1 Duty-Prima Facie Negligence Case Saturday, September 25, 2004 4:09 PM Negligence-A conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Five Elements of a Prima Facie Negligence Case: (Must have each element before a case can be taken to court) 1. Duty 2. Breach 3. Causation (Cause in Fact & Proximate) 4. Injury I. Duty-A legal obligation owed or due to another and that needs to be satisfied A. General Duty of Reasonable Care: i. Persons generally owe a duty to use ordinary care that a reasonable prudent person would use to avoid causing injury to another. a. Reasonable & Prudent person are objective. Would a person of ordinary sense realize that their conduct posed a risk to others. b. Was the injury Foreseeable to a reasonable person ii. Termed misfeasance-the general duty to take care not to cause foreseeable physical injury or property damage. iii. Includes injuries to persons or property owned and possessed by another. iv. No duty to persons committing criminal act against another. B. Premises Liability: i. Trespassers-Defined as someone who enters the property of another without the owner's express or implied permission. There's an affirmative duty to refrain from wantonly or willfully injuring them • No Obligation to warn of hidden/natural dangers. • Trespassers are not always persons w/bad motives. You can mistakenly become a trespasser. • Exception to Trespasser rule: Frequent or Known Trespassers. When the property owner knows or has reason to know that the land is frequented. • Exception: Child Trespassers. Attractive Nuisance/Landowner may have duty if he has reason to foresee that children might enter the property and be endangered by the conditions. For children not old enough to appreciate the danger. 2 ii. Licensees-Defined as Social Guests, on property with permission or those on personal business. Duty to warn of concealed dangerous artificial or natural conditions known to he possessor, but that the licensee could not reasonably be expected to observe or discover. No duty to maintain safe premises iii. Invitees-Persons invited onto the property for the material benefit of the possessor, or in the furtherance of the institutional purpose of the possessor eg-Customer who enters a store to shop there. Unlike Trespassers & Licensee, this class is owed a duty to use reasonable care in maintaining premises and in activities. Salaman v. City of Waterbury, 1998[man drowns swimming across a public reservoir while on an outing with a city funded group. P wanted him to be a licensee instead of trespasser, SC holds that he was a licensee but that the danger was not concealed & that a reasonable person should know the dangers of swimming] Summary/Notes: • Some states (about 1/2 ) have abolished the distinction between Licensees and Invitees. Anyone on a premises of expressed or implicit consent is owed a duty of reasonable care. • CA abolished all three categories, Rowland v. Christian there is a general duty of care owed to all persons. • A jury decides the question of fact as to what status category a person falls in. • The jury doesn't decide what the duty is, the judge decides how to apply the standard of duty. C. Affirmative Duties to Rescue & Protect i. Generally there is no duty to rescue in traditional common law. ii. A plaintiff must establish special circumstances (Exceptions) in order to prevail on a claim of negligent nonfeasance-failure to act The presence or absence of a preexisting relationship between plaintiff and defendant in a given circumstance will affect duty analysis. Osterlind v. Hill, Mass. 1928 [intoxicated man drowned while canoeing] Court determines that there is no relationship between the plaintiff and defendant that would warrant a duty to act to protect or prevent harm to the defendant. The defendant was able to take steps to protect himself; demonstrated by his ability to hold onto the canoe and cry for help iii. Exceptions to Gen. Rule of No Duty to Rescue & Protect: 1. When Defendant Created the Danger-When a person knows or should know that he has caused the victim to be injured or at risk for further injury, he has duty to make reasonable efforts to prevent the victim from suffering further harm, or to prevent the harm from manifesting. 2. Statutory Laws-Some states have adopted statues requiring all persons to render aid to others in peril. Else face file or short time in prison. 3 3. Voluntary Undertakings-Once a rescue is voluntarily undertaken, the rescuer owes a duty to the victim to perform the rescue with reasonable care. • Good Samaritan Immunities-Immunizes certain persons who undertake rescues from liability of simple negligence, and in some cases gross negligence in rescuing. • These statues are usually limited to off-duty professionals. • Does not apply to police and fire personnel who are already under a general duty to perform such rescues. • However, many statues are worded to state "any person" pg 100 4. Those engaged in Public Callings-Doctor's, Policemen, Firefighters generally have a duty to rescue and protect. 5. Special Relationships-When a special relationship exits between the victim and would be rescuer. • Carrier-Passenger (eg, airline owes a duty to rescue passengers) • Companions on a Social Venture • Psychiatrist: Statue in most states: A psychotherapist owes a duty at least to an identifiable potential victim to warn that victim that a patient of the psychotherapist poses a danger to that patient if the psychotherapists predicts, or should predict that the person poses a substantial threat of serious physical harms to that victim. • Tarasoff v. Regents of U. of California [girl killed by patient who told psychiatrist of his intentions] • Social Host: Unlike a commercial establishment that serves alcohol to paying customers owes no duty to third parties to protect them from the risk of injury posed by adult guests who drive while intoxicated because they consumed alcohol at the event hosted the social host. As long as the social host was not aware of that the person driving was not very intoxicated. McGuiggan v. New England 1986 [Parents not partly resp. for death of son by intoxicated person driving from their party. Parents had no reason to believe the driver was intoxicated.] Notes: • Policy Based Exemptions: Court will sometimes invoke special duty rules on grounds of policy, even in cases that seem to fall in the general duty category. o Strauss v. Bell Realty, NY 1985 [man injured himself during a blackout in an apt. bldg. common area] Court made a policy decision. This is an example of discretionary power of the court. Rule of Law: Limited the ability of third-party persons to obtain legal claims from 4 the public utility from blackouts. The plaintiff would have been the cheapest cost avoider, by just bringing a flashlight. • Cheapest Cost Avoider: (J. Calabresi) The question of who is in the best position to take precautions. Assigns liability to the person or entity who can identify and adopt the most efficient precaution more readily than anyone else. Breach-Prima Facie Negligence Case Saturday, September 25, 2004 7:00 PM I. Overview: • Definition: • A violation of a legal obligation or the failure to act ss the law obligates one to act. • Question is: Did the defendant act within the degree of care that she was duty-bound to exercise? Who Decides: o This is usually a question for the jury to decide. o The judge may only take the breach issue from the jury if the evidence in a given case points so strongly in one direction (usually against finding a breach) that the judge is entitled to conclude that no reasonable jury could find that a breach did (or did not) occur. • Burden of Proof: The plaintiff has to establish that the defendant acted carelessly. There is the burden of production and persuasion. o Production-providing to the court some evidence in support of the alleged facts o Persuasion-must establish the burden by the preponderance of the evidence. • Preponderance of the evidence-states that the plaintiff must prove his case by est. that it is more likely that the facts stated are true. If the evidence establishes that the facts are equally likely or less likely to be true, then the jury must find for the defendant. 5 How to prove negligence (breach) to establish a prima facie case of Negligence: (w/o this you cannot go to trial). 1. Direct evidence that the defendant fell below the reasonableness standard. 2. Circumstantial evidence (eg. constructive notice/re-constructing scenario/facts) that the defendant fell below the reasonableness standard; and 3. lacking either direct or circumstantial evidence, res ipsa loquitur in certain circumstances** Tests for Breach II. Reasonable Standard Test: • Test for breach is reasonableness, not forseeability, yet the forseeability of a particular harm may bear on the issue of what sort of precautions, if any a reasonable person would take. • Did the person act as a reasonably prudent person would under the circumstances? • Question of whether in this instance the person adhered to the relevant standard of care. Does not look at past history of behavior. Roger v. Retrum 1991[boy in car accident when he left school campus angry at teacher] Court says that the school district did not have an unreasonable risk by having an open campus policy • Common Carriers: Commercial and Gov. operations of boats, buses, planes and trains owe their passengers a higher duty of care. Greater than ordinary care Jones v. Port Authority of Allegheny County, PA 1990[man injured on bus; court held that common carriers are required by law to use a higher degree of care for the safety of its passengers & must be judged by a higher degree of standard] o The Objective Standard-• The issue of whether a defendant has lived up to the standard of reasonable care is determined by application of an objective standard of care. Means Conduct Based not State of Mind Was the conduct of the defendant reasonably careful? How an ordinary person, acting reasonably would have behaved under the circumstances. Vaughn v. Menlove, England 1837 [ man creates a hay-stack that catches flame and burns cottages; court defines that the test is what a reasonable person would have done. not at subjective test] Experts: A person who has acted as an expert in a particular field. Not held to a higher standard, but they are expected to have a higher knowledge. Their standard is reasonable care under the circumstances. • Physical Disabilities: Court will apply the reasonable person test to some physical disabilities based on what a reasonable person with that disability would do. eg, Blind Person would he assessed under what a reasonably prudent blind person would do. Doesn't mean the disabled person is insulated from all acts of negligence. eg, blind person driving a car. 6 • Tender Years Doctrine: Children Under the age of seven are incapable of negligence as a matter of law because they are unable to recognize and appreciate the risk. • Not the Majority rule • Children in General: Majority Rule If the actor is a child he is judged based on comparison to that of "other children of the same age, experience, and intelligence" would have acted under like circumstances. • Makes allowance for their mental ability and development • Restatement Second of Torts Sect. 283A • Parental Liability: Parents are not held vicariously liable for the child's faulty conduct in the way that employers can be liable for their employee's careless acts. • Must establish some sort of direct negligence that is carelessness on the part of the parent. • Mental Incompetence: Persons with mental incompetence are held to the same standard of an ordinary reasonably prudent person under the circumstances. There is no insanity defense in tort law. Difficult to figure out what the exceptions will be based on. o Strict Liability: • Some duties have strict liability for breach, even with all necessary reasonable care a defendant may still be found guilty. For example some states have domesticated dog strict liability statues. Also, owners of wild animals will be held strictly liable. Pingaro v. Rossi 1999 [meter reader bit by dog on private property] D held guilty under strict liability due to a state statue. even though he took several precautions to avoid the injury to the plaintiff III. Industry & Professional Custom: • Industry Customs: • The industry custom is important and relevant when assessing if a behavior is reasonable. But the industry custom is not dispositive, (a deciding factor) on if an act is reasonable; juries are able to second guess an industry custom. TJ Hooper Rule: A ship lost cargo in a storm. Boat operators could have avoided the storm if they had radios available to obtain information. Radios on baord were not an industry custom; however, the court held that the industry std. needs to be changed, to require radios. • Professional Customs: • Proof of compliance with professional custom often does establish reasonable care in the medical profession. Custom is usually a dispositive-deciding factor and evidence of compliance with usually means no breach of duty. 7 • With respect to professional industries (law, medical, accounting), juries are not able to determine the reasonableness of the standard of care. This is left to an expert witness. Johnson v. Riverdale Anesthesia Assoc. P.C.: Anesthesiologist did not pre-oxygenate a patient. Patient died and could have lived with pre-oxygenation. Court held that expert witness testimony could not be impeached, by what an expert would have done in a similar situation, can only testify as to the industry standard. would have done in a similar situation. The industry standard testimony established that a breach did not occur. (Expert witnessed testified that preoxygeenatio was not an industry standard.) • Expert Witness Testimony-Med. Malpractice: • The standard of care in medical malpractice cases is governed by the medical profession generally, and not what one individual physician would do under similar circumstances. Thusly, how a testifying medical expert personally would have treated a patient is not relevant to the issue of whether a defendant physician committed malpractice. Further how a medical expert would have treated a patient cannot be used to impeach the expert's credibility. • Informed Consent: • Measure of reasonable care standard is based on what a reasonable patient would do. Uses an objective patient test to see if the reasonable patient would not have elected to have the procedure done if she had known of the consequential risks. Exceptions-Emergencies and unconscious patients • Breach: In proving a breach in an informed consent case, the plaintiff must prove that if she had received the information, a reasonable person would have made a decision to forgo the procedure. Similarly, in a legal malpractice claim, the plaintiff would have to prove that she would have prevailed in the underlying case. Largey v. Rothman NJ 1988.: P undergoes biopsy of lymph nodes and sues D for failure to inform her of potential negative effects of procedure. Court holds that informed consent is the reason, patient not the reason. Question is in light of risk factors, would a reasonable patient have chosen not to do the surgery? IV. Cost Benefit Analysis-Balancing Test: In assessing Breach (B