Negligence: The Cause of Action

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Negligence The Cause of Action

• The Prima Facie Case
• Duty
• Breach (Standard of Care)
• Causation
• Damages

• Defenses
• Contributory negligence / comparative fault
• Assumption of the risk

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Negligence B. The Central Concept 2. The
Reasonable Person
Negligence is the doing of something which a
reasonably prudent person would not do, or the
failure to do something which a reasonably
prudent person would do, under circumstances
similar to those shown by the evidence. Californi
a BAJI 3.10
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Negligence B. The Central Concept 1. The
Standard of Care
What is ordinary or reasonable care? Who
decides the judge or the jury?
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Negligence C. The Roles of Judge and Jury 1.
In General

• Whose account of the role of judge and jury is
  more persuasive Cardozos or Holmes?
• Is Cardozos opinion consistent with his
  decision in Adams and Green?

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Negligence B. The Roles of Judge and Jury 1.
In General
Rules or Standards Would it be better in
negligence cases to have rules defining what
conduct is negligent and what is not? Judges
or Juries Would it be better to have judges
decide what behavior is lawful, rather than
juries?
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Negligence B. The Roles of Judge and Jury 1.
In General
Kalven study Case decided by jury For
P For D Case decided For P 44 10 by
Judge For D 11 35 Result Agreement in
79 of the cases.
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Negligence B. The Roles of Judge and Jury 1.
In General
Ways in which a judge can control the jury, short
of establishing a rule of law Pretrial
Demurrer, regulation of discovery Summary
judgment no disputed issues of material
fact Rulings on admissibility of
evidence Motions for a directed
verdict Instructions Review of verdict
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Negligence B. The Roles of Judge and Jury 2.
Custom
Plaintiff left his car at a local filling station
for some minor repairs. Defendant, the garage
owner, left the car in an unfenced area between
the stations garage and the street. Overnight,
the cars transmission was stolen. Plaintiff
believes that if the area had been fenced, as new
car dealerships in that neighborhood all are, the
car would not have been stolen. Further,
plaintiff has evidence that several new car
dealerships in the area also have security
services to patrol their parking lots. Filling
stations, according to the defendant, do not
fence their lots because it would impede their
customers access to the gas pumps.
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Negligence B. The Roles of Judge and Jury 2.
Custom
Defendant seeks a directed verdict on the issue
of negligence. How do you rule?
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Negligence B. The Roles of Judge and Jury 2.
Custom
Defendant seeks directed verdict on the issue of
negligence. What is the standard for a directed
verdict where the issue is whether the defendant
complied with the standard of care?
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Negligence B. The Roles of Judge and Jury 2.
Custom

• What is the standard for a directed verdict where
  the issue is whether the defendant complied with
  the standard of care?
• plaintiff has not met his burden of producing
  evidence from which a reasonable jury could find
  that the defendant failed to use ordinary care.
• OR considering all the evidence, reasonable
  jurors could only reach one conclusion
• OR, there is a rule of law defining the standard
  of care under these circumstances.

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Negligence B. The Roles of Judge and Jury 2.
Custom
In order to be admissible as evidence, a custom
must be A. Relevant to the issue of
safety B. Fairly well defined C. In the same
calling or business.
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Negligence B. The Roles of Judge and Jury 2.
Custom

• Relevance evidence is relevant (or material) if
  it has any tendency, no matter how slight to
  prove a fact that is in issue.
• Does the existence of this evidence increase the
  probability that the fact to be proven is true?

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Negligence B. The Roles of Judge and Jury 2.
Custom
I. Custom can be evidence of what ordinary care
requires. A. Does not establish as matter of
law. Question for jury would a reasonable
person have adhered to the custom? B. But
may be basis for directed verdict.
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Negligence B. The Roles of Judge and Jury 2.
Custom
II. Why compliance is relevant A. Suggests
community judgment has been that these are all
the precautions that are necessary, B.
Suggests that the cost of doing it differently
may be high.
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Negligence B. The Roles of Judge and Jury 2.
Custom
III. Failure to comply with custom is relevant
because it 1) establishes that a particular
precaution was feasible, and practical, and that
compliance will not have a dramatic effect on the
industry 2) establishes that a reasonable
person would have had notice of the availability
of a particular precaution and of the need
(foreseeability) for the precaution.
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Negligence B. The Roles of Judge and Jury 2.
Custom
IV. In order to be admissible as evidence, a
custom must be A. Relevant to the issue of
safety B. Fairly well defined C. In the same
calling or business.
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Negligence B. The Roles of Judge and Jury 2.
Custom
V. Custom, even if drawn from another industry,
might be relevant if it helps prove A. That
under these circumstances, harm was
foreseeable B. Notice of available
precautions C. That a method of reducing the
risk was technically feasible
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Negligence B. The Roles of Judge and Jury 3.
The Role of Statutes
How are proof of a failure to conform to a custom
and proof of a violation of statute similar?
Different? Do they have the same legal effect?
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Negligence B. The Roles of Judge and Jury 3.
The Role of Statutes

• Violation of statute
• As some evidence of a lack of due care
• As prima facie evidence of a lack of due care
• As negligence per se

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Negligence B. The Roles of Judge and Jury 3.
The Role of Statutes
1. Plaintiff illegally parks his car in a loading
zone. Defendant runs into it. Is plaintiff
contributorily negligent as a matter of law? 2.
Plaintiff buys an illegally mislabeled bottle of
poison from the defendant and uses it to attempt
suicide. Was the defendant negligent as a matter
of law? 3. Defendant bartender illegally serves
an obviously intoxicated torts student. He loses
his torts outline on the way home. Was the
defendant negligent as a matter of law?
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Negligence B. The Roles of Judge and Jury 3.
The Role of Statutes

• What is a good excuse?
• It was impossible for me to comply?
• Under these circumstances, complying with the
  statute would have been more dangerous?
• What I did was just as safe?

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The Standard of Care A Quick Wrap - up
I. What is the standard of care A.
Reasonably prudent person B. Reasonably prudent
child / disabled person C. Common carrier
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The Standard of Care A Quick Wrap - up
II. What does the standard of care require by
way of specific conduct? Once an untaken
precaution is identified A. Is there a rule
of law? B. Is there a statute that establishes
a specific standard of care? C. Is there a
custom? D. What would the reasonable person
do? 1. Evidence about what the rpp knows /
does? 2. Use the LH formula to evaluate
whether a precation is reasonable?
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The Standard of Care A Quick Wrap - up
III. The plaintiff bears the burden of proof on
negligence, the defendant on contributory
negligence.