Negligence Professor Pope Introduction Class 16: Sept

TortsTorts Negligence Professor Pope Introduction Class 16: Sept. 27, 2011

Goodbye intentional DEF has torts No desire to pose risk

Negligence is an No knowledge with entirely separate subst. certainty theory of tort liability

Negligence But DEF poses a risk Standard of care Defenses to others (p.131-258) EAR (~consent) Actual causation IAR (~consent) (p. 259-293) Not just any risk Contrib./Comp. Proximate causation SOL, SOR (p. 294-403) Immunity An unreasonable risk Damages (later) 1. Duty Negligent = fail to act 2. Breach as reasonable person 3. Injury would act in the same 4. Cause in fact circumstances 5. Proximate cause

1. Duty Used often to refer to breach of duty 2. Breach 3. Injury E.g. “Lindsey Thomas 4. Cause in fact was negligent.” 5. Proximate cause

Duty = what would the Showing that DEF was reasonable person in “negligent” does NOT DEF position do mean proving liability Breach = deviation from for “negligence” that To win claim for negligence

PTF must show not only duty and breach Standard But also causation + damages of Care DEF injured Because of the breach

Nobody takes every DEF must only take precaution to avoid those precautions that all risks the reasonable person DEF need not take would take in same every precaution circumstances

Rest.3d Torts: Phys. Harm ' 7

DEF duty Actor ordinarily has duty to exercise reasonable What the reasonable care when actor's conduct person would do creates risk of physical harm. Special Tools Intuition Emergency DEF Guides Balancing Physically disabled Custom Children Risk utility Insane Statutes (“per se”) Skilled/talented Res ipsa loquitur Professionals

Rest.3d 8(a) Judge When . . . reasonable minds can differ as to the facts relating to the [DEF] v. conduct, it is the function of the jury to determine those Jury facts.

Rest.3d 8(b) Susan is the mother of Michael, When . . . reasonable minds a 23–month-old child. Susan and can differ as to whether Michael are visiting at a vacation [DEF] conduct lacks home owned by their friend Jon. reasonable care, it is the Susan and Michael are in the kitchen; the room is lit by a function of the jury to make kerosene lamp on a table. that determination If Michael knocks the lantern If Susan leaves the kitchen for over during a four-second period an hour in order to read a book, in which Susan has turned her and before she returns Michael back in order to take a boiling knocks over the lantern, starting pot off the stove, the court a fire that damages Jon's cabin, should find as a matter of law a court should find Susan that Susan's turning away is negligent as a matter of law. not negligent.

If the lantern is knocked over after No reasonable Susan, wanting to make a quick phone call, leaves the room for person would take one minute, whether Susan's departure is negligent is a precaution to avoid question for the jury to decide. unforeseeable risk

DEF did not fail to do what Nobody would plan against reasonable person would do risks could not foresee in the same circumstances

DEF complied with duty (aka standard of care) PWS 133 Lubitz v. Wells

PWS 134 Blyth v. Birmingham Waterworks

Probability Jury could find reasonable person would take precaution to avoid Severity foreseeable risk PWS 135 Reasonable person would Notice and respond to obvious Gulf Refining risk, even if never occurred before v. Take easy precautions given Williams risk severity

DEF must take action reasonable person would based on information

DEF should also know information a reasonable person would

No reasonable person Reasonable person would would take expensive Would not take expensive precaution to avoid precautions to avoid low probability or low severity remote risk risk PWS 139 Davis v. Snohomish County

All Risks Jury could find Foreseeable risks reasonable person would take cheap/easy Those a reasonable person would Take precautions to avoid precaution to avoid significant risk

PWS 138 Chicago RR v. Krayenbuhl DEF can have many different theories of negligence

No reasonable person would have a RR turntable given the risk Risk DEF Utility conduct conduct No reasonable person would 10:00 a.m. leave unlocked 10:00 p.m.

Balancing Risk

Tool for arguing what the utility reasonable person would do

PWS 141 Risk > utility USA Type interests Social value v. affected DEF conduct Extent harm Chance advance Carroll # persons Alternatives Towing As known ex ante

Burden of bargee Low Severity risk (loss) High Probability High

Therefore Æ B < PL No reasonable TortsTorts person would take Professor Pope precaution to avoid Class 17: Sept. 29, 2011 unforeseeable risk

DEF did not fail to do what Nobody would plan against reasonable person would do risks could not foresee in the same circumstances

DEF complied with duty (aka standard of care)

PWS 133 Lubitz v. Wells PWS 134 Blyth v. Birmingham Waterworks

Probability Jury could find reasonable person would take precaution to avoid Severity foreseeable risk

PWS 135 Reasonable person would Notice and respond to obvious Gulf Refining risk, even if never occurred before v. Take easy precautions given Williams risk severity DEF must take action reasonable person would based on information

DEF should also know information a reasonable person would

No reasonable person Reasonable person would would take expensive Would not take expensive precaution to avoid precautions to avoid low probability or low severity remote risk risk

PWS 139 Davis v. Snohomish County All Risks Jury could find Foreseeable risks reasonable person would take cheap/easy Those a reasonable person would Take precautions to avoid precaution to avoid significant risk

PWS 138 Chicago RR v. Krayenbuhl

DEF can have many different theories of negligence

No reasonable person would have a RR turntable given the risk Risk DEF Utility conduct conduct No reasonable person would 10:00 a.m. leave unlocked 10:00 p.m. Balancing Risk

Tool for arguing what the utility reasonable person would do

PWS 141 Risk > utility USA Type interests Social value v. affected DEF conduct Extent harm Chance advance Carroll # persons Alternatives Towing

As known ex ante

Burden of bargee Low Severity risk (loss) High Probability High

Therefore Æ B < PL PWS 141 USA TortsTorts v. Professor Pope Carroll Class 18: Sept. 30, 2011 Towing

As known ex ante

Burden of bargee Low Severity risk (loss) High Probability High

Therefore Æ B < PL

PWS 145 Reasonable Vaughan person standard v. is objective Menlove No special “I’m not a smart man” standard

Negligence = conduct worse than the reasonable person

You can do your best and still be negligent. There’s no “A” for effort

PWS 148 Delair v. McAdoo DEF not measured DEF deemed to have knowledge of ordinary against what person reasonable person, DEF measured against what who knew what DEF reasonable person who knew knew, would do what DEF should have know would do

Neighborhood knowledge Ice is slippery Custom Even if unaware of risk, might be aware of potential Tool for arguing what the for risk that should trigger reasonable person would do investigation

Restatement 3d s 13(b) [sword] Restatement 3d s 13(a) [shield]

An actor's departure from An actor's compliance with the the custom of the community, custom of the community, or of or of others in like others in like circumstances, is circumstances, . . . is evidence that the actor's evidence of . . . negligence conduct is not negligent but but does not require a finding does not preclude a finding of of negligence. negligence. PWS 150 Trimarco v. Klein

Custom is a guideline -forthe jury to consider

Jury can ignore and decide that reasonable DEF would do more or less than custom Some DEF measured ONLY against what certain other reasonable persons would do in the same circumstances

Skilled/talented Emergency Skilled or Physically disabled Talented DEF Children (with exception) Insane (narrow) Standard of care Professionals

Restatement 3d s 12 Extra skill If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining Held to whether the actor has behaved as a higher reasonably careful person. standard Restatement 3d s 9 Emergency If an actor is confronted with an unexpected emergency requiring rapid response, this is a Standard of Care circumstance to be taken into account in determining whether [DEF] conduct is that of the reasonably careful person.

PWS 154 Cordas v. Peerless Transp.

Restatement 3d s 11 Physical (a) The conduct of an actor with physical disability is negligent only if it does not Disability conform to that of a reasonably careful person Standard of care with the same disability. Roberts v. Louisiana p.157 TortsTorts Professor Pope

Class 19: Oct. 4, 2011

Standard of care Children

Restatement 3d s 10 (b) A child less than 5 years of (a) A child's conduct is age is incapable of negligence. negligent if it does not conform to that of a (c) The special rule in (a) does reasonably careful person of not apply when the child is engaging in a dangerous the same age, intelligence, activity or one characteristically and experience, except as undertaken by adults. provided in (b) or (c). Is DEF child

Y Is conduct at issue Robinson adult/dangerous Y v. N Adult standard SOC = reasonable Lindsay child of age, mat

Judge Which standard Standard of care Which instruction Jury Insane Measure DEF conduct against given standard Restatement 3d s 11(c) Incentive for those taking care An actor's mental or to take care emotional disability is not Avoid false claims of mental considered in determining disability whether conduct is negligent, unless the actor Courts need not determine is a child. degrees of disability

Jury MAY consider mental disability IF Breunig Affects ability to understand or appreciate, v. or ability to control and sudden, no notice Am Fam Ins

Contrast Breunig with Cohen v Petty p.10 “Professional negligence” Standard of care Professionals “Malpractice”

Standard against which Basically just a special professional DEF measured form of custom

Need expert witness from What the reasonable, prudent that profession to tell the professional would have jury about the custom done in same circumstances

New lawyers/doctors Specialists (e.g. board- Same standard as the rest certified) of the profession Held to higher standard No lower “beginner” of specialty standard Heath v. Swift Wings

How Fred flew How Fred should have flown Hodges v. Carter

Case within a case

Attorney error in underlying case

But was it negligent error Lawyers, Boyce architects, v. engineers

Brown Physicians

Lawyers, architects, engineers….. Physicians

Evidence for the jury to consider Custom is what the experts say about what the reasonable Jury makes no normative, professional would have done value judgments in DEF shoes Jury does not say “X is what Jury can decide standard higher docs normally do, but they or lower OUGHT to do x+1.”

Custom = Custom = evidence of proof, the standard definition of care of standard of care All except med mal Med mal Sept. 1927 Fix fractured To show breach, PTF must ankle establish DEF did not do what reasonable, prudent physician Nov. 1934 Ankle again would have done Jan. 1936 Ankle again How does/must PTF establish Jan. 1936 New doc x-ray what reasonable, prudent See necrosis bone physician would have done

Dr. Kent PTF treating physician PTF expert DEF colleague

Morrison v. McNamara Statewide

VA DEF duty to act as RPP doc in VA

Only VA, WA, AZ

Same or similar National

DEF duty to act as RPP in DEF duty to act as RPP DEF community or one in USA similar to it 31 jurisdictions 17 jurisdictions DEF did owe a duty to TortsTorts passengers Professor Pope Issue is the nature and scope of that existing Class 20: Oct. 6, 2011 duty

Beisel’s act was not foreseeable DEF • No reason to suspect she would grab wheel argument • No notice • No history • “shock and surprise”

Reasonable person does not take Taking precautions here would be precaution against unreasonable unforeseeable risks E.g. never ever take cf. Lubitz; Blyth passengers? E.g. restrain passengers with velcro? ISSUE Did DEF driver breach ANALYSIS This risk was nor foreseeable because [ ]. SOC (fail to do what Therefore, the reasonable reasonable person person would not take would have done) precaution against it.

RULE Reasonable person would CONCLUSION Therefore, DEF had take precaution against no duty to guard only foreseeable risks against it. Therefore, DEF did not breach any duty to PTF.

DEF is held to standard of a PTF reasonable driver No child standard even argument though 16 Reasonable driver should expect “crazy” things from 16yo just because 16?

Focus not on prevention but on control Boyce Reasonable driver should have been more alert (less talking with passengers) v.

If more alert Æ could have maintained control when B grabbed wheel Brown Sept. 1927 Fix fractured ankle

Nov. 1934 Ankle again

Jan. 1936 Ankle again

Jan. 1936 New doc x-ray See necrosis bone

To show breach, PTF must establish DEF did not do what Dr. Kent reasonable, prudent physician would have done PTF treating physician PTF expert How does/must PTF establish what reasonable, prudent DEF colleague physician would have done

Morrison v. McNamara Statewide Same or similar

VA DEF duty to act as DEF duty to act as RPP in RPP doc in VA DEF community or one similar to it Only VA, WA, AZ 17 jurisdictions

National

DEF duty to act as RPP in USA Informed 31 jurisdictions Consent A specific kind of negligence Informed consent Where DEF failed to disclose information that = PTF alleges DEF had a duty to disclose Battery

Physician may have performed Informed consent the procedure perfectly The problem is that the physician did not make = appropriate disclosures Malpractice Usually concerning the inherent risks Inherent risks of proposed treatment Scott Probability Degree of harm v. Alternatives Benefits & risks Bradford Doing nothing

Material risk standard Duty Professional standard

Breach Failure to disclose

Undisclosed risk Injury materialized

Causation If disclosure Æ no consent Æ no injury

Professional Malpractice Standard Material Risk Standard

What would have been disclosed by What would a reasonable patient the reasonable physician consider material in making a treatment decision Around 25 states (e.g. DE) Around 25 states (e.g. NJ) Information already known Exceptions To this particular patient Or is commonly known

Emergency Therapeutic privilege Urgent need, immediate care Disclosing risk information Not competent would make the patient so upset: No opportunity to secure That could not make a rational choice consent from patient or from That would materially surrogate decision maker affect medical condition Posted within 10 days

Exam TortsTorts Scoring sheet Professor Pope Models Grade distribution Class 24: Oct. 18, 2011 Your exam (direct email)

[PTF] claims that [he/she] Jury instructions was harmed by [DEF]’s on duty (standard negligence. To establish this claim, [PTF] must of care) prove all of the following:

Negligence is the failure to use reasonable 1. That [DEF] was negligent; care to prevent harm to oneself or to others.

2. That [PTF] was harmed; A person can be negligent by acting or by 3. That [DEF]’s negligence failing to act. A person is negligent if he or she does something that a reasonably was a substantial factor in careful person would not do in the same causing [PTF]’s harm. situation or fails to do something that a reasonably careful person would do in the same situation. You may consider customs or practices in the community in deciding whether [DEF] acted reasonably.

Customs and practices do not necessarily Informed determine what a reasonable person would have done in [DEF]’s situation. They are only factors for you to consider. Following a custom or practice does not excuse Consent conduct that is unreasonable. You should consider whether the custom or practice itself is reasonable.

A specific kind of negligence Informed consent Where DEF failed to disclose information that = PTF alleges DEF had a duty to disclose Battery

Battery Informed consent No consent to any treatment at all Patient did consent to the E.g. doc does completely different procedure procedure But would not have if E.g. doc does procedure on wrong disclosure were appropriate part of body Physician may have performed Informed consent the procedure perfectly The problem is that the physician did not make = appropriate disclosures Malpractice Usually concerning the inherent risks

Inherent risks of proposed treatment Scott Probability Degree of harm v. Alternatives Benefits & risks Bradford Doing nothing

Material risk standard Duty Professional standard

Breach Failure to disclose

Undisclosed risk Injury materialized

Causation If disclosure Æ no consent Æ no injury Professional Malpractice Standard Material Risk Standard

What would have been disclosed by What would a reasonable patient the reasonable physician consider material in making a treatment decision Around 25 states (e.g. DE) Around 25 states (e.g. NJ)

Information already known Exceptions To this particular patient Or is commonly known

Negligence DEF points to PTF own negligence

Negligence of the PTF We will directly address this Traditionally a complete when we get to defenses defense for the DEF

Despite DEF negligence, But some cases explore duty, DEF wins because of PTF breach, causation issues negligence

Tools/ Guides Special DEF Standard of care Intuition Emergency Balancing Physically Skilled/talented disabled Custom Children Judge set Insane Risk utility Judge-made rules Professionals (malpractice, Statutes informed consent) Restatement 2d § 285(c) B&O RR The standard of conduct of a reasonable man may be v. established by judicial decision Goodman

This case authored by J. Holmes

Holmes was replaced by J. Cardozo in 1932

J. Cardozo discusses and rejects in Pokora

Holmes: “When faced with recurring issue, judges should render negligence determination” Pokora v. Wabash RR

Today: Individualization of parties’ negligence

“The balance of advantage depends on many circumstances and can be easily disturbed.”

Rest. 3d Torts s 8 If reasonable minds Tort law has can differ accepted an “ethics of particularism” It is for the jury to determine reasonable care Helling v. Carey

Judges reject professional, Standard of care custom-based standard of care Statutes Judges determine standard of care on their own Regulations

Restatement 2d § 285 OR The standard of conduct of a reasonable man may be (b) adopted by the court from a legislative enactment or (a) established by a legislative an administrative regulation enactment or administrative which does not so provide, regulation which so provides, Shortcut to prove what reasonable person would do Statutory standards Judge determines if borrow statute Sword Jury determines if statute violated or If no borrow Æ just use reasonable person Shield

Federal statute Sources of Law Federal regulation (from where to E.g. OSHA, FDA, borrow) CMS, DEA, CPSC

State statute Law on Tort State regulation (what the law says Municipal ordinance about tort actions) 1. Allow statutory COA 75 Pa. C.S.A. § 4581 2. Allow borrowing Any person who is operating a passenger car, 3. Disallow borrowing . . . and who transports a 4. Preempt child under four years of age . . . shall fasten such 5. Silent (typical) child securely

In no event shall a violation . . Statute still applies . be used as evidence . . . nor DOT, AG can shall any jury in a civil action prosecute be instructed that any conduct did constitute or could be But PTF cannot use statute interpreted by them to as basis for establishing constitute a violation . . . standard of care

Osborne v. McMasters Standard of care from statutes

Restatement 3d s 14 An actor is negligent if, without excuse, the actor violates a statute duty that is designed to protect against the type of accident the actor’s statute conduct causes, and if the accident victim is within the class of persons the statute is designed to protect

PTF member of class intended protection

Intended to cover type of harm suffered

Otherwise appropriate Stachniewicz v. Mar-Cam

Or. Rev. Stat. § 471.410(1) •Do not give alcohol to someone visibly intoxicated

Or. L.C.B. Reg. § 10-065(2) •Do not give alcohol to someone visibly intoxicated •Do not allow boisterous conduct Standard of TortsTorts care from Professor Pope

Class 25: Oct. 20, 2011 statutes

PTF member of class intended protection

Intended to cover type of harm suffered

Otherwise appropriate

Stachniewicz v. Mar-Cam

Or. Rev. Stat. § 471.410(1) •Do not give alcohol to someone visibly intoxicated

Or. L.C.B. Reg. § 10-065(2) •Do not give alcohol to someone visibly intoxicated •Do not allow boisterous conduct

Ney v. Yellow Cab PTF and harm in class but inappropriate to borrow

Perry v. S.N

V.T.C.A., Family Code § 261.109. Failure to Report; Penalty

(a) A person commits an offense if the person has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.

(b) An offense under this section is a Class B misdemeanor. V.T.C.A., § 12.22. Class B Misdemeanor PTF member of class An individual adjudged guilty of a Class B intended protection misdemeanor shall be punished by:

(1) a fine not to exceed $2,000; Intended to cover type of (2) confinement in jail for a term not to exceed harm 180 days; or (3) both such fine and confinement. Otherwise appropriate

Negligence Negligence per se Statutory standards: Supreme ?? Court Often dispositive (re SOC) Appellate DEF PTF Sometimes just Trial DEF DEF admissible (re SOC)

If you decide that [P/D] violated this Negligence per se law . . . then you must find that [P/D] was negligent. Tex. Fam. Code requires reporting

If you find that [P/D] did not violate Therefore, reasonable person would report this law . . . then you must still Not posed as a question to jury decide whether [P/D] was negligent Pre-defined for the jury in light of the other instructions. No negligence per se “[A] negligence per se cause of 1. Extreme change in tort law action against these defendants would derive the element of duty 2. Could not be limited to serious misconduct (ill-defined solely from the Family Code. At standard) common law there is generally no 3. Disproportionate liability duty to protect another from the 4. Defendants relationship to criminal acts of a third party or to abuse was extremely indirect come to the aid of another in distress.

“[I]n most negligence per se “[R]ecognizing a new, cases already owes the purely statutory duty “can plaintiff a pre-existing common have an extreme effect upon law duty to act as a reasonably the common law of prudent person, so that the negligence” when it allows a statute's role is merely to cause of action where the define more precisely what conduct breaches that duty.” common law would not. . . .

“. . . a person may become The change tends to be aware of a possible case of especially great when, as child abuse only through here, the statute second-hand reports or criminalizes inaction ambiguous physical symptoms, and it is unclear rather than action.” whether these circumstances [trigger the statute].” “. . . legislative intent to penalize “[T]he indirect relationship nonreporters far less severely than between violation of such a statute abusers weighs against holding a and the plaintiff's ultimate injury person who fails to report . . . is a factor against imposing tort civilly liable for the enormous liability. . . . connection between damages that the abuser the defendant's conduct and the subsequently inflicts. The specter plaintiff's injury is significantly of disproportionate liability . . .” more attenuated in a case based on failure to report” Martin TortsTorts v. Professor Pope Herzog Class 26: Oct. 21, 2011

Excused Violations

If you decide that [P/D] violated this law . . . Zeni then you must find that [P/D] was negligent v. [unless you also find that the violation was Anderson excused]. § 288A (a) the violation is reasonable (d) he is confronted by an because of the actor’s incapacity emergency not due to his (b) he neither knows nor should own misconduct know of the occasion for (e) compliance would involve compliance a greater risk of harm to the (c) he is unable after reasonable actor or to others. diligence or care to comply;

Custom vs. Statute