Negligence: The Cause of Action

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Negligence The Cause of Action

• The Prima Facie Case
• Duty
• Breach
• Standard of Care
• Proof of Negligence
• Causation
• Damages

• Defenses
• Contributory negligence / comparative fault
• Breach
• Standard of Care
• Proof of Negligence

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Negligence D. Proof of Negligence

• The Prima Facie Case
• Duty
• Breach -- Burden of Proof on Plaintiff
• Causation
• Damages

• Defenses
• Contributory negligence / comparative fault
  Burden on D
• Assumption of the risk

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Vocabulary -- Burden of Proof
Burden of Proof consists of two parts Burden
of producing evidence necessary to avoid a
directed verdict Burden of persuasion
necessary to win! by a preponderance of the
evidence more likely than not 51
probability
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Vocabulary Evidence Relevance

• Relevance evidence is relevant if it has any
  tendency -- no matter how slight -- to prove a
  fact that is in issue.
• logical relationship between the proposed
  evidence and the fact that the evidence is to be
  used to establish.
• Does the evidence increase the probability that
  the fact to be proven is true?

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Vocabulary Types of evidence

• Three types of evidence
• Documentary, or real
• Direct
• Circumstantial

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Vocabulary -- Inference
Somewhat more likely
Target Fact is true!
Evidentiary Fact
Circumstantial evidence works through a process
of inference.
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Because you failed to take a customary safety
precaution, there is an inference that you failed
to use ordinary care.
Evidentiary Fact Failed to do what was customary
with regard to safety
Target Fact Conduct did not constitute ordinary
care
Somewhat more likely
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Ch II. D. Proof of Negligence Inferences
Theory of the case tells you what facts are
important
Target Fact (determined by theory of case)
Evidentiary Fact
Somewhat more likely
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Ch II. D. Proof of Negligence Inferences
Theory of the case A reasonably prudent person
would have mopped up the spill before the
plaintiff fell.
Target Fact Constructive notice. Spill was there
long enough for a rpp to notice.
Evidentiary Fact Coffee on floor was cold
INFERENCE
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Vocabulary Constructive Notice
Constructive a legal fiction for treating a
situation as if it were actually so Constructive
notice circumstances under which we will treat
someone as if they actually knew of a condition,
even though there is no evidence that they
actually did know. a reasonably prudent person
would have known!
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Ch II. D. Proof of Negligence Inferences
Theory of the case Coffee shop engaged in a
negligent business practice.
Evidentiary Fact Coffee was self-serve. Spills
were frequent
Target Fact Constructive notice. RPP would have
known of a high risk to customers
INFERENCE
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Ch II. D. Proof of Negligence Inferences
Theory of the case An employee negligently
spilled the coffee
Evidentiary Fact She was the first customer of
the day?
Target Fact An employee spilled it filling the
pot
INFERENCE
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Negligence D. Proof of Negligence
Res ipsa loquitur sed quid in infernos dicet?
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Negligence D. Proof of Negligence
Somewhat more likely
Target Fact (determined by theory of case)
Evidentiary Fact
Defendant was careless in handling the barrel
Barrel fell from warehouse
Somewhat more likely
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Res Ipsa Loquitur
Somewhat more likely
Target Fact (determined by theory of case)
Evidentiary Fact
Defendant failed to use reasonable care
A particular accident occurred
Somewhat more likely
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Negligence D. Proof of Negligence
Somewhat more likely
Target Fact (determined by theory of case)
Evidentiary Fact
Defendant was careless in maintaining his truck
Tire came out of cradle
Somewhat more likely
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Res Ipsa LoquiturThe Foundational Facts
1) The accident must be of a kind which
ordinarily does not occur in the absence of
someones negligence. 2) The accident must be
caused by an agency or instrumentality within the
exclusive control of the defendant. 3) The
accident must not have been due to any voluntary
action or contribution on the part of the
plaintiff.
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Res Ipsa LoquiturThe Foundational Facts
If 1) When this type of accident occurs, it is
usually result of negligence, 2) Defendant in
exclusive control of instrumentality, and 3)
Not due to plaintiffs voluntary
contribution Then
Target Fact Defendant failed to use reasonable
care
Evidentiary Fact The accident occurred
Somewhat more likely
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Negligence D. Proof of Negligence
Restatement (Third) of Torts (proposed final
draft) It may be inferred that the defendant
has been negligent when the accident causing the
plaintiffs physical harm is a type of accident
that ordinarily happens because of the negligence
of the class of actors of which the defendant is
the relevant member.
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Presumption a conclusion the jury is required
to draw, unless evidence is introduced to rebut
the conclusion.
Target Fact (determined by theory of case)
MUST CONCLUDE, unless rebutting evidence offered
Evidentiary Fact
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Inference
Failed to follow customary precautions
Failed to use ordinary care
Jury MAY conclude
Presumption
Jury MUST CONCLUDE, unless rebutting evidence
offered
Violator failed to use reasonable care
Violation of Statute
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Negligence D. Proof of Negligence
Burden of Proof Burden of producing
evidence Burden of persuasion Inference meets
the burden of producing evidence Presumption
shifts the burden of producing evidence
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D. Proof of Negligence
Inference a conclusion the jury is permitted,
but not required, to draw. Presumption affecting
the burden of producing evidence a conclusion
the jury is required to draw, unless evidence is
introduced to rebut the conclusion (to prove,
that is, that the conclusion is not
correct). Presumption affecting the burden of
proof a conclusion the jury is required to draw,
unless the rebutting evidence shows that more
likely than not, the conclusion does not follow.
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Assignments
Friday pp. 110-122 Tuesday pp. 123-131