Negligence_Duty & Breach

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What is Negligence?

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Negligence is the breach of a duty to exercise reasonable care under the circumstances by a preponderance of the evidence. The elements of negligence that must be met are Duty, Breach, Causation, and Damages. Contributory or Comparative negligence must be raised by the D and defended by the P. Foreseeability determines if the D acted reasonably.

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Duty and Breach

What are the 4 ways the P can prove the D owed a duty of reasonable care under the circumstances?

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1) Violation of a statute, ordinance or regulation.

2) Objective Reasonable person standard: What would a reasonably prudent person do under the circumstances?

3) Subjective Reasonable person standard. What would a reasonably prudent person with a physical or mental disability do under the circumstances? A doctor? A child?

4) Judge made standards; Judicially Declared Standard/Duty

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Step 1 of Duty and Breach

Is there a statute, ordinance or regulation?

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Is there a statute, ordinance or regulation?

For the final exam:

a) Violation of statute: The unexcused violation of a statutory duty is negligence per se in a contributory negligence jurisdiction which automatically establishes duty and breach. Duty and Breach are not rebuttable once the statute is determined to apply as a matter of law. The P must still prove causation and damages.

Negligence per se elements:
(1) Did the D violate a statue?
(2) Is the (P) injured person a member of the class intended by the legislature to be protected?
(3) Was the harm of the kind which the statute was intended to prevent?

Defenses
(4) Was there an adequate excuse?
(5) Is the P liable for comparative negligence or contributory negligence?

Excused violations of statute:
• Incapacity to comply-the violation is reasonable because of the actor’s incapacity
• Ignorance of factual circumstances giving rise to the need to comply-the actor neither knows nor should know the factual circumstances that render the statue applicable
• Inability to comply despite diligence
• Emergency
• Greater risk of harm.

b) Violation of a regulation or ordinance: Establishes Prima facie negligence; or the rebuttable presumption of negligence. You must prove duty, breach, causation, and damages.

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Step 2 of Duty and Breach

What is the objective reasonable person standard?

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Objective Reasonable person standard: What would a reasonably prudent person do under the circumstances? The reasonable person possesses those attributes that a jury decides represent the community norms. It is the knowledge and understanding generally held by members of the community that is relevant. Foreseeability determines if the D acted reasonably. If you couldn’t foresee the risk, then no negligence lies

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Objective Standard Factors and Defenses

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1) Palsgraf v. Long Island Railroad Co.: The risk reasonably to be perceived defines the duty to be obeyed.

2) Dangerous Instruments/Instrumentality: Gulf Refining Co. v. William: If you are a vendor of an inherently dangerous commodity such as gasoline, you need to exercise the degree of care commensurate with the danger.

3) The (D's) owner's duty to prevent injuries is based on: a) Foreseeable likelihood that the action will cause harm b) Foreseeable magnitude of the harm c) How difficult to eliminate the risk of harm

United States v. Carroll Towing Co.: The owner’s duty, as in other similar situations, to prevent against resulting injuries is a function of three variables: (1) The probability of the kind of incident in question; (2) the gravity of the resulting injury; and (3) the burden of adequate precautions.

However, the greater the potential harm to others, the greater the requirement to reduce the damages proportionally.

4) Attractive Nuisance: An owner of property must use reasonable care to make that property safe from child trespassers.

Attractive Nuisance: An "attractive nuisance" is a potentially harmful object on or condition of the land that, by its features, tends to lure children, such as a swimming pool.

Chicago, B & Q.R.R. Co. v. Krayenbuhl: The foreseeability of duty in negligence is determined when the magnitude of the risk exceeds the utility of the conduct.children such as a swimming pool.

When the magnitude of the risk is weighed against the benefit of not doing the act, a reasonable person must act.

5) Custom: custom does not determine the standard of care. Conformance with custom does not conclusively establish lack of negligence or contributory negligence. Conformance with custom raises an inference of reasonableness, unless facts and circumstances show greater precautions are required, and departure from custom raises an inference of reasonableness.

6) Emergency: Colorado’s sudden emergency instruction: CJI-Civ.2d 9:10: “A person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.

7) Religious Beliefs: The P’s beliefs were held to be a relevant factor, but did not change the standard of care to act as a reasonably prudent person under the circumstances. The religion is a relevant circumstance to be considered by the jury.

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Step 3 of Duty and Breach

What is the subjective reasonable person standard?

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Subjective Reasonable Person Standard: What would a reasonably prudent person with a 1) Physical disability, 2) superior skills or knowledge, or 3) children do under the circumstance? The subjective standard takes into account the D's ability to exercise care.

(1) Physical Disabilities: R3T: The conduct of an actor with physical disabilities is negligent only if it does not conform to that of a reasonably careful person with the same disability

(2) What a reasonable lawyer with the minimum degree of learning, skill, and ability normally possessed by other lawyers in the community should do under the circumstances.

(3) A doctor is only negligent if he does what no reasonably prudent doctor could do or fails to do what every reasonably prudent doctor should do under the circumstances.

(4) The standard of reasonableness for a child is a reasonable child of like age, intelligence, and experience.

North Carolina: Under 7 years old you are incapable of unreasonable conduct and cannot be negligent. Children between 7-14 have a rebuttable presumption against capacity to commit negligence and children between 14-17 have a rebuttable assumption for capacity to commit negligence. If 14-17 you can try and prove the child lacked the ability to act as someone of his own age, capacity, discretion, knowledge and experience. This goes until the day before you turn 18.

Exception: when the child is engaging in a dangerous activity that is characteristically undertaken by adults. (Like driving a car)

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Subjective Standard factors and Defenses #1

Physical disability

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1(a) Physical Disabilities: R3T: The conduct of an actor with physical disabilities is negligent only if it does not conform to that of a reasonably careful person with the same disability

(b) Mental capacity:
i. Most jurisdictions hold that the fact that an actor is mentally deficient or temporarily or permanently insane, is normally not relevant consideration in determining whether the actor behaved reasonably.
ii. Majority rule: not a defense to negligence
iii. May be a factor in determining contributory negligence.

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Subjective Standard factors and Defenses #2

Superior skills or knowledge

Legal Malpractice

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2. Superior Skills or Knowledge: Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. Restatement (Second) of Torts § 299A (1965)

A) Legal Malpractice: by agreeing to perform services a lawyer warrants only that the lawyer 1) possesses the minimum degree of learning, skill, and ability ordinarily possessed by other lawyers, 2) will exercise personal best judgment, and 3) will pursue the client’s matter with reasonable care and diligence.

(a) The P must prove that but for the negligence the attorney, P would have prevailed in the underlying action.

(b) Judgmental Immunity: an informed professional judgment made with reasonable care and skill cannot be the basis of a legal malpractice claim. To prove judgmental immunity 1) the alleged error is one of professional judgment and 2) the attorney exercised reasonable care in making his or her judgment.

(c) An Attorney’s Duty is to: Clients, Prospective Clients, Non-clients-duty generally limited by scope of representation

(d) Attorney’s Liability Defense: Contributory negligence, failure to appeal, fee offsets if liable, collectability of lost judgment, exoneration or innocence.

(e) Attorney’s Duty (standard of care): 1) no good faith exception, 2) debatable questions and novel theories, 3) inadequate settlement (split authority), 4) recommending a specialist, 5) promised results.

(f) Locality Rule: Russo v. Griffin: We hold that the appropriate standard of care to which a lawyer is held in the performance of professional services is “that degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction. It’s based on the state you live in.

(g) Specialist: A lawyer must refer a client to a specialist if, under the circumstances, a reasonably careful lawyer would do so.

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Subjective Standard factors and Defenses #2

Superior skills or knowledge

Medical Malpractice

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Boyce v. Brown: Generally, negligence on the part of a physician or surgeon must be established by expert medical testimony: but not if the negligence is so obvious that it is within the common knowledge and experience of lay jurors.

a) The standard of medical practice in the community must be shown by affirmative evidence.

b) A doctor is only negligent if he does what no reasonably prudent doctor could do under the circumstances or fails to do what every reasonably prudent doctor must do.

c) Judgment is immune from being second-guessed by a jury only if the professional has acted reasonably.

Scott v. Bradford: Full disclosure of all material risks incident to treatment must be made in order for there to be effective consent. A physician is required to give his patients informed consent. The failure to do so may result in liability for negligence.

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Subjective Standard factors and Defenses #3

Children

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3. The standard of reasonableness for a child is a reasonable child of like age, intelligence, and experience.

North Carolina: Under 7 years old you are incapable of unreasonable conduct and cannot be negligent. Children between 7-14 have a rebuttable presumption against capacity to commit negligence and children between 14-17 have a rebuttable assumption for capacity to commit negligence. If 14-17 you can try and prove the child lacked the ability to act as someone of his own age, capacity, discretion, knowledge and experience. This goes until the day before you turn 18.

Exception: when the child is engaging in a dangerous activity that is characteristically undertaken by adults. (Like driving a car)

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Step 4 of Duty and Breach

What are judge made standards?

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Judge made standards; Judicially Declared Standard/Duty: Legislative established duty (may be delegated…direct and indirect), judicial interpretation of legislative standard, industry standards and customs.

Example:

Helling v. Cary: The court determined the standard care instead of the medical profession in this case.

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Circumstantial Evidence: Proving a duty was breached

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CONSTRUCTIVE NOTICE: such notice as is implied or imputed by law. Notice with which a person is charged by reason of the nature of the thing to be noticed

RELEVANT CONSIDERATIONS: Discoloration or Alteration-Proximity (employee)-Opportunity to Discover-Absence of Inspection-Prior Occurrences

Goddard v. Boston & M.R. Co.: Had P been able to present evidence that the peel had been on the platform for some time, he would have prevailed because D would have had a duty to clean the platform. But the mere fact that a peel was on the platform itself without more information is not enough to prove that somehow D was responsible A plaintiff does not meet his burden of proof for negligence by a showing of the mere possibility of negligence by the use of circumstantial evidence.

RES IPSA “the thing speaks for itself”

(1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and

(2) the instrumentality causing the injury is shown to have been under the management and control of the defendant.

(3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' It is applied in a wide variety of situations, including cases of medical or dental treatment and hospital care.

If the P pleads both Res ipsa and specific acts and produces evidence of each, the trial court should submit a single general negligence issue embracing the entire range of possible negligent acts supported by the evidence.

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Circumstantial Evidence: Times to apply Res Ipsa

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Times when to apply of res ipsa:

1) The defendant has control over the instrumentality causing harm.

Mahowald v. Minnesota Gas Co: Gas distributor’s responsibility for reasonable inspection and maintenance of its lines establishes element of “exclusive control” which allows application of res ipsa loquitur in action for damages resulting from defect in lines even though there were others who may have had access to the gas lines.

2) Multiple Defendants

Ybarra v. Spangard: Neither the number or relationship of the defendants alone determines whether the doctrine of res ipsa loquitur applies. The doctrine of res ipsa loquitur applies when an unexplained injury to a patient occurs during a medical procedure for a part of the body not under treatment such that negligence will be imputed against all the doctors and employees who cared for the patient when he was unable to care for himself. The identity of the negligent party can be inferred.

This is a narrow application involving surgery cases. This case is not universally applied to res ipsa.

3) Spoliation of Evidence

Trevio v. Ortega: Should the court recognize an independent cause of action for intentional or negligent spoliation of evidence? No, the court should use sanctions or special jury instructions that 1) the D intentionally or negligently destroyed evidence and that the jury should presume the evidence was unfavorable to the D or that 2) the jury should assume the evidence would have been unfavorable to the D.

REMEDIES FOR SPOLIATION
Destroyed evidence must prejudice the other party: Q of relevancy (cumulative?)
Dismissal/Default Judgment, Excluding Evidence, Spoliation Presumption Instruction
Rebuttable Presumption – destroying party has BOP to disprove – P cannot prove case without the destroyed evidence
Or Adverse presumption of unfavorability – BOP still with P