Course Outline - Torts - Negligence

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Course Outline - Torts - Negligence Powered By Docstoc

Notes / Examples

NEGLIGENCE o Intent is an objective test – what would reasonable people do? o Nearly all human conduct involves some element of risk – We look for socially unacceptable risk of harm in negeligence ELEMENTS 1. Duty to use reasonable care 2. Breach of duty  Failure to conform to required standard  Doing something that reasonable men wouldn’t, OR  Not doing something that reasonable men would 3. Harm was caused to P 4. Causation  Reasonable close causal connection  Between conduct and  Resulting injury  Have to prove BOTH:  Cause in fact o But for (one ∆) o Substantial Factor (multiple ∆)  Proximate cause 5. Damage – must have damages for claim  Property damage  Physical damage  Other damages 1. First must have property and physical 2. Very seldom can recover for others without a and b 3. If (a) or (b) then can recover for financial, emotional Duty to use reasonable care – under circumstances b. Duty required by law (Violation of Statute) Judges not juries ordinarily determine c. Actor to conform to a certain standard of conduct whether a duty exists and the standard o Socially un-acceptable risk and level of harm to impose 1. Not leaving intrinsically and obviously dangerous objects lying in open view (in yard) 2. The more severe the potential harm, the more socially unacceptable it is. Non Ex: leaving a golf club laying 3. Customary practice around (kid swings & hits another) a. if conformed to it, not liable (maybe – still reasonable person test) Ex: Gun b. if ignored + proximate cause = liable d. For protection of others o Don’t always have to act o Negligent in rendering aid + increases risk of harm + harm = liable Non Ex: see baby drowning in pond – e. Against unreasonable risks (foreseeability) don’t have to jump in to save her.


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1. 2. 3.

Risk must be recognized, or reasonably recognizeable is unreasonable because it could reasonably avoided and reduced.

1. Risk is not unreasonable if 2. a reasonable person 3. in the same circumstances 4. would not take action to minimize the risk o (Given circumstances o If a consequence is foreseeable with some real likelihood o Then action to avoid it should be taken) SAID ANOTHER WAY o (If there is some probability of o Harm sufficiently serious, that 1. How much harm? 2. How likely is the harm? 3. Weighing danger against benefits: a. More moral than economic b. Risk-utility analysis i. Cost to D to avoid vs. cost to P for harm Regard must be had to the 1. Character & Location of premises 2. Purpose for which they are used 3. Probability of injury 4. Precaution necessary to prevent it 5. Relation of precautions to beneficial use o Ordinary men would take precautions to avoid it, then o Failure to do so is negligence) f. Ordinary care: o Begins with identifying an “untaken precaution” o Depends on the “exigencies” of the case o Requires that the risk be foreseeable o Does not require that a lawful activity be abandoned because it poses some risk o Even a Remote risk required precautions o Ability of others to reduce the risk factor in what is ordinary care o Required of all parties involved – not just D. 2. Effect of Technology a. As technology changes and we know more, higher standard of care b. Hand Formula: Negligence = B < P x L o What is probability that event causing harm will happen? P o How big an injury did it cause? L o How expensive would precautions (burden) be? B 3. Rest 2nd - § 291

Ex: D knew of damaged threads on gas drum cap but did nothing about it which caused a spark an fire injuring P.

Negligent only if conduct created an unreasonable risk of harm to others and the actor recognized or as a reasonable person should have recognized that risk.

If cost of avoiding harm is a lot less than harm itself, then harm must be avoided: Ex: cost of a child’s life or limb is a lot higher than the cost of locking a turntable with a lock. (just cost of lock)


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If act is recognizable by reasonable person as involving risk of harm The risk is unreasonable and the act is negligent If risk is of such magnitude as to outweigh what the law regards as the utility of the act or the particular manner in which it is done Rest 2nd - § 292 – determining utility of conduct to determine negligence a. Social value which the law attaches to the interest which is to be protected or advanced by the conduct b. Extent of the chance that this interest will be advanced or protected by the particular course of conduct. c. The extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct Rest 2nd - § 293 – determining magnitude of risk to determine negligence a. Social value the law attaches to the interests which are imperiled b. Extent of the chance that the actor’s conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member c. Extent of the harm likely to be caused to the interests imperiled d. Number of persons whose interests are likely to be invaded if the risk takes effect in harm

a. b. c.


Standard of Care The Reasonable Prudent Person
All cases require 1. a regard to caution such as 2. a man of ordinary prudence would observe a. Intelligence level does not matter – has to be “ordinary prudent man” i. Higher IQ is not considered - just ordinary Reasonable prudent person must 1. Do what other prudent persons do under circumstances 2. know what other prudent persons know 3. 4. 5. 6. Common sense – must know facts that other normal people know ignorance not excusable – must know or find out be judged based on what he knows if beyond reasonable person a. but forgetfulness due to distraction or time lapse is excusable. Emergencies a. Not expected to act reasonably in cases of emergencies endangering life b. What would reasonable person do under such emergency? c. Emergency not created by D himself Non Ex: super cautions person who thinks danger lurks everywhere

Same std for novices. Ex: every driver knows that worn out tires are not safe and should be replaced Ex: law of gravity, balance, leverage, etc Ex: can’t say: “I didn’t know that bad tires must be replaced”


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d. Emergency not foreseeable and could not be planned for. Different “reasonable person” 1. Physical conditions a. D reasonably unaware of physical limitation or disability until harm is caused, then not liable b. Handicap (blind or other) – Rest 2nd - § 283C i. Conduct must be reasonable in light of their knowledge of infirmity ii. They must take precautions Which the ordinary reasonable man would take if he had the same handicap iii. Must not use only senses to warn from danger, must use other devices usually employed. c. Intoxication is voluntary – does not count as handicap – still liable 2. Occupation: Given identity as member of a class: “prudent physician”, “engineer” 3. Accepted Practice a. Universality i. Need not be universal ii. Well defined in same calling or business b. Sufficiency (jury test of reasonableness) i. Jury satisfied with reasonableness ii. Jury satisfied with behavior adhering to custom iii. Just because you’re not adhering to a std doesn’t mean liable iv. Just because you’re adhering does not mean not liable v. If exists + does not adhere + proximate cause = liable c. Ignorance is not a defense/excuse 4. Children – Rest 2nd – 283A a. Expected to exercise degree of care as is reasonable for other children of their age. i. “what is reasonable to expect of children of like age, intelligence and experience” b. 2 Views i. Majority (Rest – 283A – Comment C): 1. Adult standard when engaging in activities or activities requiring adult qualifications 2. Minority: Any adult activity ii. Minority: Only inherently dangerous adult activities iii. Rule of 7s (very very few jurisdictions) 1. 0-7 incapable of negligence 2. 7-14 presumed incapable; may be proven capable 3. > 14 presume capable; may be proven incapable. Professionals a. Rest (2nd) - § 299(A) i. Unless represent that has less or more skill or knowledge, required to exercise skill and knowledge normally possessed by members of profession or trade. ii. Skill: result of acquired learning and aptitude developed by special training and experience. iii. If has greater skill, then must perform to higher skill b. Malpractice i. Can sue: Dr, accountant, Eng, Lawyer, consultant ii. Can’t sue: Teachers, Clergy

Ex: While driving, D suffered unforeseen heart attack or seizure causing accident Ex: Driving fast and skidded on gravel and caused accident.

Reflect the judgment and experience and conduct of many Ex: While driving, D suffered unforeseen heart attack or seizure causing accident



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Attorneys (or other professionals) – 3 areas of conduct i. Possession of knowledge or skill ii. Exercise of best judgment iii. Use of due care

Ex: operating a snowmobile, flying airplane Non Ex: Playing golf


iv. When suing for malpractice, must show: 1. You would have won 2. You lost because of negligent malpractice Medical i. Must obtain patient informed consent 1. Dr. to give adequate information about a. treatment b. Available alternatives c. collateral risks i. material risks 2. (if Dr. didn’t and if patient had been informed of risks, would not have consented (self-determination) a. If P consents but is not informed, consent is defective. b. Causation – jurisdiction dependent i. reasonable patient ii. this (Subjective) patient iii. reasonable Dr.

Ex: asking a personal injury lawyer to do a tax case – if he discloses that he does not the skill, then not expected to perform to the level of another tax lawyer. Profession: dentist, accountant, engineer, dentist, Dr, surgeon Trade: plumber, carpenter, electrician, pilot, precision machinist

and Undisclosed risks materialized) Cause in Fact a. ∏ would have refused treatment b. Reasonable patient would have refused treatment 5. Defenses a. Patient already knew of risks b. Disclosure detrimental to patient interests c. Patient can not determine for himself i. Emergency 6. Fiduciary duty a. Dr. must disclose personal, financial, and other interests not related to P’s heath b. Inform of risks associated to Dr. capacity to perform 7. Requires expert testimony to prove a. Expert can’t just say: I would’ve done it differently. ii. Locality rule (some jurisdictions): Requisite skill and learning of other Dr. in community (bad law!) 1. Majority adopts “national” or “similar community” std. iii. Liable if:

3. 4.

Ex: Not knowing that retirement fund is community property If something is settled in law, lawyer should know about it. Non Ex: tactical decisions – not liable for “mere error in judgment” Ex: Filing a suit before statute of limitations runs out (mechanical steps)

If no consent was gotten from patient at all, then battery. Ex: Dr. did not inform patient of potential risks of hysterectomy – she suffered vesico-vaginal fistula – patient says: if I knew, I wouldn’t have had the operation


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1. Violates Customary Practice: Does something medical stds say don’t 2. Doesn’t do something medical stds say do iv. Existence of medical std must be proven to exist 1. can’t leave it to jury to speculate on v. Negligence must be established by experts 1. unless very obvious to lay man.

Ex: Dr. fails to tells P about risks of not taking, or availability of, a test A risk is material if it is likely to affect a patient’s decision. (In case of nondisclose, jury will determine how material a risk was) (Even 1-3% change is material if the risk is death) Some courts would ask: “would reasonable patient refuse treatment?” Some jurisdictions look at what “reasonable physician” would disclose – others look at what “reasonable patient” would want to know Reasonable patient negates self determination “this” patient – difficult to prove (difficult to know patient lied) If Dr. knows something of interest to patient, then, must tell even if reasonable Dr. wouldn’t normally.

vi. Not necessarily negligent if 1. other Drs would take a different course of action 2. treatment fails or even patient dies vii. Michigan MCLA – 600.2912d – Expert testimony must include: 1. Applicable std of practice or care 2. professional’s opinion that std of care was breached 3. Actions that should’ve been or omitted to have complied with std 4. how the breach was the proximate cause of injury viii. Views on expert testimony 1. Expert has to be in that specialty 2. Can testify in other specialties as long as his specialty has same std of care 3. Once knowledge of expert is established in a specialty, he can testify in that specialty ix. See Medical Injury under Res Ipsa Loquitur Insane - Rest 2nd - § 283B a. Insanity of mental deficiency does not relieve of liability b. Held to reasonable man standard c. UNLESS the insane is a child Sudden Illness – Not liable a. incapable of avoiding and b. incapacity was unknown c. Prior to an accident d. (Does NOT apply to sudden mental illness)


Ex: disclosure alarms emotionally or apprehensive patient


Ex: Dr. uses patient’s tissues for research Ex: Dr. gets kick backs for sending a patient to a specialist. Ex: Dr. has HIV; Dr. has been on probation

. Locality rule applies only to medical


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profession. Locality Rule: Dr’s and practices in same community. (bad law)

Expert testimony is not required in any other profession except medical Expert testimony not required for battery – only consent is asked for – not informed consent. Ex: During surgery to nose, patient suffered 3rd degree burns to arm caused by anesthesia that escaped from vein to tissue Ex: Dr. left hypodermic needle inside patient body after operation Ex: every lay man knows that x-ray allows Dr. to see what’s going on inside, but not taking an x-ray is not necessarily negligent

Non Ex: Dr. failed to tell P about excessive bleeding, but excessive headaches result.

Ex: family doctor who does 100 deliveries per year, can testify on obstetrics


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We don’t care whether mental illness was sudden or not – the insane is liable. (Breunig: woman driver thought God was driving car – court would not have found liability if mental sickness was sudden – This is the minority view)

Rules of Law
Railroad Majority: o Traveler must look and listen o Duty to stop depends on circumstances Pennsylvania Rule: o Unyielding duty to stop, look, and listen no matter what circumstances are What is suitable for a traveler is circumstance depend and is a jury question Pedestrian Must continue to look all the way across while crossing Car drivers – drive at such speed as to be able to stop within range of vision

Stupid Rule! Very impractical

Non Ex: Dense fog + Sudden, unusual, and unexpected obstacle Ex: Statute requiring bottles of poison to be marked. At drug store, a bottle was not. P bought it, drank, and died. Ex: P was driving with lights off at night when D hit and killed him. P not liable because D violated statute designed for the protection of other travelers – Jury shouldn’t get to decide on whether P was innocent or culpable.

Violation of Statute
1. Existence of Statute a. Where a statute exists imposing a specific duty i. Not up to jury to decide on culpability of P or D when statute is violated (if there is no excuse) ii. Omitting statute (inexcusably): 1. To omit willfully the safeguards prescribed by law 2. for the benefit of another that he may be preserved in life and limb 3. is to fall short of the standard of diligence. If duty is breached D is Liable to party harmed i. Unless there are excuses. (if statute protects group to which P belongs from harm caused) (Statutory purpose doctrine) If harm was proximately produced by the neglect

b. c. d.



How courts deal with statutes a. Courts have discretion in how to deal with statutes i. Purpose of statute determines causal link

Ex: customer at a bar Non Ex: violation of regulations on


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emergency treatment when plaintiff did not appear to require emergency care. b. Criminal statutes i. If statute addresses tort issues, court must accept as is ii. If not, courts can 1. accept, 2. reject, Does statute create civil duty that does not exist under common law? Ex: Terrorist buys unlabeled (which should have been) ammonium nitrate and uses to blow us OK City federal bldg – Mfg not liable – lack of causal link between statutory violations and injuries. Purpose of statute is what courts say it is! Ex: (accept) Statute requiring safety features in factories (protects employees but not visitors) Ex: (reject) 1. difficult to prove that giving more alcohol is the result of P’s injury 2. Statutes prohibiting some activities on Sundays – purpose = protection of public peace and morals 3. Statute imposing speed limits to conserve gas.

c. d.

3. or modify the rule as applied to tort law Statutes imposing a duty or std of care i. If P is harmed by violation, then negligence. 3 Views on violating – Jurisdiction dependent i. Automatic negligence (negligence per se) 1. Reduces negligence to strict liability because a. Exercise of due care won’t matter, and b. Availability of excuse wont’ matter i. Judge decides what are appropriate excuses ii. Jury to decide applicability of facts to excuses 2. Not really per se because willing to entertain excuses ii. Rebuttable presumption of negligence – (there may be defenses) 1. adherence to statute may just subject D to danger 2. Liability without fault is not truly negligence 3. Allows appropriate punishment 4. Execuses a. Jury decides what valid/invalid excuse are b. Jury determines applicability of facts to execuses

Ex: posting lifeguards at swimming pools; landowners to cut weeds to enhance visibility; secure locks by landlords


iii. Violation is evidence of negligence. 1. Jury does not have to make anything of breach if it doesn’t want to 2. Jury can completely ignore breach if it wants to. Rest 2nd - § 288 – Statutes not applicable a. Courts will not adopt as reasonable man std of conduct legislation that i. protect interests of state or any subdivision ii. public interest rights or privileges of enjoyment iii. person renders service to state which it undertakes to give to public iv. protect a class of persons other than the one whose interests are invaded v. protect another interest than the one invaded

P should talk about: 1) Civil duty under the statute AND 2) Civil duty under the common law


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vi. protects against harm other than the one suffered When showing that there is an excuse. Jury can reject or accept as it sees fit This is the Michigan standard Hypo: Statute: “must walk on right side of Hwy” – now, if person walks on left when left is empty and right is very busy, then, OK because it is safer to walk on left.


vii. protect against any other hazards than that from which harm resulted Rest 2nd - § 288A – Excused violations of Statutes a. Violation of legislative enactment or administrative regulation b. Unless the enactment or regulation is construed not to permit such excuse, violation is excused when: i. Violation is reasonable due to actor’s incapacity (minority or incompetence) ii. Neither knows nor should know of occasion for compliance 1. reasonable ignorance of facts (not the law) is excusable iii. Unable to comply even after reasonable diligence and care iv. Emergency not due to own misconduct v. Compliance involves a greater risk of harm to actor or others


Not Excused violations for these: a. Child labor act b. Pure foods act c. Federal Safety Appliance Act d. Safe Place statutes e. Selling firearms and other dangerous objects to minors Violations of Statutes a. Civil Statutes i. Protects Class of people ∏ is member of ii. Protects against harm suffered by ∏ iii. Cause iv. What jurisdiction are we in?? (per se, rebuttable, evidence?) b. Criminal Statutes i. All above ii. Does criminal statute create a new duty? iii. Harm direct or indirect cause of violation? iv. Proportionality of punishment v. Was statute so obscure that public doesn’t know of it vi. Is the statute creating liability without fault? Rest 2nd - § 288C – Compliance with a. Compliance does not mean not negligent; Statute may define minimal standard and reasonable person may do more.


Non Ex: legislation to protect spread of disease requiring animals to be put in different pens, is not adminissible if animals was washed aboard in violation


Ex: Child runs onto street to get ball in violation of look both ways rule (child standard of care) Ex: driving without knowing tail is out in violation of lights in rear vehicle – does not know light is out and has no means of anticipating Ex: D’s car from behind damaging


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steering mechanism – can not avoid going onto incoming traffic lane. Ex: On highway, car in front suddenly stops causing D to move his car to left lane, in violation of statute, causing collision Ex: swerving into left lane to avoid a child darting out on his right Ex: walking on street instead of sidewalk which was covered with 21 inches of snow and others have fallen on snow. can’t sell adulterated food Railway cars must use automatic couplers Require lights and other protection in tenant houses or open areas

(no duty to act under common law) (if indirect, then no liability likely to be found) concern over ruinous monetary liability for relatively minor offenses

Aggravated Negligence
Note 3: State of mind goes toward punitive damages: Willful, wanton, reckless.

Proof Of Negligence
Circumstantial Evidence
D has a duty of care to premises safe for patrons o D must know of existence of hazard Ex: banana peel not cleaned by employees – peel seems to be there long time


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o o

Not liable if o Can’t establish how long hazard has been there o Hazard has not been long enough for D to know and remove it Notice Requirement o Allowed a reasonable time , under the circumstances o To discover and correct dangerous conditions o UNLESS: it is the direct result of his employees acts.  No notice required when danger is foreseeable

Ex: Floor was swept 35 minutes ago; no one saw peel until P fell Ex: Peel seems to have been on floor for a minute

o o

Most cases involve circumstantial evidence not direct evidence Nothing wrong with circumstantial evidence – just how much of it do you need?

Res Ipsa Loquitur(rayz ip-sah loh-quit-her)
"the thing speaks for itself," a doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened.

Ex: Jasko: serving pizza on wax paper on slipper floor. Slip & fall easily foreseeable – No notice required. Ex: All banana cases were circumstantial evidence. Ex: a load of bricks building roof being constructed by D falls and injures P below – D is liable even though no one saw the load fall. Ex: While under anesthetic, P’s nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage. All those connected with the operation are liable for negligence. Res Ipsa not usually applied when multiple ∆s.

Something you wouldn’t normally see except for negligence Procedural Effect
1. Permissible inference: Jury permitted to infer or not infer negligence from evidence a. ∆ can say nothing and still win b. ∏ has burden of proof (∆ more likely than not caused harm due to negl) Presume negligence (like Rebuttable Presumption) a. ∏ has burden b. ∆ has to present evidence showing otherwise – like some other explanation Presumption of negligence with shifting burden of proof a. Ultimate Burden of proof on ∆ b. ∆ must prove that injury not due to his negligence. c. ∆ has to show with preponderance of evidence that injury not caused by him



1. 2. An accident happened AND Injury would not occur without negligence  Injury was probably result of negligence even though nature of negligence is unknown, AND 1. (Accident would not ordinarily happen 2. Without negligence on part of party in control – ∆  Past experience tells that such events do not ordinarily occur unless someone was negligent.  Probably the ∆ was the negligent person Ex: objects falling from D’s premises Ex: Passenger hurt on Greyhound bus (because of special responsibility of common carriers) Ex: head-on collision of 2 trains.


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the thing causing the accident was under the exclusive control and management of ∆  Instrumentality causing injury 1. Instrumentality does not have to be known

2. Common Law: Was under exclusive control of ∆)  Not liable: 1. If under partial control, then not liable Ex: Tire flew from under ∆’s truck and hit ∏’s windshield. Non Ex: ∏ eats from one of 9 turkeys and gets food poison. No RIL because no exclusive control by cooks – many could’ve touched food Ex: child hurt at day care center – causes unknown Ex: Elderly who can not communicate is hurt at nursing home Ex: Patient suffered arm and shoulder pain while unconscious for appendectomy Ex: barrel of flour falls and hits P on the head. Ex: Spare tire falls off truck and hits P’s windshield. As long as the thing causing harm is under control/management of D. Non Ex: Tire blow out, falling on steps Ex: TV set catches on fire; single car crash; fertilizer plant explodes, cattle escape on highway; human falling on a piece of art; Ex: Fall of elevator, train derailment, explosion of boiler, escape of gas or water. Non Ex: Hotel chairs falls on pedestrian head from window. No res ipsa loquitor against hotel – Guests are in partial control of chair.

2. If event is possibly the conduct of a 3rd party 3. Rest 2 – 328(D)(1)(b)  Other responsible causes by ∏ or 3rd party are sufficiently eliminated by evidence


Car accidents: circumstances within driver’s control and accident would not usually occur without negligence


∏ doesn’t have to show evidence of negligence  ∏ not required to eliminate with certainty all other possible causes o Evidence o Facts which everyone knows, or  Car Leaving Hwy: car leaves traveled hwy and overturns or crashes, o  Expert testimony where no “fund of common knowledge” for laymen to draw conclusions  Expert required to establish factual predicate to support inference of negligence There can’t be another very plausible explanation


∆ not able to offer any explanation  Circumstances unexplained justify an inference of negligence.  To be not liable: ∆ has burden of proof

Medical Injury 1. Where a P receives unusual injuries 2. while unconscious 3. and in the course of medical treatment 4. all those ∆s who had any control over his body 5. or the instrumentalities which might have caused the injuries


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 ∏ does not have to show who controlled instrument. may properly be called upon to meet the inference of negligence by giving an explanation for their conduct.  Burden on ∆ to prove not negligent.

Ex: Elevator at dept store comes to a sudden stop – no RIL against store, passengers in elevator have access to emergency stop button


Rest 2nd - § 328D 1. Inferred that harm to ∏ is caused by negligence of the ∆ when a. the event is of a kind which ordinarily does not occur in the absence of negligence; b. other responsible causes, including the conduct of the ∏ and 3rd persons, are sufficiently eliminated by the evidence; and c. Negligence is within the scope of the ∆ duty to ∏. 2. It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn. 3. It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached

Ex: surgery patient wakes up to find a burn in the form of hot water bottle on stomach; Ex: P suffered paralysis after surgery in stomach to enhance pregnancy chances.

This “extended” RIL applies only to the special obligation that medical Ds have toward their patient – it can not be applied against: Mfg, wholesaler, and retailer of a defective dart gun that injured P. This is the exception when RIL can be used when multiple ∆s.


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Ex: you buy a can of spinach from store, glass in can and you swallow it and get injured. (someone was negligent in inspecting) Non Ex: Car parked on top of hill, rolls down and hurts ∏. Not likely that someone else pushed it, more likely ∆ forgot to put park break.


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