Torts
Class Notes
Causation
is the most difficult concept in Torts!!!
Check some outside sources to help you understand, particularly when we
talk about proximate causation.
Review
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.
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.
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
Legislatures
can circumvent this presumption. For
example,
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.
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.