Negligence - Problems relating to proof of fault

Learning Outcomes

This article examines specific doctrines relevant to proving fault in negligence actions for the MBE. It details the application of Res Ipsa Loquitur, Negligence Per Se based on statutory violations, and the relevance of custom and usage. Upon completion, you will be equipped to analyze fact patterns involving proof of breach of duty, identify when these doctrines apply, and understand their procedural effects, preparing you to address related MBE questions effectively.

MBE Syllabus

For the MBE, understanding how breach of duty is established in negligence cases, particularly when direct evidence is lacking, is essential. This includes familiarity with specific proof doctrines. You should be prepared to:

• Define and apply the elements of Res Ipsa Loquitur.
• Analyze the requirements for establishing Negligence Per Se through statutory violation.
• Evaluate the role of custom and usage in determining the standard of care and breach.
• Distinguish between the procedural effects of these doctrines.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. The doctrine of Res Ipsa Loquitur allows a plaintiff to establish an inference of negligence based on:
   1. Direct testimony from an eyewitness.
   2. The violation of a safety statute by the defendant.
   3. The fact that the accident is of a type that ordinarily does not occur absent negligence.
   4. Proof of industry custom establishing the standard of care.
2. For Negligence Per Se to apply based on the violation of a statute, the plaintiff must demonstrate that:
   1. The defendant acted with specific intent to violate the statute.
   2. The statute provides for a civil remedy for its violation.
   3. The plaintiff is within the class of persons the statute was intended to protect and suffered harm the statute was designed to prevent.
   4. The defendant’s violation was the sole cause of the plaintiff’s injury.
3. Evidence of custom or usage in a particular industry is generally:
   1. Conclusive proof of the standard of care.
   2. Irrelevant in determining whether the defendant breached a duty.
   3. Admissible as evidence of the standard of care, but not conclusive.
   4. Admissible only if the defendant was aware of the custom.

Introduction

Establishing the element of breach of duty is central to any negligence claim. While direct evidence of a defendant's unreasonable conduct is often presented, certain situations allow fault to be inferred or established through specific legal doctrines. This article focuses on three key methods used to address problems in proving fault: Res Ipsa Loquitur, Negligence Per Se (violation of statute), and the use of custom and usage evidence. Understanding these doctrines is critical for analyzing negligence scenarios on the MBE.

Res Ipsa Loquitur

Res Ipsa Loquitur, Latin for "the thing speaks for itself," is a doctrine allowing an inference of negligence under specific circumstances, even without direct proof of the defendant's specific negligent act. It applies when the accident causing the injury is of a kind that ordinarily does not occur unless someone was negligent.

Key Term: Res Ipsa Loquitur A doctrine of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the grounds that the accident was of a kind that does not usually happen without negligence.

Res Ipsa Loquitur Elements

To invoke Res Ipsa Loquitur, the plaintiff typically must establish the following elements:

1. Accident ordinarily occurs due to negligence: The accident must be of a type that normally does not happen in the absence of someone's negligence.
2. Negligence attributable to Defendant: The instrumentality or agent causing the accident must have been within the defendant's exclusive control. This helps link the inferred negligence to the defendant. Modern courts often relax the "exclusive control" requirement, focusing instead on whether the defendant was the most probable party responsible for the negligence.
3. Plaintiff not contributorily negligent: The injury must not have been due to any voluntary action or contribution on the part of the plaintiff. In comparative fault jurisdictions, this factor is considered less strictly.

Res Ipsa Loquitur Procedural Effect

The primary effect of successfully invoking Res Ipsa Loquitur is to avoid a directed verdict for the defendant. It allows the plaintiff's case to reach the jury based on the inference of negligence.

• Majority View: Res Ipsa Loquitur creates only a permissible inference of negligence. The jury may find negligence but is not required to do so, even if the defendant offers no explanation.
• Minority Views: Some jurisdictions treat it as creating a rebuttable presumption of negligence, shifting the burden of production to the defendant. A few treat it as shifting the burden of persuasion.

Key Term: Inference A logical conclusion deduced from facts or premises. In Res Ipsa Loquitur, negligence is inferred from the circumstances of the accident.

Key Term: Presumption A legal rule that requires a particular fact to be assumed true once another fact is proven, unless rebutted by evidence to the contrary.

Worked Example 1.1

Patient underwent abdominal surgery performed by Surgeon at Hospital. Following the surgery, Patient experienced severe pain. X-rays revealed a surgical sponge left inside Patient's abdomen. Patient sues Surgeon and Hospital. Direct evidence of who left the sponge is unavailable as several staff members were present. Can Patient utilize Res Ipsa Loquitur?

Answer: Yes, likely. (1) Surgical sponges are not ordinarily left inside patients absent negligence. (2) The instrumentality (sponge and surgical area) was under the exclusive control of Surgeon and potentially Hospital staff during the operation. (3) Patient was unconscious and did not contribute to the injury. The doctrine allows an inference of negligence against Surgeon and possibly Hospital, allowing the case to go to the jury even without direct proof of the specific negligent act. Some courts might shift the burden to the defendants in this multiple-defendant medical scenario.

Violation of Statute (Negligence Per Se)

Negligence Per Se allows a plaintiff to satisfy the duty and breach elements of negligence by proving the defendant violated a statute designed to protect against the type of accident the defendant's conduct caused.

Key Term: Negligence Per Se Negligence established as a matter of law, so that breach of the duty of care is not a jury question. It often arises from violation of a statute intended to protect the public.

Elements

For a statute's violation to constitute Negligence Per Se, the following conditions must generally be met:

1. Statute provides a criminal penalty: The statute must impose a specific duty for the protection of others, often indicated by a criminal penalty (fine or imprisonment) for violation.
2. Standard of conduct clearly defined: The statute must clearly define the required standard of conduct.
3. Plaintiff in protected class: The plaintiff must be a member of the class of persons the statute was designed to protect.
4. Harm is type statute intended to prevent: The injury suffered by the plaintiff must be of the type the statute was designed to prevent.

Excuses for Violation

Violation of a statute may be excused under certain circumstances, preventing the application of Negligence Per Se. Common excuses include:

• Compliance would cause more danger than violation (e.g., swerving across the center line to avoid a child).
• Compliance was impossible or beyond the defendant's control (e.g., driver suffers sudden heart attack).
• Emergency justified the violation.
• Incapacity (e.g., child defendant, physical disability).
• Reasonable care was exercised in attempting to comply.
• Statute was vague or confusing.

Procedural Effect

• Majority View: An unexcused statutory violation establishes a conclusive presumption of duty and breach of duty (Negligence Per Se). Causation and damages must still be proven by the plaintiff.
• Minority Views: Some states treat the violation merely as prima facie evidence of negligence or as creating a rebuttable presumption of negligence.

Compliance with a statute does not automatically establish due care. A defendant may still be found negligent if circumstances required greater care than the statutory minimum.

Worked Example 1.2

A city ordinance requires all fences around swimming pools to be at least six feet high. Homeowner built a four-foot fence around his pool. Child, age 5, climbed over the fence, fell into the pool, and suffered injuries. Child's parents sue Homeowner. Does the violation of the ordinance establish negligence per se?

Answer: Yes, likely. (1) The ordinance sets a specific standard (six-foot fence) presumably for safety, implying protection of others. (2) Child is likely within the class protected (children who might wander near pools). (3) Drowning or pool-related injury is the type of harm the ordinance aims to prevent. (4) Child's injury resulted from the failure to have a compliant fence. Therefore, Homeowner's unexcused violation likely constitutes negligence per se, establishing duty and breach. Plaintiffs must still prove causation and damages.

Custom and Usage

Evidence of custom or usage within a particular industry, trade, or community may be relevant to establishing the standard of care in a negligence case.

Key Term: Custom A well-established and uniformly acted upon practice in a particular trade, industry, or community.

Admissibility and Effect

• General Rule: Evidence of custom is admissible to show the standard of care but is not conclusive. Failure to follow custom is evidence of negligence, but does not require a finding of negligence. Likewise, following custom is evidence of due care, but does not compel a finding of due care if a reasonable person would have taken additional precautions.
• Professional Standard of Care: For professionals (doctors, lawyers, accountants, architects, etc.), custom is the standard of care. Departure from the custom of the profession constitutes breach of duty. Compliance with custom generally shields the professional from liability.
  • Medical Malpractice: Traditionally used a "same or similar locality" standard, but the modern trend is toward a national standard. Informed consent is also part of the professional standard.
• Distinction: Custom relates to the general practices of an industry or community, whereas evidence of a specific business's routine practice may be used to show conduct on a particular occasion (Habit Evidence - FRE 406).

Exam Warning

Do not confuse the non-conclusive nature of general custom evidence with the dispositive nature of professional custom (malpractice standard). For non-professionals, the jury still determines if the defendant acted reasonably under the circumstances, even if they followed or deviated from custom. For professionals, the custom usually defines reasonableness.

Key Point Checklist

This article has covered the following key knowledge points:

• Res Ipsa Loquitur allows an inference of negligence when an accident ordinarily wouldn't occur without it, the instrumentality was likely in defendant's control, and plaintiff didn't contribute.
• The main effect of Res Ipsa Loquitur is defeating a directed verdict and allowing the jury to infer negligence.
• Negligence Per Se uses the violation of a specific safety statute to establish duty and breach if plaintiff is in the protected class and suffered the type of harm the statute aimed to prevent.
• Unexcused violation of a statute conclusively establishes duty and breach in most jurisdictions (negligence per se).
• Custom and usage evidence is admissible to show the standard of care but is generally not dispositive, except for professionals where custom usually defines the standard.

Key Terms and Concepts

• Res Ipsa Loquitur
• Inference
• Presumption
• Negligence Per Se
• Custom