PROOF OF NEGLIGENCE ISSUE: CAN PLAINTIFF PROVE ELEMENTS OF NEGLIGENCE?
Direct evidence establishes fact of consequence; Circumstantial evidence establishes intermediate fact, from which can infer fact of consequence.
EVIDENCING NOTICE OF DEFENDANT ♦ When dangerous condition is out of ordinary, Plaintiff must prove either that: * Defendant placed item creating danger, * Defendant had actual notice, or * Defendant should have had known of danger (“constructive notice”).
Goddard: No liability for slipping on banana on platform which contained many passengers, because none of three notices evidenced. Arjou: Liability for slipping on black and flattened banana peel, implying constructive notice—peel had been on platform long enough that Defendant should have known. Joyce: No liability for slipping on sticky, brown peel in place of much foot traffic, where none of three evidenced clearly. No indication of how long peel on floor.
♦ When dangerous conditions are constant, Plaintiff need not prove notice.
Jasko: Liability for slipping on piece of pizza, though no notice—because practice of selling pizza on slices of wax paper to standing customers was inherently dangerous.
RES IPSA LOQUITUR Inference that Defendant was negligent in a narrow set of circumstances when Plaintiff does not know what Defendant did. Elements: 1. Accident of kind that does not ordinarily occur in absence of negligence, → Plaintiff establishes by expert testimony or common knowledge that it is reasonable to assume that it is more likely that not that Defendant was negligent.
McDougald v. Perry 1998: Plaintiff’s car struck by spare tire which came loose from undercarriage of semi. Causation element of presumption met by general knowledge that events like this do not occur separate from negligence of controlling agent.
2. Thing is shown to be under “exclusive control” of Defendant → Modern trend—It is enough for Plaintiff to meet Element #1 and show that it is reasonable to conclude that the Defendant was negligent.
NEGLIGENCE
Byrne v. Boadle 1863: Plaintiff struck by flour barrel which rolled out of upper window of flour shop. No witnesses as to what caused accident. Negligence presumed because barrel of flour owned by Defendant whose workers had exclusive control over the barrel. Larson v. St. Francis Hotel 1948: Plaintiff struck by overstuffed chair falling from hotel window during V-day celebration. Rule: If evidence shows that the accident could have or was caused by reasons for which Defendant was not responsible then Plaintiff must fail. H: No negligence because guests of hotel have partial control of hotel furniture.
3. Plaintiff was not, himself, negligent (Minority element). ♦ EXCEPTION: MEDICAL NEGLIGENCE WITH DOUBT TO DEFENDANT’S IDENTITY Where Plaintiff receives unusual injuries while unconscious and in course of treatment, all those Defendants who had any control over his body or instrumentalities which would have caused injuries—may property be called upon to meet inference of negligence. Policy: to treat hospital/clinic like an employer who should have control of employees, to combat interprofession loyalties and smoke out offender, to encourage doctors and nurses to regulate each other.
Ybarra v. Spangard 1944: Plaintiff gets dropped while unconscious for appendectomy. Rule: Manifestly unreasonable to insist that Plaintiff identify any one Defendant who committed negligent act upon him when he was unconscious, so can assert RIL against group who each had exclusive control of patient at any one time.
Not usually applied outside the medical field, because in other scenarios (Band Mothers’ chicken salad) no overriding employer exists who should be responsible for control, each Defendant acts independently of the other, and no deep pockets. ♦ PROCEDURAL FUNCTION OF RES IPSA LOQUITOR: Views: View #1: RIL meets burden of production by creating inference of negligence, but Plaintiff still bears burden of persuasion to convince jury of Defendant’s negligence by preponderance of evidence. (You get to jury, but they may decide either way.) View #2: RIL creates a presumption of negligence and shifts burden of production to which he can meet simply by rebutting the presumption. If rebuttal offered, Plaintiff then has burden to convince jury of Defendant’s negligence by preponderance of evidence. (If no rebuttal, negligence established as matter of law.) View #3: Burden of production and persuasion shifted to Defendant in presumption of negligence with burden to show by preponderance of evidence that injury not caused by his negligence. Defendant must not only rebut presumption, but do so with a preponderance of evidence.
NEGLIGENCE
REBUTTAL—SHOWING ANOTHER LIKELY CAUSE FOR ACCIDENT OR HARM BY REASONABLE INFERENCE IF NO EXPLANATION AVAILABLE.
Sullivan v. Crabtree 1953: Passenger of truck killed when driver lost control and overturned it on steep embankment; In View #1 jurisdiction, Plaintiff argues that Defendant should be negligent as matter of law, because he could not produce a sufficient explanation for the accident beyond his own negligence. Rule: Defendant’s testimony to potential causes of accident, including faulty breaks, created a reasonable inference and, in turn, a question of fact, which should have gone to jury.
NEGLIGENCE