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385 Cards in this Set

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Battery Restatment Definition?
R2 S13
Intentional infliction of a harmful or offensive contact with the person of the plaintiff
Prime Facie Case Elements for Battery?
-Act
-Intentional
-Causes
-Harmful or offensive contact
Purpose of Battery?
Protect against unwanted touching.
Lopez faints and falls on Jones
Not battery. There is no act.
Smith pushes lopez into jones
Not battery. There is no act on the part of Lopez
Chu bumps into Munoz while stepping off the bus
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.
Intent refers to
Acting for the purpose of, desire or motive;
or knowledge with substantial certainty.
Intent and carelessness
intent does not include carelessness but a higher level of culpability
Chu pushed Munoz to get her out of the way as she steps off the bus.
She meets the intent requirement because she has KSC that Munoz would find it offensive.
Chu pushes Munoz to embarrasse her in front of a friend.
intent to offend is met.
Smith throws a stone at Jones though she thinks Jones is probably beyond her range
she is not substantially certain she will hit jones but she acts with desire to do so. If the stone hits Jones then battery.
Chu deliberately throws a bucket of water on Jones.
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.
What if Chu says she was just emptying a bucket and did not mean to offend Jones
She still has the intent to contact. battery
Clayton v. New Dreamland Roller Skating Rink.
Attempted to set a broken arm against the protests of the D. He knew contact was offensive but only wanted to help.
Chu throws a rock at Smith hoping to hit her but hit's lopez by mistake.
Though no tortuous intent to hit lopez courts say her tortuous intent to hit smith transfers to lopezs
transfered intent
R2 S16(2)
Policy behind transfered intent
Tortfeaser should be just as liable when her aim is bad as when it is good.
Smith taps Jones on shoulder to tell her she dropped a glove and Jones is offended by it.
It is reasonable for Jones to believe the touching is acceptable because it would be to most people.
R2 S 15
"any physical imparement of the condition of another's body, or physical pain or illness."
What if the contact is minor
Still battery cuz court will recognize the D right to physical autonomy though the damages will probably be minor.
Smith spits on jones
offensive contact-battery.
Policy behind offensive contact
Gives the D a civilized alternative to retaliation.
What if smith went around patting people on the back at an office party and Jones finds it obnoxious.
If offensive depended on the subjective reaction of everyone, you wouldn't know it's offensice until after contact was made.
Then how do the courts define offensive?
courts use the objective definition of "offends a reasonable sense of personal dignity" R2 S19
R2 S 19
It is offensive if a reasonable person in the circumstances of the victim would find the particular contact offensive.
What about socially acceptable contact
Not battery because a reasonable person in the circumstances would not find the contact offensive.
Burgess and Munoz routinely horsplay.
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.
Brutus decides to humiliate Cassius by tripping him and in doing so Cassius falls down a flight of stairs.
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.
Lambertson v. U.S.
Jumped on guy from behind and pulled a bag over his head. Stumbled forward and injured head on a meat hook.
Inspector intended horsplay
court found the act of jumping on the back was a battery because a reasonable person in that situation would find it offensive.
Policy of intentional tort law
Deter intentional invasions of an individuals privacy. these are avoidable because they require a deliberate choice.
Smith pokes Jones with a 10 ft pole or stretches a wire accross a sidewalk as Jones approaches causing her to fall.
In each smith invades Jones physical integrity and intends to do so. unauthorized contact is sufficient. No need to be present at the time
Lopez pulls Chu's coat lapels or knocks off her hat.
These objects are intimately associated with the victims body. Her personal space has been breached.
If Lopez kicks the fender of Chu's car and she is in the back seat.
The contact requirement is probably not met.
Romeo showing off in parking lot for ladies skids and hits Thibault.
No, there is no intent to cause a harful or offensive touching.
Romeo goes to appologize and Thibault pushes him.
Intentionally inflicted a contact he knew would be offensive (and potentially harmful)-battery.
Romeo hugs girlfriend Juliet as he does every day.
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.
Romeo goes to help Juliet up who says "don't touch me" and he does it anyway cuz he loves her.
His motive was honorable but his intent was enough because he had KSC she would find his help offensive.
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?
Though no KSC, motive or desire for an unwanted contact is enough.
Leaving soap in shower hoping someone will slip though you know it's highly unlikely.
If it happens, it's a battery. motive/desire satisfies intent.
Romeo watches Thibault walk into a trench cuz he was reading and not paying attention.
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.
Romeo hugs Iphelia a new student to get in good with her.
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.
Romeo beats Mercutio on a track meet. Pat's him on back "great run". Mercutio hates that type of contact.
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.
romeo does it again at a later point.
R. doesn't take a stand but common law does. Cohen v. Smith. Battery.
Romeo loses a race and throws his shoes in the stands in anger hitting polonius.
As long has he KSC that the shoe would hit someone.
Policy argument behind shoe in crowd.
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.
Romeo kisses juliet while sleeping though they are no longer dating. She finds out about it later.
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.
Romeo insults Thibault in cafeteria jelous over his dating Juliet.
offensive contact not conduct-no battery
Romeo laces Thibaults lemonade with 100 proof vodka at the prom and he drinks it.
indirect contact resulting from a purpose. As long as a reasonable person in the circumstances would find it offensive-battery.
same scenario but Thibault gives his drink to Juliet who drinks it.
transfered intent-liable
Romeo throws his drink at Thibault but principle is hit instead.
transfered intent-battery.
Romeo destroys Thibaults science project while Thibault is watching.
offensive contact to the person not the persons property. not battery.
Romeo blows cigarette smoke in thibaults face.
intentional with purpose to offend. contact is made with the particulate matter. battery.
Offers to show Juliet band pictures but pulls out porno instead.
no contact- not battery. (light waves don't count)
hotel manager rents room to Thibault though he knows the bed is infested with bugs.
he rented a room with KSC Thibault would get an offensive contact. battery.
Regan shines light with a mirror on cars below overpass
Probably not because as of now light transfered through the air is not considered contact.
Snyder v. Turk
Contact was offensive.
Cohen v. Smith
Nurse KSC contact would be offensive-intent req. is met.
Garrett v. Daily
Intent req is met with KSC
Policy behind Garrett v. Dailey
Not merely to protect against ill-meaning act but to protect from unwanted contact. (case is NOT about contact)
Leichman v. WlW Jacor Comm.
Offensive intent is enough
Words alone can initiate contact "blow it at him". no physical injury is required.
Cohen v. smith
contact does not have to be creepy or morally heinous. Policy is to protect one's personal choices about ones body.
Palmatier v. Russ
losing parties arguments on Act
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.
Palmatier v. Russ
losing parties arguments on intent
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.
Palmatier v. Russ
losing parties arguments; what they wanted
blanket immunity for irrational people from tort liability
Courts policy behind decision
.
Courts answer for Act argument
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.
courts answer for intent argument.
Irrational intent is sufficient.
White v. Muniz
Intent to contact without intent to harm or offend is not enough.
Cullison v. Medley
Immenent battery
reasonable apprehension.
Assault rule statement
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.
Elements of assault
-Act
-Intent
-causes apprehension of an imminent battery.
Reveiw question format?
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.
Koffman v. Garnett
No reasonable apprehension of an immenent battery cuz contact had allready been made.
Intent in assault v. battery
same so can't argue you didn't mean to place in immenent apprehension if KSC fear of the contact would result.
Owens throws shot put across field while Jackson is standing in landing area.
Cannot argue that he was just warming up for the decathalon-assault assuming Jackson was looking at him.
Jackson loses control of his car and careens out of control toward Owen.
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.
What if in the same scenario Jackson deliberately swerved toward the curb where owen was.
If she does not desire or KSC she will hit owen then she is still not liable for assault.
Ross tries to hit Owen with the shot put but misses.
attempted to batter but missed so liable for assault. Assuming owen sees it coming.
What exactly are you attempting to show in an assault claim?
You must prove that you feared a type of contact that would have been harmful or offensive had it occured.
Leonard and Spinks slap each other around alot. Leaonar goes pretends to slap spinks but doesn't-assault.
No, it is not reasonable for spinks to fear the type of contact he agreed to on a regular basis with Leonard.
apprehension or fear for the purposes of determining assault mean what?
not fright, just the perception or anticipation or expectation of a contact.
how does the restatment S29 describe the meaning of imminent?
There will be no significant delay. It is not necessary that one would be within striking distance of another.
If you try out for the team next month then I'm going to bust your nose?
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.
Landy brandishes a realistic looking toy pistol to Oda.
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"
What is meant by "apparent present ability"
D act's place a reasonable person in apprehension of an unwanted contact not whether the d can actually do it or not.
Policy behind "appearent present ability"
assault protects your right to be from meaningful threats of unwanted contact.
'I'm going to ring your neck"
not an assault
"I'm going to ring your neck" while pulling a rope out and begins preparing it.
provides necessary evidence of an imminent intent to batter.
Why do the courts require actions behind the words?
to distinguish between bluster and real aggresion.
Are words relevant at all in determinning assault?
yes, they are put together with other acts or circumstances may suffice to make words actionable for an assault.
how do you look at words and circumstances to determine if an assault occured.
If they reasonably cause the victim to fear an imminent contact.
"If you hadn't fouled out of the hundred meter competition, I'd beat you to a pulp"
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.
If you were not an old man, I'd knock you sensless.
words negate intent to cause harm.
"If you don't get off this track, I'll kick your tail into next week"
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.
difference between civil and criminal assault
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.
Same scenario but civil assault and not criminal
If no intent to throw the javeline just scare the other person.
Hennie sees someone attempting to destroy her hard worked on tape for an ice skate.
no assault. no apprehension of contact with the P
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.
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.
As the banner falls she looks up, sees it coming, and skates to safety.
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.
She sees it coming but can't get out of the way in time and is hit though not injured.
This is a battery. The contact was unwelcome though not harmful.
Thinking he's droping it on Hennie but it's thomas who sees it coming and gets out of the way just in time.
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.
Button observes from the stands and is terrified that Hennie will be hit?
No, assault protects only the intended victim not bystanders who fear for the victims welfare.
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.
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.
"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."
a threat to do something tomorrow is not imminent. no assault.
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.
If apprehension of a battery is needed then no assault. Collision would have been with the zamboni not diliberate battery by the driver.
"wipe that smile of your face or I'll wipe it off of you" while shaking fist. D is tiny while P is huge.
though not frightened it would cause apprehension of an imminent contact. assault.
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.
Commited an assault and will be liable for everything that follows. Courts hold intentional tortfeasers liable for all consequences of their torts.
Cullison v. Medley
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.
Policy behind Cullison v. Medley
"mental distress" that going to happen
Hall v. Mcbride
tranfered itent: tortfeaser attempts one tort but accomplishes another.
False Imprisonment
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)
elements of false imprisonment
-act
-intent
-confinement
other intentional torts.
Trespass to land
Conversion of chattels (trover)
Trespass to chattel
Trespass to land rule and elements
intentional entry on land of another.
-act
-intent
-results in entering land of another
Conversion of chattel rule and elements
intentional exercise of substantial dominion of personal or other non-real property.
-act
-intent
-results in substantial depravation of property.
Trespass to chattel rule and elements
intentional intermeddling chattel of another.
-act
-intent
-result in dispossession, lost use, harm to possessor or chattel
False imprisonment ACT?
physical restraint, or threat of force, or threat of lawful authority
old maine case
physical restraint is enough but not required.
McCann v. Wal-Mart
threat of force against individual.
purses and babies
threat of force against valuables
Steve and false arrest case
Threat of lawful authority by police
Wal-mart case
threat of lawful authority by reference to use of police.
intent and trespassory torts
intent has the same meaning for all trespassory torts
Confinement for the purposes of determining false imprisonment
P must either be aware of the confinement or harmed by the confinement. Also, would a reasonable person believe they were confined (wal-mart)
Policy behind confinement determination
the interest protected by battery is unwanted confinement so normally have to realize can't leave.
self Defense and defense of others.
Is the privelege to use force to avert threat of battery, assault, or false imprisonment.
What is the requirement for the privelege of self defense and defense of others?
Reasonableness requirements.
1. reasonable belief force is necessary, and
2. reasonable force is used.
determining reasonable belief force is necessary.
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.
determining reasonable force used.
deadly force only if threatned with deadly force and it's imminent. Is allways authorized in home or in cases of sex abuse.
How do you determine reasonablness in a case?
requires a fact sensitive inquiry.
Affirmative defenses (ie priveleges)all of them
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.
transfered defense
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.
Defense of property rule of law.
force likely to cause death or serious bodily harm may not be used to defend mere property.
Katco v. Briney

and policy
shotgun case: values humans over property. Gun aimed at knees to protect an empty house.
Martinez v. Brown

and policy
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)
Advice on reading cases and clarifying holdings
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.
consent as a defense. how to determine.
Would a reasonable person in the actor's position (the one touching, threatening to touch, restraining) believe there is consent?
consent as a defense. how to determine.
1. consent as manifested by outward signs.
2. words not necessary, conduct may suffice
3. consent can be revoked.
Issues under consent as defense
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
consent issues and autonomy revisited
1. P can put d on notice does not consent to touching most people find okay.
blood transfusion case
1. P can put d on notice does not consent to touching most people find okay.
cohen v. smith
1. P can put d on notice does not consent to touching most people find okay.
reason for not wanting touching.
can be out of main stream, as long as P has mental capacity to make the decision.
Policy limits on P ability to declare unwanted touching.
socially necessary touching as unwanted; exp. glannon and person in subway.(not same as socially customary). presents difficult issues involving sexual contacts.
scope of consent
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.
failure to reveal material (crusial) facts
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
capacity to consent
1. age as a fact: 16 yo transfusion patient.
2.mental capacity and irrational decisions (1 test: understand the risk and benefits?)
in medical consent questions allways start with what
should Dr. ask?
self defense
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.
b.Deadly force in self defense:
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.
Some states require a duty to
retreat if possible before deadly force can be used unless in own dwelling.
deadly force does not include
Does not include excessive force so if it is seen as excessive then no.
deadly force and provocation
Provocation is not sufficient alone. Includes resistance to false imprisonment as well as assault and battery.
c.Defense of others:
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.
d.The “defense” of consent:
Usually not liable if other person consents to contact. The contact must be the exact contact that is consented to.
e.Consent to medical treatment:
The common sense principle is applied in determining if contact was of the nature consented to.
what is an affirmative defense
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.
defense of statute of limitations
example of affirmative defense that has nothing to do with the incident itself
signed release from liability
example of affirmative defense that has nothing to do with the incident itself
police force used in arrest
ex of priveledge of force
Smith and Jones rehearsing for a play requiring a slap. The slap takes place. consent?
yes, not liable
defense of necessity
privelege due to attempt to prevent a greater harm
self defense is what kind of privelege?
limited. not a liscense to attack and aggressor or to respond to unwarranted provocation or to give blow for blow.
what does self defense authorize?
authorizes use of force to prevent an impending battery or stop one in progress
Jones slaps smith on face and says "there, now we are even"
no privelege of self defense. No longer threatened with a battery. retaliation for battery is not self defense.
Jones makes derogatory statements about Smith's lineage and her politics so she strikes her.
not priveleged. no right to attack another simply because they deserve it nor in threats of future harm cuz there are peaceful legal remedies.
Smith knife's jones who is about to slap her.
not priveleged. only reasonable force. only what is necessary to avert the threatened harm.
Smith blocks jones' slap and pushes her away.
priveleged self defense.
self defense and as a remedy to a wrong committed.
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.
is it ever okay to use more force than is necessary to avert a threatned battery?
yes, based on reasonable belief that the force is necessary.
jones raises a knife at smith though only intending to scratch her back. smith kills her.
priveleged self defense. based on reasonable belief that the force was necessary.
policy behind limiting the use of force as self defense.
attempting to minimize the use of force as a means of self protection.
policy behind courts reluctance to impose a duty to retreat even when easily done.
require a victim of threatned violence to relinquish rights to walk the streets.
deadly force in self defense
only with reasonable belief of being threatned with deadly force, and which can only be prevented with the immediate use of deadly force.
mistaken defense of other
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.
volenti no fit injuria
to one who is willing, no wrong is done.
Is consent really a defense against a prime facie case?
not really, it negates a basic element of the prime facie case.
how do courts determine the scope of consent
by using common sense.
Jones agrees to a fist fight with smith. smith begins to lose and shoots jones. consent.
consent to a fist fight not a gun battle. no consent.
consent is determined by
combination of words, gestures, conduct and is based on what reasonably manifests intent.
o'brien v. cunard ss co
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.
Dr. gets patient to consent to an exam but is seeking sexual gratification
a fundamental misunderstanding of the facts does not evidence true acceptance of a contact. consent is invalid to to misrepresentation
P agrees to sex when d has an STD
a fundamental misunderstanding of the facts does not evidence true acceptance of a contact. consent is invalid to to misrepresentation
when can actual consent not create a privelege?
with a protected class, ie under age girl. guilty even if she agreed to sex.
policy behind protected class exception.
deemed incapable of making a proper judgment about whether to engage in the conduct.
Mohr v. Williams
dr. operated on other ear cuz found it worse. battery cuz touch was not what P agreed to.
substituted consent
seek permission from relative or representative.
what does a Dr. do if substituted consent is not available.
cases support a limited privelege to extend surgery in area of initial incision unless it involves the destruction of a bodily function.
patient comes in ER unconscous and dr. performs surgury.
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.
do people have a right to refuse treatment even if it will result in their death
yes based on common law battery principles. based on same policy of a persons right to do what they want with their body.
Okina slaps rollins after she says bad things about her husband
no privelege. privelege comes from stoping an impending assault, battery, FI, not revenge for an insult.
rollins goes to knock of okina's hat and she pushes him back hard.
priveleged to use reasonable non-deadly force. if rollins finishes his act he has committed a battery so she's good.
rollins punches okina in stomach and turns to run. okina hits him with the umbrella she is carrying.
retaliation not self defense so no privelege.
after punching okina, she charges rollins with umbrella and he pushes her as she swings it.
rollins battery is over and okinas is a new assault which he is priveleged to use force to prevent.
Rollins pushes okina and she stabs the sharp part of her umbrella at his face.
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.
Zilla sees enemy kong running toward her excitedly. fearful, she punches him in the chest. As it turns out he was coming to appologize
priveleged because, though she was wrong, it was reasonable for her to believe she was about to be battered.
Zilla sees enemy kong running at her with a bat, she throws a brick and hits bystander cusack.
priveldged in most jurisdictions (with no duty to retreat)kong is liable for cusacks battery.
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.
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.
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.
not liable. privelege.
same situation but state requires retreat.
no privelege of self defense because she could have retreated. Zilla is liable as well.
same situation but state doesn't require retreat in instances of threat of deadly force.
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.
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.
priveleged for non-deadly force but not deadly force. liable.
same facts but goliath sees pitchfork coming and picks up a board and hits david with it.
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.
same situation but david defended himself by pushing goliath. goliath, suprised, responds swings at him knocking him down.
goliath is not priveleged to act in self defense because davids response is reasonable to the threat imposed by goliath.
same situation but lancelot comes on scene, sees david rushing goliath with pitchfork and hit's him with a crowbar.
depends on the jurisdiction and court.
same situation but sees david about to push goliath and hits him in the stomach to stop him.
depends on the jurisdiction and the court.
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.
priveleged. she was reasonable to believe it was real.
"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.
no, if she was reasonable to believe she was about to be battered.
"if you don't leave, i'll give you 2 black eyes", stein refuses to leave and gets socked by franken
stein does not consent to punch by standing his ground. Franken has no right to impose the condition on stein. franken is not privelged.
hulk says "push me" Brower does it and hulk gets hurt.
contact v. consequences. hulk got the exact contact he consented to.
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.
since he didn't know, he is not liable for not revealing a material fact so the contact she got was consented to.
carella in ER unconscious with bracelet saying no blood transfusions to save her Dr. gives her one anyway.
bracelet is as good as express words. Dr. did not have consent.
Dr. langone performs hip replacement but does not inform Lew risk of screw comming out req additional surgery which it does.
lack of informed consent case, probably neglagence but not battery.
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.
probably should have asked ahead of time. may be liable.
same scenario but Dr. attempts to tell him of risks and seaman says you do what you think is best for me.
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.
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.
__________________________
not entirely clear today. if wife wasn't around he's be good but since she is it's cloudy. it's a gamble.
consent as defense
would a reasonable person in the actor's position (the one touching, threatening to touch, restraining)believe there is consent?
consent is determined by
manifested by outward signs.
words are not necessary because
contact will suffice
consent can be
revoked
what are the issues regarding consent
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
P can put D on notice that she does not consent to touching most people want?
true, smith v. cohen, blood transfusion case,
What if the reason is out of the mainstream?
doesn't matter as long as P has mental capacity to make the decision.
in medical cases start with what question
should the dr. ask
what limits are there on P ability to declare socially acceptable touching is acceptable?
glannon exp. of person in subway. it's socially necessary touching. presents difficulties involving sexual contact.
scope of consent is determined by looking at
what touching did P consent to? blood transfusion patient. sex with person who has std.
consent to touching doesn't include what kind of consent
not consent to damages that occur.
exp. of failure to reveal material facts rules of law
known std material fact, known prior partner with std material fact, beyond that challenging policy questions distinguishing battery from negligence.
failure to reveal a material fact is essentially.
misrepresentation
capacity to consent is determined how
age as a fact, 16 yr old transfusion patient. mental capacity and irrational decisions (1 test understand the risks and benefits?)
consent exceptions
medical=true emmergencies, policy=value saving lives/functioning over the autonomy interest of asking.
other med exceptions
surgical emmergencies, policy= get melded into highly specific fact statements. kennedy v. parrot
why study kennedy v. parrot
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)
reavis v. slomenski
exemplifies compexitites when view events as a whole. consent as manifested by outward signs, words not necissary conduct may suffice, consent can be revoked.
what does the "reasonable" mean here
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.
capacity to consent. an adults incapacity needs to be
such that the D would know about it. plus drinking and drugs can incapacitate
coercion/duress exp.
job and other power relationships
surocco v. geary is a case about
necessity
surocco v. geary rule statement
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.
elements by examining surocco
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.
surrocco rationale
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.
who bear lose of property from surocco
individual property owner.
Wegner v. milwaukee mutual is about?
consitituitional taking.
wegner rule language
property shall not be taken, destroyed, damaged for public use w/o just compensation
wegner holding is what specific
Minn. fact specific, 1. innocent's property 2. by police 3. in course of apprehending suspect.
GA. only improvements for public use.
wegner rationale
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.
who bears loss in wegner
govt, govt, insurer
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?
possible test question. answer not given.
intentional tort defense of public necessity summary
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.
intentional tort defense of private necessity summary
1. reasonable destruction 2. apparent necessity 3. preserving D's more valuable property. 4. D bears the oss and P recovers.
what is the vincent courts rationale
policy
presendent
watching common law develop distinguinguishing between public and private necessities
Taking the SUV out of town. Shopping cart full of bread.
torts financial compensation for
wrongful/faulty act. 1. Van camp v. McAfoos, intentional, neglegent. 2. Circumstances justifying strict liability, manufacture and sales of products.
Negligence-prima facie case
Rule
Negligence is conduct that creates and unreasonable risk to others.
negligence elements
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.
proximate cause considerations note
only for forseeable consequences
dif between intent torts and neglegence
must be a damage in negligence.
neglagence prima facie case-duty
1. Is there a duty of care?
2. what is the standard of care?
3. both: matters of law for the judge to decide.
neglagence prima facie case-breach
1. did D violate the standard of care
2. matter of fact for the jury to decide.
neglagence prima facie case-causation
real and proximate
jury issue
neglagence prima facie case-actual damages
jury issue
neglagence duty of care, aka standard of care rule statement
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.
the standard of care in negligence is what kind of standard
reasonable standard
exploring the rule-rule explanation. duty stays the same
always reasonable. 1. not higher, extraordinary, extreme-gasonine case, stewart v. motts. 2. JI should not talk about different degrees of care.
What is reasonable care varies depending on the
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.
what is the recurring duty issue
how to phrase the jury instruction? reduncy vs. prejudicial error.
questions asked in determining a prima facie case for negligence in terms of duty
1. is there a duty of care?
2. what is the standard of care? both: matters of law for the judge to decide.
negligence-prima facie case question to ask with respect to breach
1. did the D violate the standard of care? matter of fact for the jury to decide.
negligence-prima facie case questions to ask with respect to causation
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.
negligence-prima facie case question to ask with respect to actual damages
matter of fact for the jury
the tort of negligence is
__________________________
any conduct that creates an unreasonable risk of harm to others and the risk comes to fruition in actual harm.
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
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
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
in this case D negligence is clear. burden of prevention is low. the resonable person would have done so
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
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.
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?
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
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"?
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".
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?
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"
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.
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.
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?
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.
w. a painter is painting. statute requires hardhats. is injured. claims lacked knowledge of statute?
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
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
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
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
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.
Negligence rule statement
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
duty stays the same-always reasonable. is never what
higher std, exraordinary, extreme "degree" ie stewart v motts
duty and the sudden emergency doctrine
does not alter the standard which is reasonable care
duty- and obj std
is reasonable, ordinary prudence ie how people ought to act
amount of care that is reasonable varies depending on circumstances exp more danger then
more careful, stewart v. motts
amount of care that is reasonable varies depending on circumstances exp less time =
can be less careful, ie backing up without looking.
amount of care that is reasonable varies depending on circumstances exp circumstance of child =
a child standard means the jury will get a different instruction
when is it appropriate for jury to ignore circumstance of childhood? ie child v adult std.
alternative rule formations. the activity is normally one for adults only. and when the activity is inherently dangerous, robbinson v. lindsay
what circumstances count? what can/should the jury consider when evaluating whether actor was "reasonable under the circumstance"?
external circ=amount of danger, emergencies, etc.
internal circ=childhood, alszhiemers, fainting spells, unskilled, not smart, expert knowledge.
What personal circumstances count? ie subjective circ?
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.
What's the policy behind the subjective std.
reasonable person doesn't ignore what they know about themselves.
what personal circumstances count? objective std.
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.
policy behind obj std.
allocating lose, deterring unsafe conduct.
duty of care general rule
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.
duty is reasonable care under what
the circumstances
the reasonable duty of care stays
the same
duty of care can vary depending on the
circumstances, external=infinite number, and internal=obj minimum but lots that gets considered.
difficulty in specifying duty of care?
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.
procedural differences of duty of care is the role of
the judge and jury
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
reasonable care
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.
p 126 jury instruction. analogy is the stewart v. motts case
negligence per se is about
presumption
in neg per se the statute specifies
the standard of care
neg per se procedural issue is that an unexcused or unexplained violation of the statute is negligence as
a matter of law, ie judge orders a directed verdict againt the law breaker
in neg per se you still have to prove
other elements
neg per se is used when
statute doesn't specify whether neg can apply to violation of statute.
statutory violations as a circumstance. must ask two questions?
1. is the statute relavant
2. how does the jurisdiction use relevant statutes in determining duty?
when looking at if the statute is relevant you consider what
class of persons/types of harm. other relevancy concerns. if statute is irrelevant then jury does not hear about it.
when looking at how the jurisdiction uses relevant statutes in determining duty, you look at
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.
rule behind class or person/class of harm analysis?
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
relevency factor. sold source of D's duty vs.
specifying common law
relevancy factor. clearly define
prohibited conduct
relevancey factor. would statute impose
liability without fault.
relavency factor. injury a direct or indirect result of
the statute
relavency factor. damage award disproportionate to
statutory violation
relavency factors for other courts. statutes v.
local ordinances
relavency factors for other courts. archaic law that
no one follows
who decides whether a statute is relavant?
judge
DV will be issued in neg per se case unless
evidence that a reasonable juror could find. 1. did not violate statute or 2. had one of the recognized excuses for violating statute.
excuses for statute vilation are nonexclusive and are
1. incapacity
2. lack of knowledge fo need to comply
3. inability to comply
4. emergency
5. compliance poses greater risk than violation.
plaintiffs do not always win negligence suits just becasue
an accident actually happens
the test is not whether injury was caused or even whether injury was foreseeable but whether the
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
facts are ever so impt to tnegligence cases becasue each fact colors
the circumstances against which the defendants conduct must be judged
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
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
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
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
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.
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.
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
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
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
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
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
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
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.
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
b. if you were arguing those factors in front of a jury which party would you think had the stronger argument
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
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
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
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
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
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
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
b. how should judge full instruct the jury as to the standard of care dr. quince was requirec to meet in operating on peasblossom
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
c. how si the jury to know what due care requires in this case
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
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.
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
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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
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
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
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
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
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
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
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
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
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
assuming that west dakota applies the negligence perse doctrine should the judge direct a ver dict for oconner on teh negligence issue
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
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
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
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
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
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
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
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
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
c. assume that west dakota applied the presumptiomn of negligence approach how would the negligence issue be resolved
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
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
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
b. assuming that the statute establishes a relevant standard of care what other basic problem do you see in whartons case
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
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
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
b. how should the court rule on the defense
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
What is a short hand for how juries think about neglagince cases?
B<PL,
The B in the hand formula =?
The safer alternative. burden/cost of doing things differently. Social value as well as financial costs. Value of life (pinto case. Brown v. Steil)
neg is about comparing?
conduct
the mower case is an exp of?
comparing conduct
It may be considered neg not to consider safer...
alternatives (Boston Ed)
the L in the hand formula=?
severity of the injury if it occures. Life v property (lawn mower case)
the P in the hand formula =?
probobility/likelyhood that an injury will occur. ie garage built for starting gas engines. P knows risk and can better avoid it (roofer)
In determining breach you ask was the conduct...
reasonable
shortcomings of hand formula?
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?
Should neg be about efficiency? What is the broad policy question?
How to decide who should bear the loss.
Should neg be about efficiency? Can create alternatives to neg. ex?
strict liability systems and inurance systems
2 types of evidence?
direct and circumstancial
what is direct evidence?
what someone heared, saw, tasted, smelled, felt.
what is circumstancial evidence?
Everything else. requires inference.
What are some alternatives to the hand formula?
custom. specific rules of conduct, like neg per se. Do unto others as you would do unto yourself (dobbs). golden rule. Good neighbor.
time opinion is treated like a fact?
expert opinion.
when testifying. what type is prefered over written
on the stand.
never let anyone testify on ultimate
fact. ie neg or guilt.
is absolutely safe conduct required when determining breach?
no. reasonably safe. ie roofer case.
when determining breach in you compare what happened to the
alternative.
The language judge uses when take decision away from the jury
DV/JNOV
question to ask in determining breach. when is conduct...
unreasonably risky?
question to ask in determining breach. who is better able to protect against
the risk.
reasonable plaintiff's can protect themselves from
obvious risks
who gets to pick the alternative in neg
the plaintiff