Negligence

Question 1

Adams v. Bullock

Answer 1

• F: Boy electrocuted by uninsulated trolley line when swinging wire
• H: Reverses, for D. Injury was not reasonably foreseeable, D had taken reasonable precaution in placing the wire; no previous occurrence goes to foreseeability
• P failed to state what precaution was expected

Question 2

Braun – cited in Adams

Answer 2

• F: live wire over vacant lot in city; insulation wears away; worker electrocuted
• Ruled for P because the injury was foreseeable since the area was highly developed and it was unlikely that lot would lie vacant – “bound to anticipate what was usual”

Question 3

US v. Carroll Towing

Answer 3

• F: Barge breaks off, hits another ship, sinks and destroys all cargo. Deckhand not present on the ship.
• Sets “Hand formula” for precaution – B < PL
where B: burden of precaution, P: probability of injury, L: magnitude of injury
• Hand Formula assumes some level of foreseeability

Question 4

Bolton v. Stone

Answer 4

• F: cricket case, P injured when hit by ball from pitch across the street
• Need significant risk, not just foreseeability alone – “how serious the consequences are likely to be if person is struck”

Question 5

Bethel v. NYC Transit Authority

Answer 5

Reasonable Person Case
• F: P hurt on D’s bus when wheelchair seat collapsed under him; bus had recently been repaired but not properly inspected
• Duty of highest care no longer applies to common carriers; instead, standard of reasonable care applies
• Duty of extraordinary care dates to early railroad days, no longer relevant b/c public transportation now just as safe as private
• Establishes “reasonable person of ordinary prudence” to assess negligence
o Relies on conduct, not state of mind, of defendant
o Objective – measured against external standard, not individual D’s ability

Question 6

Exceptions to Objectively Reasonable Person Rule

Answer 6

• Gender usually ignored (e.g. no reasonable woman vs. reasonable man)
• Physical disability sometimes considered – exculpation requires “total loss of consciousness”/control
• Bashi v. Wodarz
o D rear-ended car then drove off, then collided with P
o Argued temporary onset of unanticipated mental illness “wigged out”
o CA court says no exception for “sudden mental illness”
• Children – use reasonable child of like age, intelligence, and experience
o Dellwo v. Pearson – courts have applied adult standard to children when they engage in adult activities: e.g. 12-year-old driving a motorboat

Question 7

Baltimore & Ohio RR v. Goodman

Answer 7

Overbearing Judge
• F: P killed on train tracks, did not stop to check the tracks
• Summary judgment – standard of conduct is clear, should be laid down by court
• Attempt to make a “rule” for negligence, rather than a standard
• Holmes believed the longer judges preside, the more equipped they are to make bright-line rules

Question 8

Pokora v. Wabash RR

Answer 8

Permissive Judge
• F: P stops at train track, listens, doesn’t hear or see, boxcars blocked view, gets hit by train
• H: reverses Holmes’ rule from Goodman, says this is an issue for jury
• Cardozo: the world changes, judges cannot keep up

Question 9

Andrews v. United Airlines

Answer 9

Role of Jury Case
• F: bag falls on P out of overhead bin
• Question of fact as to whether or not precautions for falling bags were reasonable
• Ultimately a jury question
• Heightened duty of care imposed on common carriers –> much more likely to go to the jury

Question 10

Timarco v. Klein

Answer 10

Role of Custom Case
• F: P, tenant, badly cut when fell through glass door in shower in D’s apartment
• Establishes role of custom here – proof of customary practice can be admitted to jury to establish negligence of P
o Doesn’t need to be universal adoption of custom, just need relatively common
o Goes to the reasonableness of “notice” to the D
• Custom speaks to elements of negligence calculus, because it shows what’s happened before: severity of injury, foreseeability, probability of occurring, and burden of precautions
• If you can establish a custom, it can get you to the jury

Question 11

TJ Hooper

Answer 11

Role of Custom Case
• F: Tug sank in a storm, causing loss of barges it was towing. If it had radio, it would’ve known about storm and been able to avoid
• Custom said hardly any tugs had radios and D tug owner argued that the standard of care was the custom of not having them
• Even though not custom, could still be negligent. The custom doesn’t automatically establish the standard of care. It merely goes to the question of negligence.

Question 12

Martin v. Herzog

Answer 12

Role of Statute Case
• F: D driving on wrong side of road, but P driving without lights on after a certain hour, in violation of statute
• Lights on statute designed to prevent exactly this type of harm – thus contributory negligence bars recovery
• Court looks to the statutory intent when determining if it is relevant to negligence or not
• Violation of a statute which is intended to protect against the injury that occurred is prima facie evidence of negligence

Question 13

Tedla v. Ellman

Answer 13

Role of Statutes Case
• F: Junk collectors walking on wrong side of road, hit from behind; walked on wrong side due to traffic and because they were pushing strollers (tried to be safer, but violated statute saying what side pedestrians are supposed to walk on)
• Court rules for P – doesn’t enforce strict observance of the statute
o Violation of statute doesn’t automatically create negligence
o Statute was for level of precautions pedestrians should take
o If violating statute was safer (less traffic), then statute doesn’t necessarily impute negligence standard – clearly not the case with Martinnever safer to violate that statute

Question 14

Negri v. Stop & Shop

Answer 14

Slip and Fall - Constructive Notice
• F: slip and fall, baby food on floor for at least 50 minutes, evidencemess was dity
• H: Cannot dismiss as matter of law – jury question as to whether or not D was negligent, remanded
• Look to actual/constructive notice
• Constructive notice – reasonable person should have known given the amount of time that passed, and had time to remedy the dangerous circumstances

Question 15

Gordon v. American Museum of Natural History

Answer 15

• F: Slip and fall on wax paper on steps to museum
• H: No evidence that D had actual or constructive notice
• Defect must be visible and apparent and it must exist for sufficient length of time prior to accident

Question 16

Salad Bar Cases

Answer 16

Business practice provides continuous and foreseeable risk. Therefore, businesses must remedy slipping hazards almost immediately, lest be held liable.

Question 17

Res Ipsa Loquitur

Answer 17

• Instrumentality in the exclusive control of the defendant. Injury would not have occurred but for some kind of negligence
• More likely than not that negligence caused the injury
• Burden shifts to defendant to prove that they were not involved in the negligence
• Always a jury question: good to bring up if possible as plaintiff
• Unless D doesn’t rebut–>then move for sum. jud.
• If you have direct proof of negligence, you cannot argue RIL

Question 18

Byrne v. Boadle

Answer 18

Early RIL Case
• F: barrel of flour fell from window, injures plaintiff
• H: Summary judgment for P
• Res ipsa - “the thing speaks for itself”

Question 19

McDougald v. Perry

Answer 19

RIL Case
• F: tractor trailer’s spare tire comes loose, crashes into P’s windshield
• Res ipsa permits inference of negligence on condition that such event does not ordinarily happen in absence of negligence; only need “more likely that there was negligence associated with cause of event than not”
• Jury doesn’t have to find negligence
• If D doesn’t rebut RIL can move for summary judgment
• Here, reversed for D because no RIL

Question 20

Ybarra

Answer 20

Medical RIL Case
• F: P goes in for surgery on appendicitis, leaves with serious shoulder injury
• P’s expert says that trauma (negligence) must have caused the injury
• RIL has 3 conditions:
1. Accident doesn’t normally occur in absence of negligence (in medical cases, this will usually require expert testimony)
2. Must be caused by agency or instrumentality within D’s exclusive control
3. Injury not due to any voluntary action or contribution of P
• RIL was used to establish not only breach (negligence) but also causation
• D argues that P can’t identify which of the staff had “exclusive” control – court says this isn’t an issue
o Information asymmetry between P and D (P was unconscious, can’t possibly know)
o Can wrap the liability up to the principal actors (e.g. surgeon, anesthesiologist) from their nurses/support via respondeat superior (VICARIOUS LIABILITY)

Question 21

Sheeley v. Memorial Hospital

Answer 21

Medical Malpractice: Standard of Care Case
• F: P gave birth at Memorial Hospital, where doctor, a family practice resident, performed procedure that caused complications. P brought an action for medical malpractice. P tried to being in expert witness, Dr. Leslie, who would have testified to the applicable standard of care. The trial court ruled that because she was OB/GYN, and not a family practitioner, she couldn’t testify to standard of care.
• H: Does away with similar locality rule, in favor or National Standard of Care
o Old regime – strict locality due to variation of training and of frequency of procedures; this was bad because it could legitimize a lower standard of care; also doctors were unwilling to testify against their local peers
o Moves to national standard, focused on the medical sub-specialty and procedure performed

Question 22

Matthies v. Mastromonaco

Answer 22

Medical Malpractice: Informed Consent Case
• F: 81 yo with broken hip; doesn’t have surgery, never regains ability to walk; Dr. never presented surgical alternative b/c his recommendation was bed rest
• Establishes informed consent – patient must be presented with all options, even those medically reasonable alternatives that doctor doesn’t recommend, and then patient can decide
o Doctor must also describe material risks inherent in a procedure or treatment
o Test for measuring materiality is whether a “reasonable patient” in their position would have considered the risk material.
o Reasonable patient standard prevents 20/20 hindsight lawsuits (however, difficult for doctors to determine what this means in practice, because the reasonable patient standard is determined by juries ex poste)
o Causes doctors to be much more careful, conduct more tests, and overall increasing costs of medical care
• Exception: NY has alternative standard: “reasonable doctor” (e.g. what alternatives would the reasonable doctor present, not what alternatives would the reasonable patient want to hear)