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81 Cards in this Set

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Reasonable Person Standard
UNDER THIS APPROACH, PEOPLE HAVE A DUTY TO TAKE THE SAME DEGREE OF CARE THAT A “REASONABLE PERSON” IN THE D’S SITUATION, WITH THE SAME KNOWLEDGE AS THE D, WOULD TAKE UNDER THE CIRCUMSTANCES.
ELEMENTS OF PROOF IN A NEGLIGENCE ACTION
i. D HAD A DUTY OF CARE TOWARD THE P. (BY THE D)
» Did the D owe the P a duty to conform his conduct to a standard necessary to avoid unreasonable risk of harm to others?

ii. D BREACHED ITS DUTY OF CARE. (BY THE D)
» Did the D’s conduct (whether by way of act or omission) fall below that applicable standard of care?

iii. D’S BREACH OF DUTY WAS A LEGAL CAUSE OF ACTUAL HARM TO THE P.
» Was the D’s failure to meet the applicable standard of care causally connected to the P’s harm?

» This is divided into “CAUSATION IN FACT” and into “PROXIMATE CAUSE.”

iv. ACTUAL HARM (TO THE P)
» Did the P suffer harm?
CHILDREN
CHILDREN are generally Held to a Standard of Care of the Average Child of their Age, Experience and Stage of Mental Development.
“Adult Like Activities” and Children
However, where Children are engaged in “Adult Like Activities”, they are held to the standard of Care of a Reasonable Adult.
PHYSICALLY HANDICAPPED PEOPLE
PHYSICALLY HANDICAPPED PEOPLE are held to the Standard of Care of a Reasonable person with the same Physical Handicap(s).
BEGINNERS
BEGINNERS are held to the standard of Care of a reasonable person of Average Experience, not the standard of a “Reasonable Beginner.”
ELDERLY PERSONS
In some states, ELDERLY PERSONS are held to the reasonable person standard, without taking their age and frailty into account. However, a second group of states require that elderly people be held to the standard of care of a reasonable person of the same age and with the same frailties as the D.
INTOXICATED PERSONS
INTOXICATED PERSONS are held to the standard of care of a reasonable person who is sober.
POOR PEOPLE
POOR PEOPLE are held to the standard of care of a reasonable person, without regard to their indigence.
INSANE PEOPLE
INSANE PEOPLE are generally held to the standard of care of a reasonable person, irrespective of their mental illness.

However, in some jurisdictions, insanity is a defense in a negligence case where
(1) the insane D cannot understand the duty to use ordinary care or the insane D cannot exercise due care and
(2) the insane D has no forewarning of his or her susceptibility to a mental aberration.
OTHER JUDICIAL APPROACHES TO THE STANDARD OF CARE
1. NEGLIGENCE IS AN ACT “WRONGFUL IN ITSELF.”

2. NEGLIGENCE IS A FAILURE TO EXERCISE THAT DEGREE OF CARE WHICH “THE GREAT MASS OF MANKIND” WOULD ORDINARILY EXERCISE UNDER THE SAME CIRCUMSTANCES.

3. THE Carroll Towing FORMULA: IF THE BURDEN OF TAKING PRECAUTIONS IS LESS THAN THE PROBABILITY OF HARM MULTIPLIED BY THE GRAVITY OF THE POTENTIAL INJURY, THEN THE D HAS A DUTY TO THE P.

4. NEGLIGENCE IS AN UNREASONABLE FAILURE BY THE D TO ANTICIPATE (FORESEE) INJURY OF THE KIND WHICH THE P SUSTAINED.
THE Carroll Towing FORMULA
IF THE BURDEN OF TAKING PRECAUTIONS IS LESS THAN THE PROBABILITY OF HARM MULTIPLIED BY THE GRAVITY OF THE POTENTIAL INJURY, THEN THE D HAS A DUTY TO THE P.
MINTZ ON “NEGLIGENCE"
Negligence can be defined as “The unintentional or inadvertent conduct that accidentally causes harm to another person.” The purpose of negligence is based mostly on compensation (rather than punishment, deterrence or prevention of violence). The modern elaboration of the tort of negligence contains four distinct elements (Duty of Care, Breach of Duty of Care, Causation and Actual Harm). Each of the four elements has to be met by a preponderance of the evidence. As a trial strategy, the P tries to demonstrate that some “inexpensive precaution” (a railing, a warning, or an inspection) could have prevented some likely serious injury. The D tries to show that the precaution was “excessively costly, redundant, ineffective or downright dangerous.”
MINTZ ON “THE REASONABLE PERSON”
The standard of care is subjective irrespective of the D’s own unique features. The reason for this is that “someone has to bear the risk of loss.” The emphasis is based on the protection of the P. Gross negligence is the absence to use even the slightest care (can also be equated with “recklessness in the law of torts”).
VERSIONS OF THE REASONABLE PERSON STANDARD
REASONABLE MAN (PERSON)
REASONABLE MAN OF ORDINARY PRUDENCE
MAN OF AVERAGE PRUDENCE
MAN OF ORDINARY SENSE USING ORDINARY CARE AND SKILL
STANDARD MAN
MAN OF ORDINARY INTELLIGENCE AND PRUDENCE
AVERAGE MAN OF ORDINARY INTELLIGENCE
MAN IN THE CLAPHAM OMNIBUS, McQuire v. Western Morning News [1903]
Vaughn v. Menlove 1837
D’s hay rick was built near P’s cottage and caught on fire. There was not a single witness whose testimony did not go to establish gross negligence in the D. He had repeated warnings of what was likely to occur and the whole calamity was occasioned by his procrastination. The court said that “instead of saying that the liability of negligence should be coextensive with the individual, they ought rather to adhere to the rule which requires in all cases a regard to caution such as a reasonable man of ordinary prudence would observe.” The standard of care is not that of “good faith.”
THE STANDARD OF CARE FOR BAILMENT
D is held liable for the slightest negligence where the loan is for his own benefit or use, but for only gross neglect when he undertakes safekeeping for the bailor.
HOLMES, THE COMMON LAW, 1881
Holmes said that the law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. A more satisfactory explanation is that, when men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare.
Roberts v. Ring 1919
70 year old D ran into a young boy. The court held that “when one, by his acts or omissions causes injury to others, his negligence is to be judged by the standard of care usually exercised by the ordinarily prudent normal man. D’s infirmities did not tend to relieve him from the charge of negligence. On the contrary they weighed against him. Such infirmities, to the extent that they were proper to be considered at all, presented only a reason why D should refrain from operating an automobile on a crowded street where care was required to avoid injuring other travelers.”

MINTZ: This is a minority approach with regards to the boy. The court said held that the young boy should be held to a subjective standard.
BEGINNERS AND EXPERTS EXCEPTION
One critical exception covers cases in which the P has assumed the risk that the D will exercise a lower standard of care, as happens when an experienced driver agrees to teach novice how to drive. The inexperienced driver continues to get the benefit of a lower standard against his driving instructor, but not against an injured pedestrian who did not assume the risk.

THE 2ND RESTATEMENT: This view provides that the D is required “to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities,” but that standard is subject to an important caveat: unless he represents that he has greater or less skill than the average.
Daniels v. Evans 1966
P was killed when his motorcycle collided with D’s automobile. The court held that when a minor engages in such activities as the operation of an automobile or similar power driven device, he forfeits his rights to have the reasonableness of his conduct measured by a standard commensurate with his age and is thenceforth held to the same standard as all other persons. The court made the policy argument that applying a more lenient standard to minors in the operation of a motor vehicle is “unrealistic, contrary to the expressed legislative policy, and inimical to public safety.”

» A minor child must exercise the care of the average child of his or her age, experience and stage of mental development (“wisdom”) when engaged in activities appropriate to their age, experience and wisdom. In other words, he is not held to the same degree of care as an adult when engaged in childhood activities.

THE 2ND RESTATEMENT adheres to the general rule and in addition, it also provides that a child under five years of age is not capable of negligence.
Purtle v. Shelton 1971
In this case the court refused to hold a 17 year old boy to the adult standard of care in the use of dangerous firearms. It held that a lower standard for minors was appropriate because deer hunting was not exclusively an adult activity.
Breunig v. American Family Insurance 1970
D said that “God was directing her car and that when she stepped onto the gas pedal, she thought she could fly like Batman. Instead, she hit D’s car.” The court found that the jury could find that D had prior warning and knowledge that would reasonably lead her to believe that she would have hallucinations which would affect her driving. As such, she should be held to an ordinary standard of care.

MINTZ ON Breunig: The view in this case is not the majority view. The majority view is that insanity is not a defense to negligence. Insanity is only a defense where the D cannot understand his acts or where the D cannot exercise due care and where the D had no forewarning of his or her susceptibility.
INSTITUTIONALIZED INSANE PERSONS
When a mentally disabled person injures an employed caretaker, the injured party can reasonably foresee the danger and is not “innocent” of the risks involved.
Fletcher v. City of Aberdeen 1959
Blind P fell into an excavation. It is the general rule that those charged with duties respecting the condition of public ways open to pedestrians must exercise due and reasonable care to keep them reasonably safe for travel by the public, including those who are blind or suffer from defective vision or other physical infirmity, disability, or handicap, and are themselves exercising due care, under the circumstances, for their own safety. Further, a city is charged with knowledge that its streets will be used by those who are physically infirm as well as those in perfect condition.
Robinson v. Pioche 1855
The court said that “the intoxication of the P cannot excuse such gross negligence. A drunken man is as much entitled to a safe street as a sober one, and much more in need of it.”

» MINTZ calls intoxication a “sham defense.”
THE RELEVANCE OF WEALTH TO NEGLIGENT LIABILITY
The D’s wealth is irrelevant to deterrence of socially undesirable conduct. Deterrence theory is based on the assumption that actors weigh the expected costs and benefits of their future actions. Whether a D is wealthy or poor, the cost benefit analysis is the same.
THE GOOD SAMARITAN RULE: STATUTORY LIMITS ON LIABILITY
A principle of tort law that provides that a person who sees another individual in imminent and serious danger or peril cannot be charged with negligence if that first person attempts to aid or rescue the injured party, provided the attempt is not made recklessly.
Blyth v. Birmingham Water Works 1856
D installed water mains that broke 25 years after the installation due to severe winter frost and ice. The court held that “a person is not liable and thus not negligent when his conduct conforms to the standard that is followed by an ordinary and prudent person.” The circumstances in this case constituted a contingency against which a reasonable man cannot provide.

MINTZ: Remember that the standard of care in negligence is an objective standard. This is to be contrasted with the intentional torts standard which provides for a subjective standard of mind.
Eckert v. Long Island Railroad 1871
P ran on railroad track to save a child. There is an exception to the general rule that the law has so high a regard for human life that it will not impute negligence to an effort to preserve it.” (unless unreasonable). The court reasoned that when the P’s exposure to serious injury was for the purpose of saving life, it was not wrongful and was, therefore, not negligent unless it was regarded either rash or reckless.

MINTZ “Negligence implies some act of commission or omission wrongful in itself. Under the circumstances in which the deceased was placed, it was not wrongful for him to save the child’s life.”
Dissent in Eckert
DISSENT Allen says that P should be liable for his own death because he approached the train in the exercise of his free will. He was in full possession of all his faculties and had the capacity to judge the danger. Allen says that maxim volenti non fit injuria applies because “no one can maintain an action for a wrong when he consents or contributes to the act which occasions his loss.”
Terry, Negligence 1915
To make conduct negligent, the risk involved must be unreasonably great. When due care consists of taking precautions against harm, only reasonable precautions need be taken and not every conceivable or possible precaution.

The reasonableness of a given risk may depend upon the following five factors:
1. Magnitude of the Risk
2. Value or importance of what which is exposed to the Risk
3. The value of importance of the Collateral Object
4. The Utility of the Risk
5. The Necessity of the Risk
CALCULUS OF RISK, JUDGE LEARNED HAND’S FORMULA
If the Burden of Adequate Precaution is Greater than the Probability of Harm x Gravity of Resulting injury, then a duty of care exists.
Osborne v. Montgomery 1931
P boy was injured when D’s automobile door struck P’s bike. D contends that P was guilty of contributory negligence. The court held that D was not liable because he acted with ordinary care when opening his car door. A proper definition of “want of ordinary care” is that it is such care as the great mass of mankind ordinarily uses in the same or similar circumstances. (Mintz). The court further said that “human beings must live in association with each other, as a consequence of which their rights, duties, and obligations are relative, not absolute.”

MINTZ “Damnum absque”, means “loss not giving rise to a cause of action; without injury.” This doctrine can also be applied to “non volitional conduct.”
Cooley v. Public Service Company 1940
P sued power and telephone company for negligently installed wires. D’s are not liable because there is a fundamental conception “that the duty of due care requires precisely the measure of care that is reasonable under all circumstances.” Here, the balance of alternatives suggested that the D acted reasonable.
United States v. Carroll Towing 1947
D’s were in charge of the Anna C. The Anna broke away due to P’s prevention of the occurrence of the accident. Judge Hand held that “to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.” In this case, the bargee was gone for 21 hours. Additionally, it was not beyond expectation that the barge would break away given the full tide of war activity during the time in question. Therefore, the barge owner is partially liable.

JUDGE HAND’S FORMULA is one way of determining what an average reasonable person would do under different circumstances: It is a cost benefit analysis of Burden v. Probability of Injury multiplied by the Seriousness of the Injury.
POSNER: AN ECONOMIC INTERPRETATION OF NEGLIGENCE
When the cost of accidents is less than the cost of prevention, a rational profit maximizing enterprise will pay tort judgments to the accident victim rather than incur the larger cost of liability. If, on the other hand, the benefits in accident avoidance exceed the costs of prevention, society is better off if those costs are incurred and the accident averted.
DISCONTINUITIES AND THE CHOICE BETWEEN NEGLIGENCE AND STRICT LIABILITY
Under strict liability, small errors in choosing the optimal level of care will typically generate only small consequences. The D is liable for all accidents he causes, so that small shifts in care levels generate only small changes in expected liability. In light of this pronounced discontinuity, one counterintuitive argument holds that the negligence standard induces a somewhat higher level of care than the strict liability rule by D’s anxious to avoid falling off that liability cliff.
Lyons v. Midnight Sun Transportation Services 1996
P was killed when she pulled out of a parking lot and was broadsided by the trucker. The court concluded that the sudden emergency instruction was generally useless because with or without an emergency, the standard of care was still that of a reasonable person under the same or similar circumstances.
Andrews v. United Airlines 1994
P passenger was injured when a briefcase fell from an overhead compartment in an airplane. The court said that “given the heightened duty of a common carrier, even a small risk of serious injury to passengers may form the basis of liability if that risk could be eliminated consistent with the character and mode of airline travel.” D has demonstrated neither that retrofitting overhead bins with netting (or other means) would be prohibitively expensive, nor that such steps would grossly interfere with the convenience of its passengers. Thus, a jury could find that D failed to do “all that human care, vigilance, and foresight reasonably can do under all the circumstances.”

MINTZ Common carrier’s are not strictly liable. But they are held to a higher standard of care in negligence cases.
NEGLIGENCE AND THE COMMON CARRIER
The two most often expressed rationales for duty of highest care were (1) the perceived ultra hazardous nature of the instrumentalities of public rapid transit and (2) the status of passengers and their relationship to the carrier, notably their total dependency upon the latter for safety precautions.
CUSTOM OF A TRADE AS A BASIS FOR THE STANDARD OF CARE, MAJORITY VIEW
CUSTOM IS SOME EVIDENCE OF THE APPROPRIATE STANDARD OF CARE BUT NOT A CONCLUSIVE INDICATION OF WHAT CONSTITUTES DUE CARE.

FURTHER, COURTS MAY HOLD THE PRACTICE OF AN ENTIRE INDUSTRY TO BE UNREASONABLY RISKY.
CUSTOM OF A TRADE AS A BASIS FOR THE STANDARD OF CARE, OTHER VIEWS
I. CUSTOM OF A TRADE ESTABLISHES AN “UNBENDING TEST” OF DUE CARE.

II. CUSTOM OF A TRADE HAS “NO BEARING WHATSOEVER” ON THE PROPER STANDARD OF CARE IN A NEGLIGENCE CASE.
CUSTOM IN MEDICAL MALPRACTICE CASES
I. LOCALITY RULE
PHYSICIANS ARE HELD TO A STANDARD OF CARE AND SKILL ORDINARILY POSSESSED BY OTHERS IN THE PROFESSION IN SIMILAR LOCALITIES.

» THIS RULE HAS BEEN REJECTED IN MANY JURISDICTIONS AND IS NO LONGER THE MAJORITY VIEW.
CUSTOM IN MEDICAL MALPRACTICE CASES
II. MORE COMMONLY HELD VIEW
PHYSICIANS ARE HELD TO A STANDARD OF CARE AND SKILL OF THE AVERAGE QUALIFIED PRACTITIONER, TAKING ACCOUNT OF ADVANCES IN THE PROFESSION AND THE MEDICAL RESOURCES AVAILABLE TO THE PHYSICIAN.
CUSTOM IN MEDICAL MALPRACTICE CASES
III. “NON DISCLOSURE” CASES
IN “NON DISCLOSURE” CASES, THE PREVAILING CUSTOM OF PHYSICIANS IN SIMILAR CASES, AS TO DISCLOSURE OF RISKS OF MEDICAL TREATMENT TO THEIR PATIENTS, IS EVIDENCE OF THE APPROPRIATE STANDARD OF CARE. IT DOES NOT, HOWEVER, DEFINE THAT STANDARD.

» In such cases, physicians generally have a duty to disclose the risks of Medical Treatment to the extent that a Reasonable Physician would know that a Reasonable Patient Needs Information to make an intelligent choice as to whether to proceed with treatment.
Titus v. Bradford 1890
P employee was killed when a top heavy train car overturned and crushed him. The court held that P failed to establish evidence of the employer’s negligence. The court noted that the particular activity was a regular part of the P’s business and the claimant made no attempt to show that the way in which it was done here was either dangerous or unusual. Moreover, even if the practice had been shown to be dangerous, the court emphasized that that would not show the practice to be negligent because some employments were essentially hazardous. The court further said that “absolute safety is unattainable, and employers are not insurers.” Although they are liable for the consequences, not of danger, but of negligence, and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business.
MINTZ ON CUSTOM
The court in Titus said that custom always establishes the standard of care. In Mayhew, custom was not even admissible evidence. There, the court said that “custom was definitionally irrelevant in all cases. Mintz says that neither Mayhew nor Titus represent the modern view. The TJ Hooper illustrates the general rule. In the first opinion of the TJ Hooper, the trial court applied the “custom theory.” In the appellate opinion, the court held that there was “no custom” to be applied.

» The second circuit was taking a very atypical approach to the trial court’s outcome. Usually, the appellate court defers to the facts of the trial court and only changes the facts if they find them clearly erroneous. However, in the TJ Hooper’s appellate opinion, the court did not agree with the trial court’s fact finding on the issue of custom.
Mayhew v. Sullivan Mining 1884
P contractor fell through a hole that D’s worker excavated. Evidence regarding customary practices was properly excluded because it was not an excuse for a want of ordinary care that was universal in the practice. The court said that the “gross carelessness of the act appears conclusively upon its recital.”
The TJ Hooper 1931
This case illustrates the general rule on “custom.” Here, the D’s tug, towing a string of barges, had no radio receiver. The cargo got destroyed in a storm and the cargo owners sued. At the time of the incident, there was no general custom for tugs to carry receivers, but they were cheap and could obviously contribute to the safety of the cargoes. The general practice of the tug industry was not the standard of care but was admissible as evidence, although not conclusive, so the tug could properly be held responsible in spite of the fact that it had operated in line with industry practice.

MINTZ [Dicta]: Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.
CUSTOM AS A SWORD AND CUSTOM AS A SHIELD (Dobbs § 165)
Evidence of custom may be used either as a sword or a shield. As a sword, the P can show the D’s violation of a safety custom as some evidence that the D failed to act as a reasonable person under the circumstances. As a shield, the D can show his compliance with custom as evidence that his conduct was that of a reasonable person, or, what is the same thing, that the safety precaution demanded by the P was not customarily used in the relevant community.
Lama v. Borras 1994
D failed to institute and manage a proper conservative treatment plan prior to advising and later and performing surgery on P. The court held that “when a physician negligently exposes a patient to risk prone surgery, the physician is liable for the harm associated with the foreseeable risk.”

MINTZ In this case, custom was the equivalent to the standard of care. This is the general approach taken in medical malpractice cases.
THE STANDARD OF CARE IN MEDICAL MALPRACTICE CASES
OFTEN, NO SINGLE CUSTOM COVERS A GIVEN ISSUE
A medical practitioner has an absolute defense to a claim of negligence when it is determined that the prescribed treatment or procedure has been approved by one group of medical experts even though an alternate school of thought recommends another approach, or it is agreed among experts that alternative treatments and practices are acceptable.

ERROR IN JUDGMENT
It is not negligent for a physician, based on the knowledge that he reasonably possesses at the time, to select a particular course of treatment among acceptable medical alternatives. This is true even though, in hindsight, the choice was inappropriate. However, it is a breach of duty of care for a physician to make an erroneous choice if, at the time he made the choice, he should have had knowledge that it was erroneous.

CONTRACT FOR CURE
Considering the uncertainties of medical science and the variations in the physical and psychological conditions of individual patients, doctors can seldom in good faith promise specific results. Therefore it is unlikely that physicians of even average integrity will in fact make such promises. Statements of opinion by the physician with some optimistic coloring are a different thing, and may indeed have therapeutic value.
JUDICIAL APPROACHES TO THE SIGNIFICANCE OF STATUTORY VIOLATION IN NEGLIGENCE ACTIONS

1. VIOLATIONS OF A STATUTE, ORDINANCE AND, OR, SAFETY OR ADMINISTRATIVE REGULATION MAY BE EITHER
i. NO EVIDENCE of a breach of duty or care;
ii. SOME EVIDENCE of a breach of duty of care;
iii. PRIMA FACIE EVIDENCE of a breach of duty of care; or
iv. CONCLUSIVE EVIDENCE of a breach of duty of care (in other words, negligence per se)
JUDICIAL APPROACHES TO THE SIGNIFICANCE OF STATUTORY VIOLATION IN NEGLIGENCE ACTIONS

2. THE NEGLIGENCE PER SE RULE
Violation of a statute or ordinance and, or administrative regulation by a D is conclusive evidence that the D has breached a duty of care to the P only where:

a. The P IS AMONG THE CLASS OF PERSONS the statute was intended to protect; and

b. The P’s INJURY IS THE SORT of injury the statute was intended to prevent (majority approach).
MINTZ ON NEGLIGENCE PER SE
Negligence per se is simple negligence. Only the first two elements are required. However, all four elements nevertheless have to be touched on. With regards to “Judicial Approaches”, the Anon case is closest to Negligence per se, as is the Osborne case. The “common law gives a right of action to everyone sustaining injuries caused proximately by the negligence of another” (majority approach, quoted in Osborne v. McMasters).
MINTZ “ON CIVIL PROCEDURE”
P’S CASE │ D’S CASE │ │ │
D’s Motions P’s Motion Judge’s Jury Verdict
For Directed For Directed Charge is “Handed
Verdict (Denied Verdict To the Up”
If P has made Jury
Out a Prima
Facie Case)
Canterbury v. Spence 1972
The court held that physicians have a duty to disclose to patients all information regarding risks of treatment that is reasonable under the circumstances. Two exceptions to the general rule of disclosure have been noted by the courts. The first comes into play when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment. The second exception obtains when risk disclosure poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view (therapeutic exception).

MINTZ A duty to disclose centers on informing the patient in non technical terms as to what is at stake (hazards and risks of the treatment), alternative therapy, goals expected to be achieved, risks that exist as part of the suggested treatment, effects if no treatment is given, and alternative treatments.
MATERIALITY OF RISK,
Kozup v. Georgetown University 1987
In this case, no reasonable jury could conclude on the facts that had the P’s been informed of a one in 3.5 million possibility of contracting AIDS, they would have declined to permit the D to transfuse blood into their son.
Truman v. Thomas 1980
If a patient indicates that he or she is going to decline the risk free test or treatment, then the doctor has the additional duty of advising of all material risks of which a reasonable person would want to be informed before deciding not to undergo the procedure. On the other hand, if the recommended test or treatment is itself risky, then the physician should always explain the potential consequences of declining to follow the recommended course of action.
ELEMENTS OF MEDICAL MALPRACTICE
 THERE IS AN APPLICABLE NORM OF MEDICAL TREATMENT.
(DUTY OF CARE)
 THE D’S CONDUCT (IN TREATING THE PLAINTIFF) FAILED TO FOLLOW THE APPLICABLE NORM.
(BREACH OF DUTY)
 THERE IS A CASUAL LINK BETWEEN THE D’S CONDUCT AND THE P’S HARM.
(CAUSATION AND ACTUAL HARM)
MAJORITY VIEW: THE NEGLIGENCE PER SE DOCTRINE
 EVIDENCE THAT THE D HAS VIOLATED A STATUTE IS CONCLUSIVE EVIDENCE THAT THE D HAS BREACHED A DUTY OF CARE TOWARD THE P IF:
A. THE P WAS AMONG THE CLASS OF PERSONS THE STATUTE WAS ENACTED TO PROTECT, AND
B. THE P’S INJURY IS THE KIND OF HARM THE STATUTE WAS ENACTED TO PREVENT.
LICENSING LAWS
IN MOST JURISDICTIONS, BY STATUTE OR BY CASE LAW, EVIDENCE OF A D’S FAILURE TO OBTAIN A PROFESSIONAL LICENSE WHERE ONE WAS REQUIRES IS CONSIDERED PRIMA FACIE EVIDENCE OF BREACH OF A DUTY OF CARE TOWARD THE P. OTHER COURTS TAKE A DIFFERENT VIEW.
KEY IN AUTOMOBILE STATUTE
THERE IS AN ALMOST EVEN SPLIT OF AUTHORITY AS TO WHETHER OR NOT VIOLATIONS OF STATUTES WHICH PROHIBIT CAR OWNERS FROM LEAVING KEYS IN THE IGNITION OF THEIR AUTOMOBILE ARE CONCLUSIVE EVIDENCE OF A BREACH OF DUTY OF CARE TOWARDS PEOPLE INJURED WHEN SUCH CARS ARE STOLEN AND IMPROPERLY DRIVEN BY THIEVES.

» Some Jurisdictions consider these statutes to be Anti Theft Statutes, Intended only for the Protection of Car Owners. Other Jurisdictions view these Statutes as Safety Statutes, enacted to Protect the General Public against the Harm which thieves might cause by Recklessly driving Stolen Vehicles.
Osborne v. McMasters 1889
Breach of a statutory duty constitutes conclusive evidence of negligence, or in other words, “negligence per se” when both the following are true: 1) D’s breach of duty harms those people that the statute was designed to protect, AND 2) the harm is of the character which the statute or ordinance was designed to prevent.
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARMS (1999)
The Third Restatement provides that violations of a statute may be excused by necessity or emergency, or by reason of incapacity, as is the case with various forms of common law negligence. In addition, the Third Restatement states that statutory causes of action should be judged by negligence, and not strict liability standards, by providing that a statutory violation is excused when “the actor exercises reasonable care in attempting to comply with the statute.”
ACTIONS “FOR ANY INJURIES OF THE CHARACTER WHICH THE STATUTE OR ORDINANCE WAS DESIGNED TO PROTECT . . .”
The court in Wawanesa Mutual Insurance v. Matlock 1997, held that “the statutory right of action did not authorize the cause of action. The statute that makes it illegal to furnish tobacco to minors has nothing to do with fire suppression. As it now stands, it is intended to prevent early addiction to tobacco.”
Martin v. Herzog 1920
P was driving his buggy without the lights turned on. Justice Cardozo said that “we think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway.”
Brown v. Shyne 1926
One holding himself out to practice medicine (chiropractor) but who has no license and who injures the patient is not guilty of negligence per se merely because of his breach of a “licensing statute.” If the statute is designed to protect against a certain type of threat, the D’s violation of that statute does not constitute negligence per se if the injury was not caused by this specified type of threat. If violation of the statute by the defendant was the proximate cause of the P’s injury, then the plaintiff may recover upon proof of violation.

MINTZ: A policy argument can be made with respect to medical malpractice in that the public is more protected if the practitioner is held to a higher standard in medical malpractice cases. In licensing statute cases, prima facie evidence is the majority rule.

Note that in res ipsa cases (rare), the P is not able to prove the D’s conduct by direct evidence because P has little or no information. In those cases, P is able to rely on independent, circumstantial evidence to demonstrate that the D’s breach of duty.
LICENSES AND HIGHWAY ACCIDENTS
The basic rule appears to be that “mere lack of an operator’s license is not in itself evidence of negligence in the operation of a motor vehicle, in the absence of some causal connection between the injury and the failure to have a license.”
GENERAL RESPONSIBILITIES OF JUDGES
» JUDGES DECIDE UPON THE EXISTENCE OR NON EXISTENCE OF A DUTY BETWEEN THE PARTIES. JUDGES ALSO DECIDE UPON THE GENERAL STANDARD OF CONDUCT (USUALLY THE REASONABLE PERSON STANDARD) AS WELL AS THE ROLE OF CUSTOM AND STATUTES IN ESTABLISHING A STANDARD OF CARE. IN APPROPRIATE CASES, JUDGES DECIDE WHETHER TO REMOVE QUESTIONS OF FACT FROM THE JURY (INCLUDING THE QUESTION OF WHAT A REASONABLE PERSON WOULD HAVE DONE UNDER THE CIRCUMSTANCES) WHERE NO REASONABLE JURY COULD DISAGREE AS TO THE CONCLUSION THAT SHOULD BE REACHED.
GENERAL RESPONSIBILITIES OF JURIES
» JURIES DECIDE ON THE PROBATIVE VALUE OF THE EVIDENCE AS ESTABLISHING THE FACTS. WHERE THE JUDGE HAS DETERMINED THAT REASONABLE PEOPLE COULD DISAGREE, JURIES ALSO DECIDE WHAT THE REASONABLE PERSON WOULD HAVE DONE UNDER THE CIRCUMSTANCES.
» ELEMENTS OF RES IPSA LOQUITUR
I. THE EVENT WHICH HARMED THE P MUST BE OF A KIND WHICH DOES NOT ORDINARILY OCCUR WITHOUT SOMEONE’S NEGLIGENCE, AND
II. THE EVENT WHICH HARMED THE P MUST BE CAUSED BY AN AGENCY OR INSTRUMENTALITY WITHIN THE EXCLUSIVE CONTROL OF THE D, AND
III. THE P WAS NOT CONTRIBUTORILY NEGLIGENT.
» PROCEDURAL SIGNIFICANCE OF RES IPSA LOQUITUR
I. USUALLY, THE DOCTRINE IS INVOKED BY THE P AT TRIAL TO DEFEAT A MOTION BY THE D FOR DIRECTED VERDICT FOLLOWING THE CLOSE OF THE P’S CASE.

II. MOST COURTS WHICH RELY ON RES IPSA CONSIDER THE P’S CIRCUMSTANTIAL EVIDENCE TO BE PRIMA FACIE EVIDENCE THAT THE D HAS BEEN NEGLIGENT.

III. IN A SMALL NUMBER OF CASES WHERE RES IPSA IS INVOKED, THE P’S CIRCUMSTANTIAL EVIDENCE IS CONSIDERED STRONG ENOUGH FOR THE COURT TO DIRECT A VERDICT FOR THE P FOLLOWING THE CLOSE OF THE D’S CASE.
» MULTIPLE D’S, MULTIPLE INSTRUMENTALITY CASES
I. IN MOST STATES, RES IPSA HAS NOT BEEN APPLIED IN NEGLIGENCE CASES INVOLVING TWO OR MORE D’S AND, OR TWO OR MORE INSTRUMENTALITIES WHICH MAY HAVE CAUSED HARM TO THE P.

II. IN CALIFORNIA AND SOME OTHER JURISDICTIONS, RES IPSA CAN BE INVOKED BY P’S WHO ARE INEXPLICABLY INJURED WHILE ANESTHETIZED FOR MEDICAL TREATMENT
Byrne v. Boadle 1863
P was struck and hurt by a barrel of flower being lowered from a window above him. The court here said that “if an article calculated to cause damage is put in the wrong place and does mischief, I think that those whose duty it was to put it in the right place are prima facie responsible, and if there is any state of facts to rebut the presumption of negligence, they must prove them.”
Larson v. St. Francis Hotel 1948
In this case, the P, while walking on the sidewalk next to the hotel, was hit by a chair thrown out of one the hotel windows. The court refused to apply res ipsa: “A hotel does not have exclusive control, either actual or potential, of its furniture. Guests have, at least, partial control. To keep guests and visitors from throwing furniture out windows would require a guard to be placed in every room in the hotel, and no one would contend that there is any rule of law requiring a hotel to do that.
DIRECTED VERDICTS WITH RES IPSA LOQUITUR
In Imig v. Beck 1986, the court said that “since the doctrine gives rise only to a permissive inference, in most cases a directed verdict for the plaintiff will not be appropriate, even where the defendant presents no explanation or rebuttal, because it must be left to the jury whether to draw the inference of negligence from the circumstances of the occurrence. However, as the appellate court majority correctly reasoned, in exceptional cases the plaintiff may be entitled either to a directed verdict or to a judgment notwithstanding the verdict. Under the THIRD RESTATEMENT, “only in very unusual situations does the P’s res ipsa claim justify a directed verdict in favor of the P.”
Colmenares Vivas v. Sun Alliance Insurance 1986
Where an escalator handrail stops, and the stairs keep moving, the “inference of negligence” (the first requirement of res ipsa loquitor) is satisfied, because an escalator handrail probably would not stop moving while the steps continued to move absent negligence. The authority in control of a public area also has “exclusive control” (the second requirement), because it has a nondelegable duty to maintain its facilities. Lastly, the accident was not “due to the P’s actions (the third requirement).
P'S CONDUCT AND CONDUCT OF A THIRD PARTY
The P’s mere possession of a chattel which injures him does not prevent a res ipsa case where it is made clear that he has done nothing abnormal and has used the thing only for the purpose for which it was intended.
Ybarra v. Spangard 1944
D inflicted shoulder injury upon P while operating on him. The court held that where a P receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.

» Res ipsa arises from a clearly negligent act (application of excessive doses of radiation) which leads to an almost certain outcome (radiation burns.)