TORTS Torts Outline – Negligence Fall 2013Fall 2013 Prof. HubbardOUTLINE – NEGLIGENCE(Breach of duty of due care or reasonable care)INTRODUCTION: Success on the exam depends in large part on “issue spotting.” Your outline serves as your guide to spotting possible issues and to analyzing issues raised by the exam question.I. Foreseeability: Risk must be foreseeable. Discuss any issue[s] here.II. Tests of NegligenceA. AC>SC, yet SC not undertaken by defendant. Fact analysis:1. What are AC in the question? Note: AC are not simply what happened to the victim. Accident costs also include a consideration of the probability of that injury, of other injuries that might have happened, and the probability of these other injuries.2. What are SC? This requires that you identify the safety measures that could have been taken.3. What is the comparative weight of the relevant costs of AC and SC - i.e., are AC>SC?B. Reasonable Person (or a statement of this test, see n. 5. p. 43)1. Generally, fact analysis is similar to “A” above. (A reasonable person would do SC if SC<AC.)2. Concept of “objective reasonable person.” (See nn. 3-11 at pp. 52-59) Application issue: Do facts raise issues as to whether to individualize? Examples,a. special expertise(1) Claim to have special expertise or act in area where special expertise needed – held to expert standard – e.g., (a) doctor (see Part IV below)1(b) manufacturer of automobiles – held to standard of experienced auto manufacturer(2) race car driver on ordinary highway – split; undecided (n. 10, p. 57)b. “disability” – examples where issue arises (pp. 53-57)(1) blindness(2) clumsiness(3) mental ability(4) “sudden condition” (Hammontree; nn. 8-9 at pp. 55-57)c. age (see n. 11, p. 58)d. learner (see n. 11 at p. 59)3. Application to facts/circumstancesa. “emergency doctrine” (n. 12, p. 59)III. Proof. Negligence (“A” and “B” in Part II above) must be proved. The following is a list of the doctrines covered in course.A. Notice of AC (safety risk[s])/SC (safety measure[s])1. actual notice2. constructive noticea. definition (distinguish from actual notice)3. relevant to foreseeability and to application of tests of negligence4. self-service stores and the duty of due care to in terms of slippery substance caused by the act of a non-employee. Note: Where substance on floor results from an act of a store employee, the issue is simply whether the employee’s act was negligent. (See n. 6, p. 89)a. actual/constructive notice of problem(1) circumstantial evidence: importance of facts – e.g., to showlength of time of floorb. Safety measures to address problem of slippery floors2(1) inspect/clean up/warn(2) mats(3) packaging/display(4) trash receptaclesNote: Duty Outline (to be handed out later) will contain further discussion of invitees and of self-service stores.c. Possible approaches (n. 7 at pp. 89–90)(1) Store only has a duty of due care as to “b.(1)” above—i.e., inspect/clean up/warn. This appears to be the approach of South Carolina.(2) Traditional negligence –(a) all the items in “b” above are relevant and admissible(b) plaintiff has burden of production and persuasion(3) Alternatives to standard due care model(a) shift “burden of proof” to store. Does this mean burden of production only or is the burden of persuasion also included?(b) “strict liability” for these slip-and-fall casesB. Custom: A safety measure customarily followed by the industry with the purpose of preventing the type of injury suffered by the plaintiff1. General rule: Relevant (see 4 below) but not conclusive.a. exception (see “IV” – Medical Malpractice below)2. What is safety custom a. safety (see n. 5, p. 72)b. custom – e.g., 40%, 50%, 60% of industry?3. What is the industry where safety custom is at issue?4. Relevance of compliance with (or lack of compliance with) safety custom3a. Foreseeability – evidence relevant to whether constructive knowledge of:(1) AC – risk(2) SC – safety measureb. Negligence – evidence relevant to whether:(1) RP would follow(2) AC>SCc. “Practical” – finding negligence despite compliance could affect whole industry (see nn. 3–4, pp. 71–72)5. If no custom, consider relevance to practical feasibility that at least one member of industry has adopted safety measure that plaintiff claims defendant should haveadoptedC. Statute, regulation, ordinance (see handout)1. Is this a safety statute in terms of facts? Test: Does the statute set a standard withthe purpose of protecting the victim like plaintiff from the type of injury that occurred? (See n. 5, p. 77; nn. 6-8, pp. 81-83)2. Rules applicable where purpose of statute is to address injury like that suffered byplaintiffa. effect of breach(1) SJ/DV/JNOV against violator on issue of negligence if violator does not offer evidence of “good” reason to breach (“negligence per se” “prima facie evidence of negligence”)(2) Jury issue if violator presents evidence of “good” reason to breach. Two types of good reasons:(a) Excuse – no way to prevent (e.g., n. 3, p. 80)(b) Justification – violation done to avoid substantially greater risk of serious harm (e.g., Tedla)Note: Following custom does not excuse/justify in Robinson, n. 5, p. 80b. effect of compliance (n. 10, p. 83)4(1) generally admissible, but not conclusive(2) preemption – conclusive (Preemption will be addressed in more detail with defenses.)3. Some miscellaneous issuesa. validity of statute, regulation, or ordinance (n. 4, p. 76)b. licensing statutes (n. 9, p. 83)D. Res ipsa loquitur (see handout)1. Elements (pp. 100-101)a. no accident with negligenceb. exclusive control by defendantc. [no causal action or contribution by plaintiff] (Brackets are used here because if defendant has exclusive control, plaintiff has no role anyway.)2. Possible effects (See n. 5, p. 96). A jurisdiction will have one of the following:a. Plaintiff satisfies burden of going forward. Why have the doctrine if this is only effect? Why not just rely on general approach to circumstantial evidence?b. Plaintiff satisfies burden of going forward and burden of going forward to show lack of negligence shifts to defendant.c. Plaintiff satisfies burden of going forward, burden of going forward to show lack of negligence shifts to defendant, and burden of persuasion shifts to defendant.(Note: South Carolina does not use res ipsa; courts