THE NEGLIGENCE PRINCIPLE



THE NEGLIGENCE PRINCIPLE

A. Components of a Negligence Claim

B. Fault Liability

Brown v. Kendall

C. The Standard of Care

1. Unreasonable Risk

(i) Creation of Risk

Adams v. Bullock

(ii) Calibration of the Standard of Care

United States v. Carroll Towing Co.

2. The Reasonable Person

Bethel v. New York City Transit Authority

(i) Dangerous Instrumentalities

(ii) Physical Disabilities

(iii) Mentalability

Diminished capacity

Imbecility

Insanity

Intoxication

(iv) Children

(v) Elderly

(vi) Beginners

(vii) Emergency Doctrine

D. The Roles of Judge and Jury

Baltimore & Ohio Railroad Co. v. Goodman

Pokora v. Wabash Railway Co.

Andrews v. United Airlines Inc.

E. Particularizing the Standard of Care

1. The Role of Custom

Trimarco v. Klein

2. The Role of Statutes

(i) Violation as negligence per se

Martin v. Herzog

(1) Requirements for statute to apply

(a) Class of persons protected

(b) Relevance

(c) Obsoleteness

(ii) Exceptions

Tedla v. Ellman

(1) Justifications for non-compliance – defenses to negligence per se

(a) Greater risk of harm

(b) Inability or reasonable attempt to comply

(c) Emergency

(2) Limitations to compliance as a defense against negligence

(iii) Licensing Statutes

F. Proof of Negligence

1. Constructive Notice

Negri v. Stop and Shopt Inc.

Gordon v. American Museum of Natural History

(i) Historical Evidence

(ii) Business Practice Rule

2. Res Ipsa Loquitur

(i) Requirements: Exclusive Control, Seldom Occurs

Byrne v. Boadle

(ii) Negating Other Causes: More Likely Than Not

McDougald v. Perry

(iii) Two Approaches: Inference of Negligence vs. Rebuttable Presumption

(iv) Spoliation of Evidence: Spoliation Tort

(v) Automobiles: Negligence per se

(vi) Multiple Defendants: Special Relationship

Ybarra v. Spangard (California, 1944)

(vii) Pleading or Proving Specific Negligence

(viii) Defendant’s Rebuttal: Due Care vs. Disproving a Requirement

E. Medical Malpractice

1. Refined Standard of Care: Conformity with Common Practice

Sheely v. Memorial Hospital

(i) Differing schools of thought

(ii) Specialists held to a higher standard

(iii) Need for expert testimony

(a) Standard

(b) Negligence obvious to the lay person

Connors v. University Associates in Obstetrics & Gynecology Inc.

(iv) Informed Consent

Matthies v. Mastromonaco

THE NEGLIGENCE PRINCIPLE

A. Components of a Negligence Claim

Duty + Breach + Causation + Actual damages

Failure to conform, Actual, legal

carelessness.

Liability

B. Fault Liability

Plaintiff must come prepared with evidence to show either that the intention was unlawful or that the defendant was at fault.

• If the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable.

• Those facts that are essential to the plaintiff’s case must be proven by the plaintiff.

Brown v. Kendall (Massachusetts, 1850)

PH:

Brown (Π, poked in the eye) sued Kendall (Δ, poker) for trespass for assault and battery. Jury found for Π. Δ appealed

F:

Π and Δ’s dogs were fighting

Δ took stick and beat the dogs to separate them while Π looked on.

Π advanced one or two steps towards dogs

As Δ was backing away from dogs, while still beating them, Δ struck Π in the eye causing severe injury.

Court instructed the jury that Δ had to prove his duty of care

I:

Can a Π recover damages for trespass when Δ’s conduct causing the injury was unintentional?

H:

To show that Δ was liable for trespass he must be shown to be at fault and that the action in question was not a mere accident. It is Π’s duty to prove that Δ is at fault.

Rule: a Π must show that criminal intent or fault existed in order for an action to be considered trespass.

R:

It is not enough to show that a particular act led to a particular injury for trespass to be present. It must be shown that either there was criminal intention or fault. If the injury was unavoidable and the conduct was free from blame, Δ is not liable. The burden of proof lies with Π. To do otherwise would be to assume Δ was guilty.

J:

New trial

Notes:

Jury charge was wrong because 1) it placed the burden of proof on the defendant, and 2) it equated necessary care with ordinary care and unnecessary care with extraordinary care. Under trespass, non-negligence might have been contemplated under liability in trespass. Now the burden of proof is placed on the plaintiff to show fault. Before every trespass was actionable, now you must show fault.

C. The Standard of Care

1. Unreasonable Risk

(1) Creation of Risk

To show that the defendant’s conduct failed to meet the duty of care , the plaintiff must show that the defendant’s conduct created an unreasonable risk of harm..

There is no benefit of hindsight; one is not guilty of negligence when one fails to foresee the unusual and remote conduct of others. Ordinary caution does not involve forethought of extraordinary peril.

Adams v. Bullock (New York, 1919)

PH:

Adams (Π, a boy of 12) sued Bullock (Δ, a trolley owner) for negligence. Verdict for Π. Δ appealed. Appellate Division court affirmed. Δ appealed.

F:

Trolley wire runs under overpass (train) used by pedestrians.

Boy crossed bridge swinging wire, wire came in contact with trolley wire and boy suffered burns in his hand.

I:

Whether a Π can recover damages for negligence when all reasonable precautions against foreseeable accidents had been taken?

H:

The boys conduct was so out of the ordinary that it was not foreseeable and Δ was not negligent in not having taken measures against it.

R:

Δ had taken all measures required by custom and ordinary forethought. This type of situation was so unusual and random that no reasonable man could have foreseen it before it happened. If it was easy to protect the wires, there might have been a duty to do so, but that was not the case. Ordinary caution did not involve forethought of this extraordinary peril. However, if there had been a readily available, easily implemented measure (“facility of protection”) there would have been a duty to protect.

J:

Reversed

Notes:

Foreseeability and availability of fixes. How difficult it was to take precautions clenched the case. Negligence is designed for tortfeasor to be able to defend himself (making more restrictive)

(1) Calibration of the Standard of Care

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