1. Duty, Breach, and the Meaning of Negligence

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1 Law 580: Torts Section 1 September 17, 2015 Assignment for September 15, 16, 17: Casebook pages , Chapter 3: the Breach Element 1. Duty, Breach, and the Meaning of Negligence

2 Myers v. Heritage Enterprises (Ill. App. 2004) p. 142

3 Plaintiff s instruction: When I use the term negligence in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide. (IPI Civil (2000) No ) It was the duty of the defendant s employees, before and at the time of the occurrence, to use ordinary care for the safety of Mary Prillmayer. This means it was the duty of the defendant s employees to be free from negligence. (IPI Civil (2000) No ) Defendant s instruction: In providing professional services to Mary Prillmayer, a certified nurse s aide must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified certified nurse s aide under circumstances similar to those shown by the evidence. A failure to do so is professional negligence. The only way in which you may decide whether a certified nurse s aide possessed and applied the knowledge and used the skill and care which the law required of him is from expert testimony. You must not attempt to deter- mine this question from any personal knowledge you have. (PI Civil (2000) No )

4 Because the proper standard of care was one of ordinary negligence, the trial court should have instructed the jury with IPI Civil (2000) Nos and 10.04, which would have informed the jury that it had to decide how a reasonably careful person would have acted under the circumstances. Under this standard, the parties could have presented evidence to assist the jury in its determination, including expert testimony, IDPH regulations, manufacturer s instructions, or industry standards, although this would not be required. Meyers v. Heritage Enterprises, p. 146

5 Defendant s instruction: The only way in which you may decide whether a certified nurse s aide possessed and applied the knowledge and used the skill and care which the law required of him is from expert testimony. You must not attempt to determine this question from any personal knowledge you have. Pattern instruction The only way in which you may decide whether (a)(any) defendant possessed and applied the knowledge and used the skill and care which the law required of him is from (expert testimony)(and)(or) (evidence of professional standards or conduct) presented in the trial.

6 Martin v. Evans (PA 1998) p Who sued whom? 2. What happened? 3. What s the procedural history? 4. What question(s) is/are before this court? 5. What does plaintiff argue? 6. What does defendant argue? 7. What does the court decide? 8. Why?

7 Question 1a Do you find that defendant Weldon R. Evans was negligent? Yes No If you answered Yes to Question 1a, go on to Question 1b. If you answered No to Question 1a, the plaintiff cannot recover and you should not answer any further questions and should return to the courtroom. Question 1b Was the defendant s negligence a substantial factor in bringing about the plaintiff s harm? Yes No If you answered Yes to Question 1b, go on to Question 2a. If you answered No to Question 1b, the plaintiff cannot recover and you should not answer any further questions and should return to the courtroom. - Martin v. Evans Special Verdict form (pp )

8 The legal term, negligence, otherwise known as carelessness, is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an omission to act when there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act in those circumstances. Now, I told you in defining negligence that part of that definition was absence of ordinary care. I want to define ordinary care for you. Ordinary care is the care a reasonably careful person would use under the circumstances presented in this case. It is the duty of every person to use ordinary care not only for his own safety and the protection of his property, but also to avoid injury to others. What constitutes ordinary care varies according to the particular circumstances and conditions existing then and there. The amount of care required by law must be in keeping with the degree of danger involved.... Evans v. Martin jury instruction (p. 149)

9 Pingaro v. Rossi (NJ Super. 1999) p Who sued whom? 2. What happened? 3. What s the procedural history? 4. What question(s) is/are before this court? 5. What does plaintiff argue? 6. What does defendant argue? 7. What does the court decide? 8. Why?

10 N.J.S.A. 4:19-16 The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner s knowledge of such viciousness. Pingaro v. Rossi (p. 152)

11 Jones v. Port Authority of Allegheny County (Pa. Comm. 1990) p Who sued whom? 2. What happened? 3. What s the procedural history? 4. What question(s) is/are before this court? 5. What does plaintiff argue? 6. What does defendant argue? 7. What does the court decide? 8. Why?

12 Now, the Port Authority or the Defendant... owes a duty to passengers to operate the vehicles in which the passengers are boarding and which they are situated, to use that degree of care which they hold itself out to possess. Now, this degree of care is different than would be for an ordinary person. An ordinary person doesn t say [ ]look [w]e re specialists in trans- porting you from point A to point B in a safe manner,[ ] but the Port Authority holds itself out to be an instrumentality that is transporting people and that they possess the skill and the knowledge and the training to do this in safety; and this is a duty they owed to Mr. Jones on this particular day in 1986 when he was allegedly injured or as he contends he was injured. Now, if they breach this duty, if they didn t exercise the degree of care that a reasonably prudent person would who s in the position of the Port Authority, then they would be negligent;... Jury instruction in Jones v. Port Authority of Allegheny County (p. 153)

13 Section 3.05 of the Pennsylvania Suggested Standard Civil Jury Instructions: The defendant in this case is a common carrier who is required by law to use a higher degree of care for the safety of its passengers than that ordinarily imposed on others and must be judged by a much stricter standard. Although this legal duty does not make the carrier absolutely responsible for the plaintiff s safety in all cases, it does obligate this carrier to exercise the highest degree of diligence and care in the (operation of its vehicle) and the (maintenance of its equipment and facilities). Any failure of the defendant to use such care under all of the circumstances of the particular situation in this case is negligence. Jones v. Port Authority of Allegheny County (p. 153)

14 Now, the Port Authority... owes a duty to passengers to operate the vehicles in which the passengers are boarding and which they are situated, to use that degree of care which they hold itself out to possess. Now, this degree of care is different than would be for an ordinary person. the Port Authority holds itself out to be an instrumentality that is transporting people and that they possess the skill and the knowledge and the training to do this in safety Now, if they breach this duty, if they didn t exercise the degree of care that a reasonably prudent person would who s in the position of the Port Authority, then they would be negligent. - The defendant in this case is a common carrier who is required by law to use a higher degree of care for the safety of its passengers than that ordinarily imposed on others and must be judged by a much stricter standard. Although this legal duty does not make the carrier absolutely responsible for the plaintiff s safety in all cases, it does obligate this carrier to exercise the highest degree of diligence and care in the (operation of its vehicle). Any failure of the defendant to use such care under all of the circumstances of the particular situation in this case is negligence. actual instruction vs. suggested instruction

15 Campbell v. Kovich (Mich. App. 2006) p Who sued whom? 2. What happened? 3. What s the procedural history? 4. What question(s) is/are before this court? 5. What does plaintiff argue? 6. What does defendant argue? 7. What does the court decide? 8. Why?

16 Ashton was not required to exercise extraordinary care. Ordinarily prudent people, when mowing a lawn, do not go to such extraordinary lengths that they do more than a brief inspection of the lawn before mowing, avoid mowing altogether when other persons are within 75 feet, mow only under close parental supervision, or look anywhere but ahead of where they are going while mowing. The evidence suggests that Ashton exercised ordinary care, but an accident of unclear causation occurred. Viewing the evidence in a light most favorable to plaintiffs, reasonable minds could not disagree that Ashton exercised due care. Accordingly, the trial court did not err in granting summary disposition to Ashton. Campbell v. Kovich (p. 155)

17 Adams v. Bullock (NY 1919) p Who sued whom? 2. What happened? 3. What s the procedural history? 4. What question(s) is/are before this court? 5. What does plaintiff argue? 6. What does defendant argue? 7. What does the court decide? 8. Why?

18 The defendant in using an overhead trolley was in the lawful exercise of its franchise. Negligence, therefore, cannot be imputed to it because it used that system and not another. There was, of course, a duty to adopt all reasonable precautions to minimize the resulting perils. We think there is no evidence that this duty was ignored. The trolley wire was so placed that no one standing on the bridge or even bending over the parapet could reach it. Only some extraordinary casualty, not fairly within the area of ordinary prevision, could make it a thing of danger. Reasonable care in the use of a destructive agency imports a high degree of vigilance. But no vigilance, however alert, unless fortified by the gift of prophecy, could have predicted the point upon the route where such an accident would occur. It might with equal reason have been expected anywhere else. At any point upon the route a mischievous or thoughtless boy might touch the wire with a metal pole, or fling another wire across it. If unable to reach it from the walk, he might stand upon a wagon or climb upon a tree. No special danger at this bridge warned the defendant that there was need of special measures of precaution. No like accident had occurred before. No custom had been disregarded. We think that ordinary caution did not involve forethought of this extraordinary peril.. To avert the possibility of this accident and others like it at one point or another on the route, the defendant must have abandoned the overhead system, and put the wires underground. Neither its power nor its duty to make the change is shown. To hold it liable upon the facts exhibited in this record would be to charge it as an insurer. Adams v. Bullock p. 156