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Torts (Negligence (Elements : (Duty (Qualified (Premise Liability (Duty…

- - - - Qualified
        
        Affirmative Duties to Rescue and Protect
        
        Osterland Rule:
        
        Taco Bell Rule:
        
        Definition
        
        Premise Liability
        
        Duty Chart - see exceptions
        
        Invitee: Duty to keep premises reasonably safe or warn when unsafe, responsible for dangerous conditions that the owner should or has reason to know of.
        Test for status: Present at owner's invitation for a business/commercial/monetary purpose.
        
        Trespasser: Don't willfully injure them, no obligation to warn of hidden dangers.
        Test for status: Tortfeasor, or intruding land without permission or consent from owner or occupier.
        
        Licensee: Duty to warn of concealed dangers known to the owner
        Test for status: Present with owner consent - includes social guests
        
        Rowland Rule
        
        Notes
        
        Pure Economic Loss
        
        No general duty to prevent economic loss.
        
        CASE: Aikens v. Debow: Truck Driver damages bridge on road which leads to hotel.
        
        CANNOT RECOVER DAMAGES IN THE ABSENCE OF:
        
        Physical Harm
        
        Or a contractual relationship that established a duty
        
        or a special relationship
        
        Minority court view: can recover even without physical harm
        
        :!: Majority court view: allowing recovery for pure economic loss would open floodgates to claims and cause excessive litigation
        
        Except for Accountants, trustee, ect.
        
        Foreseeable Duty of Care (Protect Others from 3rd Parties)
        
        Tarasoff Case
      - Unqualified
        
        Definition
        
        Rules
        
        Winterbottom Rule: Liability of a manufacturer is limited to the party that has a contract with the manufacturer.
        
        Case Explanation Winterbottom v. Wright: Wright makes carriages, one has a defect and the carriage falls apart while Winterbottom is driving. The court held that is was not the manufacturers fault because the Post Master was supposed to maintain Winterbottom's cart and did not.
        
        Thomas Rule: Direct privity is not required if the product was negligently made by the manufacturer ans is then a dangerous product for which injury is foreseeable.
        
        The Thomas Rule made an exception to the Winterbottom Rule
        
        Important Notes: The third party also must not reasonably be able to check the product
        
        Case Explanation: Plaintiff purchased a deadly poison that was falsely labeled as medicine from a store who bought the falsely labeled bottle from the manufacturer Winchester. The third party (store) could not reasonably check the medicine before selling it. The plaintiff was injured as a result of this poison.
        
        Mussivand Rule
        
        MacPherson Rule
      - General Duty of Reasonable Care
        
        Misfeasance/Easy Duty Cases: ACTION/ WRONG ACTION
        
        Nonfeasance/Difficult Duty Cases: FAILURE TO ACT
        
        Had nothing to do with creating the risk of harm, usually not "easy duty" cases, P needs to specify why D owes a duty to P
        
        Difficult Duty Cases: tend to arise out of allegations that D's carelessness consisted of a failure to act for the benefit of P or D causes some other kind of injury besides physical harm
    - - Standards of Care
        
        Ordinary
        
        R.P.P Standard
        
        Defining R.P.P.
        
        Definition
        
        Vaughan v. Menlove: Hayricks
        "Instead of saying that the liability
        for negligence should be co-extensive with
        the judgement of each individual... we ought rather
        to adhere to the rule which requires in all cases
        a regard to caution such as a man of ordinary
        prudence would observe" (167)
        Objective v. subjective
        
        R.P.P (In Action)
        
        Rule: Expert Testimony is not needed where ordinary care standards were breached
        
        Case: Meyers v. Heritage:
        
        Parties: Plaintiff Meyers, the executor of Mary Prillmayer's estate is suing Heritage Enters Inc. fore careless and negligent acts.
        
        History: Plaintiff brought the case tot he Circuit Court of Brown County, IL, which ruled in favor of the defendant. Plaintiff appealed to the Appellate Court.
        
        Facts: Nurses of Heritage attempted to transfer Prillmayer , aged 78 in August 2000, from her wheel chair to her bed using a Hoyer Lift. During that attempt, she fell 18 inches and hit the bar of the lift, fracturing her tibia and fibia in both legs. The decedent died 2 weeks later in apparent unrelated causes. The nursing home reported the incident to the IDPH and after investigation they concluded that the decedent fell to no fault of Heritage. Plaintiff brought a suit alleging that there was a violation of the Nursing Home Care Act which says the facility is liable for injuries caused by intentional or negligent acts. The defendant brought experts of the Hoyer Lift in saying that the nurses used acceptable procedure for the transfer. Jury decided in favor of the defendant saying there was no breach of the standard of care. Plaintiff appealed saying that the court erred in giving the jury a professional standard instruction for negligence.
        
        Issue: Did the trial court erroneously instruct the jury by telling them to use a professional standard rather than an ordinary standard?
        
        Holding: Yes, the instructions mislead the jury and resulted in prejudice against the plaintiff.
        - Reasoning: The plaintiff filed this case as an ordinary negligence action under the Nursing Home Care Act alleging that the defendant was liable under it. The plaintiff wanted an instruction that said what a reasonable careful person would do. The defendant wanted an instruction that said what an expert would do (did the aides use the skill and care which the law requires from expert testimony). Again, the plaintiff filed this case as an ordinary negligence action which does not require expert testimony, however the court required there be a professional standard of care. The court found that Certified Nurses Assistants (CNA) are not medical professionals and that they were not doing anything requiring a high level of expertise. So, a CNA does not constitute skilled medical are which, requires a professional standard of care.
        
        Holding: The court erred because they should have instructed ordinary negligence standards of care (R.P.P.)
        
        Decision: Reversed and Remanded (New Trial)
        
        Rule: In R.P.P. cases, If a verdict requires a credibility determination, the jury's assessment shall be held unless the verdict is so contrary to the evidence that it shocks one's sense of justice
        
        Martin v. Evans: D stopped at a highway rest-stop, parking his tractor trailer in the last spot in the row. When he returned to back out, he checked to see if anyone was behind the truck, but accidentally hit P, who claimed that he didn't hear the brakes and engine or see the flashing lights. Checking behind truck before reversing satisfied acting as a reasonable person
        
        Rule: In ordinary care cases, there is no breach when normal precautions were taken and there was no reasonable risk of injury
        
        Adams v. Bullock: P, a 12-year-old boy, was swinging a wire about 8 feet long on the bridge and it came into contact with the trolley wires, and the boy was shocked and burned.
        Trolley line was not held liable when a kid swung a piece of wire and got shocked.
        Accident not foreseeable. D followed customary practices. Cost benefit analysis of putting wires underground.
        
        Professional
        
        Customs
        
        Rule: Abiding by custom is not enough to show that there was no breach
        
        T.J. Hooper: Were the tug owners violating a standard of care because they did not have radios on board?
        Even though it is not industry custom to have radios on board, the tugs are liable here because the radios were cheap and helped to avoid a potentially large harm
        
        Rule: In medical case, if there are two customary practices, neither is right if they are within the "medical standard of care"
        
        Johnson
        
        Johnson Overruled: Evidence regarding personal practice is admissible as substantive evidence
        
        Condra
        
        Informed Consent
        
        Largey
        “The proper standard is one that focuses not on what information a reasonable doctor should impart to the patient (professional standard) but rather on what the physician should disclose to a reasonable patient in order that the patient might make an informed decision (prudent patient standard)” (190)
        
        “Under the prudent patient standard causation must also be shown: i.e., that the prudent person in the patient’s position would have decided differently if adequately informed” (195).
        
        Example of Professional Standard
        
        Rule: Common carriers are held to a higher "extraordinary" standard of care
        
        Jones v. Port Authority: P injured getting on to a bus & wants jury charge to include that common carrier owes a duty of extraordinary care (higher than reasonable care).
        City bus driver required to use higher standard of care for safety of its passenger than the average person
        
        Other
        
        Dog Bite Statute
        
        Tender Years Doctrine
        
        Children below the age of 5 incapable of negligence
        
        Appelhans v. McFall: P sued the parents claiming 5 yr old child negligently rode bike and hit P. Court ruled child could not be found negligent
        
        Temporary Insanity
        
        Hand Formula
        
        Carroll Towing
        Bargee absent for 21 hours
        Burden to stay on ship constantly would be large,
        therefore a small break would not have proven liability under B<PL.
        
        Zapata
        Burden/cost of verifying each check not worth it
        considering lack of effect on forgeries -> no liability
        
        B<PL
        B=Burden L=Injury P=Probability (205)
        Liability depends upon whether B is less than PL
        
        Pheasant Run: Hotel room with unlocked sliding door, P was attacked in room by man who entered through unlocked door.
        Holding: Posner says that B (burden) to check all hotel sliding doors are locked was great and doesn't necessarily reduce the risk of entry by attacker.
      - Proving Breach
        
        Res Ipsa
        
        Criteria for Res Ipsa
        (Res ipsa is a jury instruction, not a motion)
        
        For a prima facie case of negligence with Res Ipsa Loquitor:
        
        The event must be of a kind that ordinarily does not occur in the absence of someone’s negligence.
        
        It must be caused by an agency or instrumentality within the exclusive control of the defendant
        
        It must not have been due to any voluntary action or contribution on the part of the plaintiff
        
        Kambat
        
        18x18 pad left in plaintiff’s body
        
        Byrne
        
        “I think it is apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them…” (217)
        
        Negligence Per Se
        “Reasonably careful people follow safety law”
        Negligence per se allows a plaintiff to establish the breach element of a case without the burden of proving departure from a standard of ordinary care. Conduct in violation of the right sort of statute is per se careless in that the state legislature has pronounced it so.
        
        Bayne
        Violation of administrative safety regulation
        (Guardrail)
        
        Victor
        Plaintiff is struck by a vehicle while
        standing on a sidewalk where defendant’s car
        is illegally parked
        
        For negligence per se it is necessary that the statute in question was designed to prevent such occurrences. Here that is not the case - parking statute was for pedestrian benefit among other things, and was not enacted to prevent other vehicles from altering their course so as not to strike pedestrians.
        
        Just because a negligence per se is denied, such as Victor does not mean there is no negligence. Just means the plaintiff still needs to prove it.
        
        Dalal
        Lack of required corrective lenses
        
        Excuses
        Third restatement lays out five excused violations:
        
        Justified ignorance of facts causing violation of statute
        
        Excessive vagueness or ambiguity in the statutory standard
        
        Reasonable efforts to comply
        
        Compliance posing a greater danger to the defendant or others than non-compliance
        
        Youth or physical incapacity