there must be other facts which make it fair to conclude that the defendant was a legal cause of the event giving rise to the injuries. Examples: There is reason to think that negligence was more likely than not the cause of the accident if grease catches fire, or a car falls off of a jack, or detaches from a tow truck, or if a riding mower turns over, or falls out of bed despite restraining devices, or a light fixture falls from the ceiling. Ordinary accidents: res ipsa loquitur does not apply Elements: The event ordinarily does not occur in the absence of negligence Facts indicating that the defendant's conduct, more likely than not, was a cause of the event Consider: Control of or responsibility for the instrumentality (NOT a rigid requirement) Superior knowledge of or access to the facts Applicable to multiple D's in limited instances

Procedural effect of RIL (3 views): Presumption that shifts the burden of going forward with evidence: In some states, if the jury finds from the evidence that the requirements of the doctrine have been met, it must find for the plaintiff unless the defendant introduces evidence to rebut a finding of negligence (that is, a presumption shifts the burden of going forward with evidence). Presumption that shifts the burden of persuasion: In a few of these states, the jury will be told that the defendant has the burden of proving that it was not negligent if the plaintiff establishes the elements of the doctrine (that is, a presumption shifts both the burden of going forward with evidence and the burden of persuasion). Permissible Inference (majority): In most jurisdictions, however, establishing the elements of res ipsa normally creates only a permissible inference of negligence. This means that the evidence allows the plaintiff's case to go to the jury, but the jury may still find as a fact that the defendant was not negligent. The third Restatement endorses the permissible-inference view of res ipsa loquitur: "the fact finder may infer that the defendant has been negligent when the accident causing the plaintiff's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member." RIL is a rule of necessity, for without it the plaintiff would often be unable to establish the defendant's negligence. RIL is inapplicable if a plaintiff offers expert testimony that purports to furnish a complete explanation of the specific cause of an accident. RIL is applicable when two factors are present: The character of the accident is such that it would not ordinarily occur in the absence of negligence; AND The instrumentality causing the injury is shown to have been under the management and control of the defendant. The first factor is necessary to support the inference of negligence and the second factor is necessary to support the inference that the defendant was the negligent party. As such the 'control' requirement is not a rigid rule that the instrumentality must have always been in the defendant's possession or even that it must have been in the defendant's control at the time of the injury. It is sufficient if the defendant was in control at the time that the negligence inferable from the first factor probably occurred, so that the reasonable probabilities point to the defendant and support a reasonable inference that he was the negligent party. The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant's door. The effect of successfully invoking the res ipsa doctrine is that the plaintiff can survive no-evidence procedural challenges- he has produced some evidence of the defendant's negligence. In order to rely on the res ipsa doctrine, the plaintiff must produce evidence from which the jury can conclude, by a preponderance of the evidence, that both the 'type of accident' and 'control' factors are present. This is not so much a rule of law as it is a rule of logic- unless these factors are present, the jury cannot reasonably infer from the circumstances of the accident that the defendant was negligent. In a great many cases the plaintiff can rely upon a general knowledge to prove the accident in question is the type of accident which does not ordinarily happen in the absence of

negligence.. However, expert testimony on this factor is clearly admissible and may be necessary to the plaintiff's case. First, it should be noted that a plaintiff does not necessarily lose the right to rely on the res ipsa doctrine by pleading specific acts of negligence. "the purpose of pleading is to apprize opposing parties of the exact grounds of complaint against them, so that they may prepare to meet the issues thus made". If a plaintiff pleads specific acts of negligence only, his proof is limited to those specific acts but may consist of circumstantial evidence, including the circumstances of the accident if the inferences reasonably arising from such circumstances are relevant to the specific acts alleged. However, if the plaintiff's pleading gives fair notice that the is not relying solely on specific acts but instead intents to also rely on any other negligent acts reasonably inferable from the circumstances of the accident, his proof is not limited to the specific acts alleged. Likewise, proof of specific acts of negligence does not necessarily make the res ipsa doctrine inapplicable since proof of specific acts is not necessarily inconsistent with inferences of other facts. Of course, if the evidence, whether introduced by the plaintiff of the defendant, conclusively establishes the facts surrounding the accident, then there is no room for inferences and the res ipsa doctrine is not applicable but where the evidence is inconclusive, the plaintiff is still entitled to rely on any inferences that are consistent with the evidence. Specific Evidence of Negligence: it is important to consider the relationship between the res ipsa loquitur doctrine and specific evidence of negligence. In Conner v. Menard the court noted that its decisions had become "very circumspect" in their application of res ipsa loquitur and wrote: o The evidence presented at trial was undisputed. The plaintiff's husband, who witnessed the incident, testified that a Menard employee tried to pull insulation from the bottom of the pile. When this did not work, the employee (and possibly two employees) climbed up the side of a divider fifteen-to-eighteen-feet tall. The husband testified that a bundle of insulation fell on the plaintiff, and in fact, he believed several fell. At least one employee was at the top of the pile at the time the insulation fell. This evidence was accessible to the plaintiff and was "so strong and extensive as to leave nothing for inference". Under our general rule, direct evidence of the essential elements of the claim precludes the res ipsa inference. The plaintiff seeks to avoid the application of this general rule by contending that submitting res ipsa together with direct evidence of the details of the incident is merely harmless error. We reject Brandy's harmlesserror argument because , in a case like this, in which evidence of the "precise cause" of the injury is clear enough that a reasonable fact finder could find negligence but might choose not to, the addition of a res ipsa alternative is prejudicial. If the jury, on finding insufficient evidence of specific acts of negligence, were able to fall back on a res ipsa theory, this would in fact give the plaintiff two bits of the apple. Res Ipsa and Plaintiff's Conduct: It was once said that for res ipsa loquitur to apply, the plaintiff had to prove that the negligence which caused the injury was more likely than not attributable to the defendant, rather than the plaintiff. This meant that res ipsa loquitur was inapplicable in any case involving contributory negligence. The advent of comparative negligence and comparative fault necessitated modification of the old rule, for under comparative principles fault on the part of the plaintiff no longer always requires a denial of recovery. Under comparative negligence a res ipsa loquitur plaintiff is required to show only that the "defendant's inferred negligence was, more probably than not, a cause (not the cause) of the injury, even though plaintiff's negligent acts or omissions may also have contributed to the injury."

If a RIL argument is allowed in a comparative negligence or comparative fault state in a suit where the plaintiff is not blameless, how is the jury to compare the negligence of the defendant with that of the plaintiff in order to reduce damages to an appropriate level? The jury is unaware in a RIL case of precisely what the defendant did wrong. The theory appears to be that a rough allocation of damages is better than no allocation at all.

Burden of proof: o Distinguish: the burden of going forward with evidence FROM: o The burden of persuasion

*** It is a serious mistake to think that direct evidence is always more persuasive than circumstantial evidence, for awhile eyewitness testimony from a credible source is valuable evidence, it often pales in comparison to such circumstantial evidence as footprints, fingerprints, or traces of blood. Eyewitness testimony that the defendant chopped off the plaintiff's foot is worthless if the plaintiff shows up in court with two perfectly functioning feet. ****** WAYS TO PROVE BREACH: NEGLIGENCE PER SE ETC. Spoliation of Evidence: A cause of action that may be brought when one party destroys evidence. Some states permit an independent action. Others use presumptions or sanctions. Consider: o Is there a duty (statutory, regulatory, or ethical) to preserve? o When does a duty arise? Pre-litigation? o Was the duty breached without excuse? o Was the breach intentional, reckless, or negligent? o Did the breach hinder presentation of the case? o Was the evidence relevant, cumulative, critical? o What sanction is appropriate? Dismissal of action Exclusion of evidence Rebuttable presumption

Causation

2-part test
Factual causation (cause-in fact/ actual)
A factual inquiry into whether the defendant's conduct precipitated the injury The plaintiff must prove causation (probabilities not possibilities) Evidence cannot be speculative Conduct is a "substantial factor" if it was: Indispensable ('but for") OR Independently sufficient causes Two Step Inquiry: (the issue of causation involves a two-step inquiry):

Substantial factor: The first step asks whether in fact there was a connection between the allegedly tortious conduct and the plaintiff's injury. One way (but not the only way) to meet this requirement is to show that "but for" the defendant's conduct the harm would not have occurred. If a negligent act or omission is a substantial factor in bringing about the injury and without which no harm would have occurred, the act or omission is a cause in fact of the injury. The terms "cause in fact" or "factual causation" are often used to refer to the first step in the causation analysis, and "proximate causation" often denotes the second step. As a simple illustration of the role of "but-for causation" or "cause in fact" in the law of negligence, suppose that the plaintiff is struck by a speeding hit and run driver and that the plaintiff sues the defendant. If the factfinder determines that the defendant was not the driver who struck the plaintiff, the case is over- even if the defendant was negligent. (suppose, for instance, that the evidence shows that the defendant was speeding on a street ten miles from the scene of the accident.) Many tort cases turn primarily on issues like this: was it the defendant whose car hit the plaintiff; was it the defendant who made the defective product that injured the plaintiff; was it the defendant who set off the explosion that knocked down the plaintiff's barn? Causation, in the but-for sense, is normally required if the defendant is to be liable. But causation in the but-for sense is never enough, but itself, to establish liability. "only those causes attributable to tortious conduct are legally relevant in determining liability and apportioning liability for plaintiff's harm."

Sine Qua Non: The "But For" Test: (Traditional approach): Normally, it is a question of fact for the jury to determine whether a particular course of conduct is such as to multiply the chances of injury and thus justify a finding of factual causation. Expert testimony may be needed. If direct evidence is unavailable, circumstantial evidence may establish factual causation. The breach of a statutory duty itself may give rise to an inference that an injury was the proximate result of the violation (example: failure to have a lifeguard on duty at a swimming pool)

Proximate causation (legal cause)

A policy inquiry into whether it is fair to impose liability on a defendant whose conduct was a factual cause.
2nd Step in the Two-Step Inquiry: The second step in the causation analysis concerns the fairness of imposing liability for harm in fact caused by the defendant. That is, notwithstanding the fact that the defendant played a substantial role in the plaintiff's injury, it may be unfair to impose liability. This determination is sometimes framed in terms of foreseeability, on the belief that it is fair to hold a defendant responsible for those consequences of conduct which could have been foreseen, and unfair to impose liability for results which could not have been anticipated. Foreseeability means that he actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created.. Furthermore, the actor need only anticipate an injury of the same general character as the actual injury.