100%(1)1 out of 1 people found this document helpful
This preview shows page 10 - 12 out of 23 pages.
Inability go comply (ex: blizzard makes it impossible for RR to keep fences clear)Emergency (ex: driver swerves to avoid child)Compliance poses greater risk than violation (pedestrian walking with backto traffic b/c heavy traffic going the other way)a.Anonymous—where there is a right under the law there is a remedyViolating a statute is negligence per sebecause the statute gives a right of actionStatutes on the books that are not practical—not enforced b/c RP wouldn’t expectit to be enforcedStop sign put up based on defective statute—still needs to stop b/c RP would expect itb.Osborne v. McMasters—pharmacy clerk failed to label poison as such—in her ignorance π took it and died—action for negligence—held liable b/c non-performance of his legal duty constituted negligence per se (in itself) even if not backed by common lawImplied rights test:oIs one member of protected class?oType of harm protected againstIf implied right exists courts take 4 views1)Negligence per se2)Prima facie negligence3)Mere evidence4)No evidenceE.PROOF OF NEGLIGENCE—RES IPSA LOQUITUR—The Thing Speaks for ItselfELEMENTS OF R.I.L.1) negligence type of injury2) Δ’s exclusive control of instrumentality10
3) no assumption of risk or contributory negligenceand Kuklin says: evidence must be more accessible to Δ (X-FACTOR in all cases)Doctrine of inference not presumptionoInference—fact finder may find it and then could still move on without it—SJ or DV won’t close case, enough to keep going –must find negligence for SJ or DVoPresumption—is an assumption of the existence of one fact that the law requires based on the existence of another fact. Where there is a presumption the fact findercan automatically direct a judgment.oConditional res ipsa1)Injury of π from Δ’s conduct—if so got to #22)Was Δ negligent?a.Byrne v. Boadle—π passing in front of Δ’s premises when he was struck by a barrel—action of negligence—held liable even though only circumstantial evidence available—must be proven by preponderance of evidence by πCircumstantial evidence—proof of one fact gives rise to another factΠ cant show that Δ dropped barrel but can show that barrel did drop and inference to be drawn is that there was negligenceb.Ybarra v. Spangard—π sues doctors and hospital staff for injury during surgery—unknown who was directly responsible and what was the instrumentality—action under res ipsa and held liableEnough to show that injury was caused by external forceInjury to part of body previously healthyHolding all liable would force the guilty party to come forward—court’s hopingConspiracy of silence—where evidence more accessible to Δ, Δ wont make it available to π—especially medical infoOnly head surgeon should have been liable—not generally applied in cases of multipleΔCHAPTER 4: PLAINTIFF’S CONDUCTA.CONTRIBUTORY NEGLIGENCEWas Δ at fault?Was π at fault?Traditionally only one party could be at fault—if entirely responsible there could only ne