August 17, 1998

Will be focusing on negligence to start with. Defamation in Spring Semester.

Personal background: Went to SCU Law as a part time student. First year was 1976. Has four daughters. Took care of kids while in Law School. Been a professor SCU for 14 years. Taught at Stanford as lecturer prior to coming to SCU.

Exams will be closed book. Key is how facts are applied to the law. Difference between good grades is how you analyze the law. In torts things are especially ambiguous. Torts is continuing evolving. Things are often changing. Keep common sense with you.

NEGLIGENCE: (following are all requirements for a prima facie case)

Duty: reasonable care under the circumstances.

Breach of duty: examples: drunk driving, speeding, go through red light

Damages:

Actual cause: if you caused someone damage

Proximate cause: fair to hold someone liable for hat happened in an injury?

Contributorily negligent: if two parties were both negligent

Comparative negligence: compare the fault before two contributorily negligent people.

Strict liability: still liable no matter if person was at fault or not

Demurrer: so what motion. So what, even if everything you say is true, there is nothing for a jury to find D liable. A motion to dismiss.

Judge would decide demurrer because he decides issues of law. Jury decides issues of fact

D responds to complaint with an answer. Can say why or why not stuff said was true.

Summary judgement motion: based on facts there is no triable issue of material fact. Judgement should be given to P or D as a matter of law.

TRIAL PHASE

Plaintiff presents evidence. Plaintiff has burden of proof to show a prima facie case.

Directed verdict: if missing key evidence can make a motion for this. Judge can reserve this decision until trial is over. This is so that trial will not have to be repeated.

Judgement not withstanding the verdict:

Ray is sup localure: thing speaks for itself. It is obvious.

Jury decided that Jenner was not at fault.

General or special verdict.

August 19, 1998

BEFORE TRIAL

Demurrer – motion to dismiss. Even if all allegations are true, there still is not a legally sufficient cause of action.

Discovery – during this phase can move for full or partial summary judgement (as a matter of law the facts show clearly that one party should prevail.

TRIAL

P and D present evidence. Opening and closing arguments.

Can make motion for directed verdict. Based on evidence no reasonable juror could reasonably find for P or D (depending on who makes the motion)

Jury instructions – judge can instruct jury on certain things. Parties can make motions for specific jury instructions. Judge can grant or deny.

Jury verdict

POST TRIAL

Can ask for judgments NOV – no reasonable jury would have ruled as this jury did

Can make a motion for a new trial. The jury verdict was against the facts

Also can say the judge may errors and then can ask for a new trial.

APPEAL

Based on insufficiency of evidence

Or errors of law (judge made mistakes that biased the jury)

Hammontree cont.

Maybe the P could have also sued the doctor and/or the DMV

-originally evolved from criminal law (assault and battery and trespass)

-P needed a writ to commence action and directed D to appear in court to answer charges

-D’s actions had to be a direct against P (direct injury). D had to prove he was utterly without fault. P usually won.

-D was liable if P proved negligence

-problem was hard to tell what court would consider a direct injury or consequential injury. If P chose wrong one they were out of a suit.

August 24, 1998

Duty – standard of care

General rule (GR) – reasonable care under the circumstances

Objective v subjective

• physical or mental disabilities?
• Learner (beginner – usually someone driving something – boat, car)
• Special skills / professional
• Adult or child?
• Emergency (does situation make an emergency? If so courts expect person to react immediately)
• Common cases

How socially desirable is it to break up a dog fight? It is socially desirable. Plaintiff was partially responsible because he moved towards the fight. Plaintiff should have seen the stick. Possibly contributorily negligent.

Overturned writ system and started system of negligence which remains standard today. Should standard of care be subjective or objective as applied to the reasonable person? Court decided on objective system.

Reasonable person – not infallible.

Mental illness – when non delusional should be able to prevent things when become delusional.

Standard of care for experienced truck driver? Some states allow for truck drivers have to be seen as having special skills.

Children – have to be held to a reasonable standard of care for a child of his age, intelligence, experience. Think what a reasonable child would do given the same circumstances.

Standard of care is different for mental disability than physically disability. Physical disability is held to a standard of care for persons with similar circumstances. Not same for mental disabilities. Would want to argue that mental illness is a physical disability.

Conclusive presumption – anyone under a certain age is incapable of negligent behavior.

Vicarious liability – AKA negligent entrustment

When children engage in adult activities they may be held to an adult standard. Such as driving a car, boat, airplane.

August 26, 1998

Most of time you don’t need to know case names for exams.

Breach of Duty

Adams v Bullock

A 12 year old should have had the reasonable child of age, intelligence and experience to determine whether he breached his duty.

Hand formula: if B < probability of injury then there is negligence

Sometimes businesses will recognize a liability in their product, but will not change it because they figure it is cheaper to pay the occasional plaintiff rather than changing their product. It might be more expensive to change the product than it is to pay damages occasionally.

Upon opening an overhead airline compartment a briefcase fell and hit P on head causing severe injury. No one knows who opened the bin. Sued the airline for negligence. Witness said that out of millions of flights a year only 135 incidents of falling luggage have been reported. Holding: United must take more precautions in making sure luggage does not fall out. A jury could find United has failed to do "all that human care, vigilance, an foresight reasonably can do under the circumstances."

Person was killed at a railroad crossing. He had limited visibility when he went to cross the tracks and did not see or hear an oncoming train. Ruled that he did not take all necessary precautions to ensure the track was clear before crossing. Court tried to establish a fixed standard of care. They said "In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although he obviously will not often be required to do more than stop and look. This turned out to be a bad decision as it is very hard to make strict behavior rules.

P view was obstructed during a track crossing a highway. Issue: Was P contributorily negligent? Court held that Goodman case was too strict. Not reasonable to expect person to get out of his car to look for oncoming trains. Also even getting out of car is not enough to see for sure if a train is coming or not. By time person gets back in the car a train could be there. Ordinary safeguards needed to be taken based on common practice.

August 31, 1998

Role of Custom

Trimarco v. Klein p 58

P fell through a glass shower door. Landlord should have replaced it with shatterproof glass. At trial level P won. At intermediate court level the judgement was reversed. At highest level, court reversed the dismissal and ordered a new trial. Because there was evidence that was erroneously admitted at the trial. ABOUT custom: there may or may not be a test for custom. Should be left up to a jury to decide about custom. May have been enough proof to show D fell below standard of care.

Does a custom need to be shown as universal in order for it to be a custom? No, just for local area. Does custom establish due care? No. Just may make jury’s decision easier.

Does complying with a statute establish due care? Compliance does not necessarily negate due care. Statutes only establish a minimum level of care. It may be necessary to do more than what the statute says.

Can someone be civilly liable for a tort even if not criminally liable? Will answer this question in a few weeks.

Martin v. Herzog p 63

Necessity

Incapacity

Emergency

- ex: had to swerve to miss a kid that ran into the road

Judge makes initial determination about which excuse is appropriate and then jury can interpret it.

Custom of everybody violating statute? Is this an excuse? No.

Applicable statutes: want to use criminal law to impose civil liability. Need to see if there is a specific standard of care imposed by the statute. Need the type of harm that occur and P must be a member of the class of people the legislature intended to protect. Judge determines if this stuff is applicable.