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Torts Outline
Torts (T): Wrongs recognized by laws as grounds for a lawsuit. All T’s involve conduct that falls below some legal standard. In almost all cases, the D is in some sense at fault, either because he intends harm or because he takes unreasonable risks or harm.
In all T cases, the D’s wrong results in a harm to another person (or entity, such as a corporation), that the law is willing to say constitutes a legal injury.
Cause of Action: The claim an injured person has against the person who committed the T.
Harm can involve physical injury, threat of physical injury, harm which is purely commercial, and intangible harm such as harm to reputation. Tort law aims at vindicating individual rights and redressing private harms.
Compensatory Damages Component: The injured person usually has the burden of proving that the D is liable. Once Liability is proved or admitted, a P is entitled to recover compensatory damages caused by the D’s T conduct.
Upon Proper proof, a P is entitled to compensation for (1) lost wages or lost earning capacity, (2) medical expenses, (3) pain and suffering endured, including mental or emotional pain, and (4) any special or particularized damages that do not fit neatly within the other categories.
A jury’s award may be subject to revision or reversal if it is “so excessive or inadequate as to be the result of passion, prejudice, mistake, or some other means not apparent in the record.
Additur-Remittitur: The ability for a judge to either add to an award that is excessively low or decrease from an award that is excessively high.
Punitive Damages: Juries are permitted to award punitive damages in addition to compensatory damages. Virtually all states authorize punitive damages only when a tortfeasor has acted maliciously or willfully wantonly in causing injury. This is used in most cases as a measure of deterrence and punishment for the wrongdoer’s serious misconduct.
Van Camp V. McAfoos: The legal issue presented is whether P plead a cause of action of tort liability since she did not allege negligence by D or that they were willful or wrongful in any manner. The legal authority over this case is that P must not only plead a cause of action of tort liability but they must also allege fault. Elements of Fault: Fault must be discernable in both the pleadings and proof; it must either be intentionally wrongful; or negligently wrongful.
The court, has resolved this issue by asserting they will not recognize liability w/out fault. Fault must be discernable by both pleadings and proof, be intentionally wrongful, or negligently wrongful. The court affirmed the trial court’s decision by agreeing that P did not plead a cause of action in such a way as to bring in fault as an essential element of liability. This case is presented first in order to show us how legal questions are raised in court. Secondly, it is used to show the essential elements of liability.
Dillon V Frazer: The legal issue in this case is whether the trial court erred in not granting P a new trial absolute as to damages. The legal authority is that the trial court must grant a new trial absolute if the amount of the verdict is grossly inadequate or excessive so as to shock the conscience of the court and clearly indicates the figure reached was the result of passion, caprice, prejudice, partiality, corruption, or some other improper motive. The undisputed damages for P was $30,026 yet the jury only awarded $6,000. P then filed a motion for additur and the award increased by $15,000 bringing the total award for damages to $21,000. The court found that the jury verdict of $6,000 was inconsistent with the undisputed damages claim. Since there was no plausible reason for the verdict to be that low the court found that the TC erred in not granting P a new trial absolute as to damages. This case is in the case book to illustrate how compensatory damages can be modified and to illustrate the ideas of both judicial discretion and jury discretion. In this case it shows the jury’s discretion to greatly undercut the award for undisputed damages and the judge’s discretion to remand for a new trial on damages only.
Establishing a Claim for Intentional Tor to Person or Property
Every type of T claim has its own elements, or particular things that a P must prove in order to succeed on that claim.
Prima Facie Case: A case which case “good on the face of it” or at first look. The P bears the burden of proof on each element, meaning if the P fails to prove a prima facie case, the D will win even w/out putting on a defense.
Battery: The nonconsensual touching of, or use of force against, the body of another w/ the intent to cause harmful or offensive contact.
Elements of Battery
- An actor intends to cause a harmful or offensive contact w/ the person of the other or a third person, or an imminent apprehension of such a contact, and
- A harmful (or offensive) contact w/ the person of the other directly or indirectly results.
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other patient even though she had expressed and been assured her religious views would be respected.
Garratt V Dailey : Five-year-old boy pulls chair out from under a woman which causes her to fall and hurt herself. The legal issue is whether D had committed a battery if he had not intended to cause harm to the P. Single vs. Dual intent A battery would be established if, in addition to P’s fall, it was proved that, when D moved the chair, he knew with substantial certainty that the P would attempt to sit down where the chair had been. Since D was a child less than six-years-old the court needed to establish that he understood the removal of the chair would cause P to fall. Without this knowledge there can be no intent to cause harm and not all elements for battery will be met. The court remanded for clarification, with the instructions to make certain whether D knew with substantial certainty that the P would attempt to sit down where the chair he moved had been.
White V Muniz : Elderly woman (Everly) is suffering from Alzheimer’s and punches D in the jaw when she tries to change P’s diaper. The legal issue in this case is whether a person with mental disabilities can have the requisite intent to cause harm to a person. The controlling authority on this is Restatement (Second) of Torts and the dual intent requirement of Colorado. An actor is subject to liability to another for battery if a. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. An offensive [or harmful] contact with a person of the other directly or indirectly results…. Under the dual intent it needed to be established whether or not Everly had appreciated the offensiveness of her conduct in order to be held liable for the intentional tort of battery. The fact that the last part of the jury instruction stated “However, she must have appreciated the offensiveness of her conduct.”, was objected to and taken out it did not represent the Colorado dual intent requirement the jury should use. The Court finds that a jury can find a mentally deficient person liable for an intentional tort, but in order to do so, the jury must find that the actor intended offensive or harmful consequences. This doesn’t create a special rule to the elderly but applies Colorado’s intent requirement to a person suffering mental deficiency. Dementia doesn’t prevent “intentional acting”
Wagner V State (Squib): P, while waiting in a customer service line is attacked from behind by D, who is a mentally disabled patient who was accompanied to the store by a state worker as part of a mental health treatment program. The issue is whether a mentally disabled person can be held liable for battery. 1
The state relies on the fact that the only single intent is required. P argues that D could not legally constitute a battery because battery requires the actor to intend harm or offense through his deliberate contact, an intent D was mentally incompetent to form. The court ruled that only an intent to make contact was required and his mental deficiency would not prevent that. Dual Intent: D in a battery must intend to; touch and intend to offend or harm Single Intent: Only intent to touch.
Baska V Scherzer (Squib): This case deals with transfer of intent where although one party intendeds to hit another party they instead hit a third party thus transferring the intent of assault and battery onto that person. The P tries to claim a negligent fault in her pleading but through the testimony of the Ds we find that they had intended to hit each other and that the rule of transferred intent applies here. Because the intent was transferred onto the P this is not a case of negligence but the intentional tort of battery. Battery only has a one-year statute of limitations as opposed to Negligence which holds a two-year statutory limit so she tried to play it off as one while it was clearly the other.
Assault
Cullison v Medley : Man is threatened in his home by a group trying to keep him away from one of the females in their family. He develops anxiety and other issues due to feeling that his life is constantly under threat. The intent to cause fear in P The issue here deals with being able to be free of the apprehension of a battery which is protected by the tort that we call assault. The controlling legal issue here comes from the Restatement of Torts (Second) on Battery specifically that “assault, unlike battery, is effectuated when one acts intending to cause a harmful or offensive contact with the person of the other or an imminent apprehension of such a contact.” P in this case pleaded that because he was cornered and threatened in his home by the Ds that certain mental and physical issues tied to mental distress arose afterward. Although one of the Ds had threatened to shoot the P during the confrontation he did not remove the pistol from the holster so it was decided he merely was making threats and didn’t intend to shoot the P. In its opinion the Court states the case of Kline v Kline in which it is established that an assault constitutes “a touching of the mind, if not the body.” Because it is a touching of the mind, as opposed to the body, the damages which are recoverable for an assault are damages for mental trauma and distress. “Any act of such a nature as to excite an apprehension of a battery may constitute an assault. It is an assault to shake a fist under another’s nose, to aim or strike at him with a weapon, or to hold it in a threatening position to rise or advance to strike another, to surround him with a display of force…” The apprehension must be one that would occur in the mind of a reasonable person. Through the Courts definition of assault, they found that could P’s testimony if believed, allows him to recover damages for an assault against the D’s.
property. Trespass doesn’t occur if someone unintentionally enters, as where a car goes out of control w/out fault. However, if the person refuses to leave it is trespassing.
Conversion of Chattel (Trover): D must intend to exercise substantial dominion over the chattel. There is no requirement for D to be conscious of wrongdoing. Substantial Dominion: a. Extent and duration of control; b. The D intent to assert a right to the property; c. The D good faith d. The harm done; and e. Expense or inconvenience caused.
Remedies: Typically, damages, measured by the value of the chattel at the time of conversion. Some courts have allowed the recovery of items at their highest market value for items which fluctuate. Replevin can also be sought to return the item which had been taken.
Section 1983 Claim:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Ch:4 Protecting Against the P’s Apparent Misconduct
Self-Defense & Defense of Others
Touchet v Hampton : D must raise Affirmative Defense. D has burden of proof in an affirmative defense. P was a sales manager for three years at Hampton Mitsubishi, a car dealership owned by D Mark Hampton. P was terminated in the summer of 2002. In October of that year, D received a series of calls from P, three of which were left on his answering machine in one day. The issue in this case is dealing with P’s claim of self-defense against the D when he punched D in a confrontation. The rule for self-defense is that the D’s actions can be justified as self-defense if there was an actual or reasonably apparent threat to the safety and the force employed was not excessive in degree or kind. “The privilege of self-defense is based on the prevention of harm to the actor not on the desire for retaliation or revenge, no matter how understandable that desire.”
In his testimony D alleges that because he was receiving threatening calls from P and the manner in which P, rose and approached D he felt an imminent apprehension that P would harm him so he struck first. All other witness’ testified that P remained seated did not make any threatening moves toward D when he entered the office. Wiggle room in witness’s testimony left question of D’s validity. The Court referenced Morneau and Richardson in establishing that “mere words, even though designed to excite or irritate, cannot excuse a battery.” The SC reiterated in Landry “words written or spoken sometime prior will not justify a physical attack upon the one by whom they were written or spoken.” In the Courts opinion since the confrontation happened nine days after the messages were left that D had unexpectedly arrived to P’s work and P was only aware of D’s presence minutes before in which P did not take any threatening stance then there was no probable cause for D to strike the P. They go on to say that D at any time could have left the premises yet he struck the P and had to be physically pulled off of him. The Court concluded that since this was more of an unwarranted attack by D of P that the case did not fit the requirements for self-defense. They reversed and remanded the case and asserted that D would have the opportunity to present additional evidence. Remaining seated at his desk is an outcome determinative factor.
Defense & Repossession of Property
Katko v Briney: D inherited an unoccupied farm house. For ten years there was a series of break ins and so they decided to rig a shotgun trap to one of the doors to injure anyone who would trespass. They were not intending to lethally wound the trespasser and only meant to injure them. The issue in this case deals with defense and what is considered to be excessive force used in that defense. The rule for this deals with the “law permitting a spring guns use in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief…” P testified to knowing he had no right to break and enter the home with the intent to steal bottles and fruit jars. This however does not play into the justification for the use of force in this situation. In the rule for spring gun use it is stated “an owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury…the only time when such a conduct of setting a ‘spring gun’ or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.” The Court referenced the Restatement of Torts, section 85, page 180, stating: The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has...” Essentially that the possessor only has the authority to inflict great bodily harm or death on the intruder when there is the threat of death or serious bodily harm to the occupiers or users of the premise and they cannot setup a device that would act in a manor they could if they were present.
probable cause can go hand in hand in this requirement. Since the D had probable cause that something had been stolen he fulfilled the reasonable cause. When they apprehended the P they did not make any attempts to question or summon officers to the scene. Reasonable detention goes through an escalation of force and only allows such force in self-defense. Force is also able to be used when you do not have the time to request the person remain or when the request would be obviously futile. Reasonable cause added to cover those situations where no one actually witnessed the theft.
*Reasonableness of force used is usually “a question of fact for the jury.” _A question of law for the court when facts or inferences from them are not in dispute. A mixed question of law and fact judge determines the law first and then the jury ultimately determines the disputed facts._ Discipline
Some states refuse to allow children to sue their parents for torts. Where children can sue their parents, parents still enjoy a privilege to discipline, and to use force and confinement to do so. The Restatement says parents may use reasonable force as they reasonably believe necessary.
The Special Case of Consent
Robins v Harris: This case deals with a P who was an inmate at an Indiana county jail and her jailor Michael Soules. The incident in question deals with Soules ordering a lockdown and then having P perform fellatio on him. P sued for battery against Soules and he was forced to resign and pleaded to misdemeanor official misconduct to avoid felony charges. In the civil case Soules claimed he was not liable and raised an affirmative defense of consent. The court of appeals held that several parties were potentially subject to liability and that the inmate’s alleged consent to the sexual contact was no defense. In a decent on the ruling it was noted that due to the lack of consent in the criminal law where a jailor cannot use consent as a defense the civil law should follow suit. *Under statute a service provider may not claim consent as a defense for sexual misconduct with a detainee.
Power relationships: Any relationship in which one party holds power over the other is murky when dealing with consent. Typically, in cases where all or most power is held by one person it is hard to determine if consent is actually assented to or if the person is unable to do anything but assent.
Employers: Federal statutes against employment discrimination forbid sexual harassment of employees. The common law might favor the employee better than the statute where the question of whether the contact was invited or not.
Incapacity to Consent: minors. Minors as a class are often thought to not have the power to assent. Though courts are split, it is generally assumed that minors may consent to a number of touching’s appropriate to their age. Many states impose criminal liability for sexual contact with a minor; the minor’s consent is ineffective and provides no defense. Most states agree that a minor’s consent is no defense in a civil action for such sexual contact, either.
Incapacity to Consent: adults. Incapacity of an adult is usually established only by showing that the particular adult could not manage their own affairs, or, in consent cases, that they did not understand the nature of the character of the act.
Kaplan v Mamelak: The issue in this case is whether a doctor can be held liable for a battery when they perform the incorrect procedure. P generally consented to the operations. The rule for this case deals with battery and consent in medical procedures. A doctor who operates on a patient without that patient’s consent commits a battery. D asserts the surgery of wrong disks may constitute negligence but not battery. The court stated that the doctor here “may have committed a battery by operating on the wrong spinal disk when he only had permission to operate on one specific disk.” The court then states “the law will deem a patient to have consented to a touching that, although not literally covered by the patient’s express consent, involves complications inherent to the procedure…a battery occurs if the physician performs a ‘substantially different treatment’ from that covered by the express consent.” When the patient consents to certain treatment and the doctor performs that treatment they are not committing a battery if there is an undisclosed inherent complication, low probability the complication would occur, no intentional deviation from consent appears. A classic action that sounds like negligence doesn’t elevate every medical mistake from negligence into battery.
There are three conditions that may arise where a person does not have the power to consent and medical providers are allowed to work on you without your express consent. The first is in an emergency w here the doctor must help immediately and obtaining consent is not possible. Secondly, consent can be substituted such as when an adult family member or guardian can be empowered to give consent on behalf of a minor or an incapacitated adult. Finally, if a person is in a state of incompetence in which they can’t give consent (I.e., drunk, drugged, or not in the right state of mind) then a doctor may assume consent to help treat the patient.
Doe v Johnson: Consent by fraud P alleges D transmitted the HIV to her through consensual sexual contact.
The court decided that it is justified to enter into land and interfere with personal possession should there be an urgent necessity. Therefore, since the boat was moored to the dock out of necessity for the safety of the family inside the D erred in having it unmoored.
Vincent v Lake Erie Transportation Co: The issue in this case is whether the D should be liable for damages to P’s dock because of his inability to remove the vessel from the dock during a storm. The rule of law states that by availing oneself of others property for the purpose of preserving its own more valuable property payment should be made for any damages sustained to the availed property. The relevant facts in the case are that the D had called for a tug boat to navigate out of the port but was denied because of the severity of the storm. D also asserts that their conduct was justified under the circumstances as the challenges of navigating a deadly storm outweighed the damages that P suffered to their dock. The Court asserted that since the D had acted to continually moor the boat to the dock it had taken an active role which made them liable for damages. Had they just let the boat go and it drifted into another then they would not be liable for damages. They also reference the recuperation of damages that one is owed when his property is used in such a way to help another. The Court decided that this was not a case where life or property was menaced by any object belonging to the P, the destruction of which became necessary to prevent the threatened disaster. It is one where the D prudently and advisedly availed himself of the P’s property for the purpose of preserving his own more valuable property and the P are entitled to compensation for injury done. In a dissent given by Lewis, J. He asserts that the boat was lawfully moored at the time the storm broke out and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat was the result of an inevitable accident. He also is of the opinion that the dock owner knowingly takes the risk when building his dock that there may be a time where a vessel is unable to unmoor and will cause damage to his dock.
Duty
The Fault Basis of Liability Negligence as a fault based system
The general principal of law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of Misfortune. But relatively to a given human being anything is accident which he could not fairly have been expected to contemplate as possible, and therefore avoid.
Negligence may be any conduct that creates an unreasonable risk of harm to others.
Five Elements must be established for Negligence:
• The D owed the P a legal duty
• The D, by behaving negligently, breached that duty
• The P suffered actual damage
• The D’s negligence was an actual cause of this damage; and
• The D’s negligence was a “proximate cause” of this damage
Stewart v Motts : The issue in this case is whether there exists a higher standard of “extraordinary care” for the use of dangerous instrumentalities over and above the standard “reasonable care” such that the trial court erred for failing to give an instruction to the jury that the Appellee should have used a “high degree of care” in handling gasoline. The rule in this case deals with care to be applied to negligence in which the Restatement says “The care required is always reasonable care. The standard never varies, but the care which is reasonable to require of the actor varies with the danger involved in his act and is proportional to it. The greater the danger the greater the care which must be exercised.” The facts are that the P who was going to D’s auto repair shop to get his car fixed suffered injuries when pouring gas into the carburetor to get it to start. When the engine backfired the gasoline exploded and burned the P. In the TC the P asked for a jury instruction stating “that gasoline in due to its inflammability is a very dangerous substance if not properly handled…and under the circumstance there should be a higher degree of care. The Court stated that there is only one standard of care to be applied to negligence actions involving dangerous instrumentalities in the Commonwealth. Citing Konchar v Cebular the Court determined the question of the P contributory negligence was to be determined using the reasonable care standard. The care employed by a by a reasonable man must be proportionate to the danger of the activity. The charge informed the jury that the proper standard of care was “reasonable” or “ordinary” care under the circumstances in accordance with the law of the Commonwealth.
- The amount of care required by law must be in keeping with the degree of danger involved.
Posas v Horton : The issue in this case deals with the reasonable care standard and how it applies to emergency situations. The rule for reasonable care in emergency situations comes from the Restatement stating “The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for tortious conduct which has produced the emergency” The facts are that the Appellant had to stop her car suddenly from hitting a jaywalking pedestrian who was pushing a stroller and in doing so was struck from behind by the Appellee.
The Restatement provides that “The conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability.”
In some cases, federal and state disability accommodation statutes may play a role in determining defendants’ obligation.
Intoxication: The general rule is that an intoxicated person owes the same care as a sober person, and that if his overt conduct would be negligence in a sober person, it is also negligence in a drunken one.
Sudden Incapacitation: Courts have uniformly held that where a person’s alleged negligence is caused by a sudden physical incapacitation that is not foreseeable there should be no liability. Restatement (Third) of Torts: Liability for Physical and Emotional Harm: Many courts place the burden of proving sudden incapacitation on the defendant.
Creasy v Rusk: The issue in this case is whether a man suffering from Alzheimer’s disease should be held to the same standard of care as that of a reasonable person under the same circumstances. The rule in this case deals with care to be applied to negligence in which the Restatement says “The care required is always reasonable care. The standard never varies, but the care which is reasonable to require of the actor varies with the danger involved in his act and is proportional to it. The greater the danger the greater the care which must be exercised.” This case is also shaped in public policy with legislation determining that people with disabilities should be treated in the same way as non-disabled persons.
- Allocates loses between two innocent parties to the one who caused or occasioned the loss…
- Provides incentive to those responsible for people with disabilities and interested in their estates to prevent harm and “restrain” those who are potentially dangerous…
- Removes inducements for alleged tortfeasors to fake a mental disability in order to escape liability…
- Avoids Administrative problems involved in courts and juries attempting to identify and assess the significance of an actor’s disability. As a practical matter, it is arguably too difficult to account for or draw any “satisfactory line between mental deficiency and those variations of temperament, intellect, and emotional balance.”
- Forces persons with disabilities to pay for the damage they do if they “are to live in the world.”
The court held that a person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tortfeasor’s capacity to control or understand the consequences of his or her actions. 1
[However, one employed to take care of a patient known to be combative because of Alzheimer’s disease has no complaint for injuries sustained in doing so. As to such a caretaker the duty of care is a one-way street, from caretaker to patient, not the other way around. Hence Rusk is not liable on these facts.]
Neither insanity nor mental deficiency relieves the actor from liability, and that the actor’s conduct must conform to the general standard of care of a reasonable person under similar external circumstances.
*A person with mental disability has impaired judgement while a person with a physical disability has unimpaired judgement.
Hill v Sparks : This is a case about failure of proof. The issue here is whether D exercised a reasonable standard of care when he had his sister ride on the side of an earth scrapper which resulted in her death. The rule here states that “The standard of the reasonable man requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgement in order to recognize the existence of a risk. If the actor has in fact more than the minimum of these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances.”
- Trial Court stated she should have known of the obvious danger of the situation. No evidence from which the jury could find him negligent because of the obvious danger. The D was an operator of earth-moving machinery and had several seasons experience with a machine known as an earth scrapper. He also heard decedents husband warn an employee to get a boy who was riding on the earth scrappers ladder off because if he fell he would be crushed under the wheel. D with his experience and having heard the warning still had his sister ride on the ladder of the machine which resulted in her death when it hit a mound of dirt and she was thrown under the tire. The evidence in this case presented an issue submissible to the jury of whether…appellant met the requisite standard of care.
- Minimum Reasonable: A) Attention B) Perception C) Memory D) Knowledge E) Intelligent F) Judgement
- To recognize the existence of the “risk”
- (^) If D has more than the minimum, he must use his superior qualities in a manner reasonable under the circumstances.
Robinson v Lindsay : The issue in this case is whether a child’s liability for injuries sustained as a result of his or her operation of a motorized vehicle or participation in an inherently dangerous activity. The rule for this case would typically be that the child exercises the same standard of care that a reasonably careful of the same age, intelligence, maturity, training, and experience would
The rule for this deals with the ordinary care standard and the application of statutory requirements that work beside it. The Court found that the TC erred in their instruction where “the trial judge charged the jury that decedent’s violation of the statute could be considered as evidence of contributory negligence but not as negligence in itself.” On appeal Judge Cardozo ripped the TC a new one by stating “We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself…Jurors have no dispensing power; in which they may relax the duty that one traveler on the highway owes under the statute to another.”
Types of statutes covered by the negligence per se rule: The Restatement (Third) of Torts: Liability and Emotional Harm: “Where a statute itself provides for civil liability, creating a private right of action, the court must simply apply it. For example, a statute could provide that the owner or keeper of a dog that damages the property or person of another must pay compensation to the person whose property or person is harmed. In such a case, the court simply applies and enforces the statutory right.
In a negligence per se case, by contrast, the legislature has neither expressly or impliedly provided for civil liability. For example, a statute might set a speed limit for vehicles on the highway, prescribing a criminal penalty for violation, but not mentioning anything at all about the liability of a violator to someone harmed by a crash caused by speeding. In that case the negligence per se doctrine comes into play.
Some jurisdictions say when ordinance and administrative codes are violated it is only “some evidence of negligence” Still have to prove factual causation Negligence Per Se does not link factual and related issues.
O’Guin v Bingham County : A landowner’s duty to a trespasser is to refrain from willful or wanton acts which might cause injury. The issue in this case is whether D acted negligently in the death of two children and that the County was negligent per se when as a result of not following specific statutes the children were killed in a county landfill. The rule regarding this case comes from Idaho Code Section 39-7401(2) and how negligence per se is applied to accidents caused when the statutory standard is not met. In order to replace a common law duty of care with a duty of care for a statute or regulation the following elements must be met: (1) the statute or regulation must clearly define the required standard of conduct; (2) the statute or regulation must have been intended to prevent the type of harm the D’s act or omission caused; (3) the P must be a member of the class of persons the statute or regulation was designed to protect; and (4) the violation must have been the proximate cause of the injury. The Court found that the first element was not met because the County was required to fence or block entry to the landfill at all times and during the time the boys got into the landfill
their entry was not blocked. The second element was said to be met because of the specific language of the statute in which they reference “safeguarding human health.” The third element is met because the children are among the class of people the statute looks to help. The Fourth element is also met because there is a disputed issue as the County’s violation of the statute and regulations ended in the death of the children. The Court vacated the summary judgement and remanded the case for further proceedings. The dissenting opinion gives a better understanding of the statute and emphasizes that the majority opinion erred in stating the statute protected harm from coming to trespassers when it was intended to prevent people from entering to dump harmful materials that could happen to the public at large. **Unexcused violation of applicable statute is generally negligence per se Statute itself “SUPPLANTS” the common law standard of care. Violation of the statute establishes the Duty owed and the breach of duty. ***Ultimate decision concerning negligence is for the jury. Willful or Wanton – Common Law standard Ordinary Standard - Statute**
Willful or Wanton: A course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard of a person’s own safety of others. Such an act is more than negligence or gross negligence.
Impson v Structural Metals Inc. : The issue in this case is whether the D was able to excuse its violation of the statute prohibiting passing within 100ft of an intersection. This also asks the question of what excuses or justifications are legally acceptable. The driver of D truck attempted to pass a car within 100ft of an intersection; the car turned left into the intersection and was then struck by the truck. The P argue that because the D passed within 100ft of an intersection, negligence is established as a matter of law. The D argues that they had excuses for violating the statute. They claimed evidence that the driver had forgotten the existence of the intersection; the sign marking the intersection was small; there were no lines indicating “no passing”; and that he was watching a car off the road rather than watching for the intersection sign. The Restatement of Torts (Second) states than an excused violation of a legislative enactment is not negligence. While the section expressly says that the list of excusable situations given is not intended to be exclusive it lists five categories. They are:
- The violation is reasonable because of the actor’s incapacity;
- He neither knows nor should know of the occasion for compliance;
- He is unable to after reasonable diligence or care to comply;
- He is confronted by an emergency not due to his own misconduct;
- Compliance would involve a greater risk of harm to the actor or the others.
