In more recent years state legislatures have softened

Info icon This preview shows pages 63–65. Sign up to view the full content.

plaintiff. In more recent years, state legislatures have softened the “harshness” of the contribu- tory-negligence bar by enacting “comparative negligence” statutes which diminish the plaintiff’s recovery by the percent of plaintiff’s fault, but do not bar all recovery. See, e.g. , La. Civ. Code art. 2323. The courts have consistently stated that the determination whether the reasonable per- son standard was met is the same, whether the actor is a defendant or a plaintiff, despite some ar- gument that it should be different. See James and Dickinson, “Accident Proneness and Accident Law,” 63 Harv. L.Rev . 769, 782-791 (1950). (7) For Louisiana’s standard of conduct for insane defendants, see Mathieu v. Imperial Toy Co., 632 So.2d 375 (La. App. 4th Cir. 1994) and Brannon v. Shelter, 507 So.2d 194 (La. 1987). Identification of Issues in Negligence Cases 240
Image of page 63

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

by Leon Green ** [1] The identification and formulation of the basic issues in negligence cases mark the great- est weakness in the common-law litigation process. If issues are not identified and formulated with considerable accuracy a case is almost certain to come to grief. Practically all the negli- gence cases in which the decisions are questionable involve errors in identifying or in the formu- lation of the basic issues. [2] The basic affirmative issues in negligence case are few, but lie so close together that they are easily confused. The basic affirmative defensive issues are correspondingly few and may also be confused. There are usually evidentiary issues relevant to the determination of a basic is- sue and not infrequently an evidentiary issue is treated as a basic issue, within justice to a liti- gant. [3] The first affirmative basic issue of any negligence case is the identification of the defen- dant and the causal connection between his conduct and the plaintiff’s injury. After both parties have closed, the trial judge must determine it the evidence is sufficient to require submission of the issue to the jury. This issue is a fact issue to be determined by the hindsight and good sense of the jury. The evidence may also raise evidentiary issues which must be resolved by the jury in its determination of this basic issue. In some cases causal connection is clear, not contested, and even conceded, but it must be shown by the facts even though not submitted to the jury. It is the gateway issue, and if not at least provisionally established the case will proceed no further. [4] Assuming that causal connection is established or is an issue for the jury, the plaintiff must then establish a duty owed to the plaintiff by the defendant which protects the plaintiff against the risk of injury he has suffered. While this is an issue of law for the court, the scope of protection is determined by the court’s evaluation of the facts of the case and of the various poli- cies that may be involved. It may be further noted that the determination of the scope of the de- fendant’s duty to the plaintiff is a matter of hindsight, whether based on the pleadings or the evi- dence introduced in the case.
Image of page 64
Image of page 65
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern