Brian Pedigo                                         Torts                                                                Negligence Outline

 

Prima Facie Case of Negligence:

 

I.                   Duty

a.       Due Care / Reasonable (prudent) Person Standard – the standard never varies, but the care which is reasonable varies with the danger involved and is proportionate to it. The greater the danger, the greater the care which must be exercised. Stewart v. Motts (gas explosion).

                                                   i.      Sudden Emergency – Lyons v. Midnight Sun shows that the sudden emergency instruction is a generally useless appendage to the law of negligence because it unnecessarily restates the reasonable person standard.

                                                 ii.      Disabilities – a person with a physical disability is not required to exercise a higher degree of care to avoid injury than a non-disable person. The reasonable person is one acting with the same disability.

                                                iii.      Mental Illness / Disability – Creasy v. Rusk shows that a person suffering from Alzheimer’s is held to the same duty as a reasonable man under like circumstances.

                                               iv.      Minors – Robinson v. Lindsay (Snowmobile accident) demonstrates that a minor, when doing abnormally dangerous activities that are normally reserved for adults, that minor will be held to the standard of a reasonable adult..

1.      Rule of Sevens:  >14 = capable of negligence; 7 to 13 = presumed incapable;   under 7 incapable of negligence as a matter of law.

b.      Specification of duties (negligence per se / statutory indicators of negligence)

                                                   i.      Negligence per se can be called into question when the person is not in the class of persons the statute was meant to protect, or the injury is not the type in which the statute was intended to prevent. See Tedla v. Ellman (bums on highway) and Wright v. Brown (dog attack bit person within the class protected by statute).

                                                 ii.      Excuses include 1) actor’s incapacity, 2) neither knows nor should know to comply (such as a child in Rudes v. Gottschalk), 3) unable to comply after having tried, 4) confronted by an emergency not due to own, or  5) compliance would involve a greater risk of harm to others. (Restatement) See Impson v. Structural Metals where truck driver causing accident in intersection had no excuse to violation of statute.

II.                Breach (Negligence)

a.      Assessing Reasonable Care by assessing risks and costs

                                                   i.      See Indiana Consolidated Insurance Co v. Matthew where a lawnmower caught on fire inside of a garage. The Δ properly weighed the cost of attempting to put out the fire himself or to run and call for help. Life and safety more valuable than property loss.

                                                 ii.      See Stinnett v. Buchele where roof worker that fell off of Δ’s roof. Δ did not breach any duty by asking π to paint his roof. The one with the most knowledge of danger has the higher duty to take precautions against the danger.

                                                iii.      See Halek v. United States (elevator pulley) where some hazards are so obvious that their mere existence is adequate warning and discharges the landowner’s duty of care.

                                               iv.      See Bernier v. Boston Edison Co. where Δ could have built safer light poles at a higher cost in order to save vulnerable pedestrians when the poles are struck by automobiles.  Safety was more valuable than costs.

                                                 v.      See United States v. Carroll Towing Co. where the formula for liability is whether burden is less than the probability times the injury. (Risk-utility formula)

b.      Responsibility when more than one person is negligent – liability of one person does not necessarily exclude liability of another. Liability can be measured by comparative fault, apportionment among Δs, joint and several liability (π can enforce against either or both), and contribution.

c.       Proving and evaluating conduct

                                                   i.      Proving Conduct – See Gift v. Palmer (3 year old struck by car) where negligence could not be proved because there were no eye witnesses to the accident, there was no evidence of the speed of the vehicle, the time of the accident, etc. A mere happening of an accident is not evidence of negligence.

                                                 ii.      Evaluating conduct – See Thoma v. Cracker Barrel where π slipped and fell in Δ’s restaurant. To recover for injuries π must show that Δ either created a dangerous condition or had actual knowledge of a dangerous condition.

1.      Customary statutory violations – if one obeys a statute, they may still be negligent by failing to follow a safety custom in their industry. (The T.J. Hopper – where the barges should have had radios).

d.      Proving unspecified negligence (Res Ipsa Loquitur) – Lat. “The Thing Speaks for Itself.”

                                                   i.      Origins and features

1.      See Byrne v. Boadle (falling barrel) where the occurrence is of itself evidence of negligence. Res Ipsa says that there must have been negligence, or the accident could not have happened.

2.      Elements of Res Ipsa are that 1) event does not ordinarily occur in the absence of neg, 2) other causes (including π’s conduct) are eliminated by the evidence, and 3) negligence is within the scope of Δ’s duty to π.

                                                 ii.      Attributing fault to Δ rather than to others

1.      Giles v. City of New Haven loosened up the exclusive control requirement when π was pushing the buttons on the elevator which led to its malfunctioning (shared control) and held that Δ was still responsible for the elevator.

                                                iii.      Negligence more probable than not?

1.      Warren v. Jeffries (kid jumping out of falling parked car killed) showed that it was impossible to show negligence as being more probable than not, that it would be mere speculation to judge otherwise.

2.      Widmyer v. Southeast Skyways (Air crash) says that air crashes do not normally occur absent negligence even in inclement weather.

III.             Actual Cause (But-for) and actual harm

a.       Actual Harm – π must suffer legally cognizable harm

                                                   i.      Copeland v. Compton said that guy with 3 previous accidents could not show actual harm from the last accident. This requirement filters out minor claims.

b.      Cause in Fact / Actual Cause – harm was in fact caused by Δ.

                                                   i.      But-for test of causation

1.      Salinetro v. Nystrom (dead baby x-rayed) said that there was no causal connection between Δ’s behavior and the result.

                                                 ii.      Problems with but-for tests

1.      Liability of two or more persons (Landers v. East Texas Salt Water – salt dumped into π’s lake by 2 Δs), separate injuries, indivisible injury

                                                iii.      Proof – what was caused?

1.      Dillon v. Twin State Gas & Electric showed that Δ caused the death of the child touching the wires, but π would have died anyway without Δ’s negligence.

2.      Summers v. Tice had two Δs shoot at bird and hit π; both were liable even though it could not be proved which one caused the injuries.

3.      Wollen b. Depaul Health Center was about Δ causing a reduced (or lost) chance of recovery to π. Fennell v. Southern Maryland Hospital was about a lost chance of survival and the court refused to legislate such lost chance rule for damages.

IV.              Proximate Cause (Foreseeability)

a.       Scope of risk

                                                   i.      Medcalf v. Washington Highs Condos (broken buzzer) said that Δ created no reasonably foreseeable risk, therefore there was not a causal relationship between the broken buzzer and the accident/crime.

                                                 ii.      Palsgraf v. Long Island Railroad majority Cardozo said that π was not in the zone of danger, and that the injury was not natural or probable, so there should be no consequences to Δ. Dissent Andrews said that Δ owes duty to all possible π’s because of the relationship between π and Δ.

                                                iii.      Rescue doctrine cases have generally said that the rescuer can recover from the Δ whose negligence prompts the rescue.

b.      Assessing the scope of risk

                                                   i.      Harm outside the scope of risk because of the manner in which it occurs?

1.      Hughes v. Lord Advocate demonstrated that even though the harm was within the scope of risk, the manner in which the harm came was not foreseeable. Still Δ was liable.

2.      Doughty v. Turner (exploding liquid metal / cover) harm was outside scope of risk since the manner the explosion occurred was not foreseeable.

                                                 ii.      Harm outside the scope of risk because its extent is unforeseeable?

1.      Thin skull cases say no, harm is not outside scope of risk because of the extent of harm being unforeseeable. Δ takes π as it finds him.

2.      Fire cases say that Δ does not escape liability because the harm was more extensive than anyone foresaw or could have foreseen.

                                                iii.      Harm outside the scope of risk because it results from an intervening force or person?

1.      Natural and continuous sequence

a.       Breaking the causal chain can be by 1) reaching a position of relative safety, 2) an intervening criminal act, 3) an independent force that would have caused the result, 4) shift of responsibility, or 5) Acts of God.

b.      Sheehan v. City of NY (truck hits bus) distinguished furnishing the condition for the accident vs. causing the accident.

c.       Marshall v. Nugent brought out the idea of consequences of past negligence being in the bosom of time, yet unrevealed. Actual harm was not yet “born.”

2.      Intervening forces of nature – Δ is not liable if the harm done is deffernet from the harm that was risked by Δs conduct in the first place.

V.                 Damages

a.       Recoverable damages include past and future medical expenses, loss of wages or earning capacity, pain and suffering, special expenses. Actual damages make something worth less money, so an accidentally castrated dog would not suffice.  Ponder v. Angel Animal Hospital.

VI.              DEFENSES

a.      Contributory Negligence – common law rule

                                                   i.      Butterfield v. Forrester (obstruction in road by Δ tripped speeding π on horseback) showed that π’s contributory negligence contributed to the accident, and barred π entirely from recovery,

                                                 ii.      Exceptions

1.      Last Clear Chance / Discovered Peril

2.      Δ’s Reckless or Intentional Misconduct

3.      π’s illegal activity

b.      Comparative Fault / Negligence

                                                   i.      Pure Comparative Fault – fault is weighed against both π and Δ respectively.

1.      Wassel v. Adams (Δ motel owners and π raped in motel) π was 97% at fault and Δ was 3% at fault. Ct. of Appeals thought Δ should get more, but Trial ct. Judge did not abuse discretion.

                                                 ii.      Modified Comparative Fault – π is barred if his fault is equal to or greater than Δ’s

                                                iii.      Negligence or fault not a cause in fact or proximate cause – π may recover full damages

                                               iv.      Protecting π from π’s own fault

1.      See Bexiga v. Havir Manufacturing where π boy crushed his hand on machine he was operating. Because there were clearly safer alternatives for Δ, π was not at all at fault.

2.      McNamara v. Honeyman shows that there is a duty to protect π from suicide and π was not liable for killing self because it was Δ’s duty to protect.

3.      Contrast one way risk vs reciprocal risk

                                                 v.      Rejecting comparative fault to protect π entitlements

1.      Leroy Fibre v. Chicago Railway (burning stack of flax) emphasized property rights of π over duty of care to negligent wrongdoers (railroad).

c.       Assumption of the Risk

                                                   i.      Contractual (Express or Implied) Assumed Risk

1.      Knowledge of the risk

2.      Appreciation of the nature of the risk

3.      Proceed voluntarily

4.      (Restatement) Did π’s conduct manifest a willingness to accept responsibility for the risk?

                                                 ii.      Assumed risk as limited duty (or no Δ negligence)

1.      Sports Cases – Turcotte v. Fell (racehorse jockey violating rules; no negligence); Gauvin v. Clark (hockey violence; no negligence). Emphasis on acting willfully, wantonly, or recklessly. Reason: vigorous sports should not be chilled by threats of litigation.

d.      Statutes of Limitation

                                                   i.      Policy reasons: Certainty; Evidence is lost or altered with time; Testimonial accuracy; avoid economic burden to insure

                                                 ii.      Triggered from the date of injury – Crumpton v. Humana (frivolous appeal SoL)

                                                iii.      Triggered when right to institute action arises – Shearin v. Lloyd (sponge in stomach)

                                               iv.      Triggered when discovered injury and cause  - Schiele v. Hobart Corp (meat wrapper)

                                                 v.      Repressed v. Forgotten – McCollum v. D’arcy (repressed abuse memory tolled SoL);
Doe v. Maskell (repression (blamelessly ignorant) = forgotten (slumber on rights) which does not toll SoL

e.       Compliance with Statute

                                                   i.      Statute provides minimum due care required – sometimes due care goes beyond statutory requirements. (Miller v. Warren – smoke detectors not required, but negligent for not having them)