1Courts view the evidence of a statute violation imposed for public safety in three ways:
(1) Some evidence of negligence
(2) Prima facie (juries choice)
(3) Presumptive facie (juries choice if Def. forbears defense)
(4) Negligence per se
(5) Prima facie and negligence per se (end result the same, up to jury)
(6) Strict Liability, or liability without fault.
2What happens if neither common knowledge nor expert testimony is available to prove that the type of accident ordinarily happens because of negligence.
• In such situations, Res Ipsa Loquitur can be found applicable only if the PL has offered evidence tending to negate the presence of causes.
3Difference between Strict Liability and Negligence per se?
Strict liability is liability without fault, whereas negligence per se is liability based on a violation of a statute, without the preclusion of defenses or excuses.
4Why do courts consistently refuse to impose strict liability in the context of landlord liability for defective conditions?
The distinction depends upon the degree of specificity with which the particular duty is stated in the statute.
5When does a lack-of-notice excuse apply with landlord-tenant laws?
If the actor "neither knows nor should know of any occasion or necessity for action in compliance" with a statute. R2Torts § 288A(2)(b), cmt. f.
6Constructive Notice
• The legal presumption that information has been obtained by an individual through due diligence.
• When it is so obvious that the person should have known about it through inspections or previous documentation.
7What is the distinction between a landlords violation being found as evidence of negligence or a finding of negligence per se?
• The rationale that some kind of notice element may need to be considered for in landlord-tenant laws.
• Instead, most jurisdictions impose negligence per se.
• A landlords violation of a statute will either be considered as evidence of negligence or will support a finding of negligence per se depending upon the statute's degree of specificity.
8Areas where the law typically imposes strict liability include injuries from:
(1) Injuries inflicted from a dangerous instrumentality
(2) Violations of Statutes
(3) Injuries caused by a manufacturer, distributor, or vendor of certain products.
9Why is Negligence per se not equivalent to "a finding of liability per se"?
The plaintiff will also have to prove proximate cause and damages.
10Four Components of Negligence Per Se:
(1) Violation of Statute
(2) PL is within class of persons statute intended to protect.
(3) The harm was the type the statute safeguards against.
(4) The violation of the statute was what caused the harm.
11What is lack of notice as set by the Restatement of Torts 2d?
Where "the actor neither knows nor should know of any occasion or necessity for action in compliance with the legislation or regulation."
R2Torts § 288A Excused Violations
12According to the R3Torts§15: An actor’s violation of a statute is excused and not negligence based on:
(a) Their childhood, physical disability, or incapacitation.
(b) Reasonable efforts to comply.
(c) Reasonable opportunity to know of factual circumstances.
(d) Confusing presentation of the law's requirements.
(e) Noncompliance is safer.
13A statute provides that pedestrians shall not step into the street without looking in both directions for approaching traffic. A child eight years of age, dashes into the street without looking, in pursuit of a ball. A's violation of the statute may be found not to be negligence if:
The child's violation of the statute may be found not to be negligence if his conduct was reasonable for a child of similar age, experience, and intelligence. (AEI)
14A Pure Food Act, which provides that any person selling unwholesome or poisonous food shall be guilty of a crime, is construed to mean that he shall be guilty irrespective of care used in the preparation of the food. A sells to B a sandwich which is contaminated and unwholesome, and as a result B is made ill by food poisoning. A has exercised all possible diligence and care in purchasing the ingredients and preparing the sandwich, and is in no way negligent.
Are they still liable?
A is subject to liability to B under the statute.
15A statute provides that no vehicle shall be driven on the public highway at night without front and rear lights. While A is driving on the highway at night his rear light goes out because of the failure of an electric bulb. A has used all reasonable diligence and care in the inspection of his car, and is unaware that the light has gone out. Before he has had any reasonable opportunity to discover it, the absence of the light causes a collision with B's car, approaching from the rear, in which B is injured.
What happens?
A is not liable to B on the basis of the violation of the statute because the actor neither knows nor should know of any occasion or necessity for action in compliance with the legislation or regulation.
16A statute provides that railroad companies shall keep their fences free from snow and ice. A heavy blizzard covers the fences of the A Railroad Company with snow. Although A Company has exercised all reasonable care to provide snow removal equipment, and acts as promptly as possible, it is unable to remove the snow from one of its fences for three days. During the second day B's cow, in an adjoining field, crosses the fence on a mound of snow, and is struck by a train.
What happens?
A is not liable to B on the basis of a violation of the statute because most statutes and regulations are construed to require only reasonable diligence and care to comply with them; and if after such diligence and care the actor is unable to comply, his violation will ordinarily be excused.
17A statute provides that all drivers of vehicles shall keep to the right side of the highway. While A is driving on the right side of a highway with all reasonable care, a child suddenly darts out from the sidewalk into the path of his car. With no time for reflection, A turns to the left side of the highway to avoid hitting the child. As a result his car collides with that of B, who is injured.
A is not liable to B on the basis of a violation of the statute when the actor is confronted by an emergency not caused by their own misconduct. (See § 296)
18A statute provides that pedestrians walking on a highway shall walk on the left side, facing approaching traffic. At an hour in the evening when there is a steady stream of traffic on the left side of the highway, and only an occasional vehicle on the right side, A walks on the right side of the highway to avoid the greater risk of being struck by a vehicle on the left side.
A is not negligent in doing so because the actor may be excused when compliance with the enactment or regulation would involve an equal or greater hazard to the actor himself or to others. (See § 295.)
19The seven factors to be considered in evaluating whether a landowner or occupier has exercised reasonable care for the protection of lawful visitors will be:
(1). Foreseeability or possibility of harm;
(2). Purpose for which the entrant entered the premises;
(3). The time, manner, and reason for entering;
(4). The use of the premises or expected to be used;
(5). Reasonableness of the inspection, repair, or warning;
(6). Opportunity and ease of repair;
(7). The burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection.
20A land possessor owes a duty of reasonable care to entrants on the land with regard to:
(1). Conduct by the land possessor that creates risks to entrants;
(2). Artificial conditions;
(3). Natural conditions;
(4). Other risks to entrants on the land when any of the affirmative duties
21Duty to Trespassers
The duty not to act in an intentional, willful, or wanton manner to cause physical harm.
22When does a land possessor have a duty to flagrant trespassers to exercise reasonable care?
If they appear (1) helpless; or (2) unable to protect themselves
23Define "Flagrant" under R3Torts § 52 Duty of Land Possessors to Flagrant Trespassers.
"Flagrant" is used here in the sense of egregious or atrocious rather than in its alternative meaning of conspicuous.
24T/F: Different duties of care are owed depending on whether a trespasser is a flagrant trespasser or an ordinary trespasser.
True: Different duties of care are owed depending on whether a trespasser is a flagrant trespasser or an ordinary trespasser.
25What are some significant factors that distinguish flagrant trespassers from other trespassers:
(1) Entry resulting in a crime directed at the owner, their family, guests, or property;
(2) Entry to commit a crime, even if it's not accomplished;
(3) Illegal or improper purpose;
(4) Entry despite the land owners efforts to prevent trespass and specifically prevent the P;
(5) The extent of effort by the P to defeat the land owner's efforts, including ignoring no-trespassing signs and gates, fences, or locks;
(6) Repeated trespasses by the P.
(7) Entry that damages the owner, family, or property.
26Rick climbs over a low decorative fence surrounding Rachel's Bed and Breakfast and waits until a guest returns and then assaults the guest and snatches her purse. While escaping, Rick is injured by an uninsulated wire providing high-intensity lighting on the grounds.
Rick's criminal assault on the premises is important (and sufficient) to support the determination that he is a flagrant trespasser.
27Rick assaults someone and snatches her purse. After making his escape, he stops at a bar. On his way home, he climbs over a low decorative fence at Rachel's Bed and Breakfast and is injured by an uninsulated wire.
Rick's commission of the crime is not relevant to the determination of whether his trespass on Rachel's land is flagrant.
28Garnett, Inc., owns a large tract of unimproved land. Aware that trespassers regularly use the land at night for unsavory activities, they take measures to keep trespassers off the land. Despite this, Willy and friends go "mudding" on the land. Willy drives up a steep embankment that his friends thought couldn't be climbed. After reaching the top, Willy loses traction, falls down the incline, striking a tree, that kills Willy.
Garnett's efforts to keep trespassers off the land are relevant to whether or not Willy was a flagrant trespasser.
29Willy and his friends repeatedly return to Garnett's property for their mudding activities. One night, security catches Willy and his friends and warns them to keep out. The next night, they return, and crash through a crossbar that bars access on the lone dirt path onto the property.
The repeated trespassing by Willy and his friends, the verbal warning and its flouting, and the destruction of property in order to gain access to the land are all relevant to a determination that Willy and his friends are flagrant trespassers.
30Garnett has posted only a small sign on one corner of the property that says "No Trespassing" and employs no security guards.
Garnett is not subject to liability to Willy's estate because, whether or not Willy was a flagrant trespasser, Garnett, as a matter of law, has not acted in an unreasonable fashion.
31Willy, rather than dying after his car falls down the embankment, is trapped in his car and bleeding profusely. A security guard employed by Garnett finds Willy in his car, ignores his plight, and leaves the scene to take a coffee break. Willy dies.
Garnett is subject to liability for any enhanced harm Willy suffered that could have been prevented by the security guard taking reasonable measures on behalf of Willy, such as calling 911 or providing immediate first aid.
32What are the extraordinary circumstance of an identifiable individual who is imperiled and helpless to take steps for self-protection.
• While there is no general duty to rescue even those whose life is at risk and who have no prospect of self-help, an imperiled individual on private property can look to a very confined group of persons for aid, such as security guards.
• This does not permit a land owner, aware of the existence and plight of a flagrant trespasser, to ignore the situation.
33Sid's Gazebo Service negligently constructs a gazebo for a homeowners' association on common land. After Sid's completes its work, Jeremy, a drug dealer who does not reside in the development, arranges for a drug deal to take place at the gazebo. After Jeremy arrives, the roof of the gazebo collapses, and Jeremy is injured.
Sid's owes a duty of reasonable care to Jeremy and is subject to liability to Jeremy for his injuries, no matter if he's a flagrant trespasser or not.
34What is the contact-sports exception:
• Known risks associated with a contact sport are assumed by participants in the sport.
• The contact-sports exception applies only to a duty owed by one participant in the sport to another, and only to participants.
35What does the owner of a ballpark need to provide?
• They need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest.
• If a spectator chooses to sit in a less protected area, the spectator may not complain of risks that are open and obvious in not sitting behind a screen; and thus, the owner of the park has no duty to that spectator.
36If there is a conflict between a statute and custom, which controls?
If there is a conflict between a statute and custom, the statute controls.
37How is evidence of custom treated?
• A witness who is qualified by knowledge and experience can testify to a custom or usage's existence in a particular trade or business.
38Is evidence of custom conclusive?
Evidence of custom is not conclusive. It is still up to the jury to weigh it against the other evidence in the record and ultimately determine the issue of negligence based on the facts and circumstances of the case.
39May a party may introduce evidence of custom to demonstrate that the party did not act negligently, particularly if there are no statutes defining proper behavior?
Yes. A party may introduce evidence of custom to demonstrate that the party did not act negligently, particularly if there are no statutes defining proper behavior.
40May a witness who is not an expert give testimony on an industry custom?
Yes, so long as they have knowledge of and experience in the custom at issue.
41In a negligence action, is the appropriate standard to be applied to a defendant's conduct whether he objectively exhibited ordinary care that a reasonably prudent person would have exercised under like circumstances?
Yes. In a negligence action, the appropriate standard of care to be applied to a defendant's conduct is whether they objectively acted similarly to how a reasonably prudent person would have acted.
The subjective ordinary care standard held by the defendant is immaterial.
42Is a party's failure to follow its own precautionary steps or procedures a failure to exercise ordinary care?
No, a party's failure to follow its own precautionary steps or procedures is not necessarily failure to exercise ordinary care.
43For res ipsa loquitur, is it necessary that defendant be in control of the causative instrumentality at the moment of injury?
It is not necessary that defendant be in control of the causative instrumentality at the moment of injury so long as defendant was the last person in control of the instrumentality under circumstances permitting an inference of negligence.
44Four components used in Res ipsa loquitur:
Majority:
(1) Act doesn't ordinarily occur without negligence.
(2) Exclusively in DF's control.
Minority:
(3) That PL's voluntary actions didn't contribute.
(4) Show that knowledge for the harm’s occurrence is more accessible to the DF.
45What are the two general categories of Res Ipsa cases?
(1) Where the DF directly uses an instrumentality so as to cause injury, and
(2) Where the DF is in charge of, created, or last controlled an instrumentality that inexplicably becomes dangerous and injures the victim outside of the DF's presence.
46Why is Res ipsa loquitur not appropriate in a case that uses expert testimony to resolve complex issues of fact?
• It's not necessary to know how the injury happened so expert testimony is not needed.
• Expert testimony is used to resolve complex issues of fact to demonstrate the mechanism of the injury or precise manner of negligence that a jury would not be able to infer.
47What is the most stringent form of negligence per se?
In VanLuchene v. State (Mont. 1990):
(1). The DF violated the statute;
(2). The statute was meant to protect a specific class;
(3). The PL is a member of that class;
(4). The statute was enacted to prevent the type of injury ; and
(5). The statute was intended to regulate members of DF's class.
48How can a vehicle driver be found guilty of negligence if their brakes go out?
If they've failed to do all that would be expected of an ordinary RP, and it could not have been reasonably foreseen.
49Two most significant elements of Res Ipsa Loquitor:
(1) Whether the accident is the type that usually happens because of negligence.
(2) Whether the instrumentality inflicting the harm was under DF's exclusive control.
50What is Res Ipsa Loquitor?
A special jury instruction that, despite PL's failure to offer direct evidence of what DF did wrong, the jury may infer that DF was negligent based on circumstantial evidence.
51What is circumstantial evidence, when is it used, and why is it special?
• "Circumstantial" evidence is information a factfinder may use to make inferences about past events.
• It's special because when the res ipsa loquitur is met, PL can avoid a directed verdict without having to show what DF did.
52How do different jurisdictions treat Statute Violations?
(1). Some evidence
(2). Prima facie
(3). Presumptive facie
(4). Negligence per se
(5). Prima facie & Negligence per se
(6). Strict liability
53What must a plaintiff show for exclusive control under Res Ipsa Loquitor?
Show that a DF owned, operated, and maintained, or controlled and is responsible for the management and maintenance of, the thing doing the damage.
DF.OO&MC.RMM
54What does "Exclusive Control" mean under Res Ipsa Loquitor?
That a DF owned, operated, and maintained, or controlled and is responsible for the management and maintenance of, the thing doing the damage.
DF.OO&MC.RMM
55A customer sat down in a chair provided by the store, and the chair collapsed, causing injuries.
Should res ipsa be applied?
• Yes, the fact that third parties might have had access to the chair did not preclude the retailer from having exclusive control of the chair within the meaning of res ipsa loquitur.
• Once the customer established that an accident occurred that normally did not occur absent negligence, and that the retailer owned, maintained, and provided for the use of the chairs, the burden of establishing a prima facie case was met.
56The handrail of an escalator stopped suddenly between floors, throwing a rider on that escalator to the floor and breaking her arm.
Is the negligent party likely to have been the defendant (in this case, the airport insured by the defendant)?
Should res ipsa be applied?
The authority in control of a public area has a nondelegable duty to maintain its facilities in a safe condition.
57A is a passenger in the airplane of B Company, a common carrier. In good flying weather the plane disappears, and no trace of it is ever found. There is no other evidence. Various explanations are possible, including mechanical failure which could not have been prevented by reasonable care, and bombs planted on the plane.
Could negligence be inferred?
It may be inferred by the jury that the most probable explanation is some negligence on the part of B Company.
58A leaves his automobile parked on the side of a hill. Two minutes later the car runs down the hill and injures B. In the absence of other evidence, the explanation is possible that some meddling stranger has tampered with the car, or that it has been struck by another vehicle.
Could negligence be inferred?
It may reasonably be inferred that, more probably than not, the event occurred because of the negligence of A in parking the car.
59A goes to bed at night as a guest in B's hotel in a city in California. During the night he is injured by the fall of a large piece of plaster from the ceiling. In the absence of other evidence there are various possible explanations, including activities of persons upstairs or previous guests, jolts from explosions or other sources outside of the hotel, concealed defects not discoverable by reasonable inspection, or an earthquake.
Could negligence be inferred?
It may reasonably be inferred that the most probable explanation is the negligence of B in permitting the plaster to become defective.
60A, a customer in B's restaurant, orders and eats a piece of blueberry pie. He is injured by a small blue tack, of a size and shape which would permit it to become imbedded and concealed in a blueberry, and to escape the most careful scrutiny.
Could negligence be inferred on B?
It may not be inferred, without other evidence, that the presence of the tack in the pie was due to the negligence of B.
61A buys at a grocery store a can of spinach packed by B. While eating the spinach, A is injured by a large piece of glass concealed in it. There is evidence that nothing was done by A or by any third person after the can of spinach was opened which would account for the presence of the glass.
Could negligence be inferred?
Without other evidence, it may be inferred that the presence of the glass was due to the negligence of B.
62A, a customer in B's store, slips on a banana peel near the door, and falls and is injured. The banana peel is fresh, and there is no evidence as to how long it has been on the floor.
Could negligence be inferred?
Since it is at least equally probable that it was dropped by a third person so short a time before that B had no reasonable opportunity to discover and remove it, it cannot be inferred that its presence was due to the negligence of B.
63A, a pedestrian on the public sidewalk, is injured by the fall of a sign from the front of a building owned by B and leased to C.
Could negligence be inferred, and on who?
Both B and C are under a legal duty to members of the public using the highway to exercise reasonable care to inspect and maintain the sign.
It can be inferred that it was due to the negligence of both B and C.
64A undergoes an operation. B, the surgeon performing the operation, leaves it to C, a nurse, to count the sponges used in the course of it. B is under a legal duty to A to exercise reasonable care to supervise the conduct of C in this task. After the operation a sponge is left in A's abdomen.
Could negligence be inferred, and on who?
It can be inferred that this is due to the negligence of both B and C.
65A is an engineer operating a locomotive of B Railroad. One of his duties is to keep the water in the boiler, and thus the steam pressure, at a proper level. The boiler explodes and kills A.
Could negligence be inferred on B Railroad?
Without other evidence, it cannot be inferred that the explosion was due to the negligence of B Railroad.
But when the fireman testifies that A kept the water and steam at proper levels, and did nothing to cause the explosion, the inference can be drawn.
66A buys a loaf of bread baked by B. While eating a slice, A is injured by broken glass in the loaf. In A's action against B for negligence, A proves these facts. B then offers evidence that his bakery is conducted with all possible care, and that such precautions have been taken as to make it impossible for any foreign object to be baked into the loaf.
Could negligence be inferred?
Notwithstanding this evidence, the jury may still be permitted to infer that the injury was due to the negligence of B.
67How may a defendant avoid a directed verdict for res ipsa loquitor?
If the Def. shows evidence which is so conclusive as to leave no doubt that the event was caused by some outside force for which he was not responsible, or that it was of a kind which commonly occurs without negligence on the part of anyone and could not be avoided by the exercise of all reasonable care.
68A heavy box fell while being unloaded in a grocery store and hit a customer. The customer had her back to the unloading and did not observe the unloading process. There is no evidence that the customer touched the pallet.
Should res ipsa apply?
Yes, because there's no direct proof of negligence, the box and the pallet upon which it was situated were within the exclusive control of appellee, and the accident was of a type that would not have occurred absent negligence.
69A child was dropped off at a day care center in good health, but had a brain concussion at pickup time.
Should res ipsa apply?
Yes, it was more probable than not that the injury was the result of defendant's negligent supervision.
70A bottle of a carbonated drink exploded in a waitress's hand, cutting it severely.
Is this accident likely to be the result of the negligence of the drink bottler?
If there is sufficient evidence that nothing was done by A or the retail dealer or by intermediate handlers of the bottle to cause the explosion, the inference of B's negligence can be drawn.
The company had exclusive control over both the charging and inspection of the bottles.
71At nine in the evening, there was a power outage that deprived the hotel of electricity. In his dark room, Clyde fell and injured himself. There was no form of emergency lighting within his room, although flashlights were available at the front desk. At trial, Clyde identified cheap lighting that a hotel could install. Had Clyde's room had it, he would've avoided injury. However, expert testimony said that no hotels provide in-room emergency lighting of this sort.
How would this play out?
This evidence of Hilgard's compliance with hotel custom is some evidence of its nonnegligence;
Yet if there is adequate evidence that emergency lighting in hotel rooms is a reasonable precaution with respect to the risk of guests injuring themselves during a power outage, Clyde's claim of negligence can be considered a question of fact for the jury.
72As a practical matter, how may a party who has departed from custom counter the effect of this evidence
(1) By questioning the custom's logic or intelligence.
(2) By showing that it poses different or less serious risks.
(3) By showing that it has adopted an alternative method for reducing or controlling risks that is at least as effective.
73The bathroom in the hotel includes a shower, protected by a sliding door made of ordinary glass. Carl the guest trips while taking a shower and falls on the door. Its glass shatters and lacerates Carl. It hotel standard practice to use shatter-proof glass rather than ordinary glass.
How would this play out?
Finney's departure from this custom is some evidence of its negligence.