1THE NEGLIGENCE PRINCIPLEA. Components of a Negligence ClaimB. Fault LiabilityBrown v. KendallC. The Standard of Care1. Unreasonable Risk(i) Creation of RiskAdams v. Bullock(ii) Calibration of the Standard of CareUnited States v. Carroll Towing Co.2. The Reasonable PersonBethel v. New York City Transit Authority(i) Dangerous Instrumentalities(ii) Physical Disabilities(iii) MentalabilityDiminished capacityImbecilityInsanityIntoxication(iv) Children(v) Elderly(vi) Beginners(vii) Emergency DoctrineD. The Roles of Judge and JuryBaltimore & Ohio Railroad Co. v. Goodman2Pokora v. Wabash Railway Co.Andrews v. United Airlines Inc.E. Particularizing the Standard of Care1. The Role of CustomTrimarco v. Klein2. The Role of Statutes(i) Violation as negligence per seMartin v. Herzog(1) Requirements for statute to apply(a) Class of persons protected(b) Relevance(c) Obsoleteness(ii) ExceptionsTedla v. Ellman(1) Justifications for non-compliance defenses to negligence per se(a) Greater risk of harm(b) Inability or reasonable attempt to comply(c) Emergency(2) Limitations to compliance as a defense against negligence(iii) Licensing StatutesF. Proof of Negligence1. Constructive NoticeNegri v. Stop and Shopt Inc.Gordon v. American Museum of Natural History(i) Historical Evidence3(ii) Business Practice Rule2. Res Ipsa Loquitur(i) Requirements: Exclusive Control, Seldom OccursByrne v. Boadle(ii) Negating Other Causes: More Likely Than NotMcDougald v. Perry(iii) Two Approaches: Inference of Negligence vs. Rebuttable Presumption(iv) Spoliation of Evidence: Spoliation Tort(v) Automobiles: Negligence per se(vi) Multiple Defendants: Special RelationshipYbarra v. Spangard (California, 1944)(vii) Pleading or Proving Specific Negligence(viii) Defendants Rebuttal: Due Care vs. Disproving a RequirementE. Medical Malpractice1. Refined Standard of Care: Conformity with Common PracticeSheely v. Memorial Hospital(i) Differing schools of thought(ii) Specialists held to a higher standard(iii) Need for expert testimony(a) Standard(b) Negligence obvious to the lay personConnors v. University Associates in Obstetrics & Gynecology Inc.4(iv) Informed ConsentMatthies v. Mastromonaco5THE NEGLIGENCE PRINCIPLEA. Components of a Negligence ClaimDuty + Breach + Causation + Actual damagesFailure to conform, Actual, legalcarelessness.LiabilityB. Fault LiabilityPlaintiff must come prepared with evidence to show either that the intention was unlawful or that the defendant was at fault. If the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. Those facts that are essential to the plaintiffs case must be proven by the plaintiff.Brown v. Kendall (Massachusetts, 1850)PH:Brown (, poked in the eye) sued Kendall (, poker) for trespass for assault and battery. Jury found for . appealedF: and s dogs were fighting took stick and beat the dogs to separate them while looked on. advanced one or two steps towards dogsAs was backing away from dogs, while still beating them, struck in the eye causing severe injury.Court instructed the jury that had to prove his duty of careI:Can a recover damages for trespass when s conduct causing the injury was unintentional?H:To show that was liable for trespass he must be shown to be at fault and that the action in question was not a mere accident. It is s duty to prove that is at fault.Rule: a must show that criminal intent or fault existed in order for an action to be considered trespass.R:It is not enough to show that a particular act led to a particular injury for trespass to be present. It must be shown that either there was criminal intention or fault. If the injury was unavoidable and the conduct was free from blame, is not liable. The burden of proof lies with . To do otherwise would be to assume was guilty.6J:New trialNotes:Jury charge was wrong because 1) it placed the burden of proof on the defendant, and 2) it equated necessary care with ordinary care and unnecessary care with extraordinary care. Under trespass, non-negligence might have been contemplated under liability in trespass. Now the burden of proof is placed on the plaintiff to show fault. Before every trespass was actionable, now you must show fault.C. The Standard of Care1. Unreasonable Risk(1) Creation of RiskTo show that the defendants conduct failed to meet the duty of care , the plaintiff must show that the defendants conduct created an unreasonable risk of harm.There is no benefit of hindsight; one is not guilty of negligence when one fails to foresee the unusual and remote conduct of others. Ordinary caution does not involve forethought of extraordinary peril.Adams v. Bullock (New York, 1919)PH:Adams (, a boy of 12) sued Bullock (, a trolley owner) for negligence. Verdict for . appealed. Appellate Division court affirmed. appealed.F:Trolley wire runs under over