Torts Class Notes 10/13/03


Causation is the most difficult concept in Torts!!!  Check some outside sources to help you understand, particularly when we talk about proximate causation.




Negligence per se satisfies the “negligence” part of the negligence formula.  You still need to prove causation and damages in order to win.


Test for negligence per se


·        What injury is the statute intended to prevent?

·        Was the plaintiff in the class of persons the statute was designed to protect?


On an exam, make sure to put these questions down and answer them.


Ney v. Yellow Cab Co.


This is a tricky case.  A cab driver left a cab running on a street with the keys in the ignition.  A thief stole the cab and hit Ney in an accident.  Ney sued the cab company for negligence.  The alleged negligence is the violation of a statute that says you can’t leave a car sitting around with the keys in the ignition.


The plaintiff argues that the statute is meant to protect the public as a safety measure and an anti-theft measure.  The defendant, on the other hand, argues that the statute should be strictly construed as merely a traffic regulation that does not contemplate the harm that actually resulted.  The defendant points to the other clauses in the statute to purportedly show that the statute, when taken as a whole, is a public safety measure.  Why do they say this?


The majority sides with the plaintiff in saying that the statute does apply to establish negligence per se.


Is it foreseeable that if you leave your keys in your car it will get stolen?  The majority thinks so, and this is what they believe the legislature had in mind.


Note that you won’t be held responsible for a tort if an intervening criminal act actually causes the harm except when the criminal act is foreseeable.


What if there’s no applicable statute?  Then you must go back to the common law and consider all four elements of a negligence claim.  You must have the jury decide what a reasonable person would do under the circumstances.


If you applied the B < pL test, you would find that it’s very cheap to take your keys out of the car, so you might be found negligent if you left your keys in.  However, the Hand formula may not properly apply here because most people don’t intentionally leave their keys in the ignition, but rather do so by accident.


Note 2


Note that statutes may have multiple purposes.  When you read a statute, you must think about what the goals of the legislature were.  States don’t tend to have much legislative history available.


Perry v. S.N. and S.N.


This case increases the complexity of applying the negligence per se standard.


The statute in question here requires people to report child abuse.  The parents of abused kids sued several witnesses to the abuse.


How did the plaintiffs make a mistake in this case?  They did not appeal on the common law negligence question, but only the negligence per se question.  The problem is that they might have had a better shot with the common law theory.  The plaintiffs failed to appeal the common law question, so if the statute doesn’t apply, the case is over.


What does the criminal statute say here?  It’s a misdemeanor to intentionally fail to report child abuse to the authorities.  The court considers several factors in deciding whether to adopt this statute as a standard of conduct.


·        The court finds that this statute imposes a new duty that is not found at common law.  In most negligence per se cases, the defendant already owes the plaintiff a duty to act towards them as a reasonable, prudent person would.  There’s usually a double-whammy duty against the defendant.  If a common law duty does not exist, that’s a strike against the adoption of the statute as a standard of conduct.  Note that this might have been a good case to use to argue for the creation of a common law duty to report.

·        The next problem is that the statute does not clearly define the prohibited conduct and thus does not give notice adequate to establish a duty to report.

·        We also are concerned with whether the defendants directly or indirectly caused the harm in question.

·        The court considers the possibility that the adoption of this duty would establish strict liability, that is, liability without fault.  The court finds that this isn’t a problem in this case because there is the requirement that the failure to report is done knowingly.  The court will generally disfavor adopting any standard of care that imposes strict liability.

·        Is the criminal liability proportionate to the civil liability?  Could the defendants be liable for huge amounts of money that are way out of proportion to the criminal fine that they would be subject to if prosecuted?


Note 3


Should the absence of a required license, by way of negligence per se, automagically make you liable for any harm you cause?  We think not, because we think that this would rope in people who shouldn’t be liable.  For example, just because Prof. Cole isn’t licensed to practice law in Ohio doesn’t mean she’s an incompetent lawyer.  Courts won’t accept the absence of a license as negligence per se.  It can be used as evidence, though.  It’s dangerous to say that the licensing statute sets the standard of care, because the license may not have anything to do with how good the person is at their profession.


Legislatures can circumvent this presumption.  For example, New York passed a statute that says practicing medicine without a license establishes the presumption of negligence.  The defendant could still rebut this presumption, but the burden of proof partially shifts based on this statute.


Martin v. Herzog


There are three different ways that different jurisdictions view


A guy was tooling around in a jalopy that hit a buggy without any lights on.  The defendant crossed the center line.  The plaintiff sued for negligence based on the fact that the defendant crossed the center line in violation of statute.  The defendant argued that the plaintiff was actually contributorily negligent per se because his lights were off.  If the defendant can get the judge to establish “lights on” as a statutory standard of care, the suit is over.


What does Cardozo say?  He says there must be a causal connection between the lights being off and the accident happening.  Cardozo also says that the judge must make the decision on the question of whether or not the statute applies.  He says that having the lights off isn’t just evidence of negligence, it is negligence.  This is a pretty harsh statement of the negligence per se rule.


So how do we interpret the negligence per se finding?


·        Cardozo says that an unexcused violation of statute is negligence per se.  This is the majority rule.

·        Other jurisdictions may argue that an unexcused violation of statute is a rebuttable presumption of negligence.  This is the minority rule.  This will likely include the Restatement excuses.

·        Very few jurisdictions merely accept violation of statute as evidence of negligence.  Evidence of negligence means that it is evidence; it is some information to the jury that the defendant was negligent.  But it is not the whole story; rather, it is just evidence for the jury to weigh.


Which approach is the best for the defendant?  Which jurisdiction do you want to be in?  Why would you want to be in the “evidence of negligence” jurisdiction?  It’s because that’s where you’d have the best chance of being acquitted.  You might have a better shot at giving an excuse that will be accepted.  The more a jury can do in a negligence per se case, the happier the defendant will be, because they still have a chance to reject the standard set by the judge.


Zeni v. Anderson


The plaintiff walked in the street to get to work.  A driver hit her.  The driver claimed contributory negligence per se on the part of the plaintiff because she should have been walking either on the sidewalk or on the other side of the street.


Does the statute apply to this situation?  Sure, it’s designed for the protection of the plaintiff.  But if we apply the statute, the plaintiff doesn’t recover.  Is that fair?  We think not.  The court decides that the statute applies, but that the plaintiff has an excuse for her conduct.  Could the defendant say that the plaintiff acted unreasonably under the circumstances?  No, because lots of people were doing the same thing as the plaintiff.  Cole suggests that maybe the party that should be sued is the city for failing to clear the sidewalks.


The Restatement § 288 A excuses


1.     The violation is reasonable because of the actor’s incapacity.

2.     The actor neither knows nor should know of the occasion for compliance.

3.     The actor is unable to comply after reasonable diligence (impossibility defense).

4.     The actor is confronted by an emergency not due to his own misconduct.

5.     If the actor complied, greater risk of harm would result.


What if your tail light was out, but you drove extra carefully until you got to a service station to get it fixed.  What if it was a driving snowstorm?  It seems like there is a decent excuse among the five above.  It wasn’t the actor’s own misconduct that caused the harm.  Thus, it wasn’t the violation of the statute that caused the harm.


If you’re in a really strict jurisdiction that doesn’t allow excuses, you might be out of luck.  However, in a “rebuttable presumption” or “evidence” jurisdiction, you would at least get to the jury.


Is it negligence per se when a child violates a statute?  Say the child jaywalks?  Should the child be judged as an adult?  The child may be able to make the argument that the child doesn’t have the capacity to know.  The child would also be judged on a child’s standard rather than an adult standard.  The child’s standard would be lower than the adult standard.


What’s the first thing to do in a case involving negligence per se?  First, you must figure out whether the judge should adopt the statute as a standard of conduct.  Subsequently, if the statute applies, you may consider whether there are any excuses from the Restatement you can use.


Res ipsa loquitur


Normally, negligence must be proven rather than presumed.  The plaintiff must establish that reasonable care was not taken under the circumstances or that a statute that establishes a standard of care was violated.


When stuff happens, and the plaintiff doesn’t know how it happened, is there still a way for the plaintiff to satisfy the prima facie case for negligence?


Res ipsa loquitur is a doctrine that applies to cases when there is little doubt that the defendant is at fault.  For example, barrels don’t just fall by themselves in the absence of negligence.[1]


Res ipsa loquitur shifts the burden of proof to the defendant by saying “this doesn’t happen unless there’s negligence”.


Three factors for proving negligence under res ipsa:


1.     The accident doesn’t happen in the absence of negligence.

2.     The defendant had exclusive control over the thing that caused the accident (this is the old version).

3.     The plaintiff has done nothing to contribute to his own injuries.


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[1] Idea for law review paper: “Res ipsa loquitur and Donkey Kong: A Social History”