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Chapter 4: Negligence (A Negligence Formula (Lubitz v. Wells (1955) (11…

- - - - Determined by the forseeability of passenger grabbing the wheel
  - - - Regard must be had to the character and location of the premises
      - The purpose for which they are used
      - The probability of injury therefrom
      - The precautions necessary to prevent such injury
      - The relations such precautions bear to the beneficial use of the premises
  - - - Unreasonable burden on county to redo the approach; focused on burden of adequate precautions.
  - - - 3 Variables of Negligence "Risk Utility Analysis" :
        
        Gravity of the resulting injury
        
        Burden of adequate precautions
        
        Probability
        
        B<PL (think of it like a scale)
        
        Example: BP oil spill; direct costs (the additional machines to prevent blowout), societal costs (supplying oil to majority of the United States; low probability, high magnitude of harm
  - - - Severity of any harm that may ensue
      - Burden of precautions to eliminate or reduce the risk of harm
      - Likelihood that the person's conduct will result in harm
- - - - Hay rick near fence caught on fire. Regard to caution such as a man of ordinary prudence would observe.
        
        Not what the defendant believes is reasonable but "reasonable caution as a prudent man would have exercised under sum circumstances" :star:
      - Notes pg. 157-58:
    - - Trespass to recover for tire blowout while plaintiff was passing the defendant's car. Duty of care to operate cars with safety and know when parts are faulty.
        
        Imputable knowledge that fabric showing of a tire is too worn. Person whose conduct is being evaluated should have reasonably known the danger of his action. :star:
        
        Note 4, 6 (p. 160)
    - - Bathtub glass shatters. The mere fact that another person or landlord may have used a better or safer practice does not establish a standard.
        
        Role of custom within the standard of care is simply evidence, not conclusive: not determinative. :star:
    - - Cab driver jumps from the cab when robbers get in vehicle; Vehicle hit plaintiff and two children; Not negligent in emergency extensive circumstances.
        
        A sudden danger not of his own making allows for emergency standard of care= not liable; sudden decision of an ordinary person: split second decision with no reasonable time. :star:
        
        Note 6, anticipating an emergency
    - - Schizophrenic episode: lady driving went towards a truck at night. She had no idea of illness occurring; Absence of notice or forewarning. Precedents don't apply.
        
        Exception to general rule of not allowing reliance on mental illness defense; 2 requirements to meet: (1) effects ability to operate vehicle (2) must not be foreseeable: no precedent :star:
        
        Note 4 (p. 179)
    - - Sues Louisiana (Vicarious liability and directly) for being bumped by blind employee in the post office. Suit dismissed by trial court; affirmed; "disabled people cannot be expected to conform to reasonable standards
        
        What a reasonable prudent blind man would do under the circumstances? (expert testimony to prove facts need) :star:
    - - Minor operating a snowmobile held to standard of car of adult. Inherently dangerous activity by child. Should be held to standard of adult.
        
        Engaging in adult activities = to adult reasonable care; Exception from general rule of children duty of care based on age, intelligence, experience, maturity, etc. Question of law the court must determine :star:
        
        Note 1, 2, 3, 5, 6 (p. 175)
  - - - Lady broke her ankle and doctor did not do an x-ray. She ended up doing surgery. Doctor originally did surgery 7 years prior on ankle. 3 separate occasion she went to the doctor with no treatment.
        
        Medical malpractice suit claims "no proper testimony." Defendant did not follow the standard of treatment. Insufficient evidence. "Knowledge must be exposed through expert testimony if the issue is not within the knowledge of a lay person" :star:
        
        Note 5: Customary Practice is determinative in professional negligence (but mere evidence in other negligence cases. (p. 193)
    - - Plaintiff went to get a urethral smear test, he passed out and was seriously injured when he fell. Should the doctor have let him sit during the procedure?
        
        Local Standard vs. National Standard of the particular procedure. Plaintiff pushed for local standard; however court found in favor of the National Standard because the doctor was certified in the national standard. Additionally, the overall standard of doctors is higher than it was. :star:
        
        Note 1-4 explains the 3 standards of doctors now (p. 197)
        
        "Strict Locality" rule
        
        National Standard
        
        "similar community in similar circumstances"
    - - Plaintiff sues lawyers in misrepresenting him in claim against insurers; Mailed instead of personally serving the insurance commissioner;
        
        Horrible decision against defendant (lawyers). Judge said only an "error in judgement." Not meeting the proper service within the Statute of Limitations is lack of due care. Lack of Due Care v. Error in Judgement :star:
        
        Note 3: Exercise of Best Judgement
    - - Patient hysterectomy for fibroid tumors by surgeon caused incontinence. Patient had to get 3 separate surgeries to fix the problem.
        
        Changing the standard for prospective effect. "lack of informed consent." A test focused on both the needs of the patient and physician. 3 times when a physician has the right to not disclose:
        
        Common Knowledge of both
        
        Disclosing the information would be detrimental to the patients care.
        
        Emergency Situation
        
        Note 3
    - - Plaintiff sues due to the negligence of her father which killed him, the mother, and her brother; Plane crashed right after take off; Reasonable prudent pilot should have safely landed if having problems gaining speed; Objective Standard; reversed for new trial
        
        Standard of car is greater for those professionals involved in specific training of a member of that profession. :star:
        
        Note 2, 3 (difference between tort and contract), 7 (p. 182)
    - - Doctor used the patients spleen to sell for genetic use: did not inform the defendant of personal interests he had. Patient made several trips in order to get tissue removed, unknowingly for money to the physician.
        
        A reasonable patient would want to know if a monetary motive existed behind his procedure.
        
        Fiduciary Duty to patient.
        
        Note 6 about HIV with incorrect advice. Third party harmed.
- - - - More dangerous to stop in the middle of the tracks and get out of the car. Rules of Law must be careful when constructing standards of people.
      - Rules of law typically fail under standards of behavior.
      - Note 3 & 4
- - - - Discarded anti-theft argument (not a section but entire statute).
  - - - Statute dealt with not serving alcohol to someone intoxicated. No connected causation between selling specific drink with the fight from intoxication.
      - Two Prong Test of Analyzing Statute. :star:
        
        Plaintiff must be a member of class the legis. intended to protect
        
        Injury was one legis. intended to prevent.
  - - - Car hit buggy, killing the buggy driver. Negligence of the buggy driver for not having lights on.
        
        Court has no rule to determine when negligence per se proves violation of a statute.
    - - Defendant hit plaintiff while she was walking on the side of the road. Contributory negligence for her walking on the sidewalk with her back to the traffic.
        
        Show a valid reason to violate the statute: Rebuttable presumption.
        
        Note 1 (p. 241), note 6 (p.242)
  - - - B: serious possible injury is probable by ingesting substances, Gravity of danger is high: death, ability to take precautions is easy by just putting a label on.
      - Cause of liability is easy to determine
      - D: to inform customers of poison
      - Damages: life of a child was lost
- - - - Slipped on banana peel. Defendants did not put the banana on the floor nor did they have actual notice of its presence.
    - - Slipped on a puddle of milk. Reasonable care in keeping the premises reasonably unsafe.
    - - Slipped on banana peel of platform while following employee. Banana peel was gritty and old. Obligation to keep station reasonably safe for its passengers.
    - - Slipped on piece of pizza. Defendant's method of selling pizza was one which leads inescapably to such mishaps as her own and that in such a situation conventional notice requirements need not be met.
        
        When plaintiff does not know how long the condition was there, he must prove the defendant had notice and reasonable time to get it cleaned.
    - - Plaintiff fell on banana skin on platform of defendant train station. Could have been dropped by anyone.
        
        In absence of direct evidence, rely on circumstantial evidence :star:
    - - Slipped and fell near two grape displays. Claims the displays posed unreasonable risk of harm.
        
        Note 4 (p.249)- burden of pleading, production, and persuading in negligence case.
      - To recover from negligence with no evidence, plaintiff must prove :star:
        
        (1) actual or constructive knowledge of bad condition
        
        (2) condition posed an unreasonable risk of harm
        
        (3) did not exercise reasonable care to reduce or to eliminate the risk
        
        (4) failure to use such care proximately caused her injuries
  - - - Arm chair fell from hotel window.
        
        RIL- Jurisprudential Doctrine when cannot find or doesn't have any direct evidence.
        
        Only required to have reasonable care. :star:
    - - Airbag deployed while cleaning a minivan
        
        Lack of exclusive control because plaintiff did not eliminate other possible causes.
    - - Spare tire came loose and bounced into the Plaintiff's windshield.
        
        Difference in whether you need expert testimony or not.
    - - Left wire in the patients' lung
        
        Difference between intentional or unintentional acts of someone in concern with negligence.
    - - Barrel of flour fell from a shop window onto plaintiff. (English case)
        
        2 Things to Prove Res Ipsa loquitur: (1) agent of harm was in exclusive control of defendant and (2) this event would not have occurred without negligence :star:
        
        Directive verdict solution :star:
    - - Tractor trailer swerved off highway killing the passenger
        
        Jury chooses whether or not to inference the defendants's negligence