Torts Outline – American – Hunter – Fall 2008 – 1

This torts outline consists of 21 pages and is from the fall 2008 semester class of Professor Hunter at American University. You will automatically be sent an email with links that will allow you to download both the .pdf and .doc versions of this file (i.e. two files total). Please see the excerpt and screenshot featured below.

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1. Proof of Negligence
   1. Circumstantial Evidence
   2. The plaintiff must show direct evidence that defendant was negligent, or evidence sufficient to allow an inference of negligence (Goddard v. Boston & Maine R.R. Co. (banana peel case))
   3. Notice Requirement: Where the plaintiff alleges defendant was negligent for failing to correct a dangerous condition, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it (Ortega v. Kmart (milk spill case))
      1. Negligence may be established through circumstantial evidence. Only need to show constructive knowledge, not actual knowledge.
      2. No notice requirement is necessary when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable. (Jasko v. F.W. Woolworth Co. (pizza slip and fall case)).
      3. The plaintiff must prove the following elements:
         1. Proprietor had actual or constructive knowledge of a condition on the premises
         2. The condition posed an unreasonable risk of harm
         3. The proprietor did not exercise reasonable care to reduce or eliminate the risk, and
         4. The failure of the proprietor to use such care proximately caused the plaintiff’s injuries (H.E. Butt Grocery Co. v. Resendez (grapes)).
         5. Plaintiff bears the following three burdens on the issue of negligence: the burden of pleading, the burden of coming forward with enough evidence to avoid a directed verdict, and the burden of persuasion.
            1. Res Ipsa Loquitur
            2. The burden of proof shifts to the defendant to show that the harm was not the result of the defendant’s negligence
            3. Actions/accidents themselves are prima facie evidence of negligence regardless of whether plaintiff can prove actual negligence (Byrne v. Boadle (sack of flour falling from window))
               1. Must be reasonable evidence of negligence by defendant or defendants servants
               2. Res ipsa loquitur can apply even when the plaintiff contributed to injuries – comparative negligence applies.
               3. The plaintiff must prove:
                  1. The accident was caused by something under the strict and exclusive control of the defendant
                  2. It was an accident that could only occur through some negligence
                  3. Plaintiff must not have added to the risk (McDougald v. Perry (broken spare tire chain)) unless comparative negligence applies.
                  4. Exclusive control by the defendant: cannot be possibly attributable to more than one cause (Larson v. St. Francis Hotel (chair))
                  5. A specific defendant does not have to be named if plaintiff is unable to identify one (Ybarra v. Spangard (unconscious patient))
                  6. Res ipsa loquitur merely permits the jury to choose the inference of defendant’s negligence in preference to other permissible or reasonable inferences (Sullivan v. Crabtree (overturned truck))
2. Negligence Per Se
   1. i.      A fixed standard can be established by statute by which the fact of negligence may be determined.
   2. ii.      Negligence Per Se: In certain cases the violation of a statute constitutes conclusive evidence of negligence.
      1. Where a statute imposes a specific duty for the protection or benefit of others, a party can be liable for negligence if harm results from the party’s violation of the statute.
      2. In the case of a statute that provides for a criminal proceeding only and which does not provide for a civil liability:
         1. The court must first establish the applicable standard of conduct
         2. The determination of whether to accept a criminal standard to determine civil liability rests solely with the court

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