Inability go comply ex blizzard makes it impossible for RR to keep fences clear

Inability go comply ex blizzard makes it impossible

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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 back to traffic b/c heavy traffic going the other way) a. Anonymous —where there is a right under the law there is a remedy Violating a statute is negligence per se because the statute gives a right of action Statutes on the books that are not practical—not enforced b/c RP wouldn’t expect it to be enforced Stop sign put up based on defective statute—still needs to stop b/c RP would expect it b. 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 law Implied rights test: o Is one member of protected class? o Type of harm protected against If implied right exists courts take 4 views 1) Negligence per se 2) Prima facie negligence 3) Mere evidence 4) No evidence E. PROOF OF NEGLIGENCE—RES IPSA LOQUITUR— The Thing Speaks for Itself ELEMENTS OF R.I.L. 1) negligence type of injury 2) Δ’s exclusive control of instrumentality 10
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3) no assumption of risk or contributory negligence and Kuklin says: evidence must be more accessible to Δ (X-FACTOR in all cases) Doctrine of inference not presumption o Inference— 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 DV o Presumption —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 finder can automatically direct a judgment. o Conditional res ipsa 1) Injury of π from Δ’s conduct—if so got to #2 2) 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 π Circumstantial evidence—proof of one fact gives rise to another fact Π cant show that Δ dropped barrel but can show that barrel did drop and inference to be drawn is that there was negligence b. 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 liable Enough to show that injury was caused by external force Injury to part of body previously healthy Holding all liable would force the guilty party to come forward—court’s hoping Conspiracy of silence —where evidence more accessible to Δ, Δ wont make it available to π—especially medical info Only head surgeon should have been liable—not generally applied in cases of multiple Δ CHAPTER 4: PLAINTIFF’S CONDUCT A. CONTRIBUTORY NEGLIGENCE Was Δ at fault? Was π at fault? Traditionally only one party could be at fault—if entirely responsible there could only ne
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