Sly Bri Esquire Study Blog
Sunday, March 21, 2004
Torts - Introduction
I. Chapter I. Introduction to Tort Liability

A. Prologue

1. The Nature of Tort Law

a. No satisfactory definition: There is no really useful definition of a “tort” which will allow all tortious conduct to be distinguished from non-tortious conduct. In fact, courts are constantly changing their view of what constitutes tortious conduct (usually by way of expansion of liability). The best that can be done is to identify a few of the main features and purposes of tort law:

(1) Compensation: The overall purpose of tort law is to compensate plaintiffs for unreasonable harm which they have sustained.

(a) Competing Policy Reasons:

i) Compensation for victims
ii) Deterrence: Deter accidents and defendants from taking risks
iii) Judicial administration: stare decisis, bright line rules for future cases
iv) Economic efficiency: it’s fair to make the defendant pay for the accident if it would have been cheaper for the defendant to have prevented the accident
v) Justice, fairness: underpins everything. Courts will ask “What is the fair result?”

B. When should unintended injury result in liability:

1. Shifting losses: The fundamental issue addressed by a system of tort liability for untended injury is when losses should be shifted from an injury victim to an injurer or some other source of compensation. The courts could apply a theory of strict liability by requiring people to pay for all harms they cause. In the alternative, the courts could require that people only pay for injuries they cause through their own negligence or fault.
a. Strict liability or negligence
Hammontree v. Jenner

(1) Facts: Jennfer (D) had suffered a seizure in 1952 and was subsequently diagnosed as an epileptic. He was given medication and his seizures were brought under control. Beginning in 1955 or 1956, D had to report his condition to the DMV on a periodic basis. Since his seizures were under control, he was able to keep his driver’s license. In 1967, D had a seizure while driving, lost control of his car, hit Hammontrees’ (Ps’) shop, and struck Mrs. Hammontree. Ps sued for personal injury and property damage. Ps wanted the jury to be instructed on strict liability, but the trial court refused the strict liability instruction and instructed on negligence instead. The jury found for D, and Ps appeal.

(2) Issue: Is strict liability an appropriate theory for recovery when sudden illness renders an automobile driver unconscious?

(3) Held. No. Judgment affirmed.

(a) When products cause injury, strict liability is an appropriate theory. The manufacturers make a profit from sales and should pay for any injuries. Those costs are costs of doing business.

(b) The theory of negligence, however, is adequate for automobile accidents. Drivers share the roads and should allocate damages based on fault. Since D used reasonable care to control his seizures, negligence has not been shown.
C. The Litigation Process
1. Client visits attorney to discuss possible case. Lawyer calls other party to attempt to reach a settlement. If other party refuses, lawyer may file a complaint.

2. Defendant responds. Could file a motion to dismiss because “no legal grounds for complaint” even if the facts are true (demurrer). The motion to dismiss would say that the complaint does not state a cause of action. If the judge agrees with the defendant, the judge will dismiss the suit and judgment is granted for the defendant.

3. If judge does not dismiss, the defendant will file an answer, in which he denies some or all of plaintiff’s allegations of fact. The defendant could file a motion for summary judgment. That is, there is no need for a trial because there is no genuine dispute as to the facts. If motion for summary judgment is granted, judgment is granted and the case ends.

4. If motion for summary judgment is not granted, case goes to trial.

5. Before jury reaches verdict, defendant could make motion for directed verdict. This asks the judge to rule in defendant’s favor because the plaintiff’s evidence is so lacking on at least one essential fact that no jury could reasonably find in the plaintiff’s favor and thus it is pointless to continue the trial. If motion for directed verdict is granted, judgment is entered and the case ends.

6. If directed verdict is denied, jury instructions are presented by both sides to the judge, and he selects which instructions to give the jury.

7. The jury will be charged and will go deliberate.

8. After verdict is reached, the loser may enter a motion for judgment n.o.v. If the motion is granted, case ends.

9. If motion isn’t granted, a judgment is entered and the loser may appeal on the ground that an error of law was committed by the trial court.
D. The Parties and Vicarious Liability
1. Nature of Doctrine: The doctrine of vicarious liability provides that in some situations, the tortious act of one person may be imputed to another, because of some special relationship between the two. As a result, the latter will be held liable, even though his own conduct may have been blameless. The most frequent situation in which vicarious liability exists is that involving tortious acts (usually negligent ones) committed by an employee; under appropriate circumstances, the employer is held vicariously liable for the tort.

2. Respondeat superior doctrine: If an employee commits a tort during the “scope of his employment” his employer will (jointly with the employee) be liable. This rule is often described as the doctrine of “respondeat superior” (which means, literally, “Let the person higher up answer.”)


(1) An employee, not an independent contractor

(2) Acting within the scope of his employment:

(a) Employee’s conduct must be of the general kind the employee is hired to perform

(b) Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of employment

(c) Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.


(1) Deterrence: If the employer is made strictly liable for employee’s torts, he will be more careful in his hiring, training, disciplinary practices, etc., and fewer accidents will result.

(2) Economic efficiency: It would be easier for the employer to absorb the costs of the litigation; business can spread the costs across their consumers

(3) Fairness: Indemnity. The employer has a legal right to get indemnified from the employee. At least in theory, it’s fair from the defendant’s perspective, because the employer can get the money back from the employee.

(4) Compensation: The employer has deep pockets.

(5) Fairness: Quid pro quo (this for that). It’s fair to hold the employer liable for the employee’s torts because the employer gets the benefit (makes money) from the employee’s actions. It is unseemly if the employer can make money from the employee’s actions and not lose money from the employee’s actions.

c. Trips from home: Most courts hold that where an accident occurs where the employee is traveling from her home to work, she is not acting within the scope of her employment; this conclusion is often based on the theory that the employer has no “control” over the employee at that time.

(1) Returning home: When the employee is returning home after business activities, the courts are divided, although most would probably deny liability on the employer’s part here as well.

d. Frolic and detour: It frequently happens that, while on a business trip, the employee makes a short “side trip” or “detour” for her own purposes.

(1) Traditional view: The traditional view has been that while the employee is on the first leg of her side trip (i.e., going to the personal objective) she is engaging in what is often called a “frolic and detour,” and thus is not within the scope of her employment. But as soon as she begins to return towards the path of her original business trip, she is once again within the scope of her employment, no matter how fair afield she may be at that point.

(2) Modern view: But many modern courts have taken a less mechanical view of the frolic and detour problem. These courts have held that the employee is within the scope of business if the deviation is “reasonably foreseeable.” Under this view, the employee might be within the scope of employment even while she was heading toward the object of her personal errand, if this deviation was slight in terms of distance. But if the deviation was large and unforeseeable then the employee is not within the scope of business even while heading back towards her business goal, at least until she gets reasonably near the route she was supposed to take.

e. Acts prohibited by employer: Since the whole idea behind respondeat superior is that the employer is liable completely irrespective of his own negligence, it follows that the employer liability will exist even if the acts done were expressly forbidden by the employer, as long as it is found that they were done in the furtherance of the employment.

f. Unauthorized delegation by employee: If the employee, without his employer’s permission, hires an assistant, or permits an unauthorized person to use the employer’s property, and the latter commits a tort, the employer will not automatically be vicariously liable, in most courts. Rather, there will be vicarious liability only if the employee himself was negligent in brining in the third person (as where he should have known that the third person would not be able to do the job safely).

g. Intentional torts: Respondeat superior may, as noted, apply to intentional torts. Generally, “the master is held liable for any intentional tort committed by the servant where its purpose, however, misguided, is wholly or partly to further the master’s business.”

(1) Debt collection: Thus the employer will be liable if his employee attempts to collect a debt owed to the employer by assault, batter or false imprisonment.

(2) Personal motives: But if the employee acts purely from personal motives (e.g., a violent dislike of a customer), the employer will not be liable.

(a) Special duty owed by employer: But even in this “personal motive” situation, the employer may still be liable if he owes an independent duty of protection to the victim. A common carrier owes its passengers a duty of reasonable care to protect them against torts by third persons. Therefore, if a railroad conductor attacked a passenger, even though solely for his own motives, the railroad would still be liable, on the grounds that it breached its direct duty of care.

(3) Lost temper: If the employee gets into an argument during a business transaction, and then loses his temper and commits an intentional tort, most courts hold that the employer is not liable.

(4) Foreseeability rule: Just as in the case of negligence, a few modern courts have adopted a “foreseeability rule”, whereby the employer is liable even for intentional torts if their occurrence was foreseeable or “characteristics.”
3. Ostensible Agency
a. The ostensible agency addition to vicarious liability: By estoppel or ostensible agency, an employer may be liable for the torts of a non-employee. The party asserting ostensible agency must demonstrate that:

(1) The principal, by its conduct

(2) Caused him or her to reasonably believe that the putative agent was an employee or agent of the principal, and

(3) That he or she justifiably relied on the appearance of agency.

b. Baptist Memorial Hospital System v. Sampson (Brief here)

(1) The hospital here was not liable under ostensible agency because its conduct had not led the plaintiff to believe the emergency room doctors were employees of the hospital.

II. Chapter 2. The Negligence Principle
A. Historical Development of Fault Liability

1. Origins: Historians have disagreed as to the origins of the law of torts.

a. Early English law: In the common law courts of the 13th century, only two writes were available for redressing torts. These were the writ of trespass and the writ of trespass on the case.

(1) Trespass: The writ of trespass provided relief for all direct and immediate forcible injuries to person or property. It covered unintentional as well as intentional injuries, require no proof of actual damages, and did not require fault on the part of the defendant (i.e., wrongful intent or negligence was not required).

(2) Trespass on the case: The writ of trespass on the case provided relief for injuries that were intended but were either not forcible or not direct. Usually, the plaintiff was require to show actual damages and wrongful intent or negligence on the part of the defendant.

2. Present law: Today, tort liability generally falls into three classes:

a. Liability based on the intent of the defendant;

b. Liability based on the negligence of the defendant; and

c. Liability attaching irrespective of the state of mind of the defendant; i.e., strict liability.
3. The Fault Principle: Brown v. Kendall
a. In 1850, in Brown v. Kendall, the Massachusetts Court abolished the rule that a direct physical injury entailed strict liability. The court held that when the defendant who attempted to beat a dog but unintentionally struck the plaintiff instead would not be liable for battery in spite of the direct force applied. Instead, the defendant would be liable only if he intended to strike the plaintiff or if he was at fault (negligent) in striking him. (Brief here)

b. Held: When a defendant is engaged in a lawful act and injures a plaintiff, the plaintiff may not recover damages if:

(1) The plaintiff and defendant exercised ordinary care;

(2) The plaintiff and defendant failed to exercise ordinary care; or

(3) The plaintiff alone failed to exercise ordinary care.

c. Brown v. Kendall set the general standard for negligence law: the defendant should use ordinary care, or more particularly, the care of a reasonable and prudent person. The actual conduct that would count as ordinary care would vary with circumstances, since a reasonable person would exercise more care when danger is greater.

4. Elements of a Plaintiff’s Prima Facie Case: The rules for the negligence case require that the plaintiff has the burden of proving all of the following elements in order to establish an actionable claim for negligence:

a. The defendant owed the plaintiff a duty of care, for instance, not to engage in unreasonably risky conduct;

b. The defendant breached that duty by his unreasonably risky conduct;

c. The defendant’s conduct in fact caused harm to the plaintiff;

d. The defendant’s conduct was not only a cause in fact of the plaintiff’s harm but also a proximate cause, meaning that the defendant’s conduct is perceived to have a significant relationship to the harm suffered by the plaintiff.

e. The existence and amount of damages, based on actual harm of a legally recognized kind such as physical injury to person or property.
5. The Elements: Meaning and Terminology
a. Duty or Standard of Care

(1) The duty or standard of care imposed in most cases is the duty of reasonable care under the circumstances, no more, no less. Judges, not juries, ordinarily determine whether a duty exists and the standard it imposes.

b. Breach of Duty: Negligence:

(1) The defendant must have breached his duty of care tot he plaintiff. When the defendant owes a duty of reasonable care, the defendant breaches that duty by conduct that falls short of such care, that is, by conduct that is unreasonably risky. Juries, not judges, decide whether the defendant was negligent unless the question is too clear to permit different evaluations by reasonable people.

c. Cause in Fact:

(1) Actual harm requirement: The plaintiff cannot recover without showing actual harm resulting from the defendant’s conduct. Put differently, the defendant’s acts must cause the harm of which the plaintiff complaints.

(2) Tests of cause in fact: The traditional view is that the plaintiff’s injury is caused by the defendant’s conduct if, but for the defendant’s conduct, the plaintiff would not have suffered the injury.

d. Proximate Cause:

(1) The requirement: The plaintiff must prove that the defendant’s conduct was a proximate cause of the plaintiff’s harm. This means at the bottom that the plaintiff must persuade the court or jury that the defendant’s conduct not only in fact caused the plaintiff’s harm but that it was a reasonably significant cause.

(a) Excluding liability for fortuitous, unrisked harm: In some cases courts might think that the defendant’s misconduct is not a proximate cause of the plaintiff’s harm because the harm is perceived to be a fortuitous rather than a foreseeable result of the defendant’s negligent conduct.

i) Ex: Defendant’s speeding results in his being farther along on a highway than he would be if he were going the speed limit. A plane falls out of the sky and lands on the car, injuring the defendant’s passenger, the plaintiff. In such a case the defendant is negligent in speeding and his conduct is cause in fact of the harm. Nevertheless, his negligence is probably not a proximate cause of the harm. The risks that make us think the defendant was negligent do not include risks that look anything like the risk of being under a crashing airplane.

(b) Excluding liability for a trivial cause among more significant causes: In other cases the courts might think that the defendant’s misconduct is not a proximate cause of the plaintiff’s harm because the harm is perceived to be more significantly related to other causes. This usually occurs when some other person besides the defendant is also negligent and is the immediate trigger of the harm.

i) Ex: D leaves a log in the road, running the risk that someone might trip over it in the dark. As P walks along in the dark, a robber pushes P over the log, causing injury. D was negligent in leaving the log in the road, and P suffered as a result. Nevertheless, some courts might well emphasize the greater importance of the robber’s acts in causing P’s harm and conclude that D’s negligence was not a proximate cause.
B. The Central Concept
1. The Standard of Care: The defendant is bound only to use that care that is commensurate with the hazard involved. The risk, reasonably perceived, defines the duty owed.

a. Reasonable Care - Adams v. Bullock (brief here)

(1) Facts: Bullock (D) operated a trolley with overhead wires. At one point the wires crossed near a bridge. Adams (P) was a 12-year old boy who used the bridge as a shortcut. While P walked along, he swung an eight-foot wire over his head. P’s wire contracted with D’s trolley wire, and P was injured. P successfully sued D. P’s verdict was affirmed on appeal, and D appeals.

(2) Issue: Whether D breached a duty of reasonable care.

(3) Held: No. Judgment Reversed.

(a) D must only exercise ordinary care in light of ordinary risk. In this case, it would take extraordinary foresight to have foreseen this risk. Even if the harm was remote, if the risk was avoidable, liability would attach. Here, however, the trolley line could not have been made safer.

(4) The opinion seems to suggest a balancing of factors to determine whether a duty is owed. The foreseeability of the harm is balanced against the ability to prevent the injury.

b. Unreasonable Risk:

(1) Imposition of risk: To show that the defendant’s conduct failed to meet the duty of care imposed on him the plaintiff must show that the defendant’s conduct imposed an unreasonable risk of harm on the plaintiff (or the class of persons of whom the plaintiff is a member).

(a) Not judged by results: To make this showing, plaintiff cannot simply show that the defendant’s conduct resulted in a terrible injury. Rather, she must show that the defendant’s conduct, viewed as of the time it occurred, without the benefit of hindsight, imposed an unreasonable risk of harm.

i) Inherently dangerous objects: This “no hindsight” principle is also illustrated by cases in which potentially dangerous objects are left lying around. Some objects (e.g., a shotgun) are so dangerous that it is negligence to leave them lying around without special handling (e.g., unloading the shotgun). But other objects pose less of a danger and it will not be negligence to leave them around even if it turns out that, unexpectedly, they cause harm. The risk is to be evaluated as it reasonably appeared before the accident.

Balancing test
2) Balancing Test: In determining whether the risk of harm from a defendant’s conduct was so great as to be “unreasonable,” the test is whether a “reasonable person” would have recognized the risk, and have striven to avoid it. However, because it is often exceptionally difficult to what a reasonable person would have done in a particular situation, the courts have developed a “balancing test” as a rough guide was to whether the defendant’s conduct is so risky as to involve an unreasonable risk of harm to others. The most famous formulation is that stated by Judge Learned Hand: Liability exists if:

B < L x P

where B equals the burden which the defendant would have to bear to avoid the risk, L equals the gravity of the potential injury, and P equals the probability that the harm will occur from the defendant’s conduct.

Ex: This test was formulated by Judge Hand in U.S. v. Carroll Towing Co. (Brief here) There, P’s barge, docked at a pier, broke away from its moorings due to D’s negligence in shifting the lines that moored it. D, however, argued that P was also negligent in not having an employee on board the barge, and that, according to the rules of admiralty, the damage should be divided between D and P according to their respective degrees of negligence.

Held: It is burdensome, to a degree, to have an employee on board at all times. However, there was wartime activity going on in the harbor, and ships coming in and out all the time. Therefore, the risk that the mooring lines would come undone, and the danger to the barge and to other ships if they did, was sufficiently great that P should have borne the burden of supplying a watchman (unless he had some excuse for his absence) during working hours.

(a) Threat of serious injury: As the Hand formula implies, the more serious the potential injury, the less probable its occurrence need be before the defendant will be held to be negligent for not guarding against it.

c. Calculation of burden: “B” in the above equation is itself a function of not only the cost to him, but also the broader social utility of the conduct which he would have to forego. Hence the courts attempt, in effect, to answer the question: “Would society be better off if all defendants in a the position of D were permitted to act as D did, or were instead require to change their conduct so as to avoid the kind of risk which resulted in injury to P?” Only if the answer to this question Is that defendant in D’s position should be require to change their conduct will the cause of action for negligence lie (assuming that the other requirements are met).

(1) Ex: D Railroad maintains a railway turntable (a rotating platform with a track for tuning a locomotive) near a publicly traveled path. P, a child, discovers that the turntable is unlocked, climbs on it, and while playing on it with a group of children gets his foot caught between the rails and severed at the ankle joint.

(2) Held: It was negligent of D not to keep the turntable locked and guarded. The business of railroading is facilitated by the use of turntables, so the public good demands that their use not be entirely outlawed, since their utility is out of proportion to the occasional injuries which result. But the burden of keeping the turntable locked is so small that the danger of not doing so outweighs this burden.

d. Activity level v. care level: One of the peculiarities of our negligence system is that it usually focuses on the actor’s level of care in carrying out the activity, but not on the social utility of the actor’s decision to engage in that activity at all. Consequently, a defendant who engages in a fairly safe activity but does so negligently is likely to be liable for damages, whereas one who engages in a risky-and-not-socially-beneficial activity but does so carefully, will not - this is true even though the burden on others is greater in the latter situation.

(1) Compare with strict liability: Observe that something quite different happens when the liability scheme is strict liability rather than negligence. Under strict liability, an actor who engages in, say, an ultrahazardous activity is responsible for all injuries that he proximately causes, even if these occur without negligence.

2. The Reasonable Person
a. Objective Standard: The balancing test described above, for weighing burden against risk, is a very abstract one, and neither a jury nor a potential defendant can be expected to use it to evaluate conduct in most instances. Therefore, the negligence issue is usually put to the jury as “Would a reasonable person of ordinary prudence, in the position of the defendant, have conducted himself as the defendant did?” This is essentially an objective standard. That is, it does not ask whether the defendant intended to behave carefully or thought he was behaving carefully. However, this hypothetical “reasonable person” does, as we shall see below, bear some of the characteristics of the actual defendant, at least to the extent of some of his physical attributes.

b. Methods for determining risks acceptable to a reasonable person. The reasonable person standard is important, but it does not by itself direct juries or judges to clear conclusions in close cases. The legal system has developed three broad ways to make the reasonable person standard a little more specific:

(1) Courts invest the imaginary reasonable person with certain mental and physical characteristics. The defendant’s conduct can thus be compared to the conduct we would expect of a reasonable person having say, certain knowledge and ability.

(2) Courts may sidestep the effort to apply general standards by adopting specific rules about specific kinds of conduct such as speeding, condemning that conduct as at least prima facie negligence.

(3) Courts may attempt to estimate how the reasonable person would behave more directly. For instance, they might attempt to estimate the magnitude or the risks involved in the defendant’s conduct, and to weigh those risks along with the costs and benefits of acting more safely. Or, alternatively courts might regard a customary community behavior, not as a standard to be sure, but as persuasive evidence of how a reasonable person would behave.

c. Physical Characteristics: The circumstances under which a defendant is judged include external facts of the case, such as the traffic conditions, speed limit, etc. Most courts have extended the circumstances to include the physical characteristics of the defendant himself. That is, they have held that the test is whether a reasonable person with the physical attributes of the defendant would have behaved as the defendant did.

1) Physical disability: Thus if the defendant has a physical disability, the standard for negligence is what a reasonable person with that physical disability would have done.

(a) Sudden disability: A key factor will often be whether the disability has struck for the first time immediately preceding the accident. A defendant who reasonably believes himself to be in good health, and who suddenly suffers, for the first time ever, a heart attack or epileptic seizure while driving, would almost certainly not be held to have negligently caused the ensuing accident. But one who knows he is subject to such attacks or seizures might well be negligent in driving at all.

(b) Blindness: Many disability cases have involved blindness. Typically, it is the plaintiff who is blind, who has been injured, and against whom the defense of contributory negligence is asserted. In such a case, the issue is: How would a reasonable blind person behave? Sometimes, the reasonable blind person will have to be more careful than a reasonable sighted person, sometimes less.

(2) Mental Attributes:

(a) The ordinary reasonable person is not, however, deemed to have the particular mental characteristics of the defendant. For instance, the defendant is not absolved of negligence because he is more stupid, hot-tempered, careless or of poorer judgment than the ordinary reasonable person.

(3) Imbecility: However, a mental state so low that it must be considered imbecilic or moronic, and which prevents the actor from even understanding that danger exists, will usually be held to render negligence impossible. The issue has usually arisen in the case of mentally defective plaintiffs against whom contributory negligence is asserted.

(4) Insanity: Paradoxically, the courts have bee more inclined to impose a “reasonable” objective standard upon insane persons than upon mentally deficient ones. However, recently courts have begun to hold that insane persons, whether plaintiff or defendant, are not negligent if their insane state prevented them from understanding or avoiding danger.

(5) Intoxication: A defendant who is intoxicated at the time of the accident is not permitted to claim that his intoxication stripped him of his ability to comprehend and avoid the danger; he is held to the standard of conduct of a reasonable sober person.

(6) Children: Another exception to the general objective reasonable person standard is that children are not held to the level of care which would be exercised by a reasonable adult. A child must merely conform to the conduct of a child of like age, intelligence and experience, under the circumstances.

(a) Definition of child: This special standard is applicable only to children, not to all “minors.” The Second Restatement notes that the test is generally for children of “tender years” and furthermore states that it has “seldom been applied to anyone over the age of sixteen.”

(b) Adult activity: Another exception to the special rules for children is that where a child engages in a potentially dangerous activity that is normally pursued only by adults, he will be held to the standard of care that a reasonable adult doing that activity would exercise. This principle has been applied to driving a car, a motorboat, a snowmobile, and even to playing golf.

i) Dangerous but not adult: Suppose the activity is potentially dangerous, but not one that is usually engaged in by adults rather than children. The courts are split as to the standard of care which should be applied to this situation. The Restatement would apply the child standard, since the adult standard would be applied to children only if the activity is

(c) both potentially dangerous and one that is normally engaged in by adults (thus, deer-hunting would not trigger the adult standard since it is an activity often engaged in by minors). But other courts have held that the adult standard of care should be triggered when the activity is significantly hazardous, even if it is one which is frequently engaged in by children (thus, snowmobiling is an inherently dangerous activity for which the adult standard should apply, even though children often do it. This rule discourages immature individuals from engaging in inherently dangerous activities, while still leaving them free to enjoy traditional childhood activities without being held to an adult standard of care).

d. Knowledge: Assuming that the general reasonable person standard is the one which applies to a case at hand, there are a number of basic issues about how a reasonable person generally behaves. One of these troublesome areas has to do with knowledge that a reasonable person would possess.

(1) Ordinary experience: There are obviously many things which every adult has learned; these include such things as that objects will fall when dropped, that flammable materials can catch fire, that other human beings are likely to react in certain ways such as by attempting to rescue a person in danger, etc. These items of knowledge that virtually every adult in the community posses will be imputed to the “reasonable adult” and thus to the defendant. This is true whether the defendant herself actually knows the fact in question or not.

(2) Stranger to the community: Furthermore, facts generally known to all adults in a particular community will be imputed to a stranger who enters the community without having had the experience of knowledge in question. Thus a city dweller who visits a farm, and who has never learned that a bull can be dangerous, will nonetheless be held to the standard of behavior that would be exercised by one who did have such knowledge, since the knowledge is common to dwellers in rural areas.

(3) Duty to investigate: Even where a certain fact is not known to members of the community at large, or to the defendant himself, he may be under a duty to end his ignorance. A driver who senses that something is wrong with his steering wheel, for instance, would have a duty to find out what the problem is before an accident is caused.

(4) Memory: Just as the reasonable person knows certain facts, she also has a certain level of memory. Thus, a motorist who has passed a particular intersection many times will be charged with remembering that it is dangerous in a certain way, whereas one who never or seldom has passed that intersection before would not have the same burden.

e. Custom: In litigating the defendant’s negligence, one thing that either side may point to is custom, that is, the way a certain activity is habitually carried out in a trade or a community. The plaintiff may try to show that the defendant did not follow the safety-motivated customs that others in the same business follow, or the defendant may try to show that he exercised due care by suing the same procedures as everyone else in the trade.

(1) Not conclusive: The vast majority of courts allow evidence as to custom for the purposes of showing the presence or absence of reasonable care, but do not treat this evidence as conclusive. Thus, the fact that everyone else in the defendant’s industry does a certain thing the same way the defendant did it does not mean that the way was not unduly dangerous, if there are other factors so indicating.

(a) Ex: Two tugboats owned by D are towing cargo owned by P. Most tugboats have not yet installed radio receiving sets, although some have. D’s two tugs do not yet have these sets. They are therefore unable to receive messages that a strong storm is overtaking them, and are sunk.

i) Held: The fact that most tugs have not installed sets does not conclusively establish that D was non-negligent in not having installed them. For custom is not dispositive on the issue of negligence - “a whole calling may have unduly lagged in the adoption of new and available devices...Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” Here some tug owners had already installed the sets, so D’s case is even weaker, and was liable. The T.J. Hooper.

(2) Advances in technology: The technological “state of the art” at a particular moment is, similarly, relevant to what constitutes negligence. For instance, the defendant’s failure to take action to prevent a certain known risk might be either negligent or non-negligent, depending upon whether technology exists that could reduce the risk. Consequently, the conduct that would be non-negligent in earlier times may have become negligent today due to technological advances.

(3) Constraints on use of custom: When custom is used to determine what reasonable care requires in the circumstances, or to prove that the defendant should have had knowledge of the customary safety precautions, courts impose limitations on its use, including the following:

(a) Widespread and notorious: Courts often say that to be a custom the practice must be widespread, notorious or even that it must be universal. If such demands are too stringent, it is at least true that the practice must be common and not merely a sporadic or occasional practice.

(b) Safety concern: When the plaintiff attempts to prove negligence by proving violation of custom, the custom must be one generated by safety concerns, not one arising for reasons unrelated to safety.

(c) Violation of statutes: A custom to violate statutory or regulatory requirements is not ordinarily to be admitted to show reasonable care, but such a custom may occasionally bear on the possibility that violation was excused.

(4) Malpractice: Except in malpractice cases, courts have rejected the argument that a prevailing custom defines the standard of care.

f. Emergency: As we have seen, the general rule is that the defendant must follow the standard of care that a reasonable person would exercise “considering all of the circumstances.” One of the circumstances of a particular case may be that the defendant was confronted with an emergency, and was forced to act with little time for reflection. If this is so, the defendant will not be held to the same standard of care as one who has ample time for thinking about what to do; instead he must merely behave as would a reasonable person confronted with the same emergency.

(1) Emergency caused by defendant: But if the emergency is caused by the defendant’s negligence, the fact that the emergency leads the defendant into an accident will not absolve him of liability. In such a situation, it is the initial negligence leading to the emergency, not the subsequent response to the emergency, that makes the defendant negligent.

(2) Negligence still possible: Even if the emergency is not of the defendant’s own making, he must still live up to the standard of care of a reasonable person confronted with such an emergency. That is, if he behaves unreasonably, even conceding the fact that he had little time for reflection, he will nonetheless be negligent. Thus a person driving on an undivided highway who sees an accident ahead of him, and who swerves left into oncoming traffic instead of right onto the shoulder, might well be held liable notwithstanding the fact that he had little time for reflection.

(3) Minority rule: The courts of at least one state seem to have taken the position that as long as the defendant is a generally careful person, the court will presume that his instinctive response in an emergency was non-negligent. “Carelessness means wrong thinking or failure to think in connection with an action, and an instinctive action, when there is not time to think, cannot of itself be called negligence.”

(4) Activity requiring special training: There are certain activities which by their nature require an unusual capacity to react well in an emergency. In a case involving such an activity, the defendant will therefore be held to this higher standard of preparedness. A bus driver, for instance, should by her training be better prepared than the average driver to anticipate various traffic emergencies, and she will be held to this higher standard. In fact, even the average motorist will probably be held to bear the burden of being capable of anticipating certain kinds of common emergencies (e.g., a child rushing out into the street after a ball), and will be charged with reacting more quickly in such a situation than if that kind of emergency arose less frequently.

g. Anticipating the conduct of others: Just as the reasonable person must possess certain knowledge, so she must possess a certain ability to anticipate the conduct of others. Following are few kinds of responses by third persons that a defendant may be charged with the burden of anticipating.

(1) Negligence of others: The defendant may be required to anticipate the possibility of negligence on the part of others. Generally, this will be so only if the likelihood of injury is great, or the magnitude of the injury is very substantial.

(a) Ex: An automobile driver is normally entitled to assume that other drivers will drive non-negligently. But if she has reason t know that the car ahead of her is being driven by a drunk driver, or if the road conditions are such that a short stop by the driver ahead is likely to cause the defendant to run over a pedestrian, the defendant will be required to guard extra carefully against these consequences.

(b) Children: Furthermore, the defendant is charged with anticipating careless or dangerous conduct on the part of children, since they are commonly known to be incapable of exercising the degree of care of the average adult. Thus one who drives down a street crowded with children playing is not entitled to assume that the children will stay out of the car’s path and must take extra precautions to guard against their carelessness.

(2) Criminal and intentionally tortious acts: The reasonable person, and hence the defendant, is normally entitled to assume that third persons will not commit crimes or intentional torts, unless he has some reason to believe to the contrary as to a particular third person.

(a) Special relationship: However, the defendant may have a special relationship with either the plaintiff or a third person, such that the defendant will bear the burden of anticipating and preventing intentionally tortious or criminal acts by the third person.

i) Tarasoff v. Regents of the University of California
Ex: Poddar is under care of Ds, university psychotherapists. He tells them that he intends to kill Tatiana, the Ps’ daughter. One of the Ds asks the campus police to detain Poddar, but after he seems rational, they release him. Neither of the Ds warns Tatiana or the Ps. Two months later, Poddar in fact kills Tatiana.

ii) Held: The psychotherapist-patient relationship between Ds and Poddar was sufficiently “special” that it created a duty for the Ds to protect third persons such as Tatiana (with whom they had no relationship at all) from reasonably foreseeable harm by Poddar. The Ds therefore had the duty to take reasonable steps to protect her, including probably the giving or a warning to her or the Ps. The university police, on the other hand, had no special relationship to Poddar (even though they detained him) or to Tatiana; they therefore bore no duty to protect Tatiana against harm from Poddar, and the Ps’ complaint against them must be dismissed. Tarasoff v. Regents of the Univ. of CA.

(3) Misrepresentation: Just a defendant’s acts may be negligent, so her speech or other communication may be. Where the resulting injury is an abstract economic one (e.g., investors’ loss due to a financial statement negligently prepared by accountants), special rules apply, generally tending to limit the defendant’s liability.
3. The Role of Statutes
a. Nonprescriptive statutes: Statutes which provide only a criminal penalty or some form of administrative enforcement. These statutes provide nothing at all about tort law, so they can be identified as nonprescriptive statutes. Although such statutes prescribe no tort-law effects at all, courts are usually free nonetheless to adopt the standard or rules of conduct from such statutes and to apply them to tort cases.

b. Significance of statutory violation: Sometimes, however, the legislature passes a statute which appears to define reasonable conduct in a certain kind of situation. This is most often true of legislation establishing safety standards for industry, transportation, etc. A substantial body of case law has arisen discussing the extent to which the court is required to treat a violation of such legislation as negligence per se.

(1) Majority Rule - Negligence per se doctrine: When courts apply the standard or rule of conduct from a nonprescriptive statute, the majority do so under the rule of negligence per se. That rule holds that an adult’s violation of statute is negligence in itself if it causes harm of the kind the statute was intended to avoid and to a person within the class of persons the statute was intended to protect. In the absence of a valid excuse, violation conclusively shows negligence. Violation of statute equally proves the plaintiff’s contributory negligence in appropriate cases.

(a) Rebuttable: Because certain limited excuses are recognized, some courts describe the rule as a presumption of negligence rule or a prima facie negligence rule to emphasize that the finding of negligence can be rebutted under limited circumstances.

(2) Minority Rule - Evidence of Negligence: A few courts reject the per se rule and treat violation as merely some evidence of negligence or as “guidelines for civil liability.” This rule permits the jury to conclude that a statute violator behaved in a reasonable way even if he presents no particular excuse.

(a) Ordinances and regulations: Where the case involves a violation not of a legislatively enacted statute, but of a local ordinance or administrative regulation, a number of courts that follow the majority rule as to statutory violations apply the minority rule to violations of ordinances and administrative regulations, holding that such violations are merely evidence of negligence.

c. Statute must apply to facts: Even in states following the majority rule that statutory violations can sometimes be “negligence per se,” the courts have set up a series of requirements to ensure that, before the violation will be negligence per se, the statute was intended to guard against the very kind of injury in question.

(1) Class of persons protected: First, the plaintiff must be of the class of persons for whom the statute was designed to protect.

(a) General interests of state: A sub-species of this rule is the principle that where the statute is intended to protect only the interests of the state or of the public at large, not to protect particular individuals against harm, its violation will not be negligence per se.

i) Blue law: Thus, a blue law, prohibiting stores from being open on Sunday would not conclusively establish the negligence of a store owner who opened on Sunday, exercising all reasonable care, but whose customer slipped on the store floor. The law would be held to protect the interest of the public at large in having a day of rest, not to protect individuals who would otherwise shop on Sundays.

(b) Two classes of persons protected: But a statute may be held to have been intended to protect both the public at large as well as a particular class of individuals. If so, its violation may be negligence per se.

i) Ex: P, sitting in D bar, becomes innocently enmeshed in a barroom brawl, and is injured. An administrative regulation provides that no tavern owner “shall permit or suffer any loud, noisy, disorderly or boisterous conduct, nor permit any visibly intoxicated person to enter or remain upon his premises.”

ii) Held: This regulation, and the statute under the authority of which it was promulgated, were intended to protect not only the interest of the community at large in peace and quiet, but also barroom customers from the “carnage of the barroom brawl.” Therefore, P fell within one of the classes of persons to be protected by the act, and violation by D constitutes negligence in itself.
2) Protection against particular harm: The second requirement the statute must meet before it is a violation per se is that it must have been intended to protect against the particular kind of harm that the plaintiff seeks to recover for.

(a) Ex: Animals on a shop not properly secured in cages are tossed overboard during a storm. The statute was intended to keep disease from spreading among the animals, not to keep them from washing overboard. Therefore, because the statute was not meant to prevent the kind of harm which occurred, it cannot be used as evidence of negligence per se.

3) Excuse of violation: Once the plaintiff has shown that the statute was addressed to a class of person including herself, and that it was designed to guard against the kind of harm that she sustained (and assuming that she carries the more general burden of showing that the act that was violative of the statute was the actual cause of the harm), the defendant’s negligence per se has been established. However, in some circumstances, the defendant may then have the right to show that his violation of the statute was excusable. If he can do this, the violation will be stripped of its “negligence per se” nature, and will be at most, evidence of negligence which the jury will weigh, and may disregard.

(a) Absolute duties: There are some statutes which, the court may hold, by their nature and history leave no room for excuses. That is, they impose upon the defendant an absolute duty to comply with the statute, and a good faith attempt to do so is not sufficient.

i) Typical cases: For instance, statutes prohibiting child labor have generally been held to fall in this category. Thus an employer who hires a child in violation of the statute will beheld liable if an injury occurs of the sort that the act was intended to protect against, and the employer will not be heard to say that he believed in good faith that the child was above the minimum age.

ii) Brakes: Statutes requiring effective brakes on automobiles have also occasionally been held in fall in this absolute duty class.

(b) Rebuttable presumption or excuse: Most statutes, on the other hand, are not intended to impose an absolute duty of compliance. Courts have chosen two similar (but not identical) ways of preventing statutes from being given this absolute effect. Sometimes, the statute is viewed as merely establishing a rebuttable presumption of negligence; the defendant can then introduce evidence of due care in order to rebut the presumption. Other courts treat the statute as establishing negligence per se, but allow certain excuses for non-compliance; if one of the available excuses is demonstrated, the violation has no bearing on the issue of negligence.

i) Ignorance of need: The defendant was reasonably unaware of the particular occasion for compliance;

a) Ex: D’s brakes fail but he had no warning of the brake failure. This was sufficient to allow the jury to find his conduct reasonable, and he is therefore not negligent.

ii) Reasonable attempt to comply: Similarly, the violation may be excused because the defendant made a reasonable and diligent attempt to comply, but was unsuccessful;

iii) Emergency: Or it may be excusable because defendant was confronted with an emergency not of his own making;

iv) Greater risk of harm: A violation may be excused if compliance would have involved a greater risk of harm to the actor or to third persons than the path of noncompliance chosen by the defendant.

a) Ex: Tedla v. Ellman

v) Excuses and negligence per se: In jurisdictions which adopt the negligence per se rule, whether the excuse is a good one is a question for the judge to decide.

vi) Excuses and evidence of negligence: In jurisdictions which adopt the evidence of negligence rule, whether the excuse is a good one is a question for the jury.

4) Foolish or obsolete legislation: There are many statutes on the books which have never been enforced, or which have not been enforced for so long that they may be treated as obsolete. In such a situation, the court will often in effect treat the violation as excused, although in reality the court is really simply declining to accept the legislative standard as binding on the civil liability question.

(5) Effect of the plaintiff’s contributory negligence: Even where the defendant’s negligence pre se is established, he may be able to assert the defense of contributory negligence or assumption of risk. However, if the statute is a sort that is held to impose an absolute duty on the defendant, and therefore to allow no excuses, these defenses may not be available. Thus an employer who violates the child labor laws will not be allowed to raise the defense of contributory negligence, since this would defeat the entire purpose of the statute.

(6) Contributory negligence per se: The defendant may, in an appropriate case, demonstrate that the plaintiff’s violation of a statute constitutes contributory negligence per se. Generally speaking, the rules are the same for asserting contributory negligence per se as for defendant’s negligence per se.

(a) Hurdles: But keep in mind that the hurdles which must be surmounted before negligence per se is established are still imposed; thus if the statute is construed as one which was not intended for the protection of the person in the position of the plaintiff, then the violation will not conclusively establish contributory negligence.

(b) Speed limits: Generally, however, such statutes as speed limits and other traffic regulations are held to be for the purpose of protecting plaintiff drivers who violate them, as well as innocent third parties.

(7) Violation as evidence: Even if the plaintiff is unable to meet all the requirements of the negligence per se doctrine, the statutory violation may still be taken as evidence of negligence.

(8) Per se doctrine not available for federal claims: All the cases involving negligence per se that we have examined thus far have been state court cases. What happens to the doctrine when a case is brought before a federal court?

(a) Diversity cases: In a diversity case, where the plaintiff is relying upon state negligence law, the Erie doctrine would require the federal court to follow the same rules regarding the effect of statutory violations as would the courts of the state in which the federal court sits.

(b) Federal question cases: But suppose the plaintiff argues that the defendant violated a federal statute, and that the doctrine of negligence per se should be applied. The federal court would not be able to apply the doctrine because it is a product of common law, and there is no federal common law.

i) Consequence: A plaintiff suing in federal court, seeking to establish civil liability from the defendant’s violation of a federal statute, will normally have to show that Congress created an “implied civil remedy” in passing the statute. This is a much harder showing to make than is generally required for application of the common law negligence per se doctrine.

(9) Compliance with statute not dispositive: The converse of the negligence per se doctrine does not hold true. That is, the fact that the defendant has fully complied with all applicable state safety regulations does not by itself establish that he was not negligent. The finder of fact is always free to conclude that a reasonable person would take precautions beyond those required by law.

(a) Usual care: But if the situation confronting the defendant was substantially the same as that which the statute was designed to control, the finder of fact may consider the defendant’s full compliance with all statutes as evidence that nothing more was required of a reasonable person.
C. Procedure in Jury Trials
1. Burden of proof: In a negligence case, as in virtually all torts cases, the plaintiff is said to bear the burden of proof. In reality, the plaintiff actually bears two distinct burdens:

a. Burden of production: First, she must come forward with some evidence that the defendant was negligent, that she suffered an injury, that the defendant’s negligence was the proximate cause of this injury, etc. This burden is generally known as the “burden of production.” The burden of production may be defined as the obligation upon a party to come forward with evidence in order to avoid a directed verdict. This burden can and does shift from the plaintiff to the defendant and possibly back again, depending on the strengths of the proof offered by each side.

(1) Directed verdict for the defendant: If the plaintiff does not produce any evidence in support of her prima facie case, the judge will order a directed verdict for the defendant. That is, she will tell the jury that as a matter of law, it must find for the defendant.

(2) Jury case: If the plaintiff comes forward with enough evidence in support of her prima facie case that a reasonable person could decide in the plaintiff’s favor, the case will go to the jury.

(3) Directed verdict for the plaintiff: It may be, however, that the plaintiff’s case is so strong that, unless the defendant comes forward with rebutting evidence, the court will have to order a directed verdict in the plaintiff’s favor (i.e., the court will decide that no reasonable person could find in favor of the defendant). If so, the plaintiff has essentially shifted the burden of production to the defendant.

b. Practical significance: The judge does not monitor the shifting of the burden of production throughout the trial. It is really only at two points that evaluation of the burden is significant: first, at the end of the plaintiff’s case, the defendant usually moves for a directed verdict; that is, he asks the court to declare that the plaintiff has failed to make her prima facie case, and that the jury should be instructed that it must decide in his favor. Secondly, at the end of the defendant’s case, each side is likely to move for a directed verdict.

c. Burden of persuasion: The second respect in which the plaintiff being by bearing the burden of proof is that she bears what is sometimes called the “burden of persuasion.” This means that if the case goes to the jury, the plaintiff must convince the jury that it is more probable than not that her injuries are due to the defendant’s negligence. To put it another way, the fact that the plaintiff bears the burden of persuasion means that if the jury believes that there is exactly a fifty percent chance that the defendant caused the injuries, the plaintiff loses. The concept is usually expressed by saying that the plaintiff must demonstrate her case by the preponderance of the evidence.

(1) Not usually shifted: The burden of persuasion in a negligence case rests on the plaintiff from the beginning and almost never shifts. However, there are a few jurisdictions which hold that application of the doctrine of res ipsa loquitor does shift this burden to the defendant.

2. Function of judge and jury:
a. Judge decides law: The judge decides all questions of law. In a negligence case, this means that the judge will decide, typically, the following issues:

(1) State of facts: She will decide, after all the evidence is in, whether that evidence admits more than one conclusion. If she decides that reasonable people could not differ as to what the facts of the case are, she will instruct the jury as to the findings of fact they must make.

(2) Existence of duty: The judge will also determine the defendant’s duty to the plaintiff. This is done as a matter of law. Thus in a suit by a plaintiff trespasser against a defendant landowner, the court will probably instruct the jury that provided the defendant did not know of the plaintiff’s presence, he owed him no duty of care at all.

(3) Directed verdict: By deciding aspects of both these matters, the judge may remove the case from the jury by directing a verdict.

b. Jury’s role: The jury, it is commonly said, is the finder of facts. However, since as we have seen the judge may sometimes decide the facts as a matter of law, what this really means is that the jury will be permitted to find the facts only where these facts are in such dispute that reasonable persons could differ on them. If the case is sufficiently unclear that it is permitted to go to the jury, the jury will decide two principle factual issues:

(1) What happened; and

(2) Particular standard of care: Whether the facts as found indicate that the defendant breached his duty of care to the plaintiff, in a way that proximately caused the plaintiff’s injuries.

D. Proof of Negligence
1. Circumstantial Evidence - Nature and Use:

a. Circumstantial evidence: Circumstantial evidence is evidence of a fat that tends to establish and thus to permit an inference of another fact.

b. Judge’s role in monitoring circumstantial evidence: The trial judge must decide in the first place whether the circumstantial evidence offered rationally tends to support the inference of any relevant fact and must exclude the evidence if it does not.

c. Circumstantial evidence going to the jury: If circumstantial evidence is sufficient to permit reasonable jurors to draw the inference sought, the issue goes to the jury, which assesses its weight.

d. Effect of circumstantial evidence: Drawing inferences of fact from circumstantial evidence is largely a matter of assessing probability. An inference is ordinarily permissible, but is not mandatory. Also, circumstantial evidence does not create a presumption or shift the burden of persuasion. It is evidence for the jury to consider and weigh, nothing more.

e. Expert testimony and circumstantial evidence: In many instances, circumstantial evidence must be explained by someone with special knowledge. While most of us might be quite sure that 500-ft skid marks indicate high speed, we are not likely to be sure what 45-ft skid marks mean. In that case the evidence might be rejected unless expert testimony can give a more or less scientific explanation of the circumstantial evidence.

f. Constructive notice: This is a notice arising out of presumption of law from the existence of facts and circumstances that a party had a duty to take notice of. To have constructive notice the defect must:

(1) Be visible and apparent; and

(2) Exist for a sufficient period of time prior to the accident to permit the defendant’s employees to discovery and remedy it.

2. Res Ipsa Loquitor
a. Aid in proving the case: To prove the defendant negligent, the plaintiff must normally provide evidence of the defendant’s specific conduct. Proof that an accident happened or even that the defendant caused an injury is not enough by itself; as courts say, negligence is not presumed. Cases that fit the res ipsa loquitor pattern constitute an exception. The Latin phrase means “the thing speaks for itself,” which is to say, the plaintiff’s injury and the immediate events surrounding it can by themselves show negligence, even though the plaintiff is unable to prove any specific act that was unreasonably dangerous.

b. Requirements for doctrine: Virtually all American courts recognize that there are situations in which the doctrine of res ipsa should be applied. The courts generally agree on at least four requirements before the doctrine may be applied:

(1) No direct evidence of D’s conduct: First, there must be no direct evidence of how D behaved in connection with the event.

(2) Seldom occurs without negligence: The plaintiff must demonstrate that the event is of a kind which ordinarily does not occur except through negligence (or other fault) of someone.

(3) In defendant’s control: Plaintiff must show that the instrument which caused her injury was, at the relevant time, in the exclusive control of the defendant.

(4) Rule out plaintiff’s contribution: Plaintiff must show that her injury was not due to her own action.

(5) Accessibility of information: Some courts have purported to hold that in addition to establishing these four things, the plaintiff must also show that a true explanation of the events is more readily accessible to the defendant than to herself. However, few courts have really relied on this requirement.

c. No direct evidence of D’s conduct: As a threshold matter, most courts insist that there must be no direct evidence of how D behaved in connection with the event. Res ipsa is only used as an indirect means of inferring that D was probably negligent, so there’s no need to use the doctrine if we know the details of D’s conduct.

d. Inference of someone’s negligence: The plaintiff must prove that the incident is one which does not normally occur in the absence of negligence. This is true of, for instance, falling elevators, escaping gas or water from utility mains, the explosion of boilers, etc. The plaintiff is not required to show that such events never occur except through someone’s negligence; all she has to do is show that most of the time, negligence is the cause of such occurrences.
(1) Aviation: Thus it is now generally accepted that where an airplane crashes without explanation, the jury may infer that negligence was more than likely the cause. In the early days of aviation, however, where the elements were often sufficient to cause a crash without anyone’s negligence, and where there was no body of accident history to justify any conclusion about the general causes of accidents, most courts refused to allow this inference, and the doctrine of res ipsa was therefore not applied.

(2) Basis of conclusions: Normally, the fact that a particular kind of accident does not usually occur without negligence is within the general experience of the jury, and does not have to be explicitly proven by the plaintiff. However, there are other cases (e.g., medical malpractice), where the plaintiff may wish to provide expert testimony to the effect that accidents such as the one that occurred normally do not happen without negligence.

(3) Negating other causes: The plaintiff is not require to demonstrate that there were no other possible causes of the accident. She must merely prove the more than 50% probability that there was negligence.

(a) Ex: P’s decedent is a passenger on D’s airplane, which disappears over the Pacific Ocean. Only debris is ever found, and P produces no evidence at trial as to any actual negligence by anyone. D produces evidence that the airplane was properly maintained, the personnel adequately trained and briefed, the weather normal, etc.

(b) Held: D’s showing of general due care in its operation is not sufficient to deprive the finder of fact of the right to infer that negligence was more probably than not the cause of the accident. P is not required to demonstrate that there was no mechanical failure, or to negate every other possible cause. Therefore (since the other requirements were met) the doctrine of res ipsa is appropriate.

e. Showing that the negligence was the defendant’s: The plaintiff must also show, again by a preponderance of the evidence, that the negligence was probably that of the defendant. In the older cases, this requirement was usually expressed by stating that the plaintiff must demonstrate that the instrumentality which caused the harm was at all times within the exclusive control of the defendant.

(1) Ex: During the great V-J celebration, P is walking on the sidewalk next to D Hotel, when she is hit by a falling chair. P proves no other facts at trial.

(2) Held: A hotel does not have exclusive control, either actual or potential, of its furniture. The guests have, at least, partial control. Therefore, P has failed to establish the requirement for res ipsa.

(a) Modern view: Most modern cases, however, do not express this requirement solely in terms of exclusive control by the defendant. Instead, they simply require the plaintiff to show that, more likely than not, the negligence was the defendant’s, not someone else’s. Thus in the case above, the court, after speaking of exclusive control, also noted that the mishap would quite as likely be due to the fault of a guest or other person as to that of defendant’s. The most logical inference is that the chair was thrown by some such person from a window.

(b) Plaintiff’s particular evidence: To demonstrate that negligence is more probably that of the defendant, the plaintiff is required to produce evidence negating other possibilities. However, the evidence need not be conclusive, and only enough is required to permit a finding as to the greater probability. Thus a plaintiff injured by a soda bottle which explodes after she has bought it from a retailer must produce evidence showing that there was no intervening causes, i.e., that the retailer handled the bottle carefully and that she herself handled it carefully at all times.

(3) Multiple defendants: Sometimes the plaintiff sues two or more defendants at one, alleging that some or all of them have been negligent. If the plaintiff can demonstrate the probability that the injury was caused by the negligence of at least one of the defendants, but cannot show which of them, may the doctrine of res ipsa be applied against all? This has been one of the major question sin the recent history of the doctrine.

(a) Ybarra case: The most famous case holding that the answer to this question can sometimes be “yes” is Ybarra v. Spangard. (Brief here)

i) Held: Res ipsa may be applied. It would be unreasonable to require the plaintiff to identify the negligent defendant, insofar as he was unconscious throughout the operation. Furthermore, the defendants bore interrelated responsibilities; each of them had a duty to see that no harm befell P. Therefore, each of the defendants who had any control over or responsibility for P must bear the burden of rebutting the inference of negligence by making an explanation of what really happened.

(b) Special relationship: The result in Ybarra seems to be at least partially due to the fact that the defendants all bore an integrated relationship as professional colleagues, and that all had a responsibility for the patient’s safety. Where the multiple defendants are strangers to each other, and have only an ordinary duty of care to the plaintiff, res ipsa has generally not been allowed merely upon a showing that at least one of them must have been negligent.

(c) Other cases following Ybarra: But there are few non-medical cases in which the rationale of Ybarra has been followed. For instance, a plaintiff injured by an exploding bottle, who ha sued both the retailer and the manufacturer, has been given the benefit of res ipsa even though he made no showing as to which of the two was negligent. But as a general rule, res ipsa will not apply against multiple defendants where the evidence is only that some unidentified one of them must have been negligent.

f. Not due to plaintiff: The final requirement for the application of res ipsa is that the plaintiff establish that the accident is probably not due to her own conduct.

(1) Contributory negligence: Contributory negligence on the part of the plaintiff will sometimes, but not always, constitute a failure to meet this requirement. But if the plaintiff’s contributory negligence does not lessen the probability that the defendant was also negligent, the requirement may be met.

g. Evidence more available to defendant: A number of courts have stated that res ipsa will only apply where evidence of what really happened is more available to the defendant than to the plaintiff. This was, for instance, once of the underlying rationales involved in Ybarra. However, although it is true that application of res ipsa helps to smoke out the defendant, it does not seem to be a real requirement that evidence be more available to the defendant than to the plaintiff.

h. Breach of duty: Even if res ipsa applies to permit the inference that the defendant must have been negligent, the plaintiff still has the burden of showing that this negligence constituted a breach by the defendant of his duty of care. Thus if an injured automobile passenger sues the owner-driver, and a guest statute provides for liability only in the event of gross negligence, res ipsa will only be helpful to the plaintiff if the facts permit an inference that the defendant must have been grossly negligent, not merely “ordinarily” negligent.

i. Effect of res ipsa: The usual effect of the application of res ipsa is to permit an inference that the defendant was negligent, even though there has been no direct, eyewitness evidence that he was. In this respect, res ipsa is merely a doctrine that sanctifies the use of a particular kind of circumstantial evidence. The consequences of the doctrine’s application is that the plaintiff has met her burden of production.

(1) More extended effect of doctrine: Most courts hold that the effect of res ipsa is no different than any other circumstantial evidence. That is, they hold that the inference of defendant’s negligence may be either strong or weak, depending on how convincingly the plaintiff has met her three requirements for the doctrine. In these courts, a res ipsa case may therefore either go to the jury or lead to a directed verdict. A few courts, however, give the doctrine an effect beyond this, and hold that it has an automatic effect on either the burden of production, the burden of persuasion, or both.

(a) Burden of production: Thus some states hold that once res ipsa applies, the burden of production is automatically shifted to the defendant. To put it another way, the mere application of the doctrine constitutes a presumption of the defendant’s negligence. Then, unless the defendant comes forward with rebuttal evidence, he will lose.

(b) Burden of persuasion: An additional small minority of courts hold that once res ipsa applies, the burden of persuasion shifts to the defendant. That is, the defendant must then prove by a preponderance of the evidence that he did not negligently cause the plaintiff’s harm.

j. Defendant’s rebuttal evidence: Suppose that the plaintiff, in her own case, establishes the elements of res ipsa sufficiently that she would, in the absence of evidence from the defendant, be entitled to go to the jury. Now, however, the defendant steps forward with rebuttal evidence of his own. What is the effect?

(1) General evidence of due care: If the defendant merely offers evidence to show that he was in fact careful, this will almost never be enough to rebut the plaintiff’s claim. He will only be able to prevent a directed verdict, and the case will go to the jury to decide.

(2) Rebuttal of res ipsa requirements: But the defendant’s evidence may, rather than merely tending to establish the defendant’s due care, directly disprove one of the requirements for application of res ipsa. Thus if the defendant conclusively does this, he will be entitled to a directed verdict.

E. The Special Case of Medical Malpractice
1. Superior ability or knowledge: We have seen that the usual standard of care and knowledge is an objective one, based on the level of a hypothetical reasonable person. But what if the defendant in fact has a higher degree of knowledge, skill or experience that this reasonable person - is she charged with using that higher level, so that she will be held for using, say, only the skill of an ordinary reasonable person? The answer is yes.

2. Malpractice generally: The issue of superior skill or knowledge arises most frequently in suits against professional persons, commonly known as malpractice suits. The general rule is that professionals, including doctors, lawyers, accountants, engineers, etc., must act with the level of skill and learning commonly possessed by members of the profession in good standing. There are, however, a number of more specific rules which, in practice, govern the disposition of malpractice suits.

a. Good results not guaranteed: The professional will not normally be held to guarantee that a successful result will occur. She is liable for malpractice only if she acted without the requisite minimum skill and competence, not merely because the operation, lawsuit, etc. was not successful.

b. Differing schools: As a gloss upon the rule that there is no malpractice where competent professionals could differ on the proper course, cases involving doctors have held that where there are conflicting schools of medical though, the defendant must be judged by reference to the beliefs of the school she follows.

(1) Caveat: However, a doctor may not set up her own “school.” A school must be a recognized one with definite principles, and it must be the line of thought of at least a respectable minority of the profession.

(2) Practical consequences: Because of this “school of thought” rule, the plaintiff’s lawyer in a medical malpractice case will frequently spend a large portion of his cross-examination of the defendant in trying to make the latter identify the proponents of her school, so that books and testimony by those proponents may be used to show the defendant’s lack of adherence to that school.

(3) Chiropractors and osteopaths: By this rationale, chiropractors and osteopaths are judged by the standards of chiropractic and osteopathy, but not by the standards of medicine at large. This is partially due to the fact that state legislatures have afforded these procedures virtually the status of distinct professions.

c. Specialists held to a higher standard: Where the defendant holds herself out as a specialist in a certain portion of her profession, she will be held to the minimum standards of that specialty (which will obviously be higher than those of the profession at large). This will be true, for instance, for an ophthalmologist or a tax lawyer.

d. Need for expert testimony: It is almost always held that the defendant professional’s negligence may be shown only through expert testimony. That is, in a medical malpractice case, the plaintiff must produce another doctor to testify to the defendant’s negligence. The expert testimony must normally establish both the standard course of conduct in the profession, and that the defendant departed from it.

(1) Standard applied: The correct standard has always been the level of skill of the minimally qualified member in good standing, not the average member. Those who have less than median or average skill may still be competent and qualified. Half of the physicians in America do not automatically become negligent in practicing medicine at all, merely because their skill is less than the professional average.

(2) Exception where negligence obvious to lay person: If the defendant’s negligence is so blatant that the court determines as a matter of law that a lay person could identify it as such, expert testimony will not be needed. This would be the case, for instance, if a doctor amputated the wrong leg, or injures the plaintiff’s shoulder during an appendectomy.

(3) Testimony by a witness belonging to a different specialty or school of medicine: As a matter of logic, any person who knows the relevant standard for a particular area of medicine could testify about that standard. It might be possible for obstetricians to testify about the standards for radiology.

(a) Exception: Some courts have stated a hard line against such testimony, however. One view requires the expert witness not merely to know the standard applicable to the defendant but to be in a specialty or kind of practice that uses substantially the same practice. Thus, an orthopedic surgeon who knows the standard of care for podiatry may not be heard in court.

e. Professional standard as negligence: Although, as noted, it is generally necessary for the plaintiff to prove that the defendant failed to follow the standards of her profession, there are a few cases in which the professional standards themselves are held to be negligent, and the defendant held liable for following them. These cases may be viewed as an application of the rule in The T.J. Hooper that custom may be evidence of the standard of care, but it is not dispositive.

(1) Example: Doctor who did not administer easy, short, inexpensive glaucoma test is liable for patient’s subsequent blindness even though the custom in his field was not to administer such a test except to high-risk patients.

f. “Standards of the community:” Until fairly recently doctors were almost always held to be bound by the professional standards prevailing in the community in which they practiced (or similar communities), not by a national professional standard.

(1) Changing rule: As professional education has become more uniform nationally, however, more and more courts have abolished the “local standards” rule; as a result, the plaintiff may now frequently fulfill his burden of producing expert testimony by calling on an expert from outside the community (who may be more willing to testify). Abolition of the local standards rule has been particularly common where the defendant is a specialist.

(a) Board-certified specialist: For board-certified specialists, the standard is usually said to be a single national standard of the specialty involved.

3. Informed Consent: Unless patients are incapacitated, they are entitled to material information about the nature of any proposed medical procedure. This includes information about the risks of the procedure, its necessity, and alternative procedures that might be preferable. Patients have a right to refuse a recommended medical procedure, even if it is necessary to save the patient’s life.

a. Battery v. negligence approaches: Under the view currently prevailing, the patient who consents to an operation on his right tow has a battery action if the surgeon operates on the left toe instead. But the patient who consents to an operation on his right toe without being informed that the operation entails a serious risk that he will lose his leg must make out a claim for negligent nondisclosure.

b. Elements of the claim: The plaintiff is required to prove five things:

(1) Nondisclosure of required information;
(2) actual damage such as loss of a leg,
(3) resulting from the risks of which the patient was not informed,
(4) cause in fact, which is to say that the plaintiff would have rejected the medical treatment if she had known of the risk; and
(5) that reasonable persons, if properly informed, would have rejected the proposed treatment.

c. Professional standard: Most courts hold that what should be disclosed to the patient is itself a question of professional standards, as to which expert testimony is necessary. The general principle is that the doctor must disclose to the patient all risks inherent in the proposed treatment which are sufficiently material that a reasonable patient would take them into account in deciding whether to undergo the treatment. Also, disclosure of other possible courses of treatment must generally be made. The disclosure practices of other doctors in the community are generally held to be irrelevant.

(1) Causality: Because of the requirement of proximate cause, the plaintiff must show that he would probably have declined the treatment had full disclosure been made. Some courts have held that what counts is what decision the patient himself would have made (whether a reasonable decision or not), not what some hypothetical “reasonable patient” would have done had full disclosure been made. Other cases have applied a “reasonable patient” standard to this issue. Either way, the jury does not have to accept the plaintiff’s testimony as credible.

(a) The emergency/incompetent patient exception: If there is an emergency and the patient is incapable of giving consent, and either time or circumstance do not permit the physician to obtain the consent of a family member, the physician may presume that the patient, if competent, would consent to life-saving medical treatment.

(b) The therapeutic exception: In instances where if a physician told the patient of the risk, the knowledge itself would harm the patient, disclosure may not be necessary.

(2) What must be disclosed: The doctor must disclose material information of which he knows or should know. What the doctor should know is a medical question and unless admitted must be established by expert testimony or at least by medical information such as textbooks. It is sometimes said that a doctor should disclose the diagnosis, the general nature of the contemplated procedure, the material risks involved in the procedure, the probability of success associated with the procedure, the prognosis of it is not carried out, and the existence and risks of any alternatives to the procedure.

(a) Material risk: Whether a risk is material depends upon its severity and its likelihood of occurrence.

(3) Novice: One who is just beginning the practice of her profession is nonetheless ordinarily held to the same level of competence as a member of the profession generally, despite her inexperience.

(4) Disclosure of surgeon’s disease, drug use, etc.: A surgeon who is addicted to alcohol or other drugs may present special risks of inept surgery. A surgeon who has a contagious disease (like AIDS) might perform competent or excellent surgery, yet might present a risk of contagion. It is a fair bet that almost all patients want to consider whether to accept invasive medical procedures to be performed by addicts or AIDS victims. Consequently, if the materiality test is to be applied, the patient’s consent would not be informed if she were denied information about either addiction or serious disease.

(5) Disclosure of physician’s financial interests and incentives: In Moore v. Regents of Univ. Of CA, it was decided that the physician was under a fiduciary duty to disclose some of the facts about what his spleen would be used for to the patient.

III. Chapter 3. The Duty Requirement: Physical Injuries
A. Obligations to Others

1. Duty Generally: In the list of elements of a negligence cause of action one requirement was that the defendant owes the plaintiff a duty of care. In most tort cases, this duty is simply the duty of behaving towards the plaintiff with the degree of care that a reasonable person would exercise in like circumstances. In such a case, the courts devote relatively little attention to this general requirement of duty, since it is so uniform; instead, they spend most of their energies looking at whether the defendant’s conduct met this duty.

a. Special cases: There are several classes of cases, however, where the courts have held that the defendant owes the plaintiff something less than or more than the exercise of the degree of care a reasonable person would use. Sometimes, courts have held that the defendant owes the plaintiff no duty at all.

2. Failure to Act:

a. No general duty to act: Unless a defendant has assumed a duty to act, or stands in a special relationship to the plaintiff, defendants are not liable in tort for a pure failure to act for the plaintiff’s benefit.

(1) Misfeasance v. nonfeasance: Thus the law distinguishes between misfeasance (i.e., an affirmative act which harms or endangers the plaintiff) and nonfeasance (a mere passive failure to take action).

(2) Duty to protect or give aid: Most nonfeasance cases arise when the defendant sees that the plaintiff is in danger, and fails to render assistance, even though she could do so easily and safely. As stated, the rule is that unless there is some special relationship between the defendant and the plaintiff, the defendant is not liable for her refusal to assist.

b. Exceptions: The exceptional cases in which a duty of care may require reasonable affirmative steps by the defendant include:

(1) the defendant or his instrumentalities, innocent or not, have created risks or harm to the plaintiff;
(2) the defendant is in a special relationship to the plaintiff that is deemed to create a duty of care that encompasses affirmative action;
(3) the defendant takes affirmative action that is either cut short or performed negligently; and

(4) the defendant has assumed a duty of affirmative care by action or promise that evinces such an assumption.

(a) No strict liability: These exceptions to the no-duty rule do not impose strict liability. When courts recognize a duty to affirmatively act for the plaintiff’s benefit, they only impose a duty to act when reasonable people would do so. Consequently, the officer need not rescue occupants of a burning car if to do so would subject him to unreasonable danger.

c. Defendant creates risk or harm: A defendant will have a duty of warning and assistance if the danger or injury is due to her own conduct, or to an instrument under her control.

(1) Negligence: Originally, this rule applied only where the original danger or injury was the result of the defendant’s negligence or other fault.

(2) Innocent danger from defendant: Where the danger or harm arose from the defendant’s innocent conduct, it was not until recently that courts began to impose a duty of warning or rescue.

(a) Modern view: The modern, and certainly more conscionable, view is that if the defendant endangers or harms the plaintiff, even if she does so completely innocently, she must render assistance or warning when she discovers the problem.

(b) Hit and run: A number of “hit and run” statutes in various states require a driver to render assistance to one whom he has hit (even if non-negligently); these have sometimes been held to result in negligence per se, and civil liability, where the driver does not comply with the statute.

d. Defendant’s relationship to the plaintiff creates a duty: Sometimes the defendant is under a duty to use reasonable care to rescue the plaintiff because the defendant stands in a special relationship to the plaintiff.

(1) Common carriers and innkeepers: It has always been the case that certain callings imposed a duty to furnish assistance to patrons. This has been true of common carriers and with respect to their passengers and innkeeper with respect to their guests.

(a) Example: P’s are passengers on board a bus operated by D, a public common carrier, when a violent argument erupts among a group of other passengers. The bus driver is notified of the situation but continues to drive the bus and fails to take any measures to protect his passengers. The Ps are injured in the violence, and recover against D. The special relationship between common carrier and passenger means that D had a duty to use the utmost care to protect Ps from the assaults.

(2) Business relationships: In recent years, most courts have extended this rule imposing a duty of care to business generally: anyone who maintains a business premises must furnish warning and assistance to a business visitor, regardless of the source of the danger or harm.

(a) Example: The operator of a store has a duty to come to the aid of an invitee who is using an instrumentality provided by, and under the control of, the operator.

(b) Employer: Similarly, it has been established for a long time that an employer must give warning and assistance to an employee who is endangered or injured during the course of his employment.

(c) University-student relationship: Courts have also recognized, in some situations, a special relationship between a university and a student, imposing upon the university a duty of special care. Thus, a California court held that a community college had a duty to protect a college student against a foreseeable criminal assault that took place in broad daylight in a campus parking lot.

i) Private affairs: But courts have been less willing to hold that the university has an obligation to regulate the private affairs of its students so as to prevent them from harm.

(3) Defendant and victim as co-venturers: Where the victim and the defendant are engaged in a common pursuit, so that they may be said to be co-venturers, some courts have imposed on the defendant a duty of warning and assistance. For instance, if two friends went on a jog together, or on a camping trip, their joint pursuit might be enough to give rise to a duty on each to aid the other.

e. Defendant’s affirmative action creates a duty; rescue: When the defendant acts affirmatively to aid a person who is helpless, he must of course act with reasonable care. Once the defendant voluntarily begins to render such assistance (even if she was under no obligation to do so) she must proceed with reasonable care. This means that the defendant must make reasonable efforts to keep the plaintiff safe while he is in the defendant’s care, and that she may not discontinue her aid to the plaintiff if do so would leave the plaintiff in a worse position than he was in when the defendant began the assistance.

(1) Preventing assistance by others: In finding that one who has undertaken to give aid must carry through with reasonable care, the courts have often relied on the fact that a voluntary giving of such assistance prevents others (who might do a better job) from giving aid.

(2) Pre-employment physical exam: The “assumption of duty” rationale has also been used to impose liability on an employer who gives a job applicant a physical exam. Thus, it has been held that while an employer does not usually have a duty to the employee to see whether he is physically fit for the job, once the employer assumes the duty to examine the applicant, he is liable if the examination is performed negligently

f. Defendant’s undertaking creates a duty: Special relationships may also arise from voluntary contracts or undertakings. An undertaking in this sense is a kind of explicit or implicit promise, or at least a commitment, conveyed in words or conduct. One who voluntarily assumes a duty must then perform that duty with reasonable care.

(1) Past custom: A past custom of giving warning or assistance has been held to constitute an undertaking, at least where the plaintiff is aware of the custom.

(2) Promise to assist: Until recently, it was almost always held that a mere promise to give assistance, unaccompanied by over act, was insufficient. Thus in the famous case of Thorne v. Deas, P and D were co-owners of a ship which was about to go on a long voyage. D promised on two occasions to procure insurance on the ship, and P therefore refrained from doing so. This ship was lost at sea; it turned out that D had never obtained the insurance and D was not held liable - P had no action in contract, because of a lack of consideration, and no action in tort, because of the lack of an undertaking (i.e., this was nonfeasance, not misfeasance).

(a) Small action sufficient: However in order to avoid the harshness of the results in cases like Thorne, courts have often strained to find an affirmative undertaking in the most trivial overt acts. When the gratuitous promise is one aimed at the plaintiff’s physical safety, contemporary authority does not seem to exclude the duty merely because the defendant has not entered into performance.

(b) Reliance on promise alone: Modern law, both contract and tort law, has begun to show a willingness to allow recovery based solely upon a promise to provide assistance, even if no overt act of performance ever occurs. In tort law, a few courts have simply dispensed with the requirement of an overt act by the defendant, where the plaintiff has relied, to his detriment, on the defendant’s unperformed promise of assistance.

(3) Defendant’s undertaking creating a duty to third parties: In a number of cases, the defendant may undertake a service to A under circumstances that make it foreseeable that B may be injured if the service is not performed. At one time, it was said that in such cases the defendant owed B no duty at all, even if the defendant’s undertaking was in the form of a valid and enforceable contract.

(a) Non-party to contract; nonfeasance: Where the plaintiff is one who is not a party to the contract, and the defendant is guilty only of nonfeasance, the plaintiff generally cannot sue either in tort or contract. As for tort liability, insofar as the courts will seldom allow even a party to the contract to sue in tort where there has been nonfeasance, they have been even more reluctant to allow a non-party to sue in tort.

i) Exception: Under t even if the defendant’s promise is not enforceable as a contract, the contract may still furnish the source of a tort duty to protect against physical harm when failure to perform increases the risk to the plaintiff and when the plaintiff reasonably relies on performance he Restatement rules,.

(b) Non-party to contract; misfeasance: Where the third-party sues on a theory of misfeasance, rather than nonfeasance, her chance of recovery in tort is substantially better. Nonetheless, courts have been reluctant to allow recovery, on the misguided notion that tort recovery is barred because there is no “privity of contract.”

3. Duty arising from a statute in the absence of special relationship or affirmative obligation to act:

a. Tort liability for violation of legislative provision: The availability of a private right of action for the violation of a statutory duty is not a new concept. When a statute itself expressly authorizes a private right of action, there is no need for further analysis. When a statute is silent, however, courts have had to determine whether a private right of action may be fairly implied.

(1) Test for availability of a private right of action:

(a) Whether the plaintiff is one of the class for whose particular benefit the statute was enacted;

(b) Whether recognition of a private right of action would promote the legislative purpose. This prong is itself a two-part inquiry:

i) What was the legislature seeking to accomplish in when it enacted the statute; and

ii) Whether a private right of action would promote that objective.

(c) Whether creation of such a right would be consistent with the legislative scheme.

b. Duty to report child abuse: Every state has now adopted some form of law requiring reports by those who have knowledge of or reason to suspect child abuse. Some statutes explicitly impose civil liability. There may also be compelling policy reasons for courts to recognize private causes of action even when state laws do not mandate civil liability.

c. Duty to report crime: More recently, several legislatures have penalized those who fail to report crimes that they witness.

d. Federal statutes; In the absence of federal common law, the federal courts cannot create civil liability independent of Congressional enactments. In the absence of express statutory provisions, they must decide whether to imply private rights of action.

e. Statutory limitations on liability: In addition to being used to create civil liability, statutes may restrict or preclude common law duties. For example, nearly ever state has a “Good Samaritan” statute, which removes holds harmless from civil liability a physician who in good faith renders emergency care at the scene of an emergency

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