Torts & Compensation

Front 1

Battery Restatment Definition?

Back 1

R2 S13
Intentional infliction of a harmful or offensive contact with the person of the plaintiff

Front 2

Prime Facie Case Elements for Battery?

Back 2

-Act
-Intentional
-Causes
-Harmful or offensive contact

Front 3

Purpose of Battery?

Back 3

Protect against unwanted touching.

Front 4

Lopez faints and falls on Jones

Back 4

Not battery. There is no act.

Front 5

Smith pushes lopez into jones

Back 5

Not battery. There is no act on the part of Lopez

Front 6

Chu bumps into Munoz while stepping off the bus

Back 6

Not battery. No intent. Intended to step off the bus and put foot down but did not intend the resulting contact. She failed to look where she was going but she did not do it with the purpose of or KSC.

Front 7

Intent refers to

Back 7

Acting for the purpose of, desire or motive;
or knowledge with substantial certainty.

Front 8

Intent and carelessness

Back 8

intent does not include carelessness but a higher level of culpability

Front 9

Chu pushed Munoz to get her out of the way as she steps off the bus.

Back 9

She meets the intent requirement because she has KSC that Munoz would find it offensive.

Front 10

Chu pushes Munoz to embarrasse her in front of a friend.

Back 10

intent to offend is met.

Front 11

Smith throws a stone at Jones though she thinks Jones is probably beyond her range

Back 11

she is not substantially certain she will hit jones but she acts with desire to do so. If the stone hits Jones then battery.

Front 12

Chu deliberately throws a bucket of water on Jones.

Back 12

She possesses tortuous intent though she bears her no ill will. She intends a contact she has KSC will occure as well as those she desires to happen. battery.

Front 13

What if Chu says she was just emptying a bucket and did not mean to offend Jones

Back 13

She still has the intent to contact. battery

Front 14

Clayton v. New Dreamland Roller Skating Rink.

Back 14

Attempted to set a broken arm against the protests of the D. He knew contact was offensive but only wanted to help.

Front 15

Chu throws a rock at Smith hoping to hit her but hit's lopez by mistake.

Back 15

Though no tortuous intent to hit lopez courts say her tortuous intent to hit smith transfers to lopezs

Front 16

transfered intent

Back 16

R2 S16(2)

Front 17

Policy behind transfered intent

Back 17

Tortfeaser should be just as liable when her aim is bad as when it is good.

Front 18

Smith taps Jones on shoulder to tell her she dropped a glove and Jones is offended by it.

Back 18

It is reasonable for Jones to believe the touching is acceptable because it would be to most people.

Front 19

R2 S 15

Back 19

"any physical imparement of the condition of another's body, or physical pain or illness."

Front 20

What if the contact is minor

Back 20

Still battery cuz court will recognize the D right to physical autonomy though the damages will probably be minor.

Front 21

Smith spits on jones

Back 21

offensive contact-battery.

Front 22

Policy behind offensive contact

Back 22

Gives the D a civilized alternative to retaliation.

Front 23

What if smith went around patting people on the back at an office party and Jones finds it obnoxious.

Back 23

If offensive depended on the subjective reaction of everyone, you wouldn't know it's offensice until after contact was made.

Front 24

Then how do the courts define offensive?

Back 24

courts use the objective definition of "offends a reasonable sense of personal dignity" R2 S19

Front 25

R2 S 19

Back 25

It is offensive if a reasonable person in the circumstances of the victim would find the particular contact offensive.

Front 26

What about socially acceptable contact

Back 26

Not battery because a reasonable person in the circumstances would not find the contact offensive.

Front 27

Burgess and Munoz routinely horsplay.

Back 27

It would not be considered battery because a reasonable person would not find the contact offensive because it's been acceptable in the past. A 3rd party though-battery if a RP would find it offensive.

Front 28

Brutus decides to humiliate Cassius by tripping him and in doing so Cassius falls down a flight of stairs.

Back 28

He intended to trip but not the resulting freak injury. Once he committed the battery of triping he is held liable for all following consequences.

Front 29

Lambertson v. U.S.

Back 29

Jumped on guy from behind and pulled a bag over his head. Stumbled forward and injured head on a meat hook.

Front 30

Inspector intended horsplay

Back 30

court found the act of jumping on the back was a battery because a reasonable person in that situation would find it offensive.

Front 31

Policy of intentional tort law

Back 31

Deter intentional invasions of an individuals privacy. these are avoidable because they require a deliberate choice.

Front 32

Smith pokes Jones with a 10 ft pole or stretches a wire accross a sidewalk as Jones approaches causing her to fall.

Back 32

In each smith invades Jones physical integrity and intends to do so. unauthorized contact is sufficient. No need to be present at the time

Front 33

Lopez pulls Chu's coat lapels or knocks off her hat.

Back 33

These objects are intimately associated with the victims body. Her personal space has been breached.

Front 34

If Lopez kicks the fender of Chu's car and she is in the back seat.

Back 34

The contact requirement is probably not met.

Front 35

Romeo showing off in parking lot for ladies skids and hits Thibault.

Back 35

No, there is no intent to cause a harful or offensive touching.

Front 36

Romeo goes to appologize and Thibault pushes him.

Back 36

Intentionally inflicted a contact he knew would be offensive (and potentially harmful)-battery.

Front 37

Romeo hugs girlfriend Juliet as he does every day.

Back 37

Given past embraces Romeo is justified in believing Juliet will not find the contact offensive. A reasonable person in Juliets position would not find the contact offensive even if it resulted in accidental injury which Juliet did find offensive or was harmed by it.

Front 38

Romeo goes to help Juliet up who says "don't touch me" and he does it anyway cuz he loves her.

Back 38

His motive was honorable but his intent was enough because he had KSC she would find his help offensive.

Front 39

If you find that, when the D acted, he did not know that his act was substantially certain to cause a harmful or offensive contact to the P, you must find for the D?

Back 39

Though no KSC, motive or desire for an unwanted contact is enough.

Front 40

Leaving soap in shower hoping someone will slip though you know it's highly unlikely.

Back 40

If it happens, it's a battery. motive/desire satisfies intent.

Front 41

Romeo watches Thibault walk into a trench cuz he was reading and not paying attention.

Back 41

intent=desire:good. contact that was harmful=fall in trench:good. Romeo doesn't have to touch him=true. romeo does not cause the contact so no battery.

Front 42

Romeo hugs Iphelia a new student to get in good with her.

Back 42

Romeo doesn't think his contact is offensive and doesn't even think ophelia will either but it's whether a reasonable person in ophelia's circumstances would-battery.

Front 43

Romeo beats Mercutio on a track meet. Pat's him on back "great run". Mercutio hates that type of contact.

Back 43

Those contacts are common in those situations. He has no reason to believe the contact would be offensive to a reasonable person under those circumstances.

Front 44

romeo does it again at a later point.

Back 44

R. doesn't take a stand but common law does. Cohen v. Smith. Battery.

Front 45

Romeo loses a race and throws his shoes in the stands in anger hitting polonius.

Back 45

As long has he KSC that the shoe would hit someone.

Front 46

Policy argument behind shoe in crowd.

Back 46

If you weren't liable then a terrorist could blow up a building and kill many not being liable for battery cuz he had no ill will toward any ind. in particular.

Front 47

Romeo kisses juliet while sleeping though they are no longer dating. She finds out about it later.

Back 47

If purpose of battery is to prevent invasions of physical sucurity. her right against unwanted touching is still in place whether she is asleep or awake. If they are still dating then no.

Front 48

Romeo insults Thibault in cafeteria jelous over his dating Juliet.

Back 48

offensive contact not conduct-no battery

Front 49

Romeo laces Thibaults lemonade with 100 proof vodka at the prom and he drinks it.

Back 49

indirect contact resulting from a purpose. As long as a reasonable person in the circumstances would find it offensive-battery.

Front 50

same scenario but Thibault gives his drink to Juliet who drinks it.

Back 50

transfered intent-liable

Front 51

Romeo throws his drink at Thibault but principle is hit instead.

Back 51

transfered intent-battery.

Front 52

Romeo destroys Thibaults science project while Thibault is watching.

Back 52

offensive contact to the person not the persons property. not battery.

Front 53

Romeo blows cigarette smoke in thibaults face.

Back 53

intentional with purpose to offend. contact is made with the particulate matter. battery.

Front 54

Offers to show Juliet band pictures but pulls out porno instead.

Back 54

no contact- not battery. (light waves don't count)

Front 55

hotel manager rents room to Thibault though he knows the bed is infested with bugs.

Back 55

he rented a room with KSC Thibault would get an offensive contact. battery.

Front 56

Regan shines light with a mirror on cars below overpass

Back 56

Probably not because as of now light transfered through the air is not considered contact.

Front 57

Snyder v. Turk

Back 57

Contact was offensive.

Front 58

Cohen v. Smith

Back 58

Nurse KSC contact would be offensive-intent req. is met.

Front 59

Garrett v. Daily

Back 59

Intent req is met with KSC

Front 60

Policy behind Garrett v. Dailey

Back 60

Not merely to protect against ill-meaning act but to protect from unwanted contact. (case is NOT about contact)

Front 61

Leichman v. WlW Jacor Comm.

Back 61

Offensive intent is enough
Words alone can initiate contact "blow it at him". no physical injury is required.

Front 62

Cohen v. smith

Back 62

contact does not have to be creepy or morally heinous. Policy is to protect one's personal choices about ones body.

Front 63

Palmatier v. Russ
losing parties arguments on Act

Back 63

no act-no external manifestation of actor's will. Exp by analogy= a pure relfex is not an act. Applied= her irrational and uncontrollable which like a reflex that can't control, uses criminal case.

Front 64

Palmatier v. Russ
losing parties arguments on intent

Back 64

no intent=req. motive or KSC: Explanation by policy=irrational intent not morrally culpable-thus liab in crim case: applied here:lots of evidence of irrationality intro at trial.

Front 65

Palmatier v. Russ
losing parties arguments; what they wanted

Back 65

blanket immunity for irrational people from tort liability

Front 66

Courts policy behind decision

Back 66

.

Front 67

Courts answer for Act argument

Back 67

All his actions ie beating, getting gun, then bullets, come back and shoot show motive and desire. reflexive movement is not an act but irrational yet purposeful is an act.

Front 68

courts answer for intent argument.

Back 68

Irrational intent is sufficient.

Front 69

White v. Muniz

Back 69

Intent to contact without intent to harm or offend is not enough.

Front 70

Cullison v. Medley

Back 70

Immenent battery
reasonable apprehension.

Front 71

Assault rule statement

Back 71

R2d S21
An act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person's mind a reasonable apprehension of an imminent battery.

Front 72

Elements of assault

Back 72

-Act
-Intent
-causes apprehension of an imminent battery.

Front 73

Reveiw question format?

Back 73

C=Conclusion,I=Issue,R=Rule (rule statement setting forth the rule or part of at issue), E=Explanation of rule (flesh out rule lang., analogy w/ facts of other cases, give policy),A=apply rule as explained to facts in issue,C=conclude again.

Front 74

Koffman v. Garnett

Back 74

No reasonable apprehension of an immenent battery cuz contact had allready been made.

Front 75

Intent in assault v. battery

Back 75

same so can't argue you didn't mean to place in immenent apprehension if KSC fear of the contact would result.

Front 76

Owens throws shot put across field while Jackson is standing in landing area.

Back 76

Cannot argue that he was just warming up for the decathalon-assault assuming Jackson was looking at him.

Front 77

Jackson loses control of his car and careens out of control toward Owen.

Back 77

Owen will be in fear but Jackson did not act with the purpose to frighten owen or with substantial certainty that the act will frighten him (act here is driving the car)no assualt.

Front 78

What if in the same scenario Jackson deliberately swerved toward the curb where owen was.

Back 78

If she does not desire or KSC she will hit owen then she is still not liable for assault.

Front 79

Ross tries to hit Owen with the shot put but misses.

Back 79

attempted to batter but missed so liable for assault. Assuming owen sees it coming.

Front 80

What exactly are you attempting to show in an assault claim?

Back 80

You must prove that you feared a type of contact that would have been harmful or offensive had it occured.

Front 81

Leonard and Spinks slap each other around alot. Leaonar goes pretends to slap spinks but doesn't-assault.

Back 81

No, it is not reasonable for spinks to fear the type of contact he agreed to on a regular basis with Leonard.

Front 82

apprehension or fear for the purposes of determining assault mean what?

Back 82

not fright, just the perception or anticipation or expectation of a contact.

Front 83

how does the restatment S29 describe the meaning of imminent?

Back 83

There will be no significant delay. It is not necessary that one would be within striking distance of another.

Front 84

If you try out for the team next month then I'm going to bust your nose?

Back 84

no, not imminent. Policy: the law can't protect everyone from every thing and future actions leaves the victim time to take other steps to avoid the harm.

Front 85

Landy brandishes a realistic looking toy pistol to Oda.

Back 85

D places the reasonable person in apprehension of an unwanted contact even though he could not actually better the P. Assault because P had the "apparent present ability"

Front 86

What is meant by "apparent present ability"

Back 86

D act's place a reasonable person in apprehension of an unwanted contact not whether the d can actually do it or not.

Front 87

Policy behind "appearent present ability"

Back 87

assault protects your right to be from meaningful threats of unwanted contact.

Front 88

'I'm going to ring your neck"

Back 88

not an assault

Front 89

"I'm going to ring your neck" while pulling a rope out and begins preparing it.

Back 89

provides necessary evidence of an imminent intent to batter.

Front 90

Why do the courts require actions behind the words?

Back 90

to distinguish between bluster and real aggresion.

Front 91

Are words relevant at all in determinning assault?

Back 91

yes, they are put together with other acts or circumstances may suffice to make words actionable for an assault.

Front 92

how do you look at words and circumstances to determine if an assault occured.

Back 92

If they reasonably cause the victim to fear an imminent contact.

Front 93

"If you hadn't fouled out of the hundred meter competition, I'd beat you to a pulp"

Back 93

The threat itself defeats the assault, since they indicate there is no plan to carry it out. though unpleasant and unwelcome it is not reasonable to believe an imminent threat to personal security exists.

Front 94

If you were not an old man, I'd knock you sensless.

Back 94

words negate intent to cause harm.

Front 95

"If you don't get off this track, I'll kick your tail into next week"

Back 95

It's conditional and the threat can be avoided. the P holds the key to avoiding the contact but still an assault because imposing something you have no right to do. Can't force one persons right to be on the track.

Front 96

difference between civil and criminal assault

Back 96

You don't have to be placed in apprehension for criminal assault. If P throws a javeline at D intending to injure and misses she can be held guilty of criminal assault even if D didn't see it coming.

Front 97

Same scenario but civil assault and not criminal

Back 97

If no intent to throw the javeline just scare the other person.

Front 98

Hennie sees someone attempting to destroy her hard worked on tape for an ice skate.

Back 98

no assault. no apprehension of contact with the P

Front 99

Wilson loosens a banner over Hennie and releases it as she skates under. it misses. Hennie turns and seas it on the floor and is suprised at how close she came to getting hit.

Back 99

No, realizing it afterwords does not place her in imminent apprehension of a battery. If you could show Wilson acted with the purpose of hitting her then criminal assault.

Front 100

As the banner falls she looks up, sees it coming, and skates to safety.

Back 100

Wilson might argue she did not intend to frighten Hennie just hit her. that's enough for assault. Liable for assault since he acted with tortuous intent though it was for battery.

Front 101

She sees it coming but can't get out of the way in time and is hit though not injured.

Back 101

This is a battery. The contact was unwelcome though not harmful.

Front 102

Thinking he's droping it on Hennie but it's thomas who sees it coming and gets out of the way just in time.

Back 102

This is not transfered intent. He did not intend one thing and did another rather it was a case of mistaken identity but the intent was tortuous-assault.

Front 103

Button observes from the stands and is terrified that Hennie will be hit?

Back 103

No, assault protects only the intended victim not bystanders who fear for the victims welfare.

Front 104

Button is warming up and Wilson on his way to drop the banner on Hennie knocks of an obj. bystander warns button who sees it coming and gets out of the way.

Back 104

not acted intentionally in the restricted intentional tort sense. he carelessly nocked the object down but not with the purpose of hitting or scaring button.

Front 105

"If you run Ashford on the anchor leg of the women's four-hundred-meter relay tomorrow, I'll see that you never walk again."

Back 105

a threat to do something tomorrow is not imminent. no assault.

Front 106

Hennie skating and Wilson yells "watch out your going to hit the zamboni" but it's on the other end of the ice but hennie is startled.

Back 106

If apprehension of a battery is needed then no assault. Collision would have been with the zamboni not diliberate battery by the driver.

Front 107

"wipe that smile of your face or I'll wipe it off of you" while shaking fist. D is tiny while P is huge.

Back 107

though not frightened it would cause apprehension of an imminent contact. assault.

Front 108

Miathias rushes at Weismuller to upset him. Weismuller turns to run and sprains an ankle. While treated at the hospital he dies in a fire.

Back 108

Commited an assault and will be liable for everything that follows. Courts hold intentional tortfeasers liable for all consequences of their torts.

Front 109

Cullison v. Medley

Back 109

words alone may be an act.Look at everything that was happening and determine if imminent threat was reasonable. Acts may negate words and vice versa.

Front 110

Policy behind Cullison v. Medley

Back 110

"mental distress" that going to happen

Front 111

Hall v. Mcbride

Back 111

tranfered itent: tortfeaser attempts one tort but accomplishes another.

Front 112

False Imprisonment

Back 112

occurs when a person confines another intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short. (benet v. Ohio)

Front 113

elements of false imprisonment

Back 113

-act
-intent
-confinement

Front 114

other intentional torts.

Back 114

Trespass to land
Conversion of chattels (trover)
Trespass to chattel

Front 115

Trespass to land rule and elements

Back 115

intentional entry on land of another.
-act
-intent
-results in entering land of another

Front 116

Conversion of chattel rule and elements

Back 116

intentional exercise of substantial dominion of personal or other non-real property.
-act
-intent
-results in substantial depravation of property.

Front 117

Trespass to chattel rule and elements

Back 117

intentional intermeddling chattel of another.
-act
-intent
-result in dispossession, lost use, harm to possessor or chattel

Front 118

False imprisonment ACT?

Back 118

physical restraint, or threat of force, or threat of lawful authority

Front 119

old maine case

Back 119

physical restraint is enough but not required.

Front 120

McCann v. Wal-Mart

Back 120

threat of force against individual.

Front 121

purses and babies

Back 121

threat of force against valuables

Front 122

Steve and false arrest case

Back 122

Threat of lawful authority by police

Front 123

Wal-mart case

Back 123

threat of lawful authority by reference to use of police.

Front 124

intent and trespassory torts

Back 124

intent has the same meaning for all trespassory torts

Front 125

Confinement for the purposes of determining false imprisonment

Back 125

P must either be aware of the confinement or harmed by the confinement. Also, would a reasonable person believe they were confined (wal-mart)

Front 126

Policy behind confinement determination

Back 126

the interest protected by battery is unwanted confinement so normally have to realize can't leave.

Front 127

self Defense and defense of others.

Back 127

Is the privelege to use force to avert threat of battery, assault, or false imprisonment.

Front 128

What is the requirement for the privelege of self defense and defense of others?

Back 128

Reasonableness requirements.
1. reasonable belief force is necessary, and
2. reasonable force is used.

Front 129

determining reasonable belief force is necessary.

Back 129

apparent necessity. This is split among courts in self defense of others but it is as viewed by the D or 3rd party being defended.

Front 130

determining reasonable force used.

Back 130

deadly force only if threatned with deadly force and it's imminent. Is allways authorized in home or in cases of sex abuse.

Front 131

How do you determine reasonablness in a case?

Back 131

requires a fact sensitive inquiry.

Front 132

Affirmative defenses (ie priveleges)all of them

Back 132

1. self defense and defense of others
2. arrest and detention
3. defense of property
4. If act/intent/force is priviledged, then the defense will transfer.

Front 133

transfered defense

Back 133

1. if priveleged act results in harm to another then not liable to injured third party.
2. glannon ex 1g, page 52, throwing brick to ward off bat.
3. Martinez, this case does not discuss this issue.

Front 134

Defense of property rule of law.

Back 134

force likely to cause death or serious bodily harm may not be used to defend mere property.

Front 135

Katco v. Briney

and policy

Back 135

shotgun case: values humans over property. Gun aimed at knees to protect an empty house.

Front 136

Martinez v. Brown

and policy

Back 136

watermellon case: values humans over property.Gun aimed away from humans-not deadly. force that may have been reasonable in defending property, not transferable after threat is over. Crucial fact-did kids drop watermelons and when (not answered in case)

Front 137

Advice on reading cases and clarifying holdings

Back 137

1. holdings may be overly broad when closely read facts of case.
2.Look for parties arguments as way of narrowing/claifying/distinguishing holdings. exp. lesson from the Paul v. A&P FI case.

Front 138

consent as a defense. how to determine.

Back 138

Would a reasonable person in the actor's position (the one touching, threatening to touch, restraining) believe there is consent?

Front 139

consent as a defense. how to determine.

Back 139

1. consent as manifested by outward signs.
2. words not necessary, conduct may suffice
3. consent can be revoked.

Front 140

Issues under consent as defense

Back 140

1. capacity to consent
2. coercion/duress
3. Scope of consent
4. failure to reveal material (ie crucial) facts or misrepresentation
5. exceptions, when consent is not required.
6. emergencies
7. surgical exception

Front 141

consent issues and autonomy revisited

Back 141

1. P can put d on notice does not consent to touching most people find okay.

Front 142

blood transfusion case

Back 142

1. P can put d on notice does not consent to touching most people find okay.

Front 143

cohen v. smith

Back 143

1. P can put d on notice does not consent to touching most people find okay.

Front 144

reason for not wanting touching.

Back 144

can be out of main stream, as long as P has mental capacity to make the decision.

Front 145

Policy limits on P ability to declare unwanted touching.

Back 145

socially necessary touching as unwanted; exp. glannon and person in subway.(not same as socially customary). presents difficult issues involving sexual contacts.

Front 146

scope of consent

Back 146

what touching did P consent to?
ie blood transfusion patient and sex with person who has std's (majic johnson). consent to touching not damages that occure.

Front 147

failure to reveal material (crusial) facts

Back 147

1. rules of law with sexual touching. known std material fact. known prior partner with std material fact. beyond that challenging olicy questions distinguishing battery from negigence.
2. misrepresentation

Front 148

capacity to consent

Back 148

1. age as a fact: 16 yo transfusion patient.
2.mental capacity and irrational decisions (1 test: understand the risk and benefits?)

Front 149

in medical consent questions allways start with what

Back 149

should Dr. ask?

Front 150

self defense

Back 150

only authorized to prevent an impending battery or stop one already taking place. Protect against battery and confinement. Appearent necessity of self defense not actual reality.

Front 151

b.Deadly force in self defense:

Back 151

1. Only when you believe it is reasonably necessary.
2. Only if you reasonably believe you are in threat of deadly force and see the use of it as only option. Includes anything intended or is likely to cause death or serious bodily harm.

Front 152

Some states require a duty to

Back 152

retreat if possible before deadly force can be used unless in own dwelling.

Front 153

deadly force does not include

Back 153

Does not include excessive force so if it is seen as excessive then no.

Front 154

deadly force and provocation

Back 154

Provocation is not sufficient alone. Includes resistance to false imprisonment as well as assault and battery.

Front 155

c.Defense of others:

Back 155

can use the same force to stop D that the P has a right to use in defense of himself. “mistaken defense of other” is not a defense in some states.

Front 156

d.The “defense” of consent:

Back 156

Usually not liable if other person consents to contact. The contact must be the exact contact that is consented to.

Front 157

e.Consent to medical treatment:

Back 157

The common sense principle is applied in determining if contact was of the nature consented to.

Front 158

what is an affirmative defense

Back 158

when the prime facie case is made you can say there a additional facts that allow the avoidance of laibility. these are called affirmative defenses.

Front 159

defense of statute of limitations

Back 159

example of affirmative defense that has nothing to do with the incident itself

Front 160

signed release from liability

Back 160

example of affirmative defense that has nothing to do with the incident itself

Front 161

police force used in arrest

Back 161

ex of priveledge of force

Front 162

Smith and Jones rehearsing for a play requiring a slap. The slap takes place. consent?

Back 162

yes, not liable

Front 163

defense of necessity

Back 163

privelege due to attempt to prevent a greater harm

Front 164

self defense is what kind of privelege?

Back 164

limited. not a liscense to attack and aggressor or to respond to unwarranted provocation or to give blow for blow.

Front 165

what does self defense authorize?

Back 165

authorizes use of force to prevent an impending battery or stop one in progress

Front 166

Jones slaps smith on face and says "there, now we are even"

Back 166

no privelege of self defense. No longer threatened with a battery. retaliation for battery is not self defense.

Front 167

Jones makes derogatory statements about Smith's lineage and her politics so she strikes her.

Back 167

not priveleged. no right to attack another simply because they deserve it nor in threats of future harm cuz there are peaceful legal remedies.

Front 168

Smith knife's jones who is about to slap her.

Back 168

not priveleged. only reasonable force. only what is necessary to avert the threatened harm.

Front 169

Smith blocks jones' slap and pushes her away.

Back 169

priveleged self defense.

Front 170

self defense and as a remedy to a wrong committed.

Back 170

self defense is not a remedy for a wrong allready committed. that's what the courts are for. it is to prevent a further intrusion that cannot be avoided by waiting for legal redress.

Front 171

is it ever okay to use more force than is necessary to avert a threatned battery?

Back 171

yes, based on reasonable belief that the force is necessary.

Front 172

jones raises a knife at smith though only intending to scratch her back. smith kills her.

Back 172

priveleged self defense. based on reasonable belief that the force was necessary.

Front 173

policy behind limiting the use of force as self defense.

Back 173

attempting to minimize the use of force as a means of self protection.

Front 174

policy behind courts reluctance to impose a duty to retreat even when easily done.

Back 174

require a victim of threatned violence to relinquish rights to walk the streets.

Front 175

deadly force in self defense

Back 175

only with reasonable belief of being threatned with deadly force, and which can only be prevented with the immediate use of deadly force.

Front 176

mistaken defense of other

Back 176

in some states it's okay as long as you can show the belief was reasonable. some states have a "shoe-stepping" approach and say if you are wrong about whose the aggressor you are liable.

Front 177

volenti no fit injuria

Back 177

to one who is willing, no wrong is done.

Front 178

Is consent really a defense against a prime facie case?

Back 178

not really, it negates a basic element of the prime facie case.

Front 179

how do courts determine the scope of consent

Back 179

by using common sense.

Front 180

Jones agrees to a fist fight with smith. smith begins to lose and shoots jones. consent.

Back 180

consent to a fist fight not a gun battle. no consent.

Front 181

consent is determined by

Back 181

combination of words, gestures, conduct and is based on what reasonably manifests intent.

Front 182

o'brien v. cunard ss co

Back 182

in line with 200 other women. held arm out for shot but didn't want it. he could be guided only by her overt acts.

Front 183

Dr. gets patient to consent to an exam but is seeking sexual gratification

Back 183

a fundamental misunderstanding of the facts does not evidence true acceptance of a contact. consent is invalid to to misrepresentation

Front 184

P agrees to sex when d has an STD

Back 184

a fundamental misunderstanding of the facts does not evidence true acceptance of a contact. consent is invalid to to misrepresentation

Front 185

when can actual consent not create a privelege?

Back 185

with a protected class, ie under age girl. guilty even if she agreed to sex.

Front 186

policy behind protected class exception.

Back 186

deemed incapable of making a proper judgment about whether to engage in the conduct.

Front 187

Mohr v. Williams

Back 187

dr. operated on other ear cuz found it worse. battery cuz touch was not what P agreed to.

Front 188

substituted consent

Back 188

seek permission from relative or representative.

Front 189

what does a Dr. do if substituted consent is not available.

Back 189

cases support a limited privelege to extend surgery in area of initial incision unless it involves the destruction of a bodily function.

Front 190

patient comes in ER unconscous and dr. performs surgury.

Back 190

Dr. has privelege to do what a reasonable patient would consent to in those circumstances if there is no reason to believe the person would not and delay would involve risk of death or serious bodily harm.

Front 191

do people have a right to refuse treatment even if it will result in their death

Back 191

yes based on common law battery principles. based on same policy of a persons right to do what they want with their body.

Front 192

Okina slaps rollins after she says bad things about her husband

Back 192

no privelege. privelege comes from stoping an impending assault, battery, FI, not revenge for an insult.

Front 193

rollins goes to knock of okina's hat and she pushes him back hard.

Back 193

priveleged to use reasonable non-deadly force. if rollins finishes his act he has committed a battery so she's good.

Front 194

rollins punches okina in stomach and turns to run. okina hits him with the umbrella she is carrying.

Back 194

retaliation not self defense so no privelege.

Front 195

after punching okina, she charges rollins with umbrella and he pushes her as she swings it.

Back 195

rollins battery is over and okinas is a new assault which he is priveleged to use force to prevent.

Front 196

Rollins pushes okina and she stabs the sharp part of her umbrella at his face.

Back 196

her stab is likely an assault and if it lands battery. Her force is not reasonable. she isn't authorized to use deadly force which if she pokes out his eye she has done.

Front 197

Zilla sees enemy kong running toward her excitedly. fearful, she punches him in the chest. As it turns out he was coming to appologize

Back 197

priveleged because, though she was wrong, it was reasonable for her to believe she was about to be battered.

Front 198

Zilla sees enemy kong running at her with a bat, she throws a brick and hits bystander cusack.

Back 198

priveldged in most jurisdictions (with no duty to retreat)kong is liable for cusacks battery.

Front 199

Kong approaches enemy Zilla shaking fists and threatning to knock her down. Zilla pushes kong who is impailed on a metal object sticking out of the ground.

Back 199

turns on whether she committed a tort in the first place which she did not. she is privelged to use self defense and her response was just a push that resulted in further injury so no she's okay.

Front 200

Zilla sitting in front seat of car with door open. kong charges at her from 100 yds away. Zilla steps out of car and swings a bat hitting her.

Back 200

not liable. privelege.

Front 201

same situation but state requires retreat.

Back 201

no privelege of self defense because she could have retreated. Zilla is liable as well.

Front 202

same situation but state doesn't require retreat in instances of threat of deadly force.

Back 202

she could have closed her door and locked it so she may have trouble arguing she used more than the force reasonably necessary to prevent the battery.

Front 203

Goliath threatens to tear patch of davids coat and moves toward him in anger. David stabs goliath with a pitchfork believing it was his only option for self defense cuz goliath is huge.

Back 203

priveleged for non-deadly force but not deadly force. liable.

Front 204

same facts but goliath sees pitchfork coming and picks up a board and hits david with it.

Back 204

tuff one. middle ground would require goliath to retreat if possible cuz he's the original aggressor though davids use of deadly force is not justified.

Front 205

same situation but david defended himself by pushing goliath. goliath, suprised, responds swings at him knocking him down.

Back 205

goliath is not priveleged to act in self defense because davids response is reasonable to the threat imposed by goliath.

Front 206

same situation but lancelot comes on scene, sees david rushing goliath with pitchfork and hit's him with a crowbar.

Back 206

depends on the jurisdiction and court.

Front 207

same situation but sees david about to push goliath and hits him in the stomach to stop him.

Back 207

depends on the jurisdiction and the court.

Front 208

kong bears down on zilla with a knife, unable to retreat, she hits him with a bat only to find out that the knife was a toy.

Back 208

priveleged. she was reasonable to believe it was real.

Front 209

"if you didn't find that the D was attacked with nondeadly force, then the D was only privelged to use nondeadly force in self-defense.

Back 209

no, if she was reasonable to believe she was about to be battered.

Front 210

"if you don't leave, i'll give you 2 black eyes", stein refuses to leave and gets socked by franken

Back 210

stein does not consent to punch by standing his ground. Franken has no right to impose the condition on stein. franken is not privelged.

Front 211

hulk says "push me" Brower does it and hulk gets hurt.

Back 211

contact v. consequences. hulk got the exact contact he consented to.

Front 212

rodriguez consents to sex with alvord only to find out she got an std. evidence show's he did not know at the time he had the disease.

Back 212

since he didn't know, he is not liable for not revealing a material fact so the contact she got was consented to.

Front 213

carella in ER unconscious with bracelet saying no blood transfusions to save her Dr. gives her one anyway.

Back 213

bracelet is as good as express words. Dr. did not have consent.

Front 214

Dr. langone performs hip replacement but does not inform Lew risk of screw comming out req additional surgery which it does.

Back 214

lack of informed consent case, probably neglagence but not battery.

Front 215

seaman signs a general consent to "further procedures, during, preceding, and after operation which Dr. deems necessary" to remove bony growth but learns, as is common, hip replacement needed and does it.

Back 215

probably should have asked ahead of time. may be liable.

Front 216

same scenario but Dr. attempts to tell him of risks and seaman says you do what you think is best for me.

Back 216

delagated decision to Dr. but courts will assume it's limited and will not justify big variances from original agreement ex nose job. court will want all facts of conversations and etc to determine what he consented to.

Front 217

Langone needs to operate on willis who is in bad shape. His wife does not consent cuz she doesn't think it's necessary and gives her the creeps.
__________________________

Back 217

not entirely clear today. if wife wasn't around he's be good but since she is it's cloudy. it's a gamble.

Front 218

consent as defense

Back 218

would a reasonable person in the actor's position (the one touching, threatening to touch, restraining)believe there is consent?

Front 219

consent is determined by

Back 219

manifested by outward signs.

Front 220

words are not necessary because

Back 220

contact will suffice

Front 221

consent can be

Back 221

revoked

Front 222

what are the issues regarding consent

Back 222

capacity to consent, coercion or duress, scope of consent, failure to reveal material facts or misrepresentation, exceptions when consent is not required, emergencies, surgical exceptions

Front 223

P can put D on notice that she does not consent to touching most people want?

Back 223

true, smith v. cohen, blood transfusion case,

Front 224

What if the reason is out of the mainstream?

Back 224

doesn't matter as long as P has mental capacity to make the decision.

Front 225

in medical cases start with what question

Back 225

should the dr. ask

Front 226

what limits are there on P ability to declare socially acceptable touching is acceptable?

Back 226

glannon exp. of person in subway. it's socially necessary touching. presents difficulties involving sexual contact.

Front 227

scope of consent is determined by looking at

Back 227

what touching did P consent to? blood transfusion patient. sex with person who has std.

Front 228

consent to touching doesn't include what kind of consent

Back 228

not consent to damages that occur.

Front 229

exp. of failure to reveal material facts rules of law

Back 229

known std material fact, known prior partner with std material fact, beyond that challenging policy questions distinguishing battery from negligence.

Front 230

failure to reveal a material fact is essentially.

Back 230

misrepresentation

Front 231

capacity to consent is determined how

Back 231

age as a fact, 16 yr old transfusion patient. mental capacity and irrational decisions (1 test understand the risks and benefits?)

Front 232

consent exceptions

Back 232

medical=true emmergencies, policy=value saving lives/functioning over the autonomy interest of asking.

Front 233

other med exceptions

Back 233

surgical emmergencies, policy= get melded into highly specific fact statements. kennedy v. parrot

Front 234

why study kennedy v. parrot

Back 234

to understand the policies that drives the rule statement; going beyond formalism. Policies weigh autonomy intersts against concerns for allowing physicians room to use their professional judgments. (be sure to review notes)

Front 235

reavis v. slomenski

Back 235

exemplifies compexitites when view events as a whole. consent as manifested by outward signs, words not necissary conduct may suffice, consent can be revoked.

Front 236

what does the "reasonable" mean here

Back 236

intentional torts use a subjective intent standard for D, ie Garret v. Daly-what he knew, understood etc. also, how to handle the social bore, the person who just won't take no for ans answer even when others would, but jury can disbelieve.

Front 237

capacity to consent. an adults incapacity needs to be

Back 237

such that the D would know about it. plus drinking and drugs can incapacitate

Front 238

coercion/duress exp.

Back 238

job and other power relationships

Front 239

surocco v. geary is a case about

Back 239

necessity

Front 240

surocco v. geary rule statement

Back 240

a person who tears down or destroys the house of another, in good faith, and under apparent necessity, during th etime of conflagration, for the purpose of saving the buildings adjacent, and stopping its progress, can not be held personally liable.

Front 241

elements by examining surocco

Back 241

1. Person, only public officials? analagies involved priviate individuals. 2. to protect public from fire, analogies used various kinds of disasters; ship sinking, war. 3. apparent necessity suffices, reasonable belief surrocco-clearly shown from view of person destorying private property. reasonable force? 4. destory private property.

Front 242

surrocco rationale

Back 242

1. natural law. 2. fact analgoies where allowed; goods overboard when ship at risk, war 3. greater good takes precendence over indiciduals property. 4. indiv. should bear the loss rathher than pedrson acting to protect public. 5. invites legislature to change.

Front 243

who bear lose of property from surocco

Back 243

individual property owner.

Front 244

Wegner v. milwaukee mutual is about?

Back 244

consitituitional taking.

Front 245

wegner rule language

Back 245

property shall not be taken, destroyed, damaged for public use w/o just compensation

Front 246

wegner holding is what specific

Back 246

Minn. fact specific, 1. innocent's property 2. by police 3. in course of apprehending suspect.
GA. only improvements for public use.

Front 247

wegner rationale

Back 247

1. greater good takes precedence over private prop. 2. state should bear the loss rather than indiv. 3. constitutional cause of action not common law. 4. minn constitution.

Front 248

who bears loss in wegner

Back 248

govt, govt, insurer

Front 249

might surrocco be justified today on the ground that fire insurance is commonly purchased by all landowners and that it is a cheap and efficient way of dealing with the loss by fire?

Back 249

possible test question. answer not given.

Front 250

intentional tort defense of public necessity summary

Back 250

1. reasonable destruction 2. apparent necessity 3. immiinent public disaster, r2 and wgner, surroco fire 4. P bears the loss and P does not recover. 5. dinstinguish from a constitutional taking, arguments based on wegner, facts, language, ratuinale, holding vs. dicta.

Front 251

intentional tort defense of private necessity summary

Back 251

1. reasonable destruction 2. apparent necessity 3. preserving D's more valuable property. 4. D bears the oss and P recovers.

Front 252

what is the vincent courts rationale

Back 252

policy
presendent

Front 253

watching common law develop distinguinguishing between public and private necessities

Back 253

Taking the SUV out of town. Shopping cart full of bread.

Front 254

torts financial compensation for

Back 254

wrongful/faulty act. 1. Van camp v. McAfoos, intentional, neglegent. 2. Circumstances justifying strict liability, manufacture and sales of products.

Front 255

Negligence-prima facie case
Rule

Back 255

Negligence is conduct that creates and unreasonable risk to others.

Front 256

negligence elements

Back 256

1. duty of reasonable care. 2. breqch of the duty of care. 3. causation, cause in fact, ie real cause, and proximate cause, ie policy considerations. 4. actual damages, insult to dignity not sufficient.

Front 257

proximate cause considerations note

Back 257

only for forseeable consequences

Front 258

dif between intent torts and neglegence

Back 258

must be a damage in negligence.

Front 259

neglagence prima facie case-duty

Back 259

1. Is there a duty of care?
2. what is the standard of care?
3. both: matters of law for the judge to decide.

Front 260

neglagence prima facie case-breach

Back 260

1. did D violate the standard of care
2. matter of fact for the jury to decide.

Front 261

neglagence prima facie case-causation

Back 261

real and proximate
jury issue

Front 262

neglagence prima facie case-actual damages

Back 262

jury issue

Front 263

neglagence duty of care, aka standard of care rule statement

Back 263

the duty owed by all people generally is to exercise the care that would be exercised by a reasonable and purdent person under the same or similar circumstances to avoid or minimize risks of harm to others.

Front 264

the standard of care in negligence is what kind of standard

Back 264

reasonable standard

Front 265

exploring the rule-rule explanation. duty stays the same

Back 265

always reasonable. 1. not higher, extraordinary, extreme-gasonine case, stewart v. motts. 2. JI should not talk about different degrees of care.

Front 266

What is reasonable care varies depending on the

Back 266

circumstances 1. more danger, then more careful-gasoline case. stewart v. mott 2. attorney may argue in closing that circumstances required more care from a "reasonable" person.

Front 267

what is the recurring duty issue

Back 267

how to phrase the jury instruction? reduncy vs. prejudicial error.

Front 268

questions asked in determining a prima facie case for negligence in terms of duty

Back 268

1. is there a duty of care?
2. what is the standard of care? both: matters of law for the judge to decide.

Front 269

negligence-prima facie case question to ask with respect to breach

Back 269

1. did the D violate the standard of care? matter of fact for the jury to decide.

Front 270

negligence-prima facie case questions to ask with respect to causation

Back 270

1. real: did the D's act casue the P's injury?
2. legal or proximate: is th eP's injury the kind of foreseeable harm that negligence policy should be concerned about?. 3. both are matters of fact for the jury to decide.

Front 271

negligence-prima facie case question to ask with respect to actual damages

Back 271

matter of fact for the jury

Front 272

the tort of negligence is
__________________________

Back 272

any conduct that creates an unreasonable risk of harm to others and the risk comes to fruition in actual harm.

Front 273

guests wander. come to an abandoned quarry on property. opt for a dip. trinculo injured when he hits his head. he sues for negligence. D argues that he was not negligent since throught the injury was forseeable filling in the quarry was prohibitively expensive in hand formula terms the burden was too great given the relatively low risk of injury to a wandering entrant. what is problem with argument

Back 273

costard has tried to take charge of he negligence analysiis here by looking at one possible means of addressing the risk and applying the hand formula with only that in mind. the argument mikght hold water if filling in the quarry were the only possible means of dealking with the risk but other less burdensome "B"s exist here. could have fenced the quarry or posted isgns warning of the danger. the burden of taking thse alternative precaugions is much lower. not to say that D will win but that it is important for his counsel not to let P frame the negligence issue only in terms of a prohibitively expensive precaution since other means of prevention are possible

Front 274

abandoned well covered with some boards placed a few years ago and beginning to rot P doesn't see covered w/ leaves he falls through is injured and sues D for negligence is he like ly to prove negligence

Back 274

in this case D negligence is clear. burden of prevention is low. the resonable person would have done so

Front 275

town given land adjcent to quiet resid street. little opne space in town. build a baseball field. thirty feet from the road. course of a game foul ball swerves away injured. sues the town for negligence in locating the field where it did do you think the jury will find the town negligent

Back 275

stray fould balls are foreseeable but foreseeable risk is not the end of the analysis the reasonable man eschews unreasonable risks but not all risks. if the risk here was low enough in relation the utility of the activity it is not negligent. facts suggest little land and a need in town. substantial margin beside road. certainly a few fouls will reach road but a a quiet str most will not hit a car those that do will not usually cause much damage. value of field to city. the town's choice is reasonable.

Front 276

rr co new line cross str. mod busy. two accidents at grade crossing. if overpass no accidents. 12 mil compared 20K opt for grade crossing. P injured. is rr negligent?

Back 276

may well be a resonable decision even though know will caues injuries. not required to eliminate all risk only to conduct it with reasonalbe care. reasonable balance here between risk and expense. true that the analysis here involves valuing human suffereing against economic cost but negligence law routinely involves such heartless but practical balancing. ex automoble causes suffering yet we accept though accidents are statistacal certain

Front 277

D passes on curve. collides with b coming other way sued for neg. D argues road little traveled unliekly car would come around curve at time. judge instructs jury "if you find that it was more probable than not that a car would be traveling in the opposite lane and collide with the defendants car then you should find that the defendant vilated the standard of reasonable care in passing as he did"?

Back 277

confused burden of proof with std of care. suggests neg only if accident was more probable than not. even if accident unlikely a risk does not have to be likely before reasonable person avoids it. reasonmable person avoids small risks if resulting injuries to great falstaff need only wait for a clear stretch of rd. jury inst "if yhou find that the defendant passed odn the curve without being able to tell whether a car was coming the oter way and that the risk of a collision was sufficiently foreseeable that a reasonable in the defendants circumstances would not have acted as he did then you should find that the defendant breached tghe standard of due care".

Front 278

g goes fill tank with cig. explosion injures m. she sues him for neg. her counsel asks judge to instruct jury "g in despensing gas owed her duty of extreme care due to the explosive nature of gas" should judge give instruction?

Back 278

refuse instr. duty of reasonable care under cirucmstances. should be "g owed a duty of reasonabl e care under circ" "if you find the dispensing of gas involves a high risk of explosion and that the reasonable prson in the defendants cirumstances would have known or should have known of that risk then the defendant was required to exercise a high level of care commensureat witht he high risk involved in that activity"

Front 279

d is a prof skier. on a moderate ski run slides into p. she sues for neg. argues jury should be instr that d must exercise level of care that would be exercised by the reasonable expert skier under the same circumstances should the instructionn be given.

Back 279

p. can make good argument for it. why should he be held to a lesser standard of care than he is able to meet? but it tends to destroy the uniformithy of the standard of care. jury have to ascertain just how good dfendant was before deciding what standard to apply to him. it would be different if were acting as an expert at the time of the injury. similarly a trucker driving his c are to the movies may be an expert driver but will be held to the general resonable person standard. some suggest should be held to the standard of an expert if evidence shows highly experienced, jury likely to demand more of him anyway.

Front 280

f. heads home after drinking. 28 mph. below limit. in his lane. truck going other way stops in opposite lane a boy is thrown out in front and run over. neg?

Back 280

distinction between neg conduct and liability on a neg claim. neg in sense drove drunk. satisfies element #2. nothing he cojld have done to avoid. even if sober. his neg did not cause injury.

Front 281

w. a painter is painting. statute requires hardhats. is injured. claims lacked knowledge of statute?

Back 281

no way. if turn indicator is broken and don't know then yes. judge would not allow w. to offer this evidence since the excuse is insufficient as a matter of law

Front 282

assume tha cheevers building is in a high crime area calisher accosted on the street by a robber runs into his building to escape because the light is out she stumbles over a child's tricyle and is injured in a negligence action can she rely on his violation of the lighting statute to extablish negligence

Back 282

to be relevant a statute must not only protect against the harm suffered by the plaintiff but must also be intended to protect a class of persons to which the plaintiff belongs certainly the lighting statute was meant to prevent stumbling over obstacles in the dark but it is questionable whether it was meant ot protgect calisher from such risks it was doubtless aimed a protecting tenatnts and probably guests as well maybe even meter readers but it hardly seems that it was meant ot protect passers by who enter unexpectedly to avoid a robber thus arguably calisher cannot use the statute to show a standare of care relevant to her

Front 283

assume that the case takes place in a comparative negligence jurisdiction under comparative negligence the jury not on ly decided whether the parties were negligent they also assign percentages of negligence to all parties who caused the accident the plaintiffs damages are then reduced to account for her negligence . no excuese for violating the lighting statute what would be the effect of the negligence per se doctrine in the case

Back 283

a finding that one or boht of the parties was negligent has a less profund impact on the outcome for ex even if the jury is instructed under the negligence per se doctrine that htey must find cheever negligent for failing to replace the lightbulb the percentage of negligence they attribute to him based on the violation is till up to them if they don't think he was particularyu faulty they might ascribe 3 percent to him and 97 percent to oconnor which is pretty close to letting cheever off tghe hook entirely however the negligence per se doctrine still has a powerful inpact in cases where the jury ascribes no negligence to the plaintiff if cheever violate the lighting statute the jury woujld have to find him negligent under fthe per se doctrine if o connor was not negligent at all the jury must then ascibe 100 percent of the fault ot cheever even if they don't think he was very negligent for violating the statute thus the doctrine still forces the jury to find d fully liable for the injury inaddition the doctrine still has important persuasive force in comparative neglikgence cases since it may lead the jury to ascribe a large percentage of fault to a party who has failed to follow an established statutory standard.

Front 284

Negligence rule statement

Back 284

the duty owed by all people generally is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others

Front 285

duty stays the same-always reasonable. is never what

Back 285

higher std, exraordinary, extreme "degree" ie stewart v motts

Front 286

duty and the sudden emergency doctrine

Back 286

does not alter the standard which is reasonable care

Front 287

duty- and obj std

Back 287

is reasonable, ordinary prudence ie how people ought to act

Front 288

amount of care that is reasonable varies depending on circumstances exp more danger then

Back 288

more careful, stewart v. motts

Front 289

amount of care that is reasonable varies depending on circumstances exp less time =

Back 289

can be less careful, ie backing up without looking.

Front 290

amount of care that is reasonable varies depending on circumstances exp circumstance of child =

Back 290

a child standard means the jury will get a different instruction

Front 291

when is it appropriate for jury to ignore circumstance of childhood? ie child v adult std.

Back 291

alternative rule formations. the activity is normally one for adults only. and when the activity is inherently dangerous, robbinson v. lindsay

Front 292

what circumstances count? what can/should the jury consider when evaluating whether actor was "reasonable under the circumstance"?

Back 292

external circ=amount of danger, emergencies, etc.
internal circ=childhood, alszhiemers, fainting spells, unskilled, not smart, expert knowledge.

Front 293

What personal circumstances count? ie subjective circ?

Back 293

physical differences count= race car driver, visually impared. Mental abilitiies (ie judgment and knowledge)= a reasonable person uses what they have, professionals, reace care driver, really smart people.

Front 294

What's the policy behind the subjective std.

Back 294

reasonable person doesn't ignore what they know about themselves.

Front 295

what personal circumstances count? objective std.

Back 295

requires a reasonable minimum of knowledge, intelligence, judgment, skill for adults. mentally incapacitated=alzheimers, creasy. Inexperienced auto driver. Sudden onset of lack of consdciousness cases= alternative reading in gobbo defense.

Front 296

policy behind obj std.

Back 296

allocating lose, deterring unsafe conduct.

Front 297

duty of care general rule

Back 297

the duty owed by all people generally is to exercise the case that would be exercised by a reasonable and prudent person under the same or similar circumstances to aboid or minimize risks of harm to others.

Front 298

duty is reasonable care under what

Back 298

the circumstances

Front 299

the reasonable duty of care stays

Back 299

the same

Front 300

duty of care can vary depending on the

Back 300

circumstances, external=infinite number, and internal=obj minimum but lots that gets considered.

Front 301

difficulty in specifying duty of care?

Back 301

inability to stop within distance of headlights, marshal=rule of law negl not to be able to stop. Chafin=one of many circumstances jury gets to weigh.

Front 302

procedural differences of duty of care is the role of

Back 302

the judge and jury

Front 303

What to do about statutes and the standard of care? martin v. herzog. Merely a circumstance that gets added to the mix. standard remains a general duty of

Back 303

reasonable care

Front 304

What to do about statutes and the standard of care? martin v. herzog. Merely a circumstance that gets added to the mix. another circ the jury hears about.

Back 304

p 126 jury instruction. analogy is the stewart v. motts case

Front 305

negligence per se is about

Back 305

presumption

Front 306

in neg per se the statute specifies

Back 306

the standard of care

Front 307

neg per se procedural issue is that an unexcused or unexplained violation of the statute is negligence as

Back 307

a matter of law, ie judge orders a directed verdict againt the law breaker

Front 308

in neg per se you still have to prove

Back 308

other elements

Front 309

neg per se is used when

Back 309

statute doesn't specify whether neg can apply to violation of statute.

Front 310

statutory violations as a circumstance. must ask two questions?

Back 310

1. is the statute relavant
2. how does the jurisdiction use relevant statutes in determining duty?

Front 311

when looking at if the statute is relevant you consider what

Back 311

class of persons/types of harm. other relevancy concerns. if statute is irrelevant then jury does not hear about it.

Front 312

when looking at how the jurisdiction uses relevant statutes in determining duty, you look at

Back 312

evidence of neg?= just another circumstance that comes in as evidence that jury weighs. Neg per se presumption=unexcused/unexplained, uncontested violation of the law is neg as matter of law and DV given.

Front 313

rule behind class or person/class of harm analysis?

Back 313

the plaintiff a member of the class saught to be protected by the statute and harm suffered is of the type sought to be prevented by the statute. haver v. hinson

Front 314

relevency factor. sold source of D's duty vs.

Back 314

specifying common law

Front 315

relevancy factor. clearly define

Back 315

prohibited conduct

Front 316

relevancey factor. would statute impose

Back 316

liability without fault.

Front 317

relavency factor. injury a direct or indirect result of

Back 317

the statute

Front 318

relavency factor. damage award disproportionate to

Back 318

statutory violation

Front 319

relavency factors for other courts. statutes v.

Back 319

local ordinances

Front 320

relavency factors for other courts. archaic law that

Back 320

no one follows

Front 321

who decides whether a statute is relavant?

Back 321

judge

Front 322

DV will be issued in neg per se case unless

Back 322

evidence that a reasonable juror could find. 1. did not violate statute or 2. had one of the recognized excuses for violating statute.

Front 323

excuses for statute vilation are nonexclusive and are

Back 323

1. incapacity
2. lack of knowledge fo need to comply
3. inability to comply
4. emergency
5. compliance poses greater risk than violation.

Front 324

plaintiffs do not always win negligence suits just becasue

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an accident actually happens

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the test is not whether injury was caused or even whether injury was foreseeable but whether the

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defendant's conduct was reasonabl ein view of all the circumstances including the possiblity of injury the utlity of the conduct the alternatvies available and others the exo illustrates that the peculiar circumstances of every individual case really do matter

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facts are ever so impt to tnegligence cases becasue each fact colors

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the circumstances against which the defendants conduct must be judged

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Blygth v. Proprietors p. basement was flooded. water line burst during cold spell Frost penetrated to a greater depth than any which ordinarily occurs. the court held not liable for failing to place their pipes deep enough in the ground to avoid bursting in such a frost a. suppose that there had abeen a frost this bad 75 years ago would the waterworks be negligent for failing to set the pipes deep enough to withstand such a frost

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5a. here again the waterworks is not necc negligent for failing to take precautions against this risk once in 75 years is a very small risk a frost like that may not happen for another 75 or another 150 even if it does happen again the flooding damages arfe likely to be small compared to the cost of placing the pipes deeper so the reasonable operator might very well choose to ignore this very small risk in planning the water system

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b. suppose that there had een a frost this bad the year before but it was gthe only on in recored history and was considerable worse than any other recorded year would the waterworks be negligent if it continued to place its pipes at the shallower depth

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b. logically it shouldn't make any difference if the freak frost was 75 years ago or last week in either case the waterworks is on notice of this unusual risk but the question remains whether they must act to avert it as long as it is a very unusual risk and as long as it will be very expensive to eliminate it the decision not to eliminate it is probably reasonable of course itf the waterworks engineers had reason to believe that last year's frost shows that such frosts were becoming more common then the risk would be a more important factor in the equation but if their best judgment is that the recent deep freeze was indeed of he charts they may reasonable view it as too remote a risk to warrant expensive precautions

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c. let's think about Blyth in hand formula terms suppose that placing the pipes one foot down would avoid most but not all flooding damages to abutters it would cost the waterworks an extra 20 million to place the pipes two feet down but the waterworks engineers can predict with confidence that going the extra foot would avoid 5 million in flooded basement damages to home owner what would the reasonable waterworks company do.

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c. the and formul indicates that the reasonab le waterworks company should not place the pipes lower in economic terms it s not reasonable to invest 20 million to avoid 5 million in economic losses so if we use hand's formula as the measure of reasonableness the waterworks company is not negligent for laying the pipes at the one foot level.

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d. assume that after doing the calculation just described the waterworks lays its pipes at the one foot level two years later a highly unusual deep frost bursts a pipe and Blyths basement is flooded is the waterworks liable to blyth

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d. assuming that the decision on ot to guard against this frost was a resasonable judgment on the part of the waterworks it is not liable to Blyth the whole point of a negligence liability rule is that you pay if you conduct was unreasonable but not if it was reasonable even though others suffer harm from your reasonable conduct the irony of this example of course is that the waterworks saves 20 million by imposing 5 million in losses on the homeowners becasue negligence law tells the waterworks that it doesn't have to take precautions against this unusual risk it doesn't if the risk comes to pass and floods Blyths basement the waterworks isn't liable to compensate Blyth because it wasn't negligent

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e. assume hat tort law holds waterworks compaies strictly liable for all damages caused by their operations assume further that the waterworks had placed their pipes one foot down knowing that in highly unusual years some pipes could burst and flood basements in an unusual frost a pipe bursts and floods blyths basement who pays

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e. the difference between strict liablity and negligence is that under strict liability the actor who causes harm pays the resulting damages even if he acted with due care under this rule the waterworks would have to pay for blyth's flooded basement even if it made reasonable judgment not to avoid the resk of exreme frosts under negligence law the cost of accidents often falls on an innocent victim like blyth in the last example as long as the person causing the hard acted with due care

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f. assume that stricdt liability applies and that the waterworks knows that it will be strictly liable for all flooding damages from in system if the numbers given in ex 5c apply at which level would the waterworks place its pipes

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f. this example asks how the waterworks conduct would be different if we change he governing tort principle to strict liability a large organ like a waterworks which expects to be around for a long time may very well consider liability rules in planning its operations indeed according to exonomic theorists on the goals of tort law is to design rules that will encourage socially desirable planning in advance not just redistribute a loss afgter it happens in this case however the waterworks conduct wouldn't be differen at all using the figures in ex 5c the rational waterworks would still put the pipes at the one foot level this would save 20 million if a freak frost occurs they will have to pay 5 million to homeowners but that makes more sense than spending 20 million to save 5 million so here the choice of he strict liability rule over a negligence rule does not affect the rational economic actor's level of precautions however it does make a difference it requires the actor to internalize the accident costs is causes even though it reasonable chose not to prevent them there's something to be said for that reswult both in economic terms and in person in the str fairness terms but strict liab ility is not the law in most accident cases negligence is

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once upon a time a torts prof took his daughter roller blading kids of ages were speeding aroujnd the rink some more in control than others to his dismay the prof noticed that there was a wall around the rink about three feet high made of concret blacks. having always sough to emulate the odious paragon the reasonable person the prof approached he rink manager. Why don't you hang some mats on the inside of that wall one of these kids could lose control go into the wall head first and suffer serious injury the manager coolly replied it hasn't happened in 17 years. The next day Jane a nine year old daredevil stumbles and goes into the wall suffering a serious head injury a. identify the hand factors probability loss and burden in Jane's case.

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6a. this really is aclassic hand formula situation isn't it there is evidence of p that the probablility of an accident was quite low it hadn't happened in 17 years intuitively i would have estimated that p was much higher the combination of youthful exuberance frequently coupled with inexperience and speed suggest that accidents woul be more common frankly i think the rink was beating the odds there is also evidence ab out i the likely loss if an accident happens of course l could be low a skinned knee or bruised shoulder perhaps but reallyu serious accidents pssib ly leading to profound brain injuries are also quite predictable and of course those are the ones likely to end up in court on the other side of the formula b the burden of prevention is also very low for a few hundred dollars he rink could pad that wall and drastically reduce the risk of a serious injury

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b. if you were arguing those factors in front of a jury which party would you think had the stronger argument

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b. while the jury can't quatify the hand formula terms they could in an impressionisgtic way analyze this case intelligently in hand formula terms can't you just hear jane's lawyers closing argument to the jury an accident like jane's was an obvious very sierious risk they should have seen it coming and known that when it came it was likely to be a head injury the most serious kind all they had to do to prevent this from happening to jane was gto put some padding on the walls the cost would be neglibible a few hundred bucks to avoid catastrophic injury the reasonable operator would have done it they should have done it if they had jane would be ok and we wouldn't be here today you should send them a clear message to give safety a higher priority in running their business i would sure taher argue this case for the plaintiff than the defendant wouldn't you it would have taken so little to avoid the hard even if the accident was unlikely the formula clearly suggest that that odious reasonable person would have taken precautions

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barnardine a roofer is working on the roof of a townhouse on a narrow city street like most roofers he is not wearing a safety harness though effective harnesses are available he is startled by a flying pigeon steps back and falls from the rook hitting elbow a passing pedestrian in elbows negligence acgtion judge fudd ionstructs the jury as follows if you find that itwas customary in the trade for roofers to work on roofs such as the one in question without safety harnesses then you must find that the defendant was not negligent for failing to wear a safety harness at the time of the accident. a. which party will object and why

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8a. elbows counsel will object to fudds instruction because it required the jury to find that barnardine was not negligent if he did what is customarily done in the trade this instruction would elevate custom to a rule of law whatever is done in a trade or profession woujld automaticlly constitute due care thus delegating to roofers the decision about what due care means on a roof for various reasons real roofers may not behave the way the reasonable roofer would as judge learned hand so eloquently explained a whole calling may have unduly lagged in the adoption of new and available devices it never may set its own tests howevver persuasive be its usage courts must in the end say what is required consequently evidence of custom what is usually done in a trade or profession is admissible at trial the jury is allowed to hear such evidence however they still must determine whether wat was done customary or not comports with the negligence standard itself ordinary care under the circumstamnces

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b. assuming that the evidence that most roofers don't use safety harnessed is admitted how should juge fudd instruct the jury with regard to that evidence

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b. judge fudd should tell the jury that they can consider the evidence of what is customary in the roofing trade but that they are not bound to find barnardine reasonabl eif he did what most rooofers to there has been evidence introduced at trial about the extent o which roofers wear safety harnessed in working on jobs like the one that gave rise to this claim if you find that it was customary in the trade to use a safety harness or not to wear one you may consider this evidence in determining whether the defendant acted reasonable under the circumstances that gave rise to this claim this instruction allowes the jury to soncider custom evidence but indicates that the question for the jury is whether the defendants conduct was reasonable under the general due care test if i represented elbow i would ask judge fudd ot give trhe following further instruction if you find that it was scustomary for roofers not to wear a safety harness you may still find that the defencant was negligent for failing to do so the stand ard you must apply is reasonable care under the cirumstances not what is generally done in the trade this instruction makes the point a little more emphaticallyh from the plaintiffs point of view however the judge might refuse to give it it basically repeate the general instruction above and is perhaps a bit argumentative as well

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dr. quince operates on peasblossom to remove a bony growth from her lower spine during surgery he accidentally contacts her spinal cord causing partial paralysis of her left leg peasblossom sues him for negligence at trial quince seeks to establish that he exercised due care in surgery by offering evidence that he has an almost perfect record as a back surgeon he has performed oer 370 similar surgeries and only twice come into contact with the spinal cord his counsel argues that this proves that he is a careful surgeon a. does this evidence establish that quince complied with the standard of reasonable care

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10a. in baseball .300 is a good batting average and quince is batting nearly a thousand. this tends to show tha tquince is a careful doctor if I were chooosing a doctor such information would make me more like to choose quince but this case is not about whether quince is a careful doctor it is about whether he exercised due care on this occassion we arenot esting his general virtue or his career accomplishments wer are testing his conduct in on particular operation it is no answer to peasblossom that quince was careful lin all those other cases she claims and iks entitled to the exercise of reasonable care in the performance of her operation on the other hand how can we hold quince to a standard of perfection we all make mistakes and quince makes fewer than mosg how can we condemn him if hte knife slips once well wer aren't condemning him a finding of negligence i not a moral judgment passes upon a person or a finding of incompetence but a post hoc evaluation of a single event against an abstract standard set up by the laws since that is all that we are doing evidence of quinces batting average that he usually meets the standard of care in his operations is beside the point just as evidence that he had made mistakes on other pateiencts would nmot establish that he was careless in peasblossoms operation see fed. r. evid. 404

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b. how should judge full instruct the jury as to the standard of care dr. quince was requirec to meet in operating on peasblossom

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b. judge fudd should not give the usual reasonabl ecare under the circumstances instruction on the elment of negligence here the defendant was acting as a professional a lumbar surgeion by soing so he has undertaken to apply the skill of a specialist and will be required to meet that standard in peasblossoms case. fudd should instruct the jury along the following lines in performing the operation tnhat gave rise to this claim the defendant was acting as a specialist in the area of surger in determinin whether the dfendant was negligent you must decide whether in performing the operation he committed some act that the reasonably competent physician engaged in the practice of surger would not have done or failed to so me act that the reasonable competent physician engaged in gthat specialt woul dhave done

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c. how si the jury to know what due care requires in this case

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c. the averag ejury is made of a cross section of individuals with vary education back grounds professions experiences and values few if any will know anything aboutr lower lumbar surgery they are in no position based on their general knowledge to say what reasonable care requires in such operations thus the parties will have to educatge the jury not only about what the defendant did but also about what the standare of reasonable care required under the circumstances in which he did it each sie will offer expert evidence as to the proper way to perform surgery of this type the jury will have to etermind after assessing on the conflicting testimony of these experts they will then have to decide whether quince failed to meet that standard in many cases the jury's life experience suffices to allow them to determine what reasonable care means without the testimony of experts jurors can pass judgment on the reasonableness of driving a care operating simple machinery controlling childrein in a classroom crossing the street or climbing a ladder based on their general knowledge but a grea many cases require expert evidence in order for the jury to determine the standard of resonable care the proper way to reinforce a bridege to pilot an ocean vessel to analyze a financial statement to ride a race horse to land a 747 or to treat a drug overdoes to name a few wxample are beyond the common experience of jurors in such cases trial must include an expensive battle of the experts on what reasonable care demands in those circumstances

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a good place to start in any negligence per se situatuion is to ak whether the statute was intended to protect the plaintiff from the type of harm which she actually suffered in which of the following cases do you think the court would find the statutory standard relevant other plaintiffs claim a. porter the town dog officer quarantines a dog who had bitten a child the officer allows the owner to take the dog after a week in violation of a quarantine statute that requires him to hold the dog for 14 dasys the next day the dog runs in front of jones care jones swervfes to avoid the dog and is injured.

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1a clearly this statute is aimed at protectcing people from being bitten by diseased dogs not at preventing dogs from running into the street which could happen no matter when the dog is released since the statute is not meant ot protect against the type of harm suffered by jones the court will not allow her to prove porters negligence by showing this violation

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b. oliver a 7 year old child finds an abandoned refrigerator in a vacant lot crawls into hide and suffocates in an action for him death the estate tries to prove the owners negligence by showing violation of the statute quoted on p. 94 requiring removal of doors from appliances left in places accessible to children.

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b. this statute was clearly aimed at exactly the risk that caused the hard here a child getting caught in the appliance when the door closes on her in the absence of an excuse the violation of this statute would establish negligence in a perse or a presumption jurisdiction

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c. welty hits capote broadside when she is driving down main stre and fails to see capote pulling out into the str at an intersection capote alleges that welty was negligent becasue sh eviolated the statute quoted above at p 94 requiring a working muffler on all motor vehicles.

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c. in order to invoke the muffler statute to prove weltys negligence capote will have to demonstrate that it was aimed at least in part at preventing the type of accidentthat took palce here at first glance the statute appears aimed at preventing excessive noise from passing cars but it is entirely plausible that it was also aimed at assuring that drivers could listen for traffic hazards as well as see them a statute may be aimed at preventing a variety of evils so long as one purpose of the statute it to avert the type of injury suffered by the plaintiff the violation should be consideredc relevant to the negligence issue often there is little legislative history to assist in determining what risks the legislature was trying to prevent by th epassage of a statute the court must infer the statutes purposes primarily from the provisions of the statute itself thus courst exercise a good deal of judgment in determining whom the statute was meant to protect and from what hazards of course weltys violation of the mujffler statute would only establish liability if it c aused the accident her noisy muffler would be irrelevant unless her inabilithy to hear contributed ot the accidnet the evidence might sho however that capote had blown his horn to warn welty but that she was unable to hear due tothe muffler noise if so welty s violation of the muffler statute would be a cause of the accident

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d. oneill leaves his dirt bike on the front porch of a general store while he goes in to buy some candy when he comes out he mounts the bike rides off the end of the porch and is seriously injured he sues the store owner claiming that she was negligent for violating a buidling code provision that requires a wall or protective railing a least36 inches high enclosing every porch more than 30 inches above the ground.

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d. this example is based on matteo v. livingstone in matteo the court held that whne buidlin gcode provisions prescribe protective walls or rails the consequence they are designed to prevent is that a person will fall off accidnetally such regulations do not have as their object preventing bicycle acrobatics the court upheld the trial judges refusal to allow the statue to be admitted in evidence to establish the store owners negligence the regulation at issue in matteo was not statute but a regulation promulgated by a state agency some courts refuse to give per se effect to local ordinances or administrative regulations even if they apply he doctorine to statutes promulgated by the ltste legislature such enactments are promulgated by bodies with fewer resources to investigage and do not represent as broad based a judgment about proper conduct as a vote of the statge legislature other states however give per se effect to ordinances and regulations as well but this regulation was clearly not aimed at the type of hard the plaintiff suffered anyway.

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e. welty is driving east on main street when a school bus coming in the other direction stops since she can see that the only child around is already stepping in to the bus welty drives on as she passes the bus she hits capotes car coming outof a side str capote claims tha tweltys negligence is established by her violation of the statute quoted on p. 94 requiring traffic to stop when school buses do how should the court rule.

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e. this statute was obivously aimed at protecting school children from injury not other drivers on that rationale the supreme court of rhode island held on similar facts that violation of the statute could not be used to establish negligence however the factg that the violation of the statute would not establish weltys negligence does not mean that it is irrelevant in this case it may be for ex that capote pulled out becasue he expectced welty to stop for the bus as the statute reaquired her to do if capote could prove those facts in order to show that welty was negligent for failing to do what the reasonable person would do under the circumstances but his is quite different from equating negligence with violation of the statute as the perse approach does rather the statute would be introduced her to prove that in light of the normal expectations of drivers welty was negligent under the usual reasonable person standard.

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f. austin riding her bicycle down the str approaches a truck parked in a loading zone to clear the struck she steers furherinto the str and is hit by a passing motorist she alleges that porter the owner of the truck was negligent for violating a statute that limits parking in the loadking zone to on half hour during morning hours porters truck had been there for nearly two hours.

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f. this statue is aimed at assuring access to adequate parking for deliveries not at preventing the type of accident austin has suffered her austin does not claim the truck was too far out into the str but only that it was there she could just as well have suffered the same accident if the truck had only been there for 10 minutes indeed if porter had left on time another truck would likely have been there anyway this statute is irrelevant to the case porters violation of it should not be considered by the jury on the negligence question.

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after reading about the various ways in which the defendant may excuse a statutory vilation it may seem that the negligence per se doctrine is a toothless tiger the plaintiff can use to to suggest negligence but the defendant can rebut it so it all comes down to general reasonableness anyway here a few cases that illustrate that the doctine can make a big difference in a negligence case in each case ask yourself why the per se negligence doctrine will make an impt difference in the outcome. a. salinger is driving east on a rural west dakota highway when ginsberg comes toward him from around a curve driving astride the center line of the rd their cars colllide and ginsberg is killed salinger sude ginsvberg's estate for negligence to prove that ginsberg failed to exercise due care he testifies that ginsberg violated a statute that required vehicles to keep to the right of the center line

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2a. under eitgher the per se or presumption approaches salingers evidence of the violation will if the jury believes it establish ginsbergs negligence unless evidence of an adequate excuse is offered here ginsberg is not around to offer exculpatory evidence he may have had a good reason for the violation but if the proof is not offered the presumption governs the doctrine is very powerful in cases like this where the violator is unable to ffer the countervailing evidence that would rebut the presumption

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b. saliknger is injured when ginsbergs car turns in front of him while he is driving down maple str he seeks to establish ginsbergs negligence by proving that ginsberg failed to signal his turn as required by the statute quoted on p. 94 ginsberg claims that he did ginal before turning

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b. here instead of trying to prove a good reason for violating the statute the defendant claims that he did not violate it it is a little hard for the defendant to play both sides of the str in thse cases usually she will have to either try to explain a violation or deny that it took place if she stakes her case on the factual contention that she did not violate the statute and the jury finds that she did that finding will determine the negligence issue under either the negligence per se or presumption approach the violation establishes negligence in the absence of any evidence of an acceptable excuse

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c. perelman hits woolf a construction worker while backing up a large bulldozer perelman was watching carefully but the beeper on the bulldozer was broken and had been for 5 days the statute on p. 94 requiring a beeper on heavy constructions equipment applies

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c. here the defendant violate dthe statute which was clearly intended to prevent the type of accident which took place and just has no acceptable excuse in a per se or presumption jurisdiction the evidence that the beeper was not working will establish perelmans negligence the fact that he looked carefully will not avert a required finding of negligence because the jury is not free to make a general finding on the negligence issue if it finds that the statue ws violated and perelman has no excuse it must find that he breached the duty of due care this will doubtless be the situation in many negligence per se cases the defendant simply has no excuse for the violation of the statute in such cases the statory negligence doctrineprovides a pwerful weapon for the plaintiff since it established the most ambiguous element which she must prove to recover breach of the duty of due care

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cheever owns a three unit apartment building in oakley wesgt dakota he fails to replace a burnt out light bulb in the upstairs hall and o connor unable to see the steps trips and falls down the stairs she sues him for negligence and offers to prove his negligence by showing that he violated west dakota stat. ann. title xvi 31 which requires landlords to maintain adequate lighting in all common areas of their buildings a. does the statute establish a standard of care relevant to the case

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4a. the lighting requirements in the statute is clearly aimed at protecting tenants like oconnor from te type of harm that she has suffered injury while trying to negotiate the stairs in the dark thus it establishes a standard of care relevant to the case and it is appropriate to consider that standard in resovling the negligence issue

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b. assume that cheever defends by offering evidence that the light was not out thus he does not offer any reason for failing to replace the bulb

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b. the judge should not direct the verdict even if the negligence perse doctrine applies the violation of the lighting statute only establishes cheevers negligence if the light was out whether it wasa out is a factual issue the jury must decide thus the jury still has an important role to play even in a negligence per se jurisdiction but their task will be much more circumscribed than it would be under a general reasonable care standard since they need only decide whether cheever violated the statute if he did and offers no excuse his negligence is established under the negligence per se doctrine

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assuming that west dakota applies the negligence perse doctrine should the judge direct a ver dict for oconner on teh negligence issue

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c. the judge should instruct the jury along the following lines under west dakota law the violation of a statute intended to protect against the type of harm suffered by the plaintiff establishes negligence if you find in this case that the defendant violated west dakota ann by failing to provide adequate lighting in teh ahllway of the building then you must find that the defendant was negligent note that the judge would not instruct the jury on the effect of an excue for the violation since cheever has not offered such evidence has has staked his case on the position that he did not violate the statute

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assume again that cheever claims the light was on and tha twest dakota applies the negligence per se doctrine how should the judge instruct the jury on the negligence issue if there were no statute establishing a relevan tstandard of care in this case how would the judge instruct the jury on the negligence issue

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d. if there were not statute relevant to the case the judge would instruct the jury to consider whether cheever was negligent under the usual reasonalbe person standard negligence is the failure to use that degree of care that an ordinary prudent person would use under the circumstances if you find that the defenda nt exercised the degree of care that an ordinary prudent landlord would exercise in maintaining the common areas of the buidling then you should find that he was not negligent if you find that the defendant failed to exercise the degree of care that an ordinary porudent landlord would exercise in maintaining the common areas of the building you should find that he was negligent it is not hard to see why oconnor would prefer to tsee the jury given the instruction in ex 4c that instruction narrows the issue from the general thnrow it to the jury due care standard to a very specific fact question and requires the jury if it finds the light was out to find for oconnor the crictical issue of negligence thus the adoption of the statutory standard of care substantiallyh eases her burden of proof it also brands cheever as a wrongdoes which may color the way the jury looks at other issues in the case

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e. assume now that west dakota takes the position that violation of a relevant statute is admissible evidence of negligence ratgher than negligence per se if o connor claims gthat cheever violatewd the statute how should the judge instruct the jury on the issue

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e. the judge should give athe jury a general negligence instruction such as the instruction in ex 4d she should trhen add a further instruction along ehses lines if you find that the defendant violate west dakota requiring adequate lighting in the common areas of apartment buildings you may consider that violation together with all the other eviedence in the case in termining whether the defendant failed to exercise reasonable care under the cirumstances this instruction would leave it to the jury to consider the statutory duty along with all the evidence in deciding whether cheever was negligentg the jury could conclude under the ordinary reasonable person standard that he was negligent on the othe rhand the jury would also be free to conclude otherwise even if it finds that the light was out this more flexible rule gives a good deal more latitude to cheever to persuade the jury that he acted reasonably under all the circumstances even if he violated the statute

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assume again that o connor relies on the violation of the lighting statute to prove cheevers negligence cheever testifies that he was aware of the burnt out bulb but had asked porter another tenant to replace in and porter had told him that he woujld do it right away a. assume that west dakota applies the negligence per se with excuse approach but that it only recopgnizes the five excuses listed in the restatement of torts how will the negligence issue be resolved

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5a. on thse facts the trial judge should probably direct a verdict for o connor on the question of negligence cheever has admitted that he did not comply with the statute so the only question is whether he has an adequate excuse for non compliance relying on his tenants assurance does not appear to meet any of the categories of permikssible excuses in 288a cheeverf is not a minor he is not unable to replace the bulb he was aware of tghe need to do so no emergency inervened and compliance did not pose any risk thus if thse are the only permissible excuses cheever has none and his negligence is established by his admission that he violated the statute

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b. assume that the restatement of torts is applied but that other excuses may also be offered for violatinhg the statute how would that negligence issue be resolved

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b. the restatement allows the violator to prove on the 5 listed categoteis of excues but also allows proof of others not listed restatement of tors under the restatement presumably the jury would be allowed to consider whether cheevers reliance on his tenant was an adequate excuse for the violation thus the jury would have to decide in light of th violation and cheeres excuse whether he exercised reasonable care

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c. assume that west dakota applied the presumptiomn of negligence approach how would the negligence issue be resolved

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c. in a presumption state proof of the violation establishes negligence unless the violator offers evidence of an excuse here cheever has offered evidence of an excuse unless the offered excuse were patently insufficient it would be for the jury to evaluate the adequacy of that excuse thus as under the restatment the case would go to the jury

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calisher runs a small low budget theater in the round wharton a patron is injured when her seat collapses during a performance evidently because a bolt sheared off underneath it in her negligence action against calisher wharton introduces evidence that calisher had violatred west dakota ann laws title xix which requires that theater owners have their premises inspected and certified annually by the city building inspector a. assume that west dakota follows the evidence of negligence approach judge fudd instructs the jury in part as follows if yhou find that west dakota ann laws title xix is intended to protect a class of persons including the plaintiff from the danger of injuries such as that suffered by her and that the defendant violated that statute then you are instructed that the violation is evidence along with all the other evidence in the case that you mayh consider in determikning whether the defendant was negligent can you spot a fundamental flaw in judge fudds instructions

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7a the problem here is that the jury is not the proper body to decide whether the standard of care established in the statute is relevant judge fudd is the jury is there to try the case not the statute when wharton offers evidence of the violation at trial the judge will have to decide whether the statute was meant to protect parties in the plaintiffs position from the thype of hard suffered if the judge concludes that that statute establishes a standard that is relevant to the case evidence that it was violated will be admitted otherwise the jury will hear nothing about it

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b. assuming that the statute establishes a relevant standard of care what other basic problem do you see in whartons case

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b. wharton may be able to convince the jury that the inspection statute was meant ot prevent injuries by identifying safety problem son the premises but she will still have a hard time establishing that the violation of the inspection statute caused her injury it is extremely unlikely that an inspection woujld have revealed that a bolt in the chair was about to shear off presumably most of the bolt is not even visible and it may be impossible to spot this type of metal fatigue from a visual inspection anyway it is doubtful that the inspector would get down and look underneath the chairs probably she would check for major risks such as blocked aisles inadequate emergency lighting or broken sprinklers thus calisher will argue that even if the required inspectgion had been done the bolt prob lem would not have been detected if this is so the violation is not an actual cause of whartons injury that does not mean that wharton must lose it simply means that she must fall back on the general negligence standard to establish calishers negligence she might well prove that calisher was negligent in other ways perhaps she continued to use the seats beyond their useful of risk by the manufacturer but failed to repair the seats maybe she replaced the bolt herself with one too small for the task any of these might show that calisher was negligent under the usual reasonable person standard

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a west dakota statute requires a fence at least four feet high around private pools beverly has such a pool with a four foot fence allen a child of seven climbs over the fence jumps into the pool and drowns allens parents sue beverly for negligence in failing to prevent children from entering the pool area a. what will beverly argue in her defense

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9a of course beverly will argue that what is sauce for the goose is sauce for the gander if failure to comply with a statute constitutes negligence compliance with a statute ought to constitute due care here the statute required a four foot fence that beverly will argue is the measure of due care and she should be found careful per se for complying with the statute

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b. how should the court rule on the defense

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b. the argument has an immediate appeal to it but has generally been rejected standards intended to avoid the most dangerous practices but not to immunize persons who do the minimum from liabilithy where more precaution is appropriate it may be that it is unreasonable to ignore the minimum standards set by the legislature but it does not follow that the reasonable person takes only those minimum precautions see restatement of torts 288c for ex a four foot fence around a pool may suffice in some areas but in others where many children live a reasonable person might conclude that a four foot fence is insufficient to prevent tem from entering speed limits provide another good ex ofthis point in setting a limit the legislature may have concluded that it is dangerous to exceed a particular speed but that does not imply that it is always reasonable to travel at that speed in fog snow or heavy traffic a much slower speed may be called for and a rule tha tcompliance with the posted limit absolves the defendant would be inappropriate

Front 361

What is a short hand for how juries think about neglagince cases?

Back 361

B<PL,

Front 362

The B in the hand formula =?

Back 362

The safer alternative. burden/cost of doing things differently. Social value as well as financial costs. Value of life (pinto case. Brown v. Steil)

Front 363

neg is about comparing?

Back 363

conduct

Front 364

the mower case is an exp of?

Back 364

comparing conduct

Front 365

It may be considered neg not to consider safer...

Back 365

alternatives (Boston Ed)

Front 366

the L in the hand formula=?

Back 366

severity of the injury if it occures. Life v property (lawn mower case)

Front 367

the P in the hand formula =?

Back 367

probobility/likelyhood that an injury will occur. ie garage built for starting gas engines. P knows risk and can better avoid it (roofer)

Front 368

In determining breach you ask was the conduct...

Back 368

reasonable

Front 369

shortcomings of hand formula?

Back 369

1. inability to predict costs
2.inability to predict likelhood.
3. inability/unwillingness to place money value of things like memory, reflection.
4. What data should be chosen?

Front 370

Should neg be about efficiency? What is the broad policy question?

Back 370

How to decide who should bear the loss.

Front 371

Should neg be about efficiency? Can create alternatives to neg. ex?

Back 371

strict liability systems and inurance systems

Front 372

2 types of evidence?

Back 372

direct and circumstancial

Front 373

what is direct evidence?

Back 373

what someone heared, saw, tasted, smelled, felt.

Front 374

what is circumstancial evidence?

Back 374

Everything else. requires inference.

Front 375

What are some alternatives to the hand formula?

Back 375

custom. specific rules of conduct, like neg per se. Do unto others as you would do unto yourself (dobbs). golden rule. Good neighbor.

Front 376

time opinion is treated like a fact?

Back 376

expert opinion.

Front 377

when testifying. what type is prefered over written

Back 377

on the stand.

Front 378

never let anyone testify on ultimate

Back 378

fact. ie neg or guilt.

Front 379

is absolutely safe conduct required when determining breach?

Back 379

no. reasonably safe. ie roofer case.

Front 380

when determining breach in you compare what happened to the

Back 380

alternative.

Front 381

The language judge uses when take decision away from the jury

Back 381

DV/JNOV

Front 382

question to ask in determining breach. when is conduct...

Back 382

unreasonably risky?

Front 383

question to ask in determining breach. who is better able to protect against

Back 383

the risk.

Front 384

reasonable plaintiff's can protect themselves from

Back 384

obvious risks

Front 385

who gets to pick the alternative in neg

Back 385

the plaintiff