Negligence Generally

I. Difference from Intentional Torts A. Negligence emphasizes risky and unreasonable conduct. B. It is an action or omission that a reasonably prudent person would find unreasonable under the same or similar circumstances. C. Looks at conduct, not state of mind. There is no intent. II. Elements of Negligence A. Duty: A duty to act as a reasonably prudent person under the same or similar circumstances, considering the reasonably foreseeable risk or probability of harm to persons similarly situated as the plaintiff. B. Breach of Duty: A failure of the defendant to conform his conduct to that of a reasonably prudent person. C. Cause in Fact: but for breach, no injury. If it was not for the breach, there was no harm. D. Proximate Cause: Harm reasonably foreseeable. E. Actual Damage: The plaintiff must show that he suffered actual damage. III.Duty Explained A. The Reasonably Prudent Person: A model of proper priorities with only those shortcomings and weaknesses that the community will tolerate on occasion. 1. R.2d 27: The reasonably prudent person is a person of regular intelligence, normal perception, knowledge, and memory. He knows what other people would know about a particular subject and he has all the extra intelligence, skill, and knowledge actually possessed by the defendantso if there is anything the defendant knows above the community level, then the reasonably prudent person would also have that level of knowledge. He is assumed to have the same physical characteristics of the defendant. 2. The Objective Standard: Would a reasonably prudent person under the same or similar circumstances conduct himself as the defendant did? a) Ex. Vaughan v. Menlove: Placing a haystack along the boundary line of two properties in a place where it was likely to catch fire and ultimately burned down two cottages was found to be negligence. Here, the court adopted the objective test as opposed to the subjective test because there was no way of knowing what the defendant was really thinking. b) Ex. Delair v. McAdoo: Driving a car where the tires were worn thin was found to be negligent. Objective test adopted here for the same reasons as in Vaughan v. Menlove. 3. The reasonably prudent person is considered to have the same physical attributes of the defendant, but not the same mental characteristics. a) Being more stupid, hot-tempered, or of poorer judgment than the ordinary person does not absolve the defendant of negligence. b) Being mentally retarded, intoxicated, or insane does not relieve the duty of a reasonably prudent person. 4. Special Training or Knowledge: If the defendant has special knowledge or training, then the reasonably prudent person is said to have that knowledge or training. This is the basis for malpractice.

B. Children: A child can be held negligent if his conduct does not conform to someone of the same age, intelligence, and experience. (R.3d 10) 1. Applies to children between 5 and the legal age of maturity (18). 2. A child who is less than 5 years old is incapable of negligence. (R.3d 10) 3. The Rule of 7s: a) Any child under the age of 7 years is incapable of negligence. b) Children 7-14 are presumed to be incapable negligence. c) Children 14-18 are held to adult standards, however the child is allowed make a showing of special circumstances. 4. Texas common law: a) Children under 5 are incapable of negligence. b) Children 5-14 are held to the standard of a reasonably prudent child with the same age, intelligence, and experiences under the same or similar circumstances. c) Children 14-18: using the adult standard, unless it is shown that the child lacks the discretion or has some mental disability. d) Children over 5 are held to the adult standard of reasonably prudent people when engaged in dangerous activities usually undertaken by adults. 5. Ex. Charbonneau v. MacRury (1931): There was no exception for dangerous activities for automobiles in 1931, so when a 3-year-old was struck and killed by a licensed 17-year-old driver, he was only to be held to a reasonably prudent person of the same age and experience. 6. Ex. Goss v. Allen (1976): Inexperienced 17-year-old skier held to the adult objective standard because the court held that skiing was an adult activity. C. Emergency situations: The reasonably prudent person in an emergency will not be required to exercise the judgment and care as a person who has ample time to reflect and react. 1. The situation must have arisen suddenly and unexpectedly, must call for immediate action having no time for deliberation, and must not be the result of the negligence of the defendant. D. Unreasonable Risk: Harm or risk of harm not only has to be reasonably foreseeable, but it has to be one that a reasonably prudent person could have avoided or minimized. 1. Cannot be judged by the results of the act. Must show that Ds conduct, viewed at the time it occurred, without the benefit of hindsight, imposed an unreasonable risk of harm. 2. Inherently dangerous objects: Some objects are so dangerous that merely leaving them lying around without any special handling imposes a risk of harm. Something that is not so intrinsically dangerous, even if unexpectedly it turns out to cause harm, cannot be considered inherently dangerous.

E. Negligence Calculus: In determining whether a harm that is reasonably foreseeable can be avoided takes into consideration the risk of the harm versus the utility of trying to avoid it. 1. If the cost of avoiding the risk too high and the harm at risk so slight in comparison, then it is unreasonable to impose a duty onto the defendant. 2. P = Probability of Harm; L = Injury; B = Burden of Duty If B < P*L then defendant is negligent. 3. Ex. United States v. Carroll Towing Co.: Judge Learned Hand drafted the negligence calculus theory. In this case, the burden to keep a bargee on board during working hours was much less than the injury and probability of harm, so Pennsylvania RR Co was contributorily negligent. 4. Ex. Pitre v. Employers Liability Assurance Corp.: Whether the specific harm caused to a specific class of individuals was foreseeable is proximate cause. If the harm is remote, then its not foreseeable. F. Customary Practices: The way a certain activity is habitually carried out in a trade or a community can establish due care. However, sometimes the custom of a trade or community may not represent what a reasonably prudent person would do, generally if that custom is seen as unduly dangerous. 1. R.3d 13: Actors compliance with the custom of the community, or of others in like circumstances is evidence that the actors conduct is not negligent but does not preclude a finding of negligence. 2. Generally the custom taken into consideration is whether it is widespread and notorious (well-known, not evil). Custom must be one that has been generated by safety concerns. 3. A custom of violating statutes has no admission in a negligence case. 4. Ex. Dempsey v. Addison Crane Co.: An apparatus used to attach a crane jib that was widely used by the construction industry is not customary evidence in defense of negligence when it is shown that another apparatus which costs the same and is easily obtainable, if used, would have greatly reduced the chances of the crane jib coming loose and causing injury to a construction worker, especially when this practice caused someone to be killed in a similar accident. IV. Statutes: A violation of a statute which establishes a duty of safety standards or conduct is known as negligence per se. Legislature sets up a standard of conduct or care. A. This applies to any federal, state, or local statute, ordinance, administrative regulations, etc., which establishes a duty of safety standards or conduct. 1. When the statute expressly proscribes a criminal penalty and does not address tort law, courts will first try to enforce the criminal penalty. 2. When the law does not specifically speak to a tort, it may still be evidence to the tort claim. a) Ex. Driving faster than the speed limit establishes prima facie evidence of negligence in a case where an automobile accident was the result of speeding. The ordinance set by legislature to prohibit driving beyond a certain speed sets evidence that going beyond that speed is not what a reasonably prudent person would do.

3. The reasonably prudent person test does not applyevidence of violating the statute is enough. B. When a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute is negligence per se and the defendant will not be permitted to show that the legislature set an unduly high standard of care. 1. Some statutes expressly create new codes of conduct, duties, or defenses, often to provide protection to certain groups of citizens. a) Examples: OCHA, FCC, FAA, FELA etc. 2. Ex. Martin v. Herzog: There was a statute that horse-drawn buggies were supposed to be carrying lights at night so as to be visible, when the buggy driver failed to hang lights or lanterns on the buggy and a car collided into it because it was dark and the driver could not see the buggy, the court held that the absence of lights was causally related to the accident such that the buggy driver was contributorily negligent. 3. Ex. Brown v. Shyne: The fact that a chiropractor who did not claim to be a doctor did not have a license to practice medicine did not contribute to the injury of the plaintiff and thus was not negligence per se. 4. Ex. In Texas, if you run a stop sign, it is negligence per se. If you run a stop sign and hit P, all P has to prove is that you ran the stop sign. C. Where a statute is not designed to give rise to a tort suit, there can be no case of negligence per se. 1. Cannot get a private cause of action through federal statutes unless Congress permits in legislation or can imply from legislation that the type of activity can be considered in private cause of action. 2. Ex. Reeder v. Daniel: Plaintiff tried to impose a burden of duty by alleging that the defendant and his parents hosted a party and in that way made alcohol available to minors and are civilly liable for the resultant torts for serving alcohol to already intoxicated people (in violation of two Texas beverage codes). The court says there is nothing in these statutes that suggests that the legislature intended to create such a duty. There was no legislative intent that is discernable from the presented statutes (most of which are criminal statutes, discreet and dealing with vendors) which imposes civil causes of action and there is no social host liability in Texas. D. Excuses for absolute duty in non-prescriptive statutes: Excuse is a condition that requires D to produce evidence of the excuse. Once there is sufficient evidence of this excuse, the burden is back with P to prove that all these things taken into consideration still breached a common law duty of acting as a reasonable person under the circumstances. 1. Violation of the statute was reasonable because of the actors incapacity age, physical incapacity 2. Actor exercises reasonable care in trying to comply with the statute, but fails 3. Actor neither knows or should/could know of the facts that render the statute applicable 4. Actor is confronted with an emergency not caused by his misconduct

5. Compliance with statute is a greater risk of harm to the actor or others V. Malpractice: When the defendant has a higher degree of knowledge, skill, or experience in a professional levelsuch as a doctor doing medical treatmentthen the defendant is charged with making reasonable use of whatever specialized type of knowledge or skill that he possesses. Malpractice applies to many professional fields. A. Generally: Professionals must act with the level of skill and learning commonly possessed by members of the profession in good standing. Malpractice makes the professional liable only if he acted without the requisite minimum skill and competence, and not merely because the job (operation, lawsuit, etc.) was unsuccessfulthere is no guarantee of good results. B. Medical Schools of Thought and Specialists: When there are conflicting schools of medical thought, the defendant must be judged by reference to the beliefs of the school he follows. 1. However, a doctor may not set up his own individual school. 2. Specialists are held to a higher standard than a general practitioner. They are expected to be experts in their specialty. C. Expert Testimony: The expert does not inclusively establish the negligence of the defendant. He just gives an opinion that under all the circumstances the defendant did or did not conform to all the standards of the procedure, etc. 1. Generally expert testimony is needed to explain the technical aspects to the jury because they are not expected to have that special knowledge. 2. Testimony against specialists can only be by doctors in the same field. Exception is when the inquiry is not unique to the defendants specialty. 3. If the defendants negligence is so blatant that it would be obvious to a lay person, then expert testimony is not needed. a) Ex. Leaving a sponge and forceps inside an operation patient. D. Medical Malpractice Comes in Two Types: 1. Negligent treatment 2. Lack of informed consent E. Professional Standards: There is debate about what community standards to compare to the medical malpractice defendants conduct. The courts have discretion to use any one of these. 1. Strict Locality Standard: The doctor is held to the standards of practice in the community in which he practiced. The purpose was to make allowances for differences between city and country doctors, but often there would be only one practitioner in the community, and that was the defendant. Generally, this standard is no longer used. 2. Similar Locality Standard: The doctor is held to the standards of other doctors practicing in similar communities with similar facilities available to them. The doctor is only required to exercise the care of a physician with the same training, background, and locality type. 3. National Standard: The doctor is held to the standards of all doctors, regardless of where they practice. a) Ex. Shilkret v. Annapolis Emergency Hospital Assn: National standard to be applied in prenatal care since it was established by the national medical board and is an expectation of all doctors.

b) Ex. X-ray use is common to all doctors, so they are all held to the same standard for X-ray use and diagnosis. c) Ex. Helling v. Carey: If an eye pressure test is so cheap and painless, then it does not matter if the national standard is that patients older than 40 are regularly tested; this test should be run more frequently on younger patients, toosince it is what a reasonably prudent person would do. 4. In Texas, courts have moved away from the strict locality standard and have gone towards the similar locality standard and the national standard. F. Informed Consent: If the patient is mentally capable of knowing what is going on, he can turn down the medical treatment (for religious reasons, etc.). The doctor must disclose the risks of the proposed treatment. 1. Children do not have that rightthe parents make that decision. But the state can intervene if the parents are not acting in a rational matter and its a matter of life and death. 2. Not disclosing every possible risk, or performing procedure B when procedure A was consented tothese constitute as not having negligence. 3. Lack of consent no longer treated as a battery in most states (including Texas). Instead it is treated as negligence under statute. a) Reason is that there would be too many cases if treated as a battery. b) If there was no consent to a certain procedure but the operation went smoothly, then there is no causation and no harm, so there can be no negligence. (This limited the amount of cases.) 4. Materiality Test: Did the failure to disclose include an omission of information that would reasonably influence the decision of the patient? 5. Standards of Disclosure: Most courts hold that the doctor should disclose to the patient all risks inherent in the proposed treatment which are sufficiently material that a reasonable patient would take into account in deciding whether to undergo the treatment, provided that the patients well-being would not be unduly disturbed by the disclosure. a) Generally, the disclosure practices of other doctors in the community are held to be irrelevant. b) Medical standard: what the particular type of physicians in that community generally disclosed. c) Materiality standard: physician must disclose all the information he would reasonably expect a patient to need to know to make a decision about the procedurenot necessarily what doctors are doing but what they ought to be doing. d) Ex. Miller v. Kennedy: Applies the materiality standard when a patient lost a kidney as a result of a mistake in a kidney biopsy and held that the doctor cannot be charged with anticipating every question every patient will have that would affect his consent, only what a reasonable patient would need to know to make an informed decision of consent.

e) Texas law establishes a medical panel which is charged with the responsibility of deciding what doctors must disclose and how to disclose the information. (1) If the doctor does everything he is supposed to do, it becomes evidence that he complied, and the same holds true for the converse. (2) Doctors must disclose if there is no guidance from the medical panel according to common law. 6. Consent is not needed in emergency situations, although often doctors should try to seek consent from a competent family member if one is available. VI. Res Ipsa Loquitur: The thing speaks for itself. This doctrine allows the plaintiff to point to the fact of the accident, and to create an inference that, even without a precise showing of how the defendant behaved, the defendant was probably negligent. A. Requirements: The res ipsa loquitur doctrine is a matter of law and is very limited in its use. There are four requirements that must be met to use it: 1. No direct evidence of Ds conduct. 2. The event could not have occurred in the absence of negligence. 3. The instrument which caused injury was in Ds control. a) The control generally has to be during the time the negligence occurred, if the time of the accident and the time of the negligence are different. b) Control does not require ownership: D could have borrowed, rented, etc., the instrument. 4. The injury was not due to Ps own actions. B. Circumstantial Evidence: Allows the use of circumstantial evidence to show there was a duty and breach when there is no direct evidence to prove there was a duty or breach. There are fact patterns in which neither the court not the jury can determine whether there was negligence from direct testimony alone, but the circumstances of the situation are such that D is likely to have a duty. 1. Circumstantial evidence implies a bearing but does not prove the case in and of themselves. They must ask the questions from which the jury can infer answers. 2. Generally requires that the evidence has to show that the character of the accident/event was such that it would not normally have occurred in the absence of the circumstances and that the instrumentality that caused the event was under Ds control. C. Duties at Trial: Under the res ipsa loquitur doctrine, all P has to do is put on enough evidence of these two elements to get to a jury. He does not have to systematically eliminate evidence of every possible causethat is Ds job. 1. Res ipsa loquitur is not a cause of action, but a method of proof of common law negligence under very specialized circumstances. 2. P still has the burden of proof in establishing negligence. 3. You can plead res ipsa loquitur and still plead specific acts of negligence depending on the type of evidence you have. 4. Allows the plaintiffs claim to survive a directed verdict.

D. Examples of Res Ipsa Loquitur Being Used 1. Exploding bottles: Soda bottles which have had too much CO2 pressure inside them and explode, causing injury to the plaintiff. If there was no evidence that anyone else had affected the pressure of the CO2 in the bottle, then there was proof that it was under the bottlers control 2. Airplane crashes: Often you dont really know why a plane goes down, but you do know that it was under the management of the airline and usually planes dont go down unless there is some negligence on the part of the airline. 3. Medical malpractice: leaving medical instruments inside a patients body after surgery or removing the wrong organ. 4. Byrne v. Boadle: D held liable under the res ipsa loquitur doctrine when a barrel of flour rolls out a second-story window and falls onto P, causing injury. The court held that this type of accident could not have occurred unless there was some negligence on the part of D. 5. Swiney v. Malone Freight Lines: Ds tractor trailers lugnuts on the left front wheel got loose and came off, causing an accident and injury to P. Court applied res ipsa loquitur because the accident would not have occurred in the absence of negligence. 6. George Foltis, Inc. v. City of New York: City water line explodes and floods Ps restaurant. There is very little doubt that water lines exploded because of some negligent defect in the pipedefective, negligently maintained, etc. 7. Ybarra v. Spanguard: Where a patients shoulder was injured during an appendectomy, court held that the hospital, staff, nurses, and OR doctors were treated as a joint enterprise because collectively the OR situation was under their control and the P could not have had his shoulder injured but for negligence of the defendants. E. Texas Law: Res ipsa loquitur cannot be used for medical malpractice situations that have not been used in appellate or higher cases after August 29, 1977. See Exhibit 10 of the Syllabus. 1. Certain notorious situations, such as when surgical instruments are left in the patients body or when the wrong organ is removed, can use res ipsa loquitur under this law because they were addressed before the cutoff. VII. Negligent Infliction of Emotional Distress (NIED): Imposes a duty to avoid imposition of mental suffering. A. Recovery not allowed where there are no physical effects: If P cannot show any physical impact or symptoms, P cannot recover. However, even if there is no impact, but there are physical symptoms, he may be able to recover. 1. Parasitic element: If D causes actual physical impact to P, even if its slight, D is liable not only for the physical damages but also the mental suffering that develops as a result. 2. Mental suffering without physical impact: Historically, most states barred recovery. However, most modern courts will allow recovery as long as there are physical consequences (see below).

B. Physical injury without impact: Ds act physically endangers P but does not result in an immediate physical impact upon P; P suffers emotional distress which ultimately results in physical consequences (ex. heart attack, miscarriage). Most courts will generally allow recovery as long as there are physical consequences. 1. Fear for own safety: P can recover if he fears for his own safety and this fear leads to physical consequences. 2. Fear for safety of others: P suffers emotional distress as a result of fear for someone elses safety. Typically, when a parent sees his child killed before him. a) Zone of danger: When P himself is not endangered by Ds conduct, P cannot recover for emotional distress, even if there is resultant physical harm. (1) If P was within the zone of danger and suffered at least some fear for his own safety, then he can recover for the fear for himself and others who were in danger. (2) Did not matter if P was a close relative of the victim. b) Abandonment of zone of danger rule: If P is a close relative a witness to the traumatic event, and aware that the victim was caused injury, then some states would let P recover. (1) Close relatives include parents, siblings, grandparents. However, uncles/aunts, cousins, nephews/nieces, grandparents (sometimes) cannot unless they reside with the victim or can prove that they have an extraordinarily close relationship. If there is no familial tie, there is no close relationship. (2) Ex. Dillon v. Legg: Where girl was hit and killed by negligent automobile driver, sister with her was nearly hit, and mother was several feet away, CA court held that mother and sister both suffered from the same type of distress, so even though mother was not in zone of danger she could recover for NIED. (3) Ex. Dziokonski v. Babineau: MA court held that you dont have to physically be at the scene, just have to connect emotional distress with the negligent act of D and have a close relationship with the victim. C. Texas: In Texas, generally there must be some sort of physical consequence of the NIED for direct victims. Also, if there is an implied contractual relationship between P and D and D does something which results in NIED where D should have reasonably known it would occur, D can be held liable. 1. Bystanders: P does not have to be in the zone of danger or suffer any physical harm as a result of the distress if P was an observer who suffered emotional impact from the event and P and the victim were closely related. The victim does not have to suffer serious physical injuries, either. 2. Ex. USAA v. Keith: TX Supreme Court held that a mother who was not a witness to an automobile accident in which her daughter died,

although she arrived at the scene and stayed at her daughters side until she died, could not recover for NIED. It laid down these elements: a) P had to be located near the scene of the accidentan observer b) P had direct emotional impact upon observation of the accident c) P and the victim were closely related D. Exceptions 1. Services: If a telegraph company sends out a negligently transmitted message, or if a hospital misplaces a corpse, such that a reasonable person would suffer emotional distress, many courts will not require that P have some physical symptoms in order to recover. D has to reasonably know that there will be emotional distress to whoever receives the news. 2. The rule abandoned: Some states removed the requirement for physical harm altogether where the facts are such that it can confidently be believed that there has been actual mental distress. a) Ex. Molien v. Kaiser Foundation Hospitals: Doctor misdiagnosed a woman with syphilis, so her husband was tested; he tested negative for syphilis, and so he thought she was cheating on him and ultimately filed for divorce. Court held that it should have been reasonably foreseeable that there would have been repercussions of emotional harm to the husband of the woman diagnosed with syphilis. VIII. Trial Procedure in Negligence Cases A. Roles of Judges and Juries 1. Judges: Judges decide all questions of law governing the case. The judge will decide the following issues: a) Evidence: Judge decides if there is enough evidence to make the case, and what kind of case was made. (1) Judge will decide whether reasonable people could come to one or more conclusions based on the evidence. If reasonable people would agree upon one conclusion, the judge takes the verdict out of the jurys hands. (2) Judge determines the admissibility of the evidence. (3) Judges discretion to use expert testimony or circumstantial evidence. b) Existence of Duty: The judge decides whether D has a duty, after listening to all the facts, as a matter of law. (1) If there is a duty, judge decides what that duty is. (2) If he concludes that the factual evidence doesnt make the duty exist, he can either grant summary judgment or wait until after the verdict and then direct the verdict. c) Directed Verdict: If the judge concludes that a reasonable jury would find that D behaved reasonably, then the judge will direct the jury to find for D. d) Motion to Dismiss: If there is insufficient evidence to make the case, the judge may dismiss the case.

2. Jury: Jury is the finder of facts, and collectively serves as the reasonably prudent person. Jurys job is find the facts only where these facts are in dispute or are unclear such that reasonable persons would differ on them. a) Jury will decide what happened when the facts are in dispute. b) Jury will decide whether the facts indicate that D breached his duty of care to P in a way that proximately caused Ps injuries. c) Jury weighs the evidence and decides by a preponderance of the evidence whether P has established liability. B. Burden of Proof 1. Plaintiff generally has burden of proof, which breaks down into burden of production and burden of persuasion. 2. Defendant will have burden of proof on any contributory negligence claim(s) or where res ipsa loquitur applies. 3. Burden of Production: The obligation upon a party to come forward with the evidence in order to avoid a directed verdict. a) To get to the jury, P has to produce enough evidence that the court can find that the jury could find for him. b) P has to show all the elements of negligence are met in the evidence and in determination of the damages to be awarded. 4. Burden of Persuasion: P must convince the jury by at least 51% convincedpreponderance of the evidencethat he has established Ds liability for negligence. C. Contributory Negligence: D may be able to establish that, although he was negligent, P was also negligently behaving such that his behavior contributed to the accident which caused P injury. It is an admission of partial liability. 1. Used to be that if contributory negligence was established, P could not recover for damages. Now, if P is 50% or more contributorily negligent, he cannot recover. 2. Children and mentally deficient adults are given more leeway here, and generally mentally deficient adults are given the same allowances as children. D. Special Situations 1. Vicarious liability: An employer is liable for the actions of an employee acting within the scope of his employment. 2. Joint Enterprises: Where there are shared responsibilities and the defendants together are treated as one. E. Damages for Negligence 1. Because there must be actual damage to establish liability in a negligence case, there are no nominal damages. 2. Usually plaintiffs can recover for compensatory and punitive damages, depending upon the nature of the injury. 3. Medical malpractice: Some states have passed laws placing caps on the amount of damages for which plaintiffs can recover.

4. There are no punitive damages for negligence if the defendant is a mentally deficient person because its undue prejudice to make a mentally deficient person pay for something he doesnt really understand.