I. Tort cases are based on a standard of conduct determined by the law
II. Negligence is a tort with four elements
a. duty of reasonable care
b. breach of that duty – “Negligence” is also a failure to live up to a standard of due care
c. causation
d. resulting damages
III. How is breach of duty determined to be “negligent”
a. You must show the person was at Fault
b. The Standard of Reasonable Care –objective standard
i. Acting in a way in which a reasonable/prudent person would not
ii. Or, the omission of doing something which a reasonable person would do
c. How a reasonable person thinks (relevant factors)
i. Considers foreseeable risks of injury that conduct will cause
ii. Considers reasonable alternatives to proposed conduct – achieve the same purpose with less risk
1. There is an objective factor here still
iii. Adams v Bullock – A 12 year old boy was swinging a wire on a bridge that crossed a trolley path. The wire came in contact with the trolley wire and caused him to be shocked and burned.
1. No negligence found here … it never happened before
2. If this had happened before…the analysis changes based on foresee ability. But then the lack of alternatives still may excuse them from negligence. So, if you are the plaintiff’s lawyer you should present that there are OTHER alternatives …why would burying wires be feasible, and present new alternatives.
iv. The hand formula – United States v Carroll Towing Co
1. If the burden of preventing the damage is less than the probability of it happening times the loss then negligence can be found
2. courts use it in thinking about reasonability
3. Holding people liable for negligence encourages defendant to take cost effective decisions…so if it is cheaper to take precautions than to pay for the accident they will do it. But there is no social utility in holding the defendant liable if the precautions were too expensive to take.
a. This formula doesn’t take into account the intangible things like human life…how do you put a value on human life. There is a moral issue here and intuition is better. But we do do this a lot especially with deciding whether to put in a traffic light etc.
v. The role of custom in determining reasonableness
1. Not concrete evidence of reasonableness, but it is evidence of what a reasonable person would do
2. It is a decision for the jury as to whether the customary standard of doing things is reasonable and should be followed.- Trimarco v Klein (jury was allowed to decide if the landlord should have followed the custom of installing shatter proof glass)
3. Sometimes even if it’s a standard it may not be what’s reasonable.
a. Sometimes the court should just say what is REQIURED, not considering custom. Sometimes precautions are needed even if no one follows it.
vi. The role of violating a statute –
1. Martin v Herzog- plaintiff’s had a duty to use a light for his own safety and the safety of others and was negligent because he failed to do so
2. conclusive evidence of negligence but there are ways around it –
a. consider the intent of the statute, only negligent if it was meant by the legislature to prevent that injury
i. Statute violated by gas station allowing engine to be running while car was being filled with gas. The car rolled and pinned plaintiff. Here, the statute was irrelevant because it was intended to prevent against fire. The hazard of fire and the hazard of the car rolling away aren’t related.
ii. But, if the injury that does occur is RELATED to the injury trying to be prevented by a statue there is still negligence for failure to follow the statute
b. also, a statute can be violated if a reasonable person under those circumstances would violate it
i. deviation from the statute with good cause, to preserve life and limb is NOT negligent
vii. People of lesser intelligence – it’s an objective standard
1. People must iron out their eccentricities and come to a social norm in society…minute character differences don’t really matter
2. If someone has a true/clear defect like blindness or infants that lessens accountability
3. We are not going to make exceptions for people that are not as intelligence as the average person…we expect them to be at society’s standard
viii. The role of children
1. a different standard is applied- held to the same standard as a reasonable child of the same age and experience
a. If a child is participating in an adult situation they must be held to the same standard as an adult…another person can’t protect themselves from a child driving a car improperly
b. But if a child is throwing a baseball a person walking by can know to exercise more caution because you know they might not be in full control
ix. The role of professionals
1. You have to SHOW that a person knew how to do something and didn’t do it
2. But this is still a reasonableness standard b
be held liable
iv. Ex: Byrne v Boadle — Facts: A witness was driving along and saw a barrel of flour fall on the plaintiff’s head from the defendant’s window. He didn’t see a rope being used and no one called out to the plaintiff until he was hit. The defendant said there was no evidence of negligence
1. The appeals court said that sometimes you can presume negligence from an accident…they are clearly the result of negligence and don’t need evidence.
2. Things like a barrel rolling out a warehouse window… this is prima facie evidence of negligence … someone had to be negligent for this to happen
3. Also, the defendant controlled this flour
v. McDoygald v Perry – Tire came lose from underneath a tractor trailer bounces out and hits the plaintiffs car
1. Without res ipsa you’d need evidence : evidence that they were warned that the chain and nut and bolt were worn and the tire would come off and he ignored that warning without fixing it
2. this evidence was not present so plaintiff tries to invoke res ipsa
3. The court says in this case that tire wouldn’t have fallen without failure to exercise reasonable care!
4. The tired would have stayed on unless the person controlling the truck didn’t exercise proper caution
V. Medical Malpractice
a. Specialized skill is taken into account
i. Docs can set their own standards of what is reasonable (a jury can’t say a custom is unreasonable)
ii. Must ask: Did the doctor act within the common practice of his profession?
iii. Plaintiff must show:
1. The plaintiff must prove what the standard of care is AND
2. That their physician was under this standard (this must be based on expert testimony)
iv. Similar locality idea- a concept that for a doctor to be an admissible expert witness he must practice in the same field as the claim that is being disputed
1. Began as strict locality to only compare them to doctors in the same community but was extended to just in the same field