Negligence: The Cause of Action

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Negligence The Cause of Action

• The Prima Facie Case
• Duty
• Breach
• Standard of Care
• Proof of Negligence
• Causation
• Damages

• Defenses
• Contributory negligence / comparative fault
• Breach
• Standard of Care
• Proof of Negligence

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Negligence D. Proof of Negligence

• The Prima Facie Case
• Duty
• Breach -- Burden of Proof on Plaintiff
• Causation
• Damages

• Defenses
• Contributory negligence / comparative fault
  Burden on D
• Assumption of the risk

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Vocabulary -- Burden of Proof
Burden of Proof consists of two parts Burden
of producing evidence necessary to avoid a
directed verdict Burden of persuasion
necessary to win! by a preponderance of the
evidence more likely than not 51
probability
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Vocabulary Relevance

• Relevance evidence is relevant if it has any
  tendency -- no matter how slight -- to prove a
  fact that is in issue.
• logical relationship between the proposed
  evidence and the fact that the evidence is to be
  used to establish.
• Does the evidence increase the probability that
  the fact to be proven is true?

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Vocabulary -- Inference
Somewhat more likely
Target Fact is true!
Evidentiary Fact
Circumstantial evidence works through a process
of inference.
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Res Ipsa Loquitur
Somewhat more likely
Target Fact (determined by theory of case)
Evidentiary Fact
Defendant failed to use reasonable care
A particular accident occurred
Somewhat more likely
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Negligence D. Proof of Negligence
Somewhat more likely
Target Fact (determined by theory of case)
Evidentiary Fact
Defendant was careless in handling the barrel
Barrel fell from warehouse
Somewhat more likely
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Presumption a conclusion the jury is required
to draw, unless evidence is introduced to rebut
the conclusion.
Target Fact (determined by theory of case)
MUST CONCLUDE, unless rebutting evidence offered
Evidentiary Fact
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Negligence D. Proof of Negligence
Burden of Proof Burden of producing
evidence Burden of persuasion Inference meets
the burden of producing some evidence Presumption
shifts the burden of proof
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Inference a conclusion the jury is permitted,
but not required, to draw. Presumption affecting
the burden of producing evidence a conclusion
the jury is required to draw, unless evidence is
introduced to rebut the conclusion (to prove,
that is, that the conclusion is not
correct). Presumption affecting the burden of
proof a conclusion the jury is required to draw,
unless the rebutting evidence shows that more
likely than not, the conclusion does not follow.
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Negligence D. Proof of Negligence
Somewhat more likely
Target Fact (determined by theory of case)
Evidentiary Fact
Defendant was careless in maintaining his truck
Tire came out of cradle
Somewhat more likely
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Res Ipsa LoquiturThe Foundational Facts
If 1) When this type of accident occurs, it is
usually result of negligence, 2) Defendant in
exclusive control of instrumentality, and 3)
Not due to plaintiffs voluntary
contribution Then
Target Fact Defendant failed to use reasonable
care
Evidentiary Fact The accident occurred
Somewhat more likely
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Negligence D. Proof of Negligence
Restatement (Third) of Torts (proposed final
draft) It may be inferred that the defendant
has been negligent when the accident causing the
plaintiffs physical harm is a type of accident
that ordinarily happens because of the negligence
of the class of actors of which the defendant is
the relevant member.
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Ybarra v. Spangard
Dr. Swift (owns hosp.) Employs Reser
(anesthesiologist Gisler (o.r. nurse) Later in
room Thompson (specl nurse)
Independent Kors Dr. Tilley Dr. Spangard
In o.r.
Keep in mind the suit is against the defendants
as individuals!
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Negligence C. The Roles of Judge and Jury 3.
The Role of Statutes
A person violates a criminal statute (like a
traffic law). As a result of the violation, an
accident occurs. Did the person act as a
reasonably prudent person would have acted under
the circumstances?
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Negligence C. 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?

The unexcused omission of the statutory signals
is more than some evidence of negligence. It is
negligence in itself. Martin v. Herzog, p. 76
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Inference
Failed to use ordinary care
Violated statute
Jury MAY conclude
Presumption
Jury MUST CONCLUDE, unless rebutting evidence
offered
Failed to use ordinary care
Violated Statute
Negligence per se
Failed to use ordinary care
Violated Statute Without an excuse
Direct verdict
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Negligence C. 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

• The Prima Facie Case
• Duty
• Breach
• Causation
• Damages

Standard of Care

• Defenses
• Contributory negligence
• (comparative fault)
• Assumption of the risk

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The Standard of Care A Quick Wrap - up
I. What standard of care applies to your
facts? A. Reasonably prudent person B.
Reasonably prudent child / disabled person.
Mental capacity? C. Common carrier
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The Standard of Care A Quick Wrap - up

• What does the standard of care require by way of
  specific conduct?
• Normally, that depends upon the exigencies of
  the situation (that is, the facts)
• Critical facts foreseeable harm, feasible
  precaution

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The Standard of Care A Quick Wrap - up
III. Sometimes, there is a more concrete
standard of care. A. Is there a rule of
law? B. Is there a statute that makes it
illegal to do / refrain from doing what the party
did? C. Is there a customary way of doing
things?
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The Standard of Care A Quick Wrap - up

• But, it always comes back to the exigencies. If
  a reasonably prudent person would depart from the
  custom, statute, rule of law, the reasonably
  prudent person RULES!
• A. Rules of law can be distinguished (or
  abolished, e.g. Cardozo)
• B. Customs are only evidence of due care
  (though sometimes very powerful evidence)
• C. Violations of statute can be excused.

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The Standard of Care A Quick Wrap - up

• So, how do you know what the reasonably prudent
  person would do?
• A. Develop a theory of the case What is your
  untaken precaution?

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The Standard of Care A Quick Wrap - up

• So, how do you know what the reasonably prudent
  person would do?
• A. Develop a theory of the case What is your
  untaken precaution.
• B. Develop evidence to support your theory?
  How do you show that
• the risk was foreseeable
• a precaution was available that would have
  avoided the harm
• the cost of the precaution was not excessive.

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The Standard of Care A Quick Wrap - up
VI. The plaintiff bears the burden of proof on
negligence, the defendant on contributory
negligence.
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Negligence B. The Roles of Judge and Jury 3.
The Role of Statutes

• A court may use a criminal statute to set the
  standard of care IF the statute
• Protects a class of people like the plaintiff
• From a particular type of harm