Torts I Fall 2014 Wypadki (including regular wypadki and condensed casebook)

This is an advance cpy f the wypadki. Trts I Fall 2014 Wypadki (including regular wypadki and cndensed casebk) Remember: Yu cannt bring this cpy f the wypadki with yu t the exam! A fresh cpy f this dcument will be prvided fr yu. It will be exactly the same (including the same paginatin), with the nly difference being that it will be marked s that prctrs can see it is authrized. NOT AUTHORIZED FOR EXAM Trts I, Eric E. Jhnsn Fall 2014 University f Nrth Dakta Schl f Law MASTER TABLE OF CONTENTS Regular Wypadki... 2 Cndensed Casebk... >40 (fllws regular wypadki with new page numbering) REGULAR WYPADKI TABLE OF CONTENTS 01.01 Neglience in General... 2 01.02 The Duty Element... 7 01.03 The Breach Element... 11 01.04 The Actual-Causatin Element... 21 01.05 The Prximate-Causatin Element... 23 01.06 The Damages Element... 24 01.07 Affirmative Defenses t Negligence. 25 02.01 Liability Relating t Health Care... 26 03.01 Intentinal Trts... 26 CONDENSED CASEBOOK TABLE OF CONTENTS [lcated n first page f cndensed casebk] Regular Wypadki: Cpyright 2007-2014 by the authrs. Authred by the students f Trts I, and incrprating sme material riginally authred by Prf. Jhnsn. This dcument has nt been reviewed by Prf. Jhnsn fr legal r factual accuracy. Cndensed Casebk: Cpyright 2013 2014 Eric E. Jhnsn 1

1. 01.01 Neglience in General Trt claim in general In any trt claim, (P) has the burden f prf t establish all the elements, and if the (P) established all the elements (P) made ut a prima facie case. (D) can win a case in 3 ways: 1. The (P) failure t establish the prima facie case by prepnderance f evidence 2. Rebuttal defense, the (D) ffer evidence t disprve just ne element f (P) s prima facie case. 3. Affirmative defense r assumptin f risk, the (D) actually stipulate the (P) s prima facie case, but ffer evidence such as self-defense, cnsent, r insanity t defeat the (P) s case. Tie-breaker: 1. If the questin is whether the (P) established a prima facie case, then any tie will g t the (D). 2. If the questin is whether the (D) etablished an affirmative defense, then any tie will g t the (P). Negligence: Prima Facie Elements Generally - (D) may be held liable fr his unintentinal cnduct t (P) fr negligence if it can be determined that the (D) wed a duty t the (P), the (D) breached that duty, and the (P) suffered damages which were the actual and prximate cause by (D) s breach. Elements: Five elements t establish prima facie case 1. Duty: A duty is an bligatin impsed by law requiring ne party t cnfrm t a particular standard f cnduct tward anther. Duty is a questin f law meaning the judge will decide whether the duty wed t (P) The duty must be reasnable under the circumstances. A general duty f care id wed t all freseeable (P) Rescuers - If the (D) negligently put himself r the third persn in a peril. "Danger invites rescue" N affirmative duty t act - peple d nt have a duty t help r rescue r help smene. There are 3 exceptins: 1) cmmn carries t passengers, innkeepers t guests, shpkeepers t custmers, landlrd t tenants, schls t student, emplyer t emplyee, jailer t prisner, daycare prvider, t children r adults being cared fr, pssessr f public land pen t the public, t members f the public lawfully present, and thse wh slicit and gather public fr their wn prfit OWE a duty t aid. 2) Anyne created a hazardus envirnment, he has the duty t help. 3) medical prfessinal are exempt frm liability fr rdinary, but nt grss negligence acting t, help smene. If n duty, there is n liability 2. Breach f Duty: failure t meet the standard f care. Were yu in fact careless? Reasnable Persn: the care that wuld be exercised under the circumstance. 2

Objective test - 1) Mental deficiencies and inexperience nt taken int accunt. 2) Physical disabilities and limitatins are taken int accunt. Prfessinals - Prfessinals will nt be cmpared t a reasnable persn standard, they will be cmpared t that prfessinal standard f care. General Practiner: A general practiner's knwledge, skills, and custm will be cmpared t ther general practiner's in that "Cmmunity." Specialist: will be cmpared t the ther specialists acrss the "Natin." Children: will nt apply the "reasnable persn" standard. Age (under 4 d nt have the capacity t be negligent), educatin, intelligence, and experience are taken t accunt. There is an exceptin: if a child will be engaged in an adult activities, like shting gun, r in ne case playing glf. 3. Cause-in-fact(Actual Causatin): Plaintiff's harm caused by Defendant's breach f duty. The cause-and-effect relatinship between the (D) carelessness and the (P)'s damages r injury. In anther wrd, (D)'s cnduct = (P)'s injury r damages. Did yur act actually cause the damages? ("But-Fr Test," Substantial Factr Test). "But fr the (D)'s cnduct, the (P) wuld nt have been injured." 4. Prximate Cause: n reasn t relieve Defendant f liability. Is there a clse enugh causatin between yur acts and the damages? (Freseeability Test, Eggshell Plaintiff Rule, Strict Liability). 5. Existence f an Injury r damages: bdily injury t (P) himself r damages (P)'s prperty. Need real damages. Plaintiff must establish each f the fllwing elements by a prepnderance f the evidence (>50%, 50.00001%) Gergetwn v. Wheeler - Negligence case was established A mal-practice case. The (D) wh is a "specialist" breach his duties t detect the prblem. The (P) was fund "cmparative negligence" because the (P) failed t fllwup with the dctr's advice. 1) The (D) as a "specialist" dctr wed a duty f care t (P), and 2) (D) breached his duty because he did nt prperly diagnsed the (P)'s health prblems since the specialist standard f care is cmpared t ther specialists acrss the natin, and 3) (D)'s breach was the actual cause f the (P)'s injury because "But fr" the (D)'s breach t prperly diagnse the (P)'s prblem, the (P) wuld nt have been injured, and 4) the (D)'s breach f duty f care was the prximare cause because it was frseeable that the extent f the (P)'s injury was caused by the (D)'s breach f duty, and 5) the (P) suffered bdily injury. Cmparative Negligence: is a defense fr (D). when the (P)'s wn negligence partly cntributed t (P)'s injury. Therefre, the (D) is nt liable fr the full amunt f the (P)'s damages. Cases fr Duty Element 1. Weirum v. RKO Negligence case was established Radi statin cntest killed mtrist Negligent driving f listeners was deemed freseeable If ne s actins creates an undue risk f harm, then liable fr any actins taken by third parties resulting frm that risk f harm 2. Kubert v. Clnna - N Negligence. N duty Remte texter (D), wh was nt aware that her friend was texting while driving, had n duty tward the (P) because f the injuries that (D)'s friend caused it. 3. Byd v. Racine CurrencyExchange -N negligence case becaue (D) as a shpwner had n duty t prtect its custmer. 3

Bank rbber shts custmer Invitee status (high SOC) des nt apply b/c the incident didn t ccur b/c f a cnditin f the place, but b/c f smething that ccurred at the place Duty didn t include cmplying w/ rbber s demands 4. Yania v. Bigan N negligence. N duty t rescue persuaded t jump int water-filled trench, then drwns (D) wasn t liable fr failing t rescue, even thugh (D) cnduct led t harm. 5. Thebald v. Dlcimascla N negligence, N affirmative duty t rescue teenager plays w/ gun in presence f friends (Russian rulette) N duty t rescue if Δs are merely bystanders/bservers t decedent s dangerus actins Distinctin b/t mral and legal bligatin (Exceptin: if Δs had placed friend in peril and he was injured due t that peril, then they d be liable) 6. Suth v. Amtrak Negligence case was etablished engineer refused t assist injured mtrist Duty t aid is wed t π where Δ knws r has reasn t knw that wn cnduct has caused harm t anther Must exercise reasnable care t prevent further harm 7. Tarasff v. U.C. Regents - Negligence case because the dctr (D) was aware f his patient mental stage. dctrs were aware f pssible killing that eventually ccurred Was w/in psychlgist s authrity t d smething t prevent the harm; bligatin t use reasnable care t prtect ptential victim frm harm When the avidance f freseeable harm requires Δ t cntrl the cnduct f anther (r t warn f such danger), cmmn law impses liability (but nly if Δ bears a special relatinship t the dangerus persn r ptential victim satisfied in this case: dctr/patient) Cases fr Breach f Duty Element 1. Rgers v. Retrum N negligence because (P)'s injury was nt a result within an unreasnable risk created by (D) teacher gives student a failing grade; friend crashes car There was a duty a student car accident is freseeable risk t schl s pen campus plicy N breach f duty schl was nt unreasnable; superseding cause 2. Vaughan v. Menlve Negligence case was established because a reasnable persn knws that stacking wet hays next t (P)'s cttege will cause fire. Δ liable b/c held t bjective standard f reasnableness Duty t deal w/ prperty s nt t damage prperty f thers Must use care a prudent persn wuld take under the circumstances, A persn s subjective cnsideratins are immaterial 3. Breunig v. American Family Insurance - The negligence cae was established because the (D)'s mental disability, instanty, will nt be taken int accunt because the mental abberatins were n cnstant, and the (D) had prir knwlege f her cnditin. Therefre, (D) breached her duty t exercise the reasnable persn standard f care under the circumstance t avid the accident. 4. Grris v. Sctt Negligence per se was nt satified because the statute was nt designed t cver the harm t (P)'s animals sheep verbard Can t use particular statute b/c it was enacted fr a different purpse (t prevent transmissin f disease, nt t prevent animals frm drwning) Can t shw breach f duty 5. Martin v. Herzg - Negligence per se case was nt satisfied because the (P)'s wn vilatin f the statute barred them t recver in a cntributry negligence jurisdictin. 6. The T.J. Hper Negligence case was established because the whle industry custm was "unreasnable" tugbats didn t have radis, n knwledge f weather The law shuld nt be bund by what is custmary; custms dn t prve reasnableness 4

7. U.S. v. Carrll Twing C. Negligence case was established by applying the BPL analysis because the burden t avid the harm by having an attendant n the barge was less than lss the (P) suffered. unattended barge brke away and caused damage Calculus f negligence (Hand Test) Lss vs. benefit (utility f keeping cnditin vs. csts f preventing harm) 8. Byrne v. Badle - Negligence case was established by applying the Res ipsa lquitur dctrine. Flur barrel falls frm shp windw n tp f the (P) and injured him. 9. Flwer v. Seatn - The (P) established the negligence case by applying the Res Ipsa Lquitr dctrine because (P) daughter's injury des nt nrmally ccur in nursery schls if the children are prperly supervised. 10. Campbell v. Weathers - Negligence case was established because the (P), as an invitee thugh (P) did nt purchased anything, was injured at the (D)'s business, and the (D) failed t ntify the (P) f the trap. Cases fr Actual Causatin Element Ybarra v. Spangard π was uncnsciusly injured, any dctr/nurse culd ve been respnsible Several instrumentalities; all in a psitin t knw wh was slely respnsible Res ipsa lquitur can be applied t create grup liability b/c all thse invlved are ptentially liable fr the wrngful actins Byrne v. Badle flur barrel falls frm shp windw Res ipsa lquitur Mre than just the happening f an accident is required fr π t prve Δs breach f duty - The harm-causing event has t be tied t Δ, and the event must be ne that generally desn t ccur absent negligence Nature f accident prved breach f reasnable care Burden f prf shifted t Δ t prve that duty wasn t breached Beswick v. CareStat ambulance was inapprpriately dispatched Lss f a chance t survive (there may have been a chance f survival if ambulance wuld ve arrived n time/earlier) Reliance interest being prtected rescuers generate an expectatin amng individuals wh turn t them A persn wh undertakes t render services t anther which are recgnized as necessary fr the prtectin f the ther persn is subject t liability fr physical harm resulting frm failure t exercise reasnable care t perfrm undertaking if failure t exercise such care increases risk f harm Andersn v. Cryvac water cntaminatin leads t illness and death f city residents Kingstn v. Chicag and Nrthwestern Railway fires unite Multiple sufficient causes when there are multiple causes, where each factr is f sufficient magnitude t cause the injury but neither is a sle but fr cause, all parties are liable Summers v. Tice quail hunters When at multiple actrs are equally negligent/act independently f each ther t cause injury t π and π is unable t establish which Δ caused the specific injury (nt due t π lack f diligence), then there s a presumptin that bth are respnsible until 5

ne can shw that the ther is slely respnsible (Δs have burden t prve) bth Δs are jintly and severally liable π had the bligatin t establish that bth Δs had breached a duty f care - π is then cmpensated due t Δs behaviral (nt casual) respnsibility fr the accident But fr test desn t apply b/c there s a 50% chance either Δ caused the injury - Has t be mre likely than nt that each Δ is a but fr cause fr prepnderance f the evidence in this case, there s nt hunters can say that it s just as likely nt mre than likely Palsgraf v. Lng Island RR package fell while lading mving train, explded, bject hits π πs injury nt a freseeable risk, s n breach f duty b/c nly a duty t guard against freseeable risks π must prve that cnduct was a wrng t the π, nt anyne else There are different cnceptins f trt law - Cardz: Trt law is abut remedying wrngs b/t particular individuals in a certain relatinship w/ each ther (wrngders we duties f repair t persns that they wrng and nly thse persns π isn t wed a duty; negligence isn t actinable unless it invlves the invasin f a legally prtected interest, the vilatin f a right (specifically a vilatin f πs right); π must ve suffered a wrng at the hands f π, nt enugh that π cmmitted a general/scietal wrng - Andrews: Trt law is valuable b/c it regulates risks and cmpensates accident victims; case shuld be analyzed by prximate cause, duty is irrelevant Ryan v. New Yrk Central RR train caused spark and set shed n fire which then burned huse Natural and rdinary dctrine ne leap away cnsequences shuld be lked fr, nt necessarily all injuries that culd ever ccur Δ nt liable b/c mre than ne leap away Damages weren t immediate, they were t remte (π can t recver) Hulsey v. Elsinre Parachute Center Hiett v. Lake Barcrft Cmmunity Assciatin Sawyer v. St. Jseph s Hspital Campbell v. Pitt Cunty Memrial Hspital baby brn w/ cnditin due t hspital s chice f delivery Dctr held t lcal standard and acted against custm 6

01.02 The Duty Element Subpart A: The DutyElement - is the questin f law nt jury 1. Did the (D) create freseeable risk f harm t the (P)? 2. "Freseebility f the risk" is the primary cnsideratin in establishing the duty f element 3. Yu(D) have a duty t be careful t all freseeable Plaintiff(s) and t Freseeable Rescuer(s) 4. Plaintiff has the burden f Prf t shw that defendant s negligence created freseeable risks f harm t persns in her psitin General duty - A general duty f care is wed t all freseeable plaintiffs Specific Situatins! Rescuers - A rescuer is a freseeable plaintiff where the defendant negligently put the self r a third persn in peril. "Danger invites rescue Basics 1. If the harm was a freseeable result act is negligent 2. Was the Defendant negligent at all unreasnably risked harming smene r sme thing 3. Whether harm t a particular Defendant (class) was a freseeable result f negligence 1. All-risks-cnsidered whether the Plaintiff was negligent 2. Nature f the relatin between Defendant s negligence and what actually happened t Plaintiff Fllwing Cases are abut the DUTY element: 1. Weirum v. RKO - Radi shw cntest. Negligence case was established because it was freseeable that (D)'s cntest wuld the (D)'s listener t race and drive negligently and cause harm t (P) The remte (P) sued the (D) because (P)'s husband was killed by the (D)'s listener. (D) cnducted a cntest where listener had t find a mbile DJ. (D)'s listener attempted t fllw and negligently frced anther car ff rad and killed (P)'s husband. 1) Duty: The (D) is wed the duty because it was freseeable that by cnducting the cntest, the (D)'s listeners wuld race and drive negligently and disregard the demands f the highway safety t arrive first at the annunced lcatin t cllect the prize, and 2) the (D)'s breached its duty because it such cntest deemed t unreasnable because the gravity and likelihd f the danger utweigh the utility f the cnduct. 3) The (D)'s cntest was the actual cause f the (P)'s injury because "But fr" the (D)'s cntest the listener wuld nt have raced and drve negligently. 4) The (D)'s cntest was the prximate cause because the extent f the (P)'s injury and the (D)'s cnduct was freseeable. 5) the (P)'s husband was killed. If ne s affirmative act creates an undue risk f harm, is he liable fr any actins taken by third parties resulting frm that risk f harm? Yes. Statin created unreasnable risk f harm and intervening act f 3rd party was irrelevant because this was freseeable. McCllum v. CBS - In cntrast t Weirum v. RKO, N negilgence because the duty element was nt satisfied. The (P)'s sn killed himself with a gun after listening t Ozzy Osburne sng, "Suicide Slutin." The curt held that the accident was nt freseeable because artists cannt limit and restrict their creativity and speech which may adversely effect an individual emtinally. 2. Kubert v. Clnna - N negligence because the (D), a remte textr, was nt aware her friend is texting while driving. The curt held, if the sender f a text knws r shuld have knwn the recipient f the text wuld view the text while driving and thus be distracted, then the sender is liable if an accident caused by texting. 7

1) N duty t (P) because the (D) was unaware that her friend was texting while driving, therefre, it was nt freseeable that the (D)'s text culd injure the (P), 2) Since the (D) had n duty, she did breached her duty, 3) Actual cause is satisfied because but fr the (D)'s text the driver wuld nt caused the accident and the (P)'s injury wuld nt have happened. 4) Prximate cause is nt satisfied because it is nt freseeable that (D)'s text wuld cause the injury t (P). 5) (P) suffered injury. 3. Byd v. Racine - N negligence because the (D), a shp wner had n duty tward its custmer. 0. BAD case t illustrate the duty element. [ in fact the (D) as a wner f the business wh slicit and gather public fr its wn benefit wed a duty t aid the (P)'s husband.] (P)'s husband was killed in (D)'s shp by an armed rbber. 4. Yania v. Bigan - N negligence because the (D) had n affirmative duty t rescue (P) 1) N duty t rescue his friend because the (P) vluntary placed himself in the way f danger, and the mere fact that (D) saw (P) in a psitin f peril, the law impsed n legal duty upn (D) t rescue the (P). 2) Since the (D) had n duty, (D) did nt breach his duty. 3) Actual causatin is satisfied because but fr the (D) s asking fr help, the (P) wuld have nt been injured. 4) Prximate causatin is satisfied because it was freseeable when the (D) asked the (P) t aid him in starting the jump at (D) s hme, an injury culd ccur, 5) the (P) was drwned. 5. Thebald v. Dlcimascla - N negligence because (D) had n affirmative duty t rescue (P) (D)s were invited t (P) huse, and (D)s witnessed the (P)'s sn killed himself playing Russian Rulette. 6. Suth v. Amtrak - Negligence because the (D) had an affirmative duty t rescue the (P) in a situatin that the peril was created by (D)'s cnduct. When the (D) knws r shuld have knwn that his cnduct, inncent r trtius, caused the (P) harm, the (D) has affirmative duty t render assistance t prevent further harm. 1) The (D) had an affirmative duty t help the (P) when (D)'s cnduct caused the (P)'s harm, and 2) (D) breached his duty when he refuse t help (P), 3) actual causatin is satisfied because but fr the (D)'s breach f duty t help the (P), the (P)'s injury wuld nt ccurred, 4) the prximate causatin is satisfied because it was freseeable the (D)'s refusal t help the (P) wuld cause the injury, 5) the plaintiff suffered bdily injury. 7. Tarasff v. Regents f U.C - Negligence case because (D) as a dctr had t excercise a reasnable persn standard f care under the circumstance t warn the (P) that the (D)'s patient was planning t kill him. (D) was a psychiatrists, a specialist, had a pantient that infrmed the (D) he plans t kill the (P)'s daughter. (D) warned the authrities, but the curt fund that was enugh because the law impse a duty n the therapist (D) t excercise a reasnable degree f knwledge and skill t detect and determine if the patient pses serius danger f vilence t thers, and when the (D) determined that, the (D) bears a duty t excercise reasnable care under the circumstance t prtect the freseeable victim f that danger. 8

Affirmative Duties( A Defendant has n"affirmative"duty"t"act"unless:"1."yu"assume"the" duty"by"acting"(exceptin:"gd"samaritan"statutes"exempting"medical"prfessinals" frm""""""liability"fr"rdinary,"but"nt"grss,"negligence"in"vluntarily"acting"t"help"smene)" 2."Put"Plaintiff"in"peril,"and/"r"3."A"cmmn"carrier"(thse"wh"slicit"and"gather"the"public" fr"their"wn"prfit"we"a"duty"t"aid"patrns)" There is n general affirmative duty t act (Nnfeasance) Misfeasance/Feasance If a persn is by circumstances placed in a psitin where if he did nt use rdinary care and skill in his wn cnduct, he wuld cause danger f injury t anther persn r prperty, a duty arises t use rdinary care and skill t avid such danger. Active Miscnduct r Risk Creating Omissin = Duty Nnfeasance when the defendant has failed t aid plaintiff thrugh beneficial interventin. - - Liability fr nnfeasance is largely limited t thse circumstances in which sme special relatinship can be established. Passive Inactin = N Duty (usually). In sme instances(exceptins), hwever, curts will impse liability fr nnfeasance. Example (Nnfeasance): Osterlind v. Hill - Defendant cane renter had n duty t rescue his drunk lessee frm drwning. (N special relatinship fund). Thebald v. Dlcimascla - Defendant friends/party guests are under n duty t prevent the sn frm playing russian rulette. Exceptins: Assumptin f duty by acting (start helping smene)! Once yu undertake an attempt t rescue, the rescue has t be dne reasnably (have a duty).!! Reliance: curts have fund a duty where the defendant caused the plaintiff t rely n prmised aid.! Exceptin: gd samaritan statutes exempting medical prfessinals frm liability fr rdinary, but nt grss, negligence in vluntarily acting t help smene Peril caused by Defendant's cnduct - Defendant has a duty t assist smene in peril because f the defendant's actins (especially negligent actins)! Duty t Aid Anther Harmed by Actr s Cnduct! If persn knws r has reasn t knw that by his cnduct he has caused bdily harm t anther t make him helpless and in danger f further harm, the persn is under a duty t exercise reasnable care t prevent further harm.! Example: Suth v. Amtrak - Plaintiff's view was bstructed while driving & cllided with train. Curt held that duty is wed t Plaintiff where Defendant knws r has reasn t knw his cnduct, whether inncent r trtuus, has caused harm t anther - has affirmative duty t render assistance t prevent further harm.! Nt all jurisdictins are s strict, but the trend is mving that way. Previusly, nly negligent actins created a duty t aid. Cmmn carriers, innkeepers, shpkeepers (duty is justified by special relatinships between the parties)! Thse wh slicit and gather the public fr their wn prfit we a duty t aid patrns!! Ex.-If smene has a heart attack at Target, Target needs t help...but, yu need t be in r n their prperty! Example: Byd v. Racine Currency Exchange - Patrn in bank was sht by rbber after teller refused t give the rbber mney. Curt held the duty did nt include cmplying with the rbbers demands. Public Duty Dctrine: a gvernment actr perfrming imprperly is nt usually liable t individuals harmed by the misperfrmance, because any duty wed is limited t the public at large rather than t any specific individual. 9

Plice Duty: Plice departments are typically nt liable fr failing t prtect individual citizens. (Reasning = Limited Resurces). Mst curts have limited a finding f duty t situatins where the defendant plice undertk t act and created reliance, enlisted the aid f the plaintiff, r increased the risk f harm t the plaintiff. Duty t Infrm f Threats t Anther! Tarasff - parents f slain cllege student sued campus plice, tw dctrs, and University fr nt warning daughter abut a patient's desire t harm her.! ne persn wed n duty t cntrl cnduct f anther nr t warn thse endangered by such cnduct. Hwever, the exceptin is when defendant stands in sme special relatinship t either the persn whse cnduct needs t be cntrlled r in a relatinship t the freseeable victim f that cnduct. In this case, defendant therapists relatinship t plaintiff daughter r the killer suffices t establish a duty f care.!! Restatement 2d Trts: duty f care may arise frm either!! Special relatin btwn actr & 3rd persn which impses a duty upn the actr t cntrl 3rd persn s cnduct! Special relatin btwn actr and the ther which gives t the ther a right f prtectin 10

2. 01.03 The Breach Element Subpart B: The Breach Element- issue fr the jury r the judge t reslve it. Breach element can be established by: 1. Objective Standard: 1. Reasnable persn standard Rger v. Retrum - (P) did nt establish the breach (P)'s injury did nt reasult frm an unreasnable risk. Vaughan v. Menlve - Plaintiff established the breach element because f the reasnable persn standard f care 2. Mental Disability will nt taken t accunt. Breunig v. American Family Insurance - (D)'s mental disability was nt taken t accunt, therefre (P) established the breach element. 2. Prfessinal standard f care like fr mal practice cases 3. Bailmnt 4. Owner r ccupier If it is a cnditin n the land, use: Trespass, licensee, and Invitee If it is an activity n the land, use: Reasnable persn standard f care 5. Negligence Per se - vilatin f a statute r regulatin caused the (P)'s injury, and there are tw steps that must be met: 0. Class f persn - did the statute was designed t prtect this class f persn? 1. Class f risk - did the statute was designed t prtect this risk? Grris v. Sctt - (P) did did nt establish the breach element because the statute was nt designed t prevent the harm t (P)'s animal Martin v. Hezg - (P) did nt establish the breach element because (P)'s was cntributry negligence by vilating the statute, therefre, the (P) is barred t recvery. 6. BLP Analysis - If B < PL, the breach element is satisfied. U.S. v. Carrll Twing 7. Custm - custm is nt dispsitive because the whle custm may be "Unreasnable" TJ Hper - 8. Res Ipsa Liqutr - things speak fr itself Brune v. Badle Circumstantial evidence in a slip and fall case: ld dirty banana peel (it has been n the grund a while and the train platfrm peratr shuld have picked it up but failed t d s in a reasnable amunt f time) The risk causing activity f the defendant must be unreasnable. Did the (D) act within a standard f reasnable care? 1. General Standard - Reasnable persn standard is an bjective standard. Ordinary peple are subjective. The care that wuld be exercised by a reasnable persn under circumstances. Lking in the rear-view mirrr befre backing up Objective Standard: Mental deficiencies and inexperience will nt taken int accunt If the (D) had a superiur knwledge r skill then the (P) can thse t argue fr the breach element. physical disabilities and limitatins will be taken t accunt. Acting in a gd faith r tried the best is nt an bjective standard. 2. Specific Standard: 11

Prfessinals - lawyers, dctrs, nurses will nt be cmpared t a reasnable standard test. Thse prfessinal will be cmpared t the reasnable care standard in that particular prfessin. There are tw exceptins t general practitiner v. specialist General Practitiner's knwledge, skill, and custm f practice will be cmpared t ther general practitiners in the "Lcal" cmmunity. Specialist's knwledge, skill, and custm f practice will be cmpared t ther specialists acrss the "natin" Children: The children will nt be cmpared t a "reasnable persn" standard. Factrs t cnsider are child's age, educatin, intelligence and experience Children under 4 generally d nt have the capacity t be negligent The nly exceptin t children standard is when a child is engaged in an adult activity, therefre, the child will be cmpared t adult standard f care fr the activity. There was a case when a child fired a shut gun did nt, the curt did nt apply the adult, r reasnable persn standard f care, and the curt applied the "child" standard f care There was anther case the curt find a 11-year child playing glf was engaged in adult activity. Bailment -caretaker f a chattel Bailr - Lender! Gratuitus bailment - Must infrm f knwn, dangerus defects in chattel! Bailment fr hire - Must infrm f knwn and reasnably discverable defects in the chattel Bailee- Brrwer! Sle benefit f bailr - Lw standard! Ex. The"bailr"asks"his"neighbr,"the"bailee,"t"take"in"the"bailr s"mail"while"the"bailr"is" gne"n"vacatin,""the"bailee"is"nly"liable"fr"being"grssly"negligence."! Mutual benefit f bailr and bailee - Ordinary care standard! Sle benefit f bailee - High standard f care! Ex. The Bailr lans a lawnmwer t the Bailee, fr the sle benfit f the bailee. The bailee is liable if the bailee is slightly negligent with the lawnmwer Owner/Occupier f Land: Cnditins:! Trespassers -! Undiscvered - N Duty! Discvered r anticipated - Duty t warn r make safe cncealed artificial cnditins, knwn t the wner/ccupier, invlving risk f death r serius bdily injury.! The remedy can: bviate the cnditin r create an effective warning such as psted signs! Discvered Child Trespassers - "attractive nuisance dctrine" duty t avid freseeable risk t children caused by artificial cnditin, if:! The wner r the ccupier knws r shuld have knwn abut the dangerus artificial cnditin! The wner r the ccupier knws r shuld have knwn that children cme the area frequently! The artificial cnditin is dangerus t children! The remedy can be: remediate a dangerus artificial cnditin n the land capable f causing death r serius bdily injury, s lng as the cnitin can be remied withut impsing an unreasnable burden n the ccupier/wner.! Cst/ benefit analysis: the expense f remedying the artificial cnditin is slight cmpared t magnitude f risk, then the wner will be held liable.! Licensees - persns wh enter the land with permissin fr their wn benefit, rather than the benefit f the wner/ccupier, including friends, visitr, and cntractrs cming n the premise t make sales r repairs.! The wner r the ccupier has a duty t warn r make safe f any knwn, cncealed dangerus cnditin whether it is natural r artificial! The wner r the ccupier has n duty t inspect the premise! Invitees - Persns entering the land with permissin frm the wner/ccupier's business r as a member f public n the land that is pen t public.! In sme jurisdictin, public emplyees like firefighter, mail carrires t be invitee even in private hmes, as lng as they are privileged t be there.! Invitees are wed the highest duty by the landwner/ccupier. 12

! Duty t adequately warn r render safe cncealed hazards plus t make a diligent effrt t inspect fr unknwn dangers. Activity:! Everybdy - Reasnable persn standard f care Statutry Standard - Negligence Per Se When applicable, statute's specific standard replaces the general negligence, reasnable persn standard The vilatin f the statute must caused the injury The test is: class f persn/class f risk! The (P) is in the class f persn the statute was designed t prtect! The harm suffered is amng the risk that the statute was designed t prtect against. Negligence Per Se used by (P) - when a (P) uses per se fr prve the breach element, the (P) uses a vilatin f a statute r regulatin t prve the breach element. Using a vilatin f a statute, negligence per se, is a free pass t prve the breach element. Even there is a vilatin f the statute by the (D), it des nt grantee the (P) has satisfied the breach element. There is a tw steps prcess the (P) must shw: 1) (P) must shw that he is in the class f persn the statute was designed t prtect, and 2) (P)'s harm is amng the risk the statute was designed t prtect. If the (P) satisfied bth f the steps, then the (P) des nt need t make argument abut the reasnable persn standard.! If the (P) cannt satisfy the negligence per se, fr example, (P) can satisfy nly ne step fr the negligence per se requirements, it des nt mean the (P) cannt establish the breach element. It means the (P) cannt use the vilatin f the statute, and (P) must use the reasnable persn standard. Negligence Per Se used by (D) - It is a defense fr the (D). When a (P) vilated a statute r regulatin, and (P)'s is party r cmpletely is the blame fr his wn injury.! Ex: if the (D) caused the accident, but (P)'s ver the speed limit was partly a fault f his wn injury, then the (D) can use the statute r regulatin that (P)'s excess speed cntributed t his injury.! Negligence per se can be use fr cntributry/cmparative negligence.! Negligence Per Se fr Cntributry Negligence - It is used in minrity f jurisdictins, and cntributry negligence is (D) friendly. Under this view, if the (P)'s wn negligence fr nt cmplying with the statute cntributed even slightly t his wn injury, then (D) is nt liable at all.! Negligence Per Se fr Cmparative Negligence - it is used in majrity f jurisdictins, and cmparative negligence is (P) friendly. Under this view, if the (P)'s wn negligence fr nt cmplying with the statute partly cntributed t his wn injury, then (P) will nt recver the full amunt fr his injury.! Excuse fr Cmplying with a Statute r Regulatin - Curts may excuse failure t cmply with a statute r regulatin nly if the persn wh failed t cmply 1) used the reasnable care, 2) acted in a gd faith, and 3) cmplying with the statute wuld be mre dangerus than vilating the statute under the circumstances.! Cmplying with Statutes r Regulatin as a Defense - The questin is, since (P) can use the vilatin f the statute t establish the breach element under the negligence-per-se, can the (D) used cmplying with a statute t shw that there was n breach?! (D) may use the cmplying with the statute r regulatin as a defense, but (D) must als shw the reasnable persn standard f care. In anther wrd, nly cmplying with statutes r regulatins as a defense is nt a cmplete argument, and the (D) must be able t shw the reasnable persn standard f care under the circumstances. 3. Special case - Res Ipsa Lquitr: Things speak fr itself. the very ccurrence f an event may rebuttably establish negligence if: The accident is f the type that wuld nt nrmally ccur absent negligence The instrumentalities f the accident were in the (D)'s sle cntrl. 4. Custm r Standard Practices - Custm cannt usurp the reasnable persn standard f care under the circumstances because the whle custm may turn ut t be unreasnable. 5. BPL Analysis r Hand Frmula - it is knwn as the "cst-benefit" analysis, and it is has been embraced by law-and ecnmic schlars. A party breached its duty f care when the Burden t take precautin t avid the harm is less than the ttal amunt f risk which is Prbability f the kind f accident times the gravity f Lss ccurred 13

If B < PL, then the breach element is satisfied because the (D)'s burden is lwer than the ttal amunt f risk t avid the harm. If B PL, then the breach element is nt established because the (D)'s burden is equal r higher than the ttal amunt f risk t avid the harm. P x L = the ttal amunt f risk. B and L must be in the same unit. B = Burden, and it is measured in dllars r ther unit in cmparisn like Eurs, Pund. Hw much mney the (D) must spend t avid the lss. L = Lss, and it is measured in dllars r ther unit in cmparisn like Eurs, Pund. Hw much the (P) stand t lse if the preventable accident cmes t pass. P = Prbability and is measured between 0...1. Prbability is measured as fractin, the likelihd that the preventable accident cmes t pass. 6. Res Ipsa Lquitr - Things speak fr itself (P) prevail when there is a lack f specific evidence shwing a breach f the duty f care. There are tw requirements: 1) the accident was likely negligence, and 2) the likely the cnduct f the (D). Mre than just the happening f an accident is required fr (P) t prve (D)'s breach f duty The harm-causing event has t be tied t (D), and the event must be ne that generally desn t ccur absent negligence Nature f accident prved breach f reasnable care If the (P) cnvinces the curt that the Res Ipsa Lquitr suld be allwed, jurisdictins have tw different views: In sme, jury is permitted but nt required t draw inferences that the (D) breached the duty f care. In sme ther, the burden shit t (D) wh can rebut the presumptin f breach with specific evidence. Characteristics f a Reasnable Persn Jury must cmpare the cnduct f the Defendant t that f a reasnable persn under the circumstances. Represents cmmunity nrms Ignrance is irrelevant, must rise t level f cmmunity ne is in The reasnable persn is expected t be aware f well knwn hazards. Example: fire, laded firearms, etc. The reasnable persn is nt infallible, shuld pssess weaknesses f thers in the cmmunity Can be held liable fr nt seeing that which shuld have reasnably been nticed Example: Shuld knw when tire is wrn, it needs repair because culd ptentially harm thers if cntinue t drive n it Cases Fr Breach Element 1. Rgers v. Retrum - N negligence because the (D) did nt breach his duty because the (P)'s injury did nt result frm an unreasnable risk. The schl had a pen campus plicy, and the (P) and his friend left schl. (P)'s friend was driving ver the speed limit when he gt int an accident. 1) (D) had the duty tward the (P) becuase f the schl-student relatinship, 2) (D) did nt breach because th (P)'s injury was nt a result within an unreasnable risk createdd by (D), 3) The actual causatin is satisfied because but fr the pen campus plicy, the (P) wuld nt be injured. 4) The prximate cause is nt satified in this case because the extent f the harm the (P) suffered due t accident was frseeable by (D)'s permissin t leave the campus. 5) (P) suffered bdily injury. 2. Vaughn v. Menlve - Negligence case because the (D) breached a reasnable persn wuld nt stack wet hay near the (P)'s hme. The (D) is liable fr the "rick" fire that burned dwn his neighbr's huse when the reasnable persn knws nt t stack hay like he did, despite the defendant's actin being accrding t his best judgment. 14

The standard fr negligence is t lk whether ne has acted as wuld a reasnably prudent persn wuld have acted under the similar circumstances. weakness r inexperience will nt be taken int accunt because thse are subjective standard. 3. Breunig v. American Family Insurance - Negligence case because the (D)'s mental deficiencies will nt taken int accunt. (D) has knwledge f her mental cnditin, and she drve her car int (P)'s car and injured her. Insanity is nt a defense in trt case except fr intentinal trts. 4. Grris v. Sctt - N negligence case was established because the statute did nt prtect the animals frm being washed verbard, the purpse f the statute was t prtect the animals against spreading diseases. The statute: Animals t be placed in separate pins t prevent the spread f disease. First Q: did the statute prtected the (P)'s animals? Yes Secnd Q: Did the statute was designed t prtect such injury t (P)'s animal? N Therefre, N negligence per se. Thugh the the (P) cannt use the negligence per se (the statute) t satisfy the breach element, the (P) may be able t establish the breach f duty element under the reasnable persn standard f care. 5. Martin v. Herzg - The negligence case was established but the (P)s are liable fr their wn injury (P)s was driving a buggy withut using lights, and (P)'s husband was killed there was a statute t prtect travelers n the rads at night, and by vilating the statute (P) is blamed fr her husband's death. This case is abut cntributry negligence which is used in minrity f jurisdictins. Under cntributry negligence view, if the (P)'s wn negligence cntributed even slightly t the (P)'s injury, the (D) is nt liable at all. Cntributry negligence is (D) friendly In cntrast, cmparative negligence which is (P) friendly, which is used in the majrity f jurisdictins. Under cmparative negligence view, if the (P)'s wn negligence cntributed t his wn injury (P) cannt recver the full amunt f the injury. Bth cntributry and cmparative negligence are used as a defense by the (D). 6. The T.J Hper - The negligence case was established thugh the (D) cmplied with the custm because the whle industry's custm was nt reasnable under the circumstances. (P)'s barges was twed by (D)'s tugbat, and the (P)'s barges were lst in a strm because (D)'s tugbat was nt equipped with a radi. Thugh the custm admiralty law did nt require fr (D) t install radi, but the curt fund if the (D) had radi installed in his tugbat, the (D) wuld have vided the strm because the radi wuld have annunced the strm was in its way. Anther cncept can be applied t this case that is the Hand frmula analysis which is the (D) had breached its duty f care, when the burden (B) f installing the radi is less than (PL) the prbability and the magnitude f the lss. Therefre, breach f duty is fund If B <PL. The burden t installing the radi n the bat was lwer than ttal risk f harm. 7. U.S. v. Carrl Twing - the (P) established the breach element by applying the BPL analysis because the burden t having an attendant abard the barge was less than the ttal amunt f the risk. There was n custm r general rule t have an attendant n the barge. Therefre, the whle custm was unreasnable. The curt applied the BPL analysis t determine if the (D) is liable t damages. Beside applying the BPL analysis, a reasnable persn under the circumstances wuld have an attendant n the bard because a reasnable persn knws r shuld have knwn if the barge break free frm the pier, the damages r the injury t (P)'s gds was greater than paying an attendant. 8. Bryne v. Badle - the (P) established the negligence case by applying the Res Ipsa Lquitr dctrine because the the barrel f flur wuld nt have drpped n tp f the (P) fr n reasn if the wner f the flur warehuse (D) acted reasnably. 15

9. Flwer v. Seatn - The (P) established the negligence case by applying the Res Ipsa Lquitr dctrine because (P) daughter's injury des nt nrmally ccur in nursery schls if the children are prperly supervised. (P)' daughter, a minr, was delivered healthy t the (D) business, a nursery schl. When the (P) picked the child up the (P) nticed she had crssed eye. 10. Campbell v. Weathers - Negligence case was established because the (P), as an invitee thugh (P) did nt purchased anything, was injured at the (D)'s business, and the (D) failed t ntify the (P) f the trap. (P) had been the (D)'s custmer fr a number f years. (D) never tld the (P) the tilet was nt fr the public use. 11. Rwland v. Christan - Negligence case was established because the (D) breached her duty f care as the ccupier f the land, where the (D) was aware f the defective faucet in her bathrm and failed t infrm the (P), a licensee. (P) was the (D)'s guest, and the (P) suffered injury frm a defective facuet at the (D)'s bathrm, and the curt fund that (D) had a duty t warn the (P) abut the dangerus cnditin. Emergency An emergency is "an event that requires a decisin within an extremely shrt duratin and that is sufficiently unusual s that the actr cannt draw n a ready bdy f persnal experience r general cmmunity knwledge as t which chice f cnduct is best." Defendant is held t a standard f what a reasnable persn wuld d under emergency circumstances This des nt abslve frm negligence liability but a jury may cnsider if the mistake is ne that a reasnable persn wuld make in a similar situatin. Emergency dctrine unavailable where the defendant created the emergency situatin. There are cntexts where defendants can be liable fr failing t anticipate an emergency situatin. Fire in a business r drwning in a pl. Infirm Adults Physical infirmities are visible, measurable and verifiable and are taken int accunt in judging the reasnableness f behavir. Mental infirmities are nt visible and hard t measure, therefre, defendant are respnsible and liable fr their trts. See - Breunig v. American Family Insurance C. (n exceptin t bjective standard f care fr a mental deficiency)! π's truck struck by Defendant's car when Defendant was driving wrng way n hwy. Psychiatrist's testimny revealed Defendant believed Gd was steering the car.!! Shuld an insane individual be held liable fr negligence fr actins ccurring as a result f the sudden nset f a mental disrder?!! Yes. Insanity is nt a defense. If an individual had frewarning f the nset f a sudden mental disability then that individual can be held liable fr his/her actins.!! Hwever, when a mental disrder interferes with an individual s ability t understand and appreciate the duty t fllw a standard f care r interferes with ne's physical ability t d s, it may be enugh t avid liability frm negligence. A persn cannt be held respnsible fr an accident which she was incapable f aviding. 16

3. Negligence Per Se( are"specific"standard"f"care"that"is"brrwed"usually" frm"statute"r"regulatin,"which"sets"the"standard"f"care)." Negligence Per Se / Statutry Standard f Care Statutry standard (negligence per se) When applicable, statute's specific standard replaces the general negligence standard Test: class-f-persns/class-f-risk! The plaintiff is in the class f persns the statute was designed t prtect! The harm suffered is amng the risks that the statute was designed t prtect against Requirements fr Statutry Standard t Apply -- "Class f persns, class f risk" test Plaintiff must fall within the prtected class. Statute must prtect against this kind f harm. Example: Grris v. Sctt - There%was%a%statute%that%stated,% %Animals%t%be%placed%in%separate%pins% t%prevent%the%spread%f%dieses. %Defendant%%puts%all%f%Plaintiff's%animals%in%1%pin.%Then% Plaintiffs%%animal%washes%away.%Plaintff%claims%that%%defendant%vilated%the%statue%therefre% breached%defendants%duty%f%care.%plaintff%%lst%and%defendant%wins.%the%bject%f%the%statute%was% nt%t%prevent%the%animals%frm%being%washed%verbard,%but%t%prtect%them%against%spreading% dieses. Example: Martin v. Herzg - the lamp n the buggy requirement applied t the plaintiff, and the requirement is t prevent traffic accidents, s the jury needed an instructin that the buggy driver's mmissin is negligence per se remeber this is just shwing the breach f duty--the ther elements f the negligence trt must be satisfied--p might nt have been barred frm recvery under cntributry negligence because the jury des nt find the lack f the lamp was a prximate cause. If statute applies there is negligence per se but NOT necessarily liability since there might be n damages Vilatin f sme statutes may be excused if: Where cmpliance wuld caused mre danger than vilatin. Where cmpliance wuld be beynd defendant s cntrl. Regulatins are a big area t lk t fr negligence per se vilatins 4. The Rle f Custm r Standard Practices Custm Applicatin Relevant because it reflects the thughts f a large number f peple. Dispsitive because a large number f peple culd be wrng. It des nt have t be universal t be cnsidered a custm, it can be specific t a certain area, industry, grup etc. A reasn fr admitting evidence f cmpliance with custm is t infrm jury that if it finds a party negligent, it is actually finding that entire cmmunity r industry that fllws that custm as negligent. Regardless f whether custm evidence is put in frnt f the jury, they will ften have an idea f custms in their minds anyways. Custm is evidence fr the jury t cnsider in its determinatin f breach f duty Custm Ratinale Evidence f nn-cmpliance r cmpliance with custm is nt nly relevant but dispsitive Cmpliance tends t prve reasnableness Nn-cmpliance tends t prve negligence Evidence f industry custm as well as nn-cmpliance aids in educating jurrs f current custm and serves as a crdinating functin. 17

5. Negligence Calculus Learned Hand Calculus Liability depends upn whether Burden (B) is less than Lss (L) multiplied by Prbability (P). P and L measure cst f taking risky actin. B, measures the cst f reducing r aviding the risk f harm. B is the cst (burden) f taking precautins, and P is the prbability f lss (L). L is the gravity f lss. The prduct f P x L must be a greater amunt than B t create a duty f due care fr the defendant. U.S. v. Carrll Twing- Learned Hand's BPL Frmula; Unmanned barge sank. Curt held that if the prbability & gravity f lss is greater than the burden, then negligence. Defendant was liable because burden was less than the high prbability multiplied by high ptential lss Ecnmic View f Negligence Calculus Plaintiff generally tried t prve that there was a particular precautin that the defendent shuld have taken, and if the precautin shuld have been taken, plaintiff wuld nt have been harmed. The ecnmic thery f negligence will be used by parties that engage in risky actins t determine whether r nt the risk is wrth taking. The Untaken Precautin A precautin that the defendant shuld have taken and chse nt t. Had the defendant taken that precautin, the plaintiff wuld nt have been harmed. Mdern View f Hand Frmula There is nt much use f hand frmula tday when it cmes t real-wrld negligence. In reality, it is nt always pssible t assign numbers t cmpnents. Hwever, hand frmula has a lt f use when it cmes t design defects in prducts liability because numbers can be pinned dwn. Nte: that in analyzing hand frmula prblem, remember that numerical value can definitely be assigned t a human life. Examples: EPA values human life at $6.1M; DOT values human life at $3M. Example T.J. Hper - Whether r nt smething was the industry custm des nt in and r itself answer the questin f whether the wners breached a standard f care by nt supplying their tug bats with radis. Just because it was nt custm t carry radis des nt mean it was nt the standard f care t require them t carry radis. Custm des nt dictate standard f care! (but relevant in determining standard f care). The curt held that the tugs were unseawrthy (cmparative t nt reasnable in reasnable persn standard) because they did nt have receiving sets, even thugh such sets were nt standard in the industry. (The curt als said the barges were unseawrthy, but that wasn't imprtant in regard t the custm questin. Custm questin invlved whether radis n tugs were industry custm.) 6. Res Ipsa Lquitr( likely Defendant breached the duty f care. and likley Defendant undertk the careless cnduct). Res ipsa lquitr-thing speaks fr itself Objective: it permits a jury t infer that the plaintiff's injury was caused by the defendant's carelessness even when the P presents n evidence f particular acts r missins n the part f the D that might cnstitute carelessness(cmmn sense thery) Special type f circumstantial evidence establishing defendant acted unreasnably withut any ther inferences needed The very ccurrence f an event may rebuttably establish negligence, if: The accident is f the type that wuld nt nrmally ccur absent negligence The instrumentalities f the accident were in defendant's sle cntrl Elements The accident wuld nrmally nt ccur absent negligence: the injury must be f a kind that rdinarily des nt result absent carelessness f D The Defendant had exclusive cntrl ver the cause f the injury The Plaintiff did nt cntribute t the cause f the injury, nr did a 3rd party. 18