Torts Ch.6: [Breach of Duty]
Does a driver owe his/her passengers a duty of care? Why/Why not?
A driver owes a duty of care to his/her passengers because it is foreseeable that they might be injured if, through inattention or otherwise, the driver involves the car she or he is operating in a collision. Authority: [Pipher v. Parsell, (Del. 2007)]
If a risk poses an obvious danger, is the defendant still expected to owe a duty of care to the injured?
The obviousness of a risk may make the likelihood of its materializing so slight that there is NO need to try and eliminate that risk. Moreover, it may NOT be unreasonable to fail to take action in lessening a risk to someone that is so patently obvious that the other person can be relied upon to avoid it on his own. Authority: [Halek v. United States, (7th Cir. 1999)].
Patricia, a single mother often up late at night with her child, is sleepy while driving to work in the morning. Dunn, driving a truck, attempts to cross the street in front of Patricia. Patricia was probably slow hitting her brakes. She broadsided Dunn's truck. Dunn was not injured, however, Patricia was. The jury finds that Dunn's fault was 90% and Patricia's was 10%. The damages come out to $10,000. What amount of money must Dunn OR his insurance company pay under the rules followed in MOST states?
The rules followed in most states: Joint and Several Liability Under Joint and Several Liability, Patricia may enforce the judgement entirely against Dunn, hence the entire $10,000. Although Dunn is expected to pay the entire 10,000, under joint liability, Dunn can collect contribution from Patricia, as to make its payment proportional to its fault. Thus, Patricia would be responsible for paying Dunn $1,000, as her fault was attributable to 10% of the damages incurred. IF, however, Patricia is uninsured, has no assets, or has tort immunity, Dunn is responsible for paying her share.
In most states, how is comparative fault determined?
The rules in most states would allow a plaintiff, who has some degree of fault to still recover, BUT with her damages reduced in proportion to her fault.
In order to be invoked, what does the Sudden Emergency Doctrine require?
The sudden emergency doctrine requires the person so confronted to do that which an ordinary prudent person would do under like circumstances. Authority: [Indiana Consolidated Insurance Co. v. Mathew].
Does reasonable care ever fluctuate?
Under certain circumstances, reasonable care is a standard that may fluctuate with time, the student's age and activity, the extent of the injury, the available responder(s), and other facts. Reasonable care under certain circumstances IS NOT and should not be a fixed concept. Such a narrow definition of duty, a purely legal question slides too easily into breach, a factual matter for the jury. Authority: [Limones v. School District of Lee County,(Fla. 2015).]
When does a defendant NOT have the right to remain silent?
When a Prima Facie case is established against him. When a plaintiff gives some evidence that ought to be submitted to the jury, the defendant is bound to offer a defense.
When a party asserts negligence, by specifying some specific act of negligence, what does the party usually identify about the defendant's conduct?
When a party asserts negligence, they specify some specific act of negligence by pointing to what the defendant did or did not do AND identified some specific safer conduct that might have been pursued. If the alternative conduct was safer, the court will want to know HOW much safer and something about its costs.
When is the risk of harm unreasonable?
When a reasonable and prudent person would foresee that harm might result and would avoid conduct that creates that risk.
Who determines duty? Who determines breach?
Duty is established via law, and enforced by the courts. Breach is a factual matter to be determined by the jury.
In settling tort claims in automobile accident cases, what do the evaluation of claims consist mostly of?
Evaluation of claims consist chiefly in discovering traffic violations. In most auto cases, a traffic violation is the central issue. The conduct of motorists is extensively dealt with by statutes and regulations; accordingly in most highway accident cases, findings of negligence depend on ascertaining which party has violated the relevant provisions of the state's motor-vehicle code. (Third Restatement §14 (2010)).
When is expert-witness testimony permitted?
Experts are usually allowed to give expert opinion or conclusions within the field of their expertise, PROVIDED the testimony is likely to be helpful to a jury on an issue in the case. Expert opinion seems the most or only practical method of establishing certain facts, and it is usually admitted on medical issues.
TRUE OR FALSE. In most states, the plaintiff's recovery is ordinarily reduced to reflect her fault even when the defendant is guilty of an intentional tort.
FALSE. In most states, the plaintiff's recovery is NOT ordinarily reduced to reflect her fault when the defendant is guilty of an intentional tort. HOWEVER, recovery is nowadays generally reduced in negligence and strict liability cases.
TRUE OR FALSE. Non-expert witnesses are usually permitted to give opinions on "ultimate issues" that are reserved for jury decision in the case.
FASLE. Witnesses are NOT usually permitted to give opinions on "ultimate issues" that are reserved for jury decision in the case. For example, a witness would not be permitted to testify, "In my opinion the defendant was negligent." The witness is required instead to state the facts within his knowledge. A few statements that might be classes as opinions are permitted, however, as a kind of summing up of direct experience. (ex: estimation of speed, distance, or intoxication).
Suppose you leave your house one morning and recognize that burrowing animal has dug a hole in your front yard, very close to the sidewalk. You make a mental note to cover the hole upon returning back home. You have a long day, dealing with impatient clients and conservative judges. Thus, upon coming home you forget to fill up the hole, and quickly fall into a tv show. Meanwhile, a man walks by your yard, and trips over the hole. Are you negligent? Why or why not.
First, you must determine duty. The duty owed in this case is reasonable care, however, Restatement (Second) of Torts §289 (1965): memory of the reasonable person is required. As many cases involve nothing more than mistake and momentary inattention, it is up to a reasonable fact-finder (jury) to determine whether or not this duty was breached.
What is essential to the issue of whether a person's conduct breached the standard of reasonable care?
Foreseeability of some type of harm is central to the issue of whether a person's conduct breached the standard of reasonable care. An actor can be negligent ONLY IF; (1) his conduct created a foreseeable risk, and; (2) the actor; (3) or a reasonable person would have recognized that risk When a reasonable person in the defendant's circumstances would not foresee any danger, the defendant is simply not negligent.
Why did the Second Restatement of RIL omit the exclusive control?
Giles v. City of New Haven Exclusive control. (pg. 208): means there cannot be anyone else involved in handling instrumentality. But, HERE, there is. the company also had a part of instrumentality.
What is the process by jury to determine if a defendant is legally negligent?
If a court determines that the defendant owed the plaintiff a duty of reasonable care, the question for the jury is whether the defendant breached that duty by failing to exercise the requisite amount of care. The defendant who breaches the duty of care is said to be negligent.
Does implementing a warning system have any costs? Give an example. Why do costs like this much easier to reduce to numbers than are risks?
Implementing a warning system may have costs. For example, the company may have to design a computer-controlled system to blow train whistles at crossings. Costs like this one and benefits are often much easier to reduce to numbers than are risks. That is so because many costs can be identified in dollar-numbers. Benefits can also be identified in dollar-numbers by asking about the earnings, savings, or increase in capital value effected by the activity.
Do jurisdictions use the modern approach to RIL (Second Restatement)? Or the Traditional approach to RIL?
pg. 207 Split. Some use modern, some use traditional, specifically referencing exclusive control.
What is the basis for requiring control by the defendant?
pg. 208
When does negligence liability exist due to failure to take safety precautions?
Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury. Authority: [U.S. v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).]
How does one approach assessing responsibility when more than one person is negligent?
Many tort cases involve at least tow tortfeasors who contribute to harm done. To analyze and evaluate, we need to understand: ________________________________________ (1) liability of one person does not exclude liability of another. (2) How responsibility is apportioned. Moreover, WHO will pay for damages caused.
What is the common law duty for school employees?
School employees must reasonably supervise students during activities that are subject to the control of the school. Authority: [Limones v. School District of Lee County,(Fla. 2015).]
For an employer, is determining the standard of care always a determination by the court?
Sometimes the question of what care an employer can expect from an employee is a fact question. (See Daniels v. Senior Care, Inc., (Mo. Ct. App. 2000)).
What does liability of an employer to his/her/their employee rest on?
The liability of the employer rests upon the assumption that the employer has a better and more comprehensive knowledge than the employees, and ceases to be applicable where the employees' mean of knowledge of the dangers to be incurred is equal to that of the employer. Authority: [Stinnett v. Buchele (Ky. Ct. App. 1980)].
As a general rule, what duty does a person who undertakes the control and supervision of a child, even without compensation, have?
The measure of precaution that must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances. As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm. Authority: [Herron v. Hollis, (Ga. Ct. App., (2001)].
(1) Do worker compensation statutes include all workers within their benefits? (2) If not, what type of workers are excluded? (3) What happens if these workers are not covered by compensation laws?
(1) Although worker compensation statutes have been adopted everywhere, the do NOT include all workers within their benefits. (2) Statutes may exclude agricultural employees, domestic employees, and casual employees. A special example of this is workers on interstate railroads. Although they have expanded tort rights, they do not have workers compensation (FELA 45 USCA §§51). (3) In general, workers not covered by compensation laws must seek recovery under the tort system.
(1) Suppose you tripped over a deviation in the sidewalk. The deviation was one-and-one quarter inches. Can you sue the city for negligence, arguing that the city should change all deviations from one-and-one quarter to one-and-one half inches? (2) Apply the BPL analysis.
(1) NO, A municipality is only liable for conditions that create an unreasonable risk of harm. (2) Here, the utility of the sidewalk is high. Additionally, it would be finally inefficient to require municipalities to correct all sidewalk deviations one-and-one quarter to one-and-one half inches. Further, the risk of harm created by the deviation is low, as there has never been a reported complaint about the deviation since it has been existence, (40 years ago). The area of the sidewalk is well traveled, the deviation is relatively small, and it developed due to natural causes. Additionally the deviation was readily observable, hence you failed to exercise the requisite standard of care while traversing this particulate area of the sidewalk. Therefore, the conditions do not present a reasonable risk of harm, and the city cannot be liable. Authority: [Chambers v. Vill. of Moreauville, (La. 2012)].
Suppose you hire someone to paint the roof of your barn. Your new employee has two years of painting experience and had painted many barn roofs. When painting these roofs, he occasionally used safety equipment, such as safety nets and belts. The employee does not ask you to provide safety equipment, nor does he attempt to procure any. On a day when you are not present, the employee attempted to paint the barn roof and fell from the roof, sustaining serious injuries. He brings a negligence claim against you claiming that you are negligent in providing an unsafe workplace, failing to comply with occupational and health regulations. (1) Does the employee have sufficient evidence to send this issue of negligence to the jury? (2) What duty do you owe your employee, if any? (3) Under these circumstances, did you provide an unsafe working environment for your employee, thus breaching your duty owed?
(1) NO. The employee has not provided sufficient evidence to send the issue of negligence to a jury. (2) An employer's obligation to its employee is not the frequently impossible duty of furnishing absolutely safe instrumentalities or place to work. An employer owes a duty to his employee to furnish him a place reasonably safe having regard for the character of work and reasonably safe tools and appliances for doing the work. The measure of duty is to exercise ordinary or reasonable care to do so. The standard is the care excised by prudent employers in similar circumstances. (3) Although painting a barnyard roof can seem dangerous, you did not fail to provide a safe workplace merely by asking your employee to paint a roof. While a reasonable employer might have provided safety devices to an employee working on a roof, your employee's superior knowledge of the risks inherent in painting a roof cut off your liability. The employee had been involved in the painting business for two years prior to the accident, and had painted numerous barn roofs. He also had occasionally used safety nets and belts while painting the barn roofs, demonstrating his knowledge of the risks inherent in these projects. You were not present on the day he painted the roof, nor did he ask you to provide safety devices. There is no evidence that you acted unreasonably, and furthermore, the employee's knowledge regarding the risks of painting a roof is at least equal to your knowledge of such risks. Authority: [Stinnett v. Buchele (Ky. Ct. App. 1980)].
Suppose An electric company and a driver are both negligent in a plaintiff's injury. The defendant's are chargeable with 80% and 20% of the fault respectively. (1) With tort objectives in mind (each defendant bearing his/her share of the losses), how would one ideally decide apportionment of the damages between the two defendant's? (2) Does the plaintiff have any special rights? If so, under what theory? (3) Do the defendant(s) have any special rights? If so under what theory?
(1) Since both defendant's are negligent, it looks as if BOTH should share in payments to the plaintiff. IDEALLY, the company would pay 80% of the damages incurred, and the driver would pay 20% of those damages. Tort law recognizes this ideal by adopting one of two systems: joint and several liability OR Comparative Fault Liability/several liability. (2) [Joint and Several liability]: The plaintiff can enforce her tort claim against EITHER tortfeasor. She can actually obtain a judgement against both, but she CANNOT collect more than her full damages. Under this rule, the plaintiff must enforce that judgement entirely against either the company or the driver. (3) [Under Joint and Several Liability]: if one defendant is chosen to pay the entire judgement of damages, it would be paying more than its fair share of damages relative to the other defendant. Under this rule, MOST states will also allow the chosen defendant to obtain CONTRIBUTION from the other party (defendant), so as to make its payment promotional to its fault. [Under Comparative fault liability]: Contribution is NOT needed, as NO tortfeasor is liable for more than his proportionate share. Thus, under the hypo in Q1, the electric company would be chargeable with 80% of the fault, hence the plaintiff's would only collect 80% of the damages from them, because the company's fault was ONLY 80% of the whole set of faults. The plaintiff's would have to take their chances on collecting the remaining 20% from the driver. If the driver cannot pay for any reason--immunity or no assets--plaintiff's would bear 20% of their own losses.
(1) What is the Hand Formula (BPL formula/analysis)? (2) What case was this formula introduced in? (3) Under this risk-utility test, when is an actor negligent? (4) In law and economics, what algebraic formula is this test rendered in? (5) Where is probability factored in?
(1) The Hand formula (1972) is a balancing test for determining whether conduct has created an unreasonable risk of harm. (2) The BPL formula was first formulated by Judge Hand in U.S. v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). (3) Under this risk-utility test, an actor is negligent if the burden of taking adequate precautions against the harm is outweighed by the probable gravity of the harm multiplied by the probability that the harm will occur. (4) In law and economics, this test is rendered as the formula B < PL, where; B is the burden of taking precautions; P is the probability of loss; and L is the gravity of that loss. Hence the Hand formula is sometimes referred to as the BPL formula or BPL analysis. (5) Probability is factored into the average. It is not fixed, and probability of damage can fluctuate depending on place and time. For instance, if a storm threatens, the danger is greater. Authority: [U.S. v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).]
What are the elements of Negligence?
(1) The defendant owed the plaintiff a legal duty; (2) The defendant by behaving negligently, breached that duty; (3) The plaintiff suffered actual damage; (4) The defendant's negligence was an actual cause of this damage; and (5) The defendant's negligence was a proximate cause of this damage or, as is sometimes said, the damage is within "the scope of liability" of the defendant. ______________________________________________ (Condensed answer): (1) Legal duty owed to plaintiff (2) Breach of this Duty (3) Damages occur (4) Actual cause (5) Proximate cause; within scope of liability
(1) What is the distinction between Comparative Liability and Joint and Several Liability. (2) Which would be most favored by the plaintiff? Defendant? (3) Which theory is used by MOST states?
(1) The main distinction to be made is Contribution is NOT recoverable in Comparative Fault Liability, whereas Under Joint and Several Liability, a defendant who is liable for all the losses, may recover contribution from the other faulty party (in the amount of their proportioned fault). ____________________________________________________ [Joint and Several liability]: ____________________________________________________ [The plaintiff]: can enforce her tort claim against EITHER tortfeasor. She can actually obtain a judgement against both, but she CANNOT collect more than her full damages. Under this rule, the plaintiff must enforce that judgement entirely against either defendant. [The defendant]: if one defendant is chosen to pay the entire judgement of damages, it would be paying more than its fair share of damages relative to the other defendant. Under this rule, MOST states will also allow the chosen defendant to obtain CONTRIBUTION from the other party (defendant), so as to make its payment promotional to its fault. ___________________________________________________ [Comparative Fault liability/several liability]: ____________________________________________________ [Defendant]: Both defendant's ONLY have to pay their own proportionate share, REGARDLESS of the other party's inability to pay. Under this alternative scheme of apportionment, the trier of fact makes a comparative fault apportionment of liability. This several liability system differs from joint lability in that NO tortfeasor is liable for more than his proportionate share. [The plaintiff]: Here, the plaintiff cannot enforce a judgment entirely against one defendant. If one faulty party is unable to pay their apportionment (due to immunity or no assets) the plaintiff is to bear that percentage of his/her own losses. Hence, it would NOT be the responsibility of one defendant to pay the damages incurred by the other defendant's fault. (2) Joint and Several Liability: the plaintiff Comparative Fault Liability: the defendant(s) (3) Most states use Joint and Several Liability. A substantial number of states, HOWEVER, have enacted Comparative Fault Liability (several liability).
(1) How must a plaintiff prove each element of a negligence case?(2)Moreover, must a plaintiff present evidence demonstrating the defendant's negligent conduct to satisfy the plaintiff's burden? (3) What is then expected of the trier of facts?
(1) The plaintiff must prove the case by a preponderance of the evidence, that is, by the greater weight of the evidence. Negligence must be shown to be more probable than not. (2) Yes. The plaintiff must present evidence sufficient to demonstrate the existence of a material issue of fact for each element in a negligence claim. A plaintiff may not justify a lack of evidence merely by claiming that the defendant's conduct is hard to prove. While reasonable inferences may be made from evidence presented, wild speculation is impermissible. (3) The trier of facts, therefore, must reasonably believe that the probability of negligence exceeds one-half. (Probability Theory meets RIL). Authority: [Santiago v. First Student Inc. (R.I. 2004)].
If a friend sends a text message to a driver from another location, while they're driving, thus causing them to become distracted, thus resulting in an accident, is injury foreseeable? Moreover, is the friend who sent the text message liable to person's injured because the driver was distracted by their text message?
(Kubert v. Best, N.J. Super. Ct. App. Div. 2013): It is foreseeable that a driver who is actually distracted by a text message might cause an accident and serious injuries, or death. However, it is not generally foreseeable that every recipient of a text message who is driving will neglect his obligation to obey the law. The court held that the sender of a text message MAY potentially be liable if an accident is caused by texting, BUT ONLY IF the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.
Suppose Agatha and Bert are each driving a car. Both are negligent and they collide in a city intersection. The force of the collision causes Bert to lose control. Consequently, his car strikes a pedestrian, Paul. Paul's injury results in medical expense, loss of wages, and pain. The jury assesses his damages at 100,000. They find Agatha's negligence at 75% of the whole. Bert's fault amounted to 25%. (a) In a joint and several liability system, suppose that both Bert and Agatha are insured or able to pay. However, Paul enforced judgement solely against Bert. What does Bert pay and what contribution rights does he have? (b) If Agatha is insolvent and uninsured, what is Bert's position in a joint and several liability system? (c) If Agatha is insolvent and uninsured, what is Bert's position in a Several Liability system, with comparative fault apportionment?
(a) Under Joint and Several Liability, if the plaintiff enforces judgement solely against Bert, it is Bert's responsibly to pay the total damages of 100,000. However, Bert can receive contribution from Agatha, the other faulty party. Here Agatha can pay, therefore she would be required to pay Bert proportional to her fault. Hence, 75% of 100,000. (b) IF, however, Agatha could NOT pay for whatever reason, it would be Bert's responsibility to pay the entire cost of damages, regardless of only being 25% at fault. (c) Under a several liability system, Bert would ONLY be responsible for paying his apportionment of fault, regardless of Agatha's inability to pay. Thus, Bert would only pay 25% of the damages incurred. It would then be up to the plaintiff's to collect the remaining 75% from Agatha. If Agatha could not pay, the plaintiff would have to bear 75% of their own losses.
Suppose Agatha and Bert are each driving a car. Both are negligent and they collide in a city intersection. The force of the collision causes Bert to lose control. Consequently, his car strikes a pedestrian, Paul. Paul's injury results in medical expense, loss of wages, and pain. The jury assesses his damages at 100,000. $50,000 of the plaintiff's damages are for economic loss. The other $50,000 are for noneconomic losses. They find Agatha's fault at 30% of the whole. Bert's fault amounted to 40%. Paul's fault is at 30%. If Bert is insolvent, what amount would Agatha pay in a jurisdiction with; (a) type of damages system; (b) threshold percentage system of 50%; and (3) a reapportionment system.
(a) [Under a type of damages system]: joint and several liability is applicable ONLY to economic harm. Several liability is applicable to noneconomic harm. Here, the $50,000 in economic harm is to be paid under joint and several liability rules. Thus, if Bert is insolvent, Agatha would be expected to pay his share of damages, 40%, regardless of her being only 30% at fault. Although contribution cannot be collected from Bert, as he is insolvent, Agatha can still collect contribution from Paul, as he is (1) the plaintiff and (2) also 30% at fault. Therefore, 30% of the whole set of damages incurred will be deducted from Agatha's apportionment. However, Agatha, being responsible for both her and Bert's apportionment will endure 70% of the losses. Conversely, the $50,000 in noneconomic harm is to be paid under several liability rules. Under a several liability system, each defendant would ONLY be responsible for paying his apportionment of fault, regardless of the other's inability to pay. It is then the plaintiff's responsibility to bear that uncollectible apportionment of loss as their own. Thus, if Bert is insolvent, yet attributable to 40% of fault, Paul, the plaintiff, would have to bear 40% more of his own losses--in addition to his own 30% of fault. It would NOT be Agatha's responsibility to pay Bert's 30%, as required under a joint and several liability system. Thus Agatha would pay only 30% of the damages, as that is her own percentage of fault. _______________________________________________________________________ (b) [Under a threshold percentage system of 50%]: joint and several liability is retained ONLY IF the defendant's assigned percentage of responsibility exceeds the specified threshold percentage (50%). IF the defendant is assigned a lesser percentage of responsibility, several liability would apply. Here, neither of the two defendant's exceed the 50% threshold--Agatha at 30% and Bert at 40%--thus, several liability applies. (**For apportionment analysis, see (a)) _______________________________________________________________________ (c) [Under a reapportionment system]: reallocation of the losses applies IF an allocated share of damages cannot be collected. Moreover, IF the plaintiff is unable to collect one defendant's share of the judgement, that share is reallocated among the remaining parties in the same ratio as that of the percentage shares of fault assigned to them. Here, Bert is insolvent, hence unable to pay his percentage of fault at 40%. With the whole set of damages being $100,000, the losses from Bert's 40% are reapportioned among the remaining faulty parties into the same ratio as previously assigned to them. In other words, Bert's percentage of fault is apportioned amongst the two remaining parties. With Agatha and Paul both assuming 30% fault of the 100,000 in damages--half/half--they would split Bert's 40% down the middle. Moreover, Agatha would then be responsible for 50% of the damages incurred, with Paul also assuming 50% of the damages incurred.
How can a plaintiff show negligence on part of a defendant?
(a) the defendant created and failed to take reasonable actions to abate the hazard; (ex:) a waiter spilling on the floor. (b) the defendant did not correctly create the condition, but discovered or should have discovered a condition created by others. (Constructive notice) (c)
What wrongdoers are free to commit torts without any liability?
****Know for the Bar****
Suppose your company owns a barge. By not having a bargee on board at all times, the barge would break loose and cause damage to itself or others about once a year, and that the average damage would be $25,000. Suppose also that the cost of keeping the bargee on board at all times to prevent this is $30,000/yr. Is this a case of negligence on behalf of your company?
According to the Hand formula, there would be no negligence, as the fault system is to impose liability rules that will bring about efficient or cost-justified rules of safety. A rule that required the barge owner to spend $30,000 too save $25,000 would be inefficient and NOT cost-justified. Authority: [U.S. v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).]
How do you know how much a safety precaution would cost OR how much the activity benefits people? What safety precaution may have no cost?
Almost any activity has SOME benefit. Almost any safety precaution has SOME cost. One safety precaution is usually almost costless; a warning of danger. A warning of danger might be due even if the risk of danger is low.
What are common objections to the Hand formula? What is the alternative approach?
Although economically-oriented lawyers often like the risk-utility formula, there has been strong objection on its emphasis of money and wealth. Opponents argue that basic liberties (freedom of action and security) are primary and take precedence over considerations of wealth. Under this approach, security from harm would be weighed against freedom of action, ones basic liberty against another. BUT losses of liberty would not be offset by increases in wealth.
What is the traditional approach to RIL? Hint: [3 prongs]
Although some states differ as to their particular requirements, TRADITIONALLY, in order for RIL to apply, the plaintiff must show three things; (1) the accident which produced a person's injury was one which ordinarily does not happen in the absence of negligence (2) the instrumentality or agent which which caused the action was under the exclusive control of the defendant; and (3) the circumstances indicated that the untoward event was not caused or contributed to, by any act or neglect, on the part of the injured person. [Eaton v. Eaton; N.J. 1990).
If a defendant daydreams, but drives properly in all respects, is he legally negligent? Why/Why not?
Although the defendant may be constituted as careless, he is not legally negligent. Conduct may include a failure to act, if action is required, but a mere state of mind is NOT conduct. (Beck v. Dobrowski, 2009): "Negligence is not a state of mind; it is a failure...to come up to the specified standard of care."
Why are courts reluctant to decide negligence cases on summary judgement motions?
An inherently normative issue...is not generally susceptible to summary judgement: the evidence requires that a jury balance the [safety precautions] against the nature and extent of the risk. Authority: [Little v. Liquid Air Corp., (5th Cir. 1992)].
Why do legal professionals think of intentional torts in contrast with negligence?
Because an intentional act is not necessarily an intentional tort. Rather, an intentional act may be constituted as negligence.
What is the original case where Res Ipsa Loquitur (RIL) was established?
Bryne v. Boadle [Exch. 1863]: Repeatedly referring to the common sense interpretation of the facts before them-- the accident, they felt, "spoke for itself" and what it said was that the defendant MUST have been negligent.<-- Doctrine of RIL
What is circumstantial evidence? What significance does it have in tort cases? Who does circumstantial evidence assist?
Circumstantial evidence is evidence of one fact that permits an inference of another fact. It is often the most important evidence in tort cases. It must be weighed case by case, however, it is generally entitled to as much weight as direct evidence. Almost all tort cases involve some factual inferences. It is often used by the plaintiff, but an inference may of course assist the defendant rather than the plaintiff. Authority: [Fitzpatrick v. Natter, (Pa. 2008)].
Is a mere state of mind considered unreasonable conduct?
Conduct may include a failure to act if action is required, HOWEVER, a mere state of mind is NOT conduct.
When reasoning whether or not a duty of standard of care is present, is compliance with statute or regulation a defense?
Courts have traditionally agreed that compliance with with statute or regulation is not a defense pg. 196
Suppose a car driven by woman rear-ended a vehicle in which you were a passenger. The next year, you had surgery on your back to treat your persistent low back pain that resulted from the accident. The surgery did not cure your symptoms and may have exacerbated your condition. You subsequently filed a personal injury action against the woman driver. The woman driver filed a notice naming the surgeon of your spinal-fusion surgery as a nonparty at fault. Can the surgeon be apportioned in the liability? If so, say the jury apportions 20% of the responsibility for the plaintiff's back surgery to the negligent driver, and 80% to the non-party surgeon. In a several liability jurisdiction, what would the plaintiff recover?
In a number of jurisdictions, a jury is asked to apportion liability not just of plaintiffs and defendant's who are parties in the case, but also of non-parties who are at fault. Under a several liability system, no tortfeasor is liable for more than his/her propionate share. Thus, the plaintiff cannot enforce a judgment entirely against one defendant. If one faulty party is unable to pay their apportionment (due to immunity or no assets) the plaintiff is to bear that percentage of his/her own losses. Here, the plaintiff (you) would collect only 20% of your damages from the driver-defendant, because the driver-defendant's fault was only 20% of the whole set of faults. Thus, contribution is not needed. The plaintiff (you) would then have to take your chances on collecting the remaining 80% from the non-party surgeon. If the non-party surgeon for whatever reason could not pay, the plaintiff (you) would bear 80% of your own losses.
Questions of fact and questions of credibility are for the jury to decide. How about inferences of fact?
Inferences of fact are also for the jury to decide, provided there IS room for reasonable persons to draw or reject those inferences. If the evidence adduced at trial is conflicting on material point, or if reasonable persons may draw different conclusions from the evidence, or if a conclusion is depends on the weight the fact finder gives to the testimony, a judge may NOT substitute his/her conclusion for that of the jury merely because he/she would have reached a different result. Authority: [McGuire v. Hodges, (Va. 2007)].
What values or tort goals does the risk-utility assessment foster?
It provides deterrence in the "right" amount. Relatedly, it maximized community resources, for the community is richer if its member do not spend $10 to save someone else's $5.
If you reject the BPL analysis--weighing risk of utility and costs/benefits--what are alternative methods for assessing negligence?
Juries could judge: (1) intuitively that it "seems negligent" (2) solely by statutory prescriptions (i.e speed limits) (3)by hard-and-fast rules developed by judicial prescriptions, like the rule that you are always negligent if you drive so that you cannot stop within the range of your vision. (4) custom of the community or the business involved (5) moral rule that imposes liability if the defendant did anything more risky then he would have done to prevent the same harm to himself or his own property.
If you intentionally drive at a very high speed, you may be taking an unreasonable risk. If you do so, and collide with another car, are you to be held legally negligent or liable for an intentional tort?
Negligence is an overt conduct that creates unreasonable risks that a reasonable person would avoid. Because you are intentionally driving at a very high speed, your overt conduct is creating an unreasonable risk that resulted in a collision with the plaintiff. Because your overt conduct was the actual cause of this collision, the damage to the plaintiff and the plaintiff's property is within the scope of liability of the defendant.
What is Negligence? When does it become actionable as a tort?
Negligence is overt conduct that creates unreasonable risks that a reasonable person would avoid. It is not to be defined by naming specific forbidden acts. Instead, negligence may be any conduct that creates an unreasonable risk of harm to others, which becomes actionable as a tort when that risk comes to fruition (realization of a plan/project) in actual harm.
Suppose a you are a customer of a satellite TV company, and are injured when falling off the roof of your garage while attempting to repair your satellite dish. You claimed the company was negligent in exposing you to the risks of falling off the rook by refusing to repair the dish and instead insisting that you should make the minor repairs yourself, even over your protestations that you are inexperienced and did not want to climb the roof. When you fall, you are on the phone with the company's customer service department. What duty of care did the company owe you? Did they breach that duty?
No duty was breached. There is NO evidence that the company was in superior position to protect you, such as by knowing of some danger/harm beyond those normally presented by climbing up on any roof. Authority: [Lowery v. Echostar Satellite Corp. (Okla. 2007)].
Suppose your company owns a barge. By not having a bargee on board at all times, the barge would break loose and cause damage to itself or others about once every two years, and the average damage would be $25,000. Suppose also that the cost of keeping the bargee on board at all times to prevent this is $30,000/yr. Is this a case of negligence on behalf of your company?
No negligence. The average (probability) is $12,500 worth of damage/per year. As compared, $30,000 a year is not worth the cost of probable harm. The probable harm is relatively low here. Authority: [U.S. v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).]
Suppose a plaintiff secures a $10,000 joint and several judgement against both A and B. A is chargeable 80% of the fault, and B is chargeable 20% of the fault. The plaintiff enforces the judgement entirely against A. (1) Is Defendant A subjected to pay the entire cost of damages owed to the plaintiff, although only being attributable to 80% of the fault? (2) What if, Defendant B cannot incur any costs of damages, regardless of their fault? Why would this be? What is the outcome?
No, Under the theory of joint and several liability, the defendant can obtain contribution from B. Hence, the net result is that Defendant A, who is chargeable with 80% of the fault, pays 80% of the damages. B, who is chargeable with 20% of the fault, will pay 20% of the damages. In other words, if the judgement is for $10,000, Defendant A will pay the $10,000 to the plaintiff. HOWEVER, Defendant B will pay Defendant A $2,000 in contribution to bear his/her own share of losses from his/her own fault. (2) On these suppositions, the joint and several liability rule means that the plaintiff would recover the damages from Defendant A. BUT as a practical matter, Defendant A could NOT recover contribution, either because: (a) Defendant B has immunity from tort liability (b) Defendant B has no assets with which to pay contribution. The joint and several liability system, thus in effect, requires the solvent tortfeasor, Defendant A, to pick and pay the insolvent, uninsured, or immune tortfeasor's share. In this case, the law's ideal payment proportioned to fault is NOT achieved.
What does Giles v. City of New Haven expose?
No-one has access to the instrumentality, the defendant is pointing to the plaintiff, because they manipulated the elevator. Did the court agree? No. such an application would be restrictive and undermine the effectiveness of RIL
Must a defendant have actual knowledge of a dangerous condition to be liable in a premises liability case?
No. A defendant need only have caused or have had actual or constructive notice of a dangerous condition to be considered negligent. Constructive notice occurs when the defendant, exercising reasonable care, would have discovered the dangerous condition. Circumstantial evidence may be used to establish constructive notice, such as when a slippery substance, on the floor for an extended period of time, could have been detected by the exercise of reasonable care. Ex:) [Gonzalez v. Tallahassee Medical Center, Inc. (1993)]. In Gonzalez, a patron of a cafeteria slipped on a liquid that had been on the floor for at least ten to fifteen minutes. This length of time was sufficient to allow a jury to determine whether the defendant should have discovered the condition using reasonable care. Authority: [Thoma v. Cracker Barrel, (Fla. Dist. Ct. App. 1995)].
May an employer be liable for an employee's injuries alleged to be caused by an unsafe work environment, when the employee's knowledge of the risks inherent in the workplace are equal to or eclipses that of the employer?
No. An employer's obligation to its employee is not the frequently impossible duty of finishing absolutely safe instrumentalities or place to work. An employer has a duty to provide employees with a safe place to work; however, the employer's liability is extinguished when an employee's knowledge of the workplace dangers is equal to or is greater than that of the employer. This duty involves providing safe workplace tools and appliances and is measured by the care that a reasonably prudent employer would take in like circumstances. Authority: [Stinnett v. Buchele (Ky. Ct. App. 1980)].
Is a person confronted with a sudden emergency and forced to choose human life over property held to a standard other than the care of a reasonable person in like circumstances?
No. The law favors protecting human life over property, and a person is held to the same reasonable person standard even when faced with a sudden emergency not of his or her own making. A greater risk of harm is justified when acting to protect human life than when protecting property. Authority: [Indiana Consolidated Insurance Co. v. Mathew].
Suppose you are riding a horse when a general garbage truck comes by, operating in a normal manner. The horse becomes startled by the loud noises coming from the garbage truck. As a result, you are thrown from the horse. Can you sue the garbage company for negligence?
No. The main factor in this case is the social value of garbage company's conduct. Because garbage collection activity is a vital public service and a matter of high social utility, the garbage company is not negligent merely because they use a machine that produces noises necessary to its regular operation, even though the fright of horses might be foreseeable. The social utility of one's conduct weighs heavily on the negligence analysis. Authority: [Parsons v. Crown Disposal Co., (Cal. 1997)].
In applying the Hand formula, how do we know the degree of risk is attributable to the defendant's activity?
One answer might be that Hand was not proposing a formula in which actual numbers could be substituted for the algebra. Instead, Hand might have been proposing only a model, an indication about the nature of the decision or estimate we need to make.
Why do lawyers often find it difficult to obtain facts necessary for an assessment of fault?
One reason is that injuries are often caused by tiny miscalculations, hard for the actor to appreciate and almost impossible for a jury to understand at a later date. A second issue is in obtaining facts for making a judgement about fault lies in the accuracy of testimony.
Is one who is confronted by sudden emergency, not of his own making, chargeable with negligence?
One who is confronted with a sudden emergency, not of his own making is not chargeable with negligence if he acts according to his best judgement. In a negligence action, a person is held to the 'reasonable person in like circumstances' standard, which values human life over property and applies even in the face of a sudden emergency not of the person's own making. The sudden emergency doctrine merely prevents a person from escaping liability when acting reasonably in the face of an emergency created by the person's own misconduct. Authority: [Indiana Consolidated Insurance Co. v. Mathew].
According to Restatement (Third) of Torts, when is the assessment of the foreseeability of a risk to be considered?
Restatement (Third) of Torts: Liability for Physical and Emotional Harm §7; 2010 ___________________________________________________________________________________________ The assessment of the foreseeability of a risk is no longer apart of the duty analysis. BUT, is to be considered when the fact finder decides if the defendant failed to exercise reasonable care. Moreover, when there is SOME evidence that the risk was foreseeable, the question is typically one for the jury to resolve in terms of breach. In other words, if reasonable minds could disagree with respect to factual questions, issues pertaining to whether or not the defendant's behavior constitutes a breach of duty is left for the jury to decide.
Given the Credibility Rule, should the plaintiff be entitled to a directed verdict in her favor if the defendant puts on no evidence at all, or if his evidence does not contradict the plaintiff's?
SOME courts take the view that if the plaintiff offers testimony that is not only uncontradicted, but is clear and self-consistent, a directed verdict for the party having the burden of proof--usually the plaintiff--is permissible.
Regarding the standard of care, what do statutory requirements usually reflect?
Statutory requirements usually reflect a minimum standard of care, not a maximum obligation.
What does it mean when courts use the term "foreseeability" as a shorthand expression? Such as, "A defendant is negligent if harm was foreseeable." Is this to be taken for face-value?
Such statements should not ordinarily be taken literally. Harm is a foreseeable consequence of almost all acts, but courts definitely do not mean all acts are negligent. Courts are likely to use the term foreseeable to mean that harm was not only foreseeable, but also too likely to occur to justify risking it without added precaution.
TRUE OR FALSE. In some cases, a reasonable person may NOT breach a duty when the person reasonably relies on another to protect the plaintiff.
TRUE.
What does the Third Restatement deem the major factors in assessing negligent conduct?
The Third Restatement says that the major factors in assessing negligent conduct are "the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. (§3 (2010))
Other than Joint and Several Liability and Several Liability, are there any additional variations states employ for apportioning loss? Hint: [Third Restatement §§18-21]
The Third Restatement §§18-21 lists three more typical ways in which states apportion liability. These approaches are: (1) Type of damages (2) Threshold Percentage (3) Reapportionment of uncollectible shares __________________________________________________ [TYPE OF DAMAGES]: ____________________________________________________ Some jurisdictions retain joint and several liability, BUT only for certain elements of damage, such as economic harm. Parties are severally liable for noneconomic harm. ____________________________________________________ [THRESHOLD PERCENTAGE]: ____________________________________________________ Other jurisdictions retain joint and several liability ONLY IF the defendant's assigned percentage of responsibility exceeds a certain threshold percentage, such as 50%. IF the defendant is assigned a lesser percentage of responsibility, several lability would apply. ____________________________________________________________________________ [REAPPORTIONMENT OF UNCOLLECTIBLE SHARES]: _____________________________________________________________________________ Other jurisdictions assign responsibility, BUT then reallocate the losses IF an allocated share of damages cannot be collected. Moreover, IF the plaintiff is unable to collect one defendant's share of the judgement, that share is reallocated among the remaining parties in the same ratio as that of the percentage shares of fault assigned to them.
What is the application of RIL on the negligence issue?
The application of RIL on the negligence issue, the plaintiff will survive a motion for summary judgement and get to the jury, which can decide the case either way.
Under the theory of Comparative Fault, why is recovery nowadays generally reduced in negligence and strict liability cases?
The idea is that each faulty party MUST bear his or her own share of the losses. The defendant's liability is correspondingly reduced so that he pay less than all of the plaintiff's damages. In some cases, the plaintiff actually recovers NOTHING at all, EVEN IF the defendant is negligent in a. substantial way.
What is the role of a jury, as distinguished from the courts?
The jury is to; (1) decide pure facts (Was the stoplight Red?) (2)Make certain value judgements (Did the defendants failure to stop amount to negligence?) (3) To determine credibility of a witness
What duty does a jury have in inspecting the witnesses?
The jury not only has the right and duty to determine the truth or falsity of the witness, but also has the right to evaluate and determine what portions of testimony of any witness it will accept or reject; therefore unless it is clear to a court that the jury verdict is contrary to the overwhelming weight of the. edible testimony, the court will not set aside the verdict. Authority: [Upchurch v. Rotenberry, (Miss. 2000)].
Why does it matter if a court addresses foreseeability in the element of breach or the element of duty?
The underlying problem is to allocate decision-making power between the judge and the jury. The jury is to decide pure facts, and often, it becomes confused whether Foreseeability is a fact inquiry for the jury or a consideration for the judge. Some courts believe that foreseeability is a fact-intensive inquiry relevant ONLY to breach of duty and legal cause considerations. (Rodriguez v. Del Sol Shopping Ct. Assocs., (N.M 2014)). Other courts, HOWEVER, have held that foreseeability is a critical, but NOT dispositive factor, that often subsumes many factors deemed relevant to the recognition of duty. (Robinson v. Vivirito (N.J. 2014)).
What does it mean when a court says that harm is unforeseeable?
They mean that although harm was actually foreseeable on the facts of the case, a reasonable person would not have taken action to prevent it because the risk of harm was low, and harm was so improbable that a reasonable person would not have taken safety precautions. In other words, to say that harm was unforeseeable often seems to mean only that the foreseeable harm was not probable enough to require precaution, meaning ultimately that the defendant's conduct was not unreasonably risky.
What does it mean when courts address some harms as more foreseeable than others?
This can be understood to mean that the risk or probability of harm is greater in some cases than others.
What is the Credibility Rule?
This rule states credibility of the witness is always a question for the jury. It is a function of the jury to weigh contradictory evidence, judge the credibility of witnesses, and draw ultimate conclusions as to the facts of that case. Authority: [Bosco v. Janowitz, (Ill. App. Ct. 2009)].
Is a product manufacturer negligent for designing a product that creates an unreasonable risk of foreseeable harm in the product's normal environment?
To avoid negligence, a manufacturer must consider the reasonably foreseeable risks of injury created by a product's use in its normal environment and design the product to prevent an unreasonable risk of such injuries. A product designer must analyze the product's usual environment and design the product to avoid an unreasonable risk of foreseeable harm. Authority: [Bernier v. Boston Edison Co. (Mass. 1980)].
Traditionally, how was comparative negligence assessed? What has become of the assessment more recently? Are there any limitations? Where?
Traditionally, comparative negligence compared the negligent conduct of one defendant with the negligent conduct of the plaintiff, and later, of the other defendants. More recently, SOME jurisdictions have elected to compare negligence with strict liability, recklessness, and, in some circumstances, even intentional torts. There are important limitations, particularly in the realm of intentional torts.
When may a trial judge overturn a jury verdict? How does a trial judge make that determination?
When a trial judge concludes the jury verdict is against the greater weight of the evidence, the court can overturn it. The trial judge sits as a 13th juror. He must determine whether in the minds of reasonable men a contrary verdict should have been reached. As the 13th juror, the trial judge: (1) hears the case along with the jury; (2) observes witness for their credibility, intelligence, and wisdom, and; (3) determines whether the verdict is against the weight of the evidence. Authority: [Warrick v. Stewart, (Ind. Ct. App. 2015)].
When actions of a passenger that interfere with the driver's safe operation of motor vehicle are foreseeable, who owes a duty of care, if anyone?
When actions of a passenger that interfere with the driver's safe operation of motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the DRIVER'S duty to either other passengers or the public. Authority: [Pipher v. Parsell, (Del. 2007)]
When is witness testimony excluded?
When it is not helpful to the jury, OR if the jury can readily determine the issue by interpreting the facts for themselves.
Suppose a landowner or city fails to trim bushes, leaving an intersection obscured and leading to traffic accidents. Does the city/landowner have duty to trim the bushes? What does this say about the role of the judge/jury?
Where a landowner/city fails to trim bushes, leaving an intersection obscured and leading to traffic accidents, courts have often said the defendant has NO duty to trim the bushes. Such cases swipe any judgement about reasonable care from the jury. HOWEVER, courts can also be vigilant about recognizing the boundaries of the judicial role. (See Limones v. School District of Lee County,(Fla. 2015)).
Suppose a man steps onto a roof of an elevator to effect a repair. He suddenly utters "SHIT" and disappears from view as the elevator door closes, followed by a loud boom. Is this enough for a trier of fact to reasonably infer he slipped on oil on the roof of the elevator and fell to his death, despite the fact that none actually saw him fall?
YES, this IS enough for a trier of fact to reasonably infer he slipped on oil on the roof of the elevator and fell to his death, despite the fact that none actually saw him fall. Authority [Walker v. Chi Hous. Auth. (Ill. App. Ct. 2015)].
Does expert witness testimony raise any concerns?
YES. (1) Experts often differ. Juries have little basis for resolving such conflicts of opinion except on the basis of a feeling that one expert is more impressive than another. (2) The witness may not in fact be an expert at all with respect to his particular testimony (3) The expert may be an expert in some sense, but still offer an opinion that is only speculation. (4) Expert testimony kay overwhelm the jury. The seemingly independent status of the expert witness may suggest a disinterested appraisal, which may lend this testimony even more weight in the jury's mind, though in fact some experts become quite partisan.
Can a Prima Facie case for negligence be established through mere occurrence of an accident? OR, conversely, Is the plaintiff bound to giving an affirmative proof of negligence?
Yes, in some cases, a Prima Facie case for negligence be established through mere occurrence of an accident. The presumption of negligence is not raised in every case of injury from accident, BUT in some cases, it is. [Bryne v. Boadley]: The court held (1) a barrel could not roll out the warehouse without some negligence, as it is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and such a case would, beyond all doubt, afford prima facie evidence of negligence. (2) To say that a plaintiff who is injured must call witnesses from the warehouse to prove negligence seems preposterous. WHY? It seems preposterous because, looking at the manner in a reasonable way, an injury is done to a plaintiff, who has no means of knowing whether it was a result of negligence; the defendant who knows how it was caused , does NOT think fit to tell the jury.
Suppose a woman drove out of a parking space on a street near a busy shopping mall. She collided with another vehicle and lost control of the car. Her foot slipped from the brake to the gas pedal, and her car careened off the road, down a sidewalk, and knocked over an electric pole owned by Edison (defendant). The electric pole broke and landed on you (plaintiff), causing serious injuries. Is Edison negligent?
Yes. A rational jury could have found that Edison was negligent in designing the electric pole. A product designer must analyze the product's usual environment and design the product to avoid an unreasonable risk of foreseeable harm. Like an automobile manufacturer, a manufacturer of an electric pole should take into account any foreseeable collisions with the pole. The manufacturer should analyze the surroundings of the pole, taking note of nearby pedestrian and vehicle traffic. Because the potential harm caused by a defective electric pole can be extremely high, even a low probability of an accident occurring may require a greater number of safety features. As for Edison's design, Edison did not address pedestrian injury as a possible risk when designing the pole. Given the heavy pedestrian and vehicular traffic around a busy shopping mall, a jury could have found that this design was insufficient. The expert testimony further established that Edison could have easily improved the pole by. Because a rational jury could have found that Edison could have improved the pole design at minimal inconvenience, Edison would be held negligent. Authority: [Bernier v. Boston Edison Co. (Mass. 1980)].
Suppose you and your husband become separated. Following, you move with your three-year-old daughter into your new boyfriend's house. Although the backyard is fenced, there is no fence separating an in-ground pool from the rest of the backyard. The record is uncontroverted that on the day of the incident while your boyfriend was taking a nap, you watched your daughter. You allow your daughter to go into the backyard where the pool was located. After you watched your daughter play for a little while, you went back into the house without her. When you look out the window to check on her, you saw the child's play car floating in the pool, and you call to your boyfriend as you run outside to find her. You pull your daughter out of the pool. Tragically, she dies the next day. Your soon-to-be ex-husband sues your boyfriend under a theory of negligent supervision, for reasons set forth below; (1) He spoke to your daughter before about the dangers of water; (2) He often deposed that he generally participated in the parenting, supervising and disciplining of Cassidy, (3) He knew that your daughter was not afraid of the water Does your ex-husband have a sufficient claim against your boyfriend? Did your boyfriend use reasonable care in leaving your daughter under the supervision of YOU, her mother, knowing that an uncovered pool was present in the fenced-in backyard?
Your boyfriend was NOT liable for your daughter's death under a theory of negligent supervision because it was undisputed that he was asleep at the time of the accident, and he had, therefore, not undertaken supervisory control of the child at that time. Also, under the present circumstances, it is plain that it is not reasonably foreseeable that a mother would leave her three-year-old daughter unsupervised near an uncovered pool. Although your boyfriend deposed that he generally participated in the parenting, supervising and disciplining of your daughter, at the time of the incident, your daughter was being supervised by YOU, her mother. You knew that your boyfriend was taking a nap, therefore he cannot be liable under a negligent supervision theory. " '[I]t would normally be the duty of a parent or other adult having primary supervisory control over the child to see to it that a child would not be going into a place of obvious danger.' " At the time of the incident, YOU, her mother, had primary and exclusive supervisory control over your daughter. On the day of the drowning, your boyfriend merely left your daughter under your supervision. Additionally, a swimming pool has been deemed by the courts as "not a mantrap." Thus, there is no evidence that your daughter's drowning was caused by any defect in the pool. Although your ex contends that your boyfriend was aware that your daughter was not afraid of the water, this fact is without weight because it was YOU who left her unattended by the swimming pool, not your boyfriend. Your boyfriend's relationship with your daughter required that he exercise reasonable care to protect her WHEN she was in his care. When your boyfriend undertook supervisory responsibility, he became responsible for injury to Cassidy "through HIS negligence," not anyone else's. His duty to use reasonable care to protect the child is NOT measured by what his duty would have been to a social guest or licensee." The child's mother, YOU, who was supervising the child at the time of the incident, was negligent in failing to do so. Your boyfriend cannot be held responsible for the death of your child under these facts. To hold otherwise would be to make him strictly liable for injuries to the child which resulted from your failure to properly supervise her.The evidence is plain, palpable and indisputable that the proximate cause of your daughter's death was not any negligence of your boyfriend's. Authority: [Herron v. Hollis, (Ga. Ct. App., (2001)].
Is a judge justified in leaving a case to a jury where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant?
[Cotton v. Woods]: The Court here held a judge is NOT justified in leaving a case to a jury where the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant. HOWEVER, [Bryne v. Boadle]: The court held that this rule is not meant to apply in ALL cases, but rather, attention should be paid to the mere nature of the accident in that particular case.
How does a defendant act non-negligently?
[Weinberg v. Dinger, 1987, New Jersey S.C.]: To act non-negligently is to take reasonable precautions to prevent the occurrence of a foreseeable harm to others. What precautions are 'reasonable' depends upon the risk of harm involved and the practicability of preventing it.
