Torts
Class Notes
Factors
to consider for negligence per se
·
Does a common law duty prohibit this conduct?
·
Does a statute clearly define the prohibited
conduct?
·
Does application of negligence per se yield strict
liability?
·
Will liability result in financial ruin that is
disproportionate to the seriousness of the defendant’s conduct?
·
Did the injury result directly or indirectly from violation
of the statute?
It’s
difficult to interpret statutes sometimes.
If you encounter a vague statute, you must make arguments or resort to
the legislative history to find out what the statute meant.
Juries
and negligence per se
What
weight will adoption of the statute as a standard of care have in this jurisdiction?
·
Unexcused violation of statute is negligence
per se
·
Unexcused violation of statute creates a rebuttable
presumption of negligence
·
Unexcused violation of statute provides evidence
of negligence
Three
factors for res ipsa loquitur
1. The accident
does not happen in the absence of negligence.
2. The defendant
had exclusive control of the instrumentality that caused the injury.
3. The plaintiff
has done nothing to contribute to his or her injuries.
Byrne
got beaned on the boodle by Boadle’s barrel.
Byrne could not establish whose fault it was, so under the old rule
there’s no way he could recover from anybody for negligence. But since, heck, it’s a barrel coming out of
the sky, we figure that somebody must be negligent.
The
defendant has superior knowledge.
They know what went on, and it’s hard for the plaintiff to find out what
went on.
Is
it fair to shift the burden of proof to the defendant? Can we justify shifting the burden of proof
even when the defendant does not have superior knowledge? What exceptions should we establish to the res
ipsa loquitur rule? Why should the defendant
have to prove that they didn’t do it?
What if neither the defendant nor the plaintiff has any explanation for
what happened? That’s not to say that
the result doesn’t seem unreasonable here.
Res
ipsa loquitur is intended to cure the unfairness of the defendant’s superior
knowledge. However, it’s a double-edged
sword and it could result in actually creating unfairness.
Note
that all three of the above elements must be present in order to use a res ipsa
loquitur theory at trial.
This
is a “wayward wheel” case. A
tractor-trailer’s spare tire came loose and hit McDougald’s windshield. The trial court applied res ipsa loquitur,
and the defendant appealed. The appeals
court ruled that the trial court was right.
Did
the defendant have exclusive control of the instrumentality? The defendant was responsible for the maintenance
of the housing for the spare tire. The
general view is that spare tires don’t fly off of cars unless someone has been negligent. There is an always an issue when there is a
product that isn’t working properly: you can always point to the manufacturer
and claim that the manufacturer did not build it right. The way to rebut this is to consider whether
there have been previous problems with this product or whether this particular
article is old and structural degraded.
For
some reason, manufacturers’ responsibility doesn’t come up much in most res
ipsa loquitur cases.
Was
there a need for expert testimony in this case? When do you need to have expert testimony in
general? As long is something is within
the general knowledge of the population, there is no need for expert
testimony. This is similar to the rule
in medical malpractice.
Cases
that don’t need expert testimony include “wayward wheels”, falling objects,
train derailments, boiler explosions and the escape of gas or water from gas or
water mains. These are things that the
general public knows can only be caused by negligence even without expert
testimony.
Exclusive
control –
Larson v. St. Francis Hotel
The
plaintiff wants a res ipsa loquitur instruction against the hotel. Is the plaintiff successful? The court said no. Why?
The court said that the management does not have exclusive control
of all the chairs in the hotel. Rather,
the people in the rooms you’re renting out have exclusive control over those
chairs.
That
doesn’t mean the hotel isn’t negligent, it just means that the plaintiff won’t
get a res ipsa loquitur instruction. If you
were at Mardi Gras, for example, you might reasonably expect hotels to take
extra precautions to adjust to the circumstances. But res ipsa loquitur is not a good mechanism
for suit if there is other evidence of fault.
In a case like Larson, maybe you can show that the hotel failed
to take precautions that a reasonable person would take.
You
usually get a res ipsa loquitur instruction on runaway cars.
Res
ipsa loquitur is an unusual instruction to get. Also, when you have multiple defendants, you almost
never get res ipsa loquitur. Ybarra is a slight exception.
This
is a kind of outlier case, although some jurisdictions follow it. The plaintiff went in to get his appendix
removed. When he came to, he had severe
pain in his neck, shoulder, and arm.
What’s
the problem with multiple defendants in a res ipsa loquitur case? You can’t prove which particular person was negligent. What other problem do you have? You can’t prove which instrumentality
caused the injury. The plaintiff has no
information at all.
These
are the defenses:
·
There are lots of defendants.
·
There are lots of instrumentalities.
·
The control of the instrumentality that caused harm
is uncertain.
Therefore,
as a consequence of having many defendants, it is hard to prove the element of exclusive
control.
Why
is it fair to apply res ipsa loquitur?
Do
the facts of Ybarra suggest a freak accident? Not really.
It kind of seems like something really happened.
What
is special about this plaintiff that makes us extra sympathetic? He was unconscious! This is a position any of us could be
in. This is a driving force behind
applying res ipsa loquitur to multiple defendants.
What
else makes this a good res ipsa loquitur case?
The defendants control all the facts (i.e. they have superior
knowledge).
Compared
to other res ipsa loquitur cases: if it’s fair to get res ipsa loquitur when
you get hit in the head with a barrel, shouldn’t it be fair when your arm gets
messed up in an operation? There is a
fairness consideration here.
What
if you don’t apply res ipsa loquitur?
Would courts or legislatures do something about this situation? Sure, you would probably get legislation, and
it would probably be strict liability.
That may well not be desirable.
One
more argument that Cole claims is rather weak is that this is a group and so
vicarious liability should apply.
The
real justification is that we feel that the defendants have superior
knowledge and we want to use res ipsa loquitur to “smoke out” the defendants
and make them testify.
This
is a pretty unique situation. With an
unconscious plaintiff and a defendant in control of all the facts, that’s a
justifiable reason to shift the burden of proof to the defendant.
Burden
of proof – Sullivan v. Crabtree
The
suit was brought by the parents of a guy who was killed in a truck
accident. Res ipsa loquitur is a theory
of “last resort” in a sense. The
question of res ipsa loquitur goes to the jury.
There
are three rules for res ipsa loquitur just like the three rules for negligence
per se.