Custom: The Road to the T.J. Hooper

1. 
   Want to look at how the courts treat custom in terms of the law determining whether or not the market gets it “right” (Levmore)
   
2. 
   Generally speaking, some dispute over how far custom gets you in the 19^th Century
   
   1. 
      Titus v. Bradford, B. & K. R. Co. 20 A. 517 (Pa. 1890). Embraces custom as the standard of care
      
      1. 
         No jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed
         
         1. 
            P also assumed the risk of this custom
            
         2. 
            P would have had to show that in this particular instance the car was loaded incorrectly (the custom being the “correct” way)
            
      2. 
         Epstein: Titus is still with us through Assumption of Risk defenses
         
   2. 
      But see Mayhew v. Sullivan Mining Co., 76 Me. 100 (1884).
      
      1. 
         The argument of custom has no place in an obvious case of gross negligence when the injured party was invited on the premises by the negligent party
         
      2. 
         RPD: It is still possible to reconcile Mayhew within a theory of custom per Titus (but why would you want to?)
         
3. 
   T.J. Hooper.
   
   1. 
      Custom is merely evidence of care, but not proof against negligence:
      
      1. 
         The custom of the industry is irrelevant: “A whole calling may have unduly lagged in the adoption of new and available devices.”
         
      2. 
         Courts must “in the end say what is required”
         
   2. 
      Note: Epstein hates that this case was not decided on the basis of custom (the court ignored the actual prevalence of radios at the time)
      
   3. 
      Epstein: The T.J. Hooper should be viewed in conjunction with Carroll Towing in terms of promulgating an objective standard of care (i.e., the objective C/B analysis trumps custom/the market)
      
      1. 
         This is an “interventionist” approach to markets
         
   4. 
      See Texas & Pacific Railway Co. v. Behymer, 189 U.S. 468 (1903) (Holmes, J.)
      
      1. 
         “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by the standard of reasonable prudence, whether it usually is complied with or not.”
         
4. 
   Custom and the Rules of Private conduct. The problem of a P being able to use a D’s heightened standard of care against him?
   
   1. 
      Fonda v. St. Paul City Ry., 74 N.W. 166 (Minn. 1898). Court held defendant’s higher standard of care inadmissible as evidence when the defendant’s rules “could not have… in any way affected or influenced” the plaintiff’s conduct.
      
      1. 
         The court noted that to allow such admission would be to make a defendant more liable for the higher standard of care he normally provided (perverse!)
         
   2. 
      But see Lucy Webb Hayes National Training School v. Perotti. 419 F.2d 704 (D.C. Cir. 1969).
      
      1. 
         Lunatic escaped from his secured portion of the hospital to another portion. As he was being led back, he attempted to escape again and fell out a window to his death. Court ruled that the hospital was negligent because it failed to keep the plaintiff within the secured ward (despite the fact that defendant argued this was only for the benefit of the other, harmless patients)
         
      2. 
         “On the basis of all the evidence, however, the jury could reasonably conclude that the hospital’s failure to observe the standards it had itself established represented negligence.”
         
5. 
   Updating custom. RPD: This resonates strongly with products liability/subsequent design problems
   
   1. 
      Trimarco v. Klein, 436 N.E.2d 502 (N.Y. 1892)
      
      1. 
         Plaintiff was injured when crashed through a plate glass shower in 1976. This type of shower door had been replaced since the ‘60s. Plaintiff was allowed to use this custom in their case as it demonstrated the “wisdom and judgment of many” and the feasibility of such taking such precautions.
         
6. 
   Medical malpractice.
   
   1. 
      The dominant view that custom sets the standard of medical care is a large exception to the rule of the T.J. Hooper
      
   2. 
      Rule: A doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing in a similar practice in similar communities and under like circumstances. Kalsbeck v. Westview Clinic, 375 N.W.2d 861 (Minn. App. 1985)
      
   3. 
      Basic form for Med/Mal claim (per Lama v. Borras). Plaintiff must show that:
      
      1. 
         Basic norms (custom) in an operation of this kind
         
      2. 
         Defendant failed to follow those norms
         
      3. 
         A causal relationship between that failure to obey custom and the P’s injuries
         
      4. 
         Expert testimony is “essential”
         
   4. 
      Note: Liability is not determined by poor outcomes in Med/Mal cases
      
   5. 
      Lama held D liable when he failed to follow industry standard practices
      
   6. 
      Error in judgment defense. Hirahara v. Tanaka, 959 P.2d 830 (Haw.1998)
      
      1. 
         Patient died as a result of anesthesia being mis-applied. Operating physician was defendant in a suit and got instruction saying “a physician is not necessarily negligent because he errs in judgment or because his efforts prove unsuccessful.”
         
      2. 
         Epstein: This is the rule of Multiple treatments by multiple physicians can result in separate liabilities
         
   7. 
      Variations of levels of care.
      
      1. 
         Two schools of thought doctrine:
         
         1. 
            Jones v. Chidester, 610 A.2d 964 (Pa. 1992)
            
            1. 
               Two schools of thought doctrine defined as applying to when an alternative custom of care is followed by a “considerable number” of practitioners of high quality to meet the standard of general acceptance as opposed simply being used by “reputable and respected” practitioners
               
            2. 
               RPD: this refers to specific medical technique (the case was about a tourniquet used in an operation) rather than more general standards?
               
         2. 
            This suggests some variation allowed w/in the standard of care for doctors
            
   8. 
      Appropriate level of care:
      
      1. 
         Varying level of care based on experience of the doctor is inappropriate. McBride v. United States, 462 F.2d 72 (9th Cir. 1972)
         
         1. 
            Intern misdiagnosed a heart condition that a more experienced physician would have detected.
            
         2. 
            Court ruled for plaintiff on the theory that plaintiff had the right to expect the quality of care usually found in the medical community. If hospital had reason to believe the interns couldn’t meet this standard, the hospital should not let them read electrocardiograms
            
      2. 
         Physician’s Desk Reference and Package inserts does not set the standard of care. Morlino v. Medical Center of Ocean County, 706 A.2d 721 (N.J. 1998)
         
         1. 
            8 ½ month pregnant woman lost her fetus when doctor diagnosed an antibiotic. Antibiotic’s reference in the Physician’s Desk Reference (PDR) specifically advised not to prescribe to pregnant women. Court ruled that PDR and package inserts are insufficient to establish a standard of care.
            
      3. 
         Regional differences in standards of care are irrelevant; an objective standard must be used. Brune v. Belinkoff, 235 N.E.2d 793
         
         1. 
            Court ruled that the appropriate standard of care is “whether the physician, if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account the advances of the profession” and that regional differences in standards of care are irrelevant.
            
         2. 
            In this, court overruled an earlier convention, “locality rule” allowing a court to take into account regional differences in a particular medical practice
            
         3. 
            Brune held that the “locality rule” was the product of an out-dated area of medical practice
            
      4. 
         Sheeley v. Memorial Hospital, 710 A.2d 161 (R.I. 1998)
         
         1. 
            A board certified doctor who had not practiced in 20 years was allowed to testify against a 2nd year medical student who caused a rectovaginal fistula while attempting to perform an episiotomy (a cut in the perineum of the mother to allow for easier delivery). Any doctor with knowledge an familiarity with the relevant procedure allowed to testify.
            
         2. 
            In a sense, court is applying the general standard set in Brune to the use of expert testimony in est. a standard of care
            
   9. 
      Contract for cure? [Revisit me]
      

1. 
   Osborne v. McMasters 41 N.W. 543 (Minn. 1889). Right of action exists when the cause of action is based on a statutory and not common law duty
   
   1. 
      Facts. Defendant Mitchell owned a drug store. His clerk, in the course of his employment, sold plaintiff Osborne some poison. The poison was not labeled as such as required by statute. Plaintiff, in ignorance of the actual item, drank the poison and died
      
      1. 
         Court also paused to comment on the idiocy of a counsel who would suggest “the correctness of the assumption that selling poison without labeling it might not be actionable negligence at common law.”
         
   2. 
      The analysis, in this respect (per Epstein):
      
      1. 
         Was the P in the class of individuals protected by the statute?
         
         1. 
            See Stimpson v. Wellington Service Corp., 246 N.E.2d 801.
            
            1. 
               Defendant drove a 137-ton rig over city streets without first obtaining the required permit. The weight of the rig caused the pipes in plaintiff’s property to burst, flooding the premises.
               
            2. 
               Court held defendant liable, even though the permit was immediately for the protection of city streets, since D’s failure to obtain the permit prevented the regulatory authorities from considering the potentiality for harm.
               
      2. 
         Does the statute articulate the appropriate standard of care?
         
      3. 
         Was the P injured by this breach?
         
         1. 
            Kernan v. American Dredging Co., 355 U.S. 426 (1958).
            
            1. 
               Seaman lost his life when a lamp stationed below the regulated height ignited an accumulation of petroleum products that had collected on the river.
               
            2. 
               Despite the fact that (a) even if the lamp had been properly fixed the river still would have caught flame and (b) the regulation was designed to prevent collisions and not fires the Court permitted recovery on the grounds that statutory purpose limitation did not apply in the context of the Federal Employer’s Liability Act and the Jones Act.
               
            3. 
               Kernan is a broad interpretation of the “statutory purpose” per Epstein
               
   3. 
      Federal private rights of actions. Note: The Supreme Court has lately been cool towards using Federal statutes to create a private right of action. Cort v. Ash, 422 U.S. 66 (1975)
      
      1. 
         Court ruled there was no private action for damages (as opposed to injunctive relief) in favor of a corporate shareholder when the corporate directors made contributions to political campaigns, an action prohibited by 18 U.S.C. §610.
         
      2. 
         Court offered this analysis for determining whether or not such a right exists:
         
         1. 
            Is plaintiff one of the class for whose particular benefit the statute was enacted?
            
         2. 
            Is there any indication of legislative intent to create/deny such a remedy?
            
         3. 
            Consistent with the underlying purposes of the overall legislative scheme?
            
         4. 
            Is the area one traditionally regulated by the states so that it would be inappropriate to infer a cause of action solely on the basis of state law?
            
2. 
   Martin v. Herzog (Cardozo, J.). Failure to conform to a statutory duty is negligence as a matter of law. Note: Dicta reminds us to be careful not to confuse negligence with actual causation.
   
   1. 
      Levmore: Breach of duty is not equivalent to causation
      
   2. 
      Facts. Decedent was killed in a collision between his buggy and the defendant’s automobile. They were driving at night, after dark. The decedent did not have his lights on as required by law. Jury was not allowed to consider this omission an act of negligence per se, but only evidence of negligence. Jury was instructed, at P’s request, “the fact that the plaintiff’s intestate was driving without a light is not negligence in itself.”
      
   3. 
      A driver is negligent if he fails to keep his lights on as required by statute. “Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes under the statute to another. It is error to tell them that they have.”
      
   4. 
      Epstein: Martin v. Herzog applies common law principles into cases of statutory negligence
      
   5. 
      See also, Tedla v. Ellman, 19 N.E.2d 987 (N.Y. 1939)
      
      1. 
         Plaintiff and her brother a deaf mute, were walking along a divided highway with traffic when they were struck by D and killed. Statute required people to walk into the flow of traffic to better see oncoming danger. While D was negligent, the only legal dispute was the contributory negligence (if any) of P.
         
         1. 
            Prior to the statute, common law required pedestrians to walk into traffic, with an exception if traffic was lighter while walking against traffic
            
         2. 
            Should the court read this exception into the statute?
            
      2. 
         Court ruled that since the statute was enacted to prevent accidents and ensure safety, it was property to imply the exception into the statute for the benefit of the plaintiff
         
      3. 
         Court refused to determine that “pedestrians are to be charged with negligence as matter of law for acting as prudence dictates.
         
      4. 
         The Second Restatement adopts Tedla as law providing exceptions to statutory restrictions/duties when necessity/emergency/incapacity dictate
         
      5. 
         Epstein: Consistent with the extension of common law into statutory duties as found in Martin v. Herzog
         
3. 
   Brown v. Shyne, 151 N.E. 197 (N.Y. 1926). Practicing medicine without a license is irrelevant to a finding of negligence when P’s injuries were not in fact caused as a result of the D practicing without a license.
   
   1. 
      Plaintiff Brown employed defendant Shyne as a chiropractor. Shyne had no license to practice medicine, though he held himself out as being able to license and treat disease. Such actions were prohibited by NY Statute requiring a license to practice medicine
      
      1. 
         Plaintiff suffered paralysis as a result of Shyne’s “treatment”
         
      2. 
         Plaintiff brought an action against Shyne on a theory of negligence
         
   2. 
      “In order to show that the plaintiff has been injured by defendant’s breach of statutory duty, proof must be given that defendant in such treatment did not exercise the care and skill which would have been exercised by qualified practitioners within the State”
      
      1. 
         D had argued that negligence should only be established by whether or not his conduct failed to meet an objective standard of care
         
   3. 
      Epstein: Essentially, D is arguing that P has no private cause of action from the statute.
      
      1. 
         P could simply step the causal chain back onto reliance.
         
      2. 
         But here, the implicit assumption is that P would not have gone to another doctor
         
         1. 
            Thus, no harm would have resulted
            
   4. 
      Note: Current NY statute establishes lack of license as a prima facie evidence of negligence if a person is injured by someone practicing medicine w/out a license (Epstein: that this is not conclusive evidence of negligence, the statute simply shifts the burden of proof onto a defendant in such a case)
      
   5. 
      Ross v. Hartman, 139 F.2d 14 (D.C. Cir. 1943)
      
      1. 
         D.C. statute outlawed leaving an unlocked car unattended. D’s agent left a car unlocked with engine running. Thief stole the car and ran over P. Court held that D’s act fell within the statutory prohibition.
         
         1. 
            Ordinance was intended to prevent such consequences: “It was therefore a legal or ‘proximate’ cause of the harm.”
            
         2. 
            Court also noted that this shifts the burden of risk to those who create that risk
            
      2. 
         But see Richards v. Stanley 271 P.2d 23 (Cal.1954). Exact opposite conclusion. Unless there was some reason to think that the car would be left in a dangerous locale, the owner could not be found liable to P for harms caused by third party.
         
         1. 
            Epstein does not like Richards b/c the analogy that lending a car was the same thing as the events in Richards since you will generally only lend a car to people you trust as opposed to the joyriders in Richards
            
4. 
   Dram Shop statutes:
   
   1. 
      Vesley v. Sager, 486 P.2d 151 (Cal.1971)
      
      1. 
         Dram shops.
         
      2. 
         Established the liability in tort for a dram shop that serves booze to an individual who goes out and hurts someone.
         
         1. 
            Rooted in the Business Code that made it a misdemeanor to sell alcoholic beverages to an obviously drunk person.
            
         2. 
            Also held that P met requirement to prove proximate causation whereby “an actor may be liable if his negligence is a very substantial factor” in causing the dangerous behavior of another.
            
   2. 
      Ewing v. Cloverleaf Bowl, 572 P.2d 1155 (Cal. 1978). Bar held liable when it served a patron 10 shots of 151 for his 21st birthday and the kid died. Opinion based in the “forseeability” of the injury involved.
      
   3. 
      Note: Dram shop laws were not popular. California statutes has since been enacted to make the “consumption” rather than the “service” of alcoholic beverages the proximate cause of injury, specifically repudiating Vesley (this is a common approach now).
      
      1. 
         See, e.g., Koehnen v. Dufour, 590 N.W.2d 107 (Minn. 1999). 17 year old who hosted party for friends was not civilly liable under criminal statute preventing sale of alcohol to underage persons
         
5. 
   Uhr v. East Greenbush Central School Dist. 720 N.E.2d 886 (N.Y. 1999).
   
   1. 
      Statutory cause of action exists when:
      
      1. 
         Is plaintiff one of protected class?
         
      2. 
         Would recognition of a private right promote legislative purpose?
         
      3. 
         Would creation of such a right be consistent with the legislative scheme?
         
   2. 
      NY law required scoliosis testing every year from 6 to 16 years of age in NY schools. P child was not tested for the 3 years prior to diagnosis, later determined to have scoliosis when P was in the 9th grade in 1995. Scoliosis had progressed to the point where surgery was required
      
   3. 
      Court held that P had failed prong (iii), above
      
   4. 
      Uhr is reflective of how Courts have adopted Cort v. Ash in refusals to use administrative ordinances (as opposed to statutes) support private actions.
      
      1. 
         Elliot v. City of New York, 747 N.E.2d 760 (N.Y. 2001). Plaintiff fell out of a bleacher seat that was not protected by a guard, as required by city building code. Appellate reversed trial courts finding of negligence on the ground that state alone has the power to pass a statute
         
         1. 
            Violation of a city ordinance was only evidence of negligence and not negligence per se (as opposed to violation of a state statute that could constitute negligence per se or even absolute liability)
            
         2. 
            Equating city ordinances with state statutes would fragment the law
            
         3. 
            “In the absence of a violation of a statutorily imposed duty in this case, a negligence per se finding was unwarranted and the defendants are entitled to a reversal and a new trial.”
            

1. 
   There is a general preference for a standardized, hypothetical instruction.
   
   1. 
      E.g., Louisville & Nashville R.R. v. Gower. Error of the court assigned to a jury instruction that would instruct the jury to define a reasonable standard of care as “Just such care as one of you would similarly employ” as being too specific.
      
2. 
   Baltimore and Ohio R.R. v. Goodman. No issue of triable fact when P was killed attempting to cross train tracks in the middle of the day.
   
   1. 
      Holmes sets aside the jury ruling given the facts of the case
      
   2. 
      Sets a standard of care for himself: “[A driver] must stop for the train, not the train stop for him.”; i.e., the obligation is on the P to stop, look, and listent
      
   3. 
      See also Ridgeway v. CSX Transporation, Inc., 723 So.2d 600 (Ala. 1998). Emphatically upheld a contributory negligence defense as a matter of law in a single track wrongful death case. It concluded that the statutory requirement to “stop, look, and listen” was “firmly rooted in our caselaw.”
      
3. 
   On the other hand, we have Pokora v. Wabash Ry. 292 U.S. 98 (1934). Rather than applying a general rule it’s about reasonableness under the circumstances. Court held that a jury should determine the appropriate level of care legally required by a traveler when “ordinary safeguards” are insufficient to determine the traveler’s course of action
   
   1. 
      Another train, case, but D had had four tracks at a level crossing (Switch track, through track, two more switch tracks)
      
   2. 
      Cadozo used this to distinguish it from Goodman
      
   3. 
      Epstein: The rule of Goodman is intolerable when there is no safe way to cross the road.
      
4. 
   Holmes wins in Jewell v. CSX Transportation, Inc. 135 F.3d 361 (6^th Cir. 1998). The district court correctly directed a verdict on the issue of the ultra-hazardous crossing since the view of the crossing was not blocked by a physical obstruction and D had demonstrated sufficient evidence that train had blown whistle prior to collision.
   
   1. 
      Action stems from Plaintiff’s car being struck by a CSX train as it was crossing a train track. Greg Jewell was killed, his wife and daughter injured.
      
      1. 
         RR crossing had crossbuck signs, but no bells or gates
         
         1. 
            Note: KY law required a RR company to install bells and gates when “circumstances are such that ordinary prudence and foresight would anticipate the need for additional warnings, as in the case of an extra hazardous crossing
            
      2. 
         Road crossed the tracks at a 45-degree angle. The tracks were elevated. No physical obstructions existed to prevent plaintiff/a driver from seeing a train on the tracks
         
   2. 
      Epstein: Goodman is good law for the single track cases/simple track cases like Jewell
      
5. 
   FELA (Federal Employers’ Liability Act) → FELA is worker’s comp
   
   1. 
      RR is liable for any injury caused through “any defect or inufficiency” of its premises or equipment
      
   2. 
      Wilkerson v. McCarthy, 336 U.S. 52 (1949). Jury verdict upheld and D liable when P slipped and fell even though P was walking through an area he had been expressly warned not to enter
      
      1. 
         Epstein: This FELA standard is then so different from common law negligence as to cease to be comparable
         
   3. 
      The quantum of proof of negligence under FELA is incredibly low.
      

1. 
   Res ipsa loquitur generally
   
   1. 
      Elements:
      
      1. 
         Event must be of a kind which ordinarily does not occur in the absence of negligence
         
      2. 
         Must be caused by an agency, instrumentality, etc. within the exclusive control of D
         
      3. 
         Cannot have been caused by any voluntary action or negligence on the part of the plaintiff (Prosser and Keaton at 244)
         
   2. 
      However, we should note that res ipsa loquitur is not a great thing to rely on when you get into the court
      
      1. 
         Trial court does not want to have to determine that this is the sort of harm that only occurs when negligence is in the mix; it is much easier to affix the case of negligence to specific facts than res ipsa loquitur
         
      2. 
         This is also one reason strict liability has never taken over, b/c he wants to give the jury specific facts supporting his case
         
      3. 
         Res ipsa loquitur is effective, though, if you’re a plaintiff’s attorney with limited resources and you want to shift the burden of proof to the defendant
         
      4. 
         Imig v. Beck, 503 N.E.2d 324
         
         1. 
            Plaintiff was injured when a car being towed by D swerved onto P’s side of the road. D testified that they had checked the rig and P offered no specific evidence of negligence, simply resting on res ipsa loquitur.
            
         2. 
            State Supreme Court held that while a P could get a directed verdict on res ipsa alone, P had failed to meet this high standard in Imig given D’s evidence.
            
         3. 
            “The use of res ipsa loquitur, however, does not relieve the plaintiff of the burden of proving negligence by a preponderance of the evidence. That burden of proof never shifts to the defendant except in the very limited sense that if the defendant offers no evidence to overcome the prima facie case made by the plaintiff in reliance on the doctrine he runs the risk the jury may find against him.”
            
            1. 
               RPD: Res ipsa simply creates a rebuttable inference. When defendant shows that he utilizes reasonable care, this becomes a factual dispute to be resolved by jury; as such a directed verdict is inappropriate.
               
      5. 
         But see Newing v. Cehatham, 540 P.2d 33 (Cal 1975). Evidence of a clearly drunken pilot supported a directed verdict based on res ipsa.
         
2. 
   Byrne v. Boadle. Plaintiff has a prima facie case of negligence when the items causing the accident are entirely in the control of the defendant. The burden of proof is therefore upon the defendant to rebut this presumption of negligence
   
   1. 
      Plaintiff was walking in front of the defendant’s premises. Defendant was a flour dealer. Plaintiff was struck by a barrel of flour. This was confirmed by witnesses. Defendant was loading barrels of flour at the time.
      
3. 
   Res ipsa as applied by courts:
   
   1. 
      Scott v. London & St. Katherine Docks Co., 159 Eng. Rep. 665 (Ex. 1865).
      
      1. 
         “There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
         
      2. 
         This is the baseline account of res ipsa
         
   2. 
      Wakelin v. London & S.W. Ry., [1886] 12 A.C. 41, 45-46 (H.L.E.)
      
      1. 
         Plaintiff’s deceased was struck and killed by one of defendant’s trains. The view of the track was unobstructed at the time of the accident, and there was no specific evidence of any negligent act or omission by the defendant.
         
      2. 
         Appellate court refused to apply res ipsa loquitur in this case.
         
      3. 
         Epstein:
         
         1. 
            Plaintiff’s voluntary contribution is substantial (they guy ran across the train tracks)
            
         2. 
            This rule continues to run today if you have unexplained railroad crossing accidents
            
   3. 
      Larson v. St. Francis Hotel, 188 P.2d 513
      
      1. 
         Plaintiff was injured by a chair that was hurled out of a hotel window (during V-J day celebrations on August 14, 1945).
         
      2. 
         Court refused to apply res ipsa, noting that chairs in a hotel room are not with the exclusive control of the hotel as required by the doctrine.
         
   4. 
      But see Connolly v. Nicollet Hotel, 95 N.W.2d 657 (Minn. 1959)
      
      1. 
         Defendant hotel was “taken over” by 4,000 rowdy, drunken conventioneers. Plaintiff lost her left eye by something thrown from the hotel. Court held that the “probability of injury” created a prima facie case of negligence.
         
         1. 
            Distinguished Larson in that Larson held on “instances of sporadic or isolated acts of which the owner did not have notice and in regard to which he had no opportunity to take steps to remove the danger.”
            
         2. 
            “[W]here evidence of such facts and circumstances is such to take the case out of the realm of conjecture and into the field of legitimate inference from established facts, a prima facie case is made.”
            
         3. 
            Note: the opinion never uses the words “res ipsa loquitur”
            

5. 
   Galbraith v. Busch, 196 N.E. 36 (N.Y. 1935). Plaintiff was a guest while Busch was driving. Car slid from the road in clear weather and the car appeared to be in good working order.
   
   1. 
      Appellate Court (Lehman, J.) refused to apply doctrine of res ipsa loquitur on the theory that defendant could only be held to a standard of reasonable care given that the evidence did not support the inference that the accident was caused by a lack of reasonable care (as opposed to mechanical failure).
      
   2. 
      Epstein does not like how the court ruled on this. The hardest inference to deny on the part of the defendant is that of negligence: a driver has two duties to a guest passengers:
      
      1. 
         Driving
         
      2. 
         Maintenance
         
      3. 
         Even if you prove negligence you haven’t proved liability
         
   3. 
      Court applies a negligence standard to driving and a “bad faith” standard with respect to maintenance within this regime.
      
   4. 
      Note: Galbraith was basically overruled in Pfaffenbach v. White Plains Express Corp., 216 N.E.2d 324 (N.Y. 1966)
      

6. 
   Res ipsa and acts of God
   
   1. 
      Walston v. Lamberstern, 349 F.2d 660 (9th Cir. 1965)
      
      1. 
         Court refused to apply res ipsa loquitur when a seaworthy vessel disappeared without a trace
         
      2. 
         Court noted that “the sea itself contains many hazards, and an inference of liability of the shipowner for the mysterious loss of his vessel should not be lightly drawn.”
         
7. 
   Res ipsa and premises liability: the limits of “exclusive control”.
   
   1. 
      Colmenares Vivas v. Sun Alliance Insurance Co. 807 F.2d 1002 (1st Cir. 1986)
      
      1. 
         Court was faced with the issue of must a defendant literally have “exclusive” control over an object causing harm for the doctrine of res ipsa loquitur to apply when P slipped and fell after a sudden jerk on D’s escalator
         
      2. 
         Held: As a public entity, the airport had a non-delegable duty to maintain its escalators in working orders and, as such, retained exclusive control over the escalator and, therefore a jury should have been allowed to consider whether the airport was liable based on the permissible inference of res ipsa loquitur.
         
         1. 
            “Exclusive” is a requirement to eliminate the intrusion of third party interlopers
            
         2. 
            Airport had a public duty
            
         3. 
            Public duties are non-delegable
            
      3. 
         But see Holzhauer v. Saks & Co., 697 A.2d 89 (Md. 1997)
         
         1. 
            Court refused to allow claim based on res ipsa loquitur when P was injured when escalator stairs and rails stopped moving b/c escalator was equipped with two emergency stop buttons – the pressing of either could have caused the escalator to stop (as opposed to D’s negligence);
            
         2. 
            Similarly the existence of the buttons challenged the exclusivity requirement of the doctrine.
            
8. 
   Res ipsa and third party intervention. Benedict v. Eppley Hotel Co. 65 N.W.2d 224.
   
   1. 
      Plaintiff/appellee was injured when a folding chair collapsed after she had been sitting on it for some 20 minutes while playing bingo. It was later discovered that the screws on the chair were missing. D argued that since P had possession of the chair prior to the injury res ipsa could not apply. The court disagreed (held for P):
      
      1. 
         Plaintiff had a right to assume the chair was safe when she was invited by D to sit in the chair
         
         1. 
            Appellant had ownership of the chair and thus a duty to maintain it in a safe condition for the use by appellee
            
         2. 
            Fact that the chair was being properly used supports, then, an inference that the chair was unsafe when handed to the P
            
      2. 
         Speaks to the doctrine that possession of a chattel does not preclude a claim of res ipsa loquitur when “it is made clear that [plaintiff] has done nothing abnormal and has used the thing only for the purpose for which it was intended.” (Prosser)
         
9. 
   Necessity of expert testimony in res ipsa:
   
   1. 
      Courts have generally held that expert testimony is not needed when it is clear from “common knowledge” that the injury in question would not have occurred without the existence of negligence (e.g., someone gives an unconscious patient the wrong blood type/leaves a scalpel in the body, etc.). However, medical testimony is generally required when you get into either questions of medical judgment/technique (Farber v. Olkon, 254 P.2d 520 (Cal. 1953)) or experimental procedures (Salgo v. Stanford University Board of Trustees, 317 P.2d 170 (Cal. App. 1957)).
      
   2. 
      Greenberg v. Michael Reese Hospital, 396 N.E.2d 1088 (Ill. App. 1979)
      
      1. 
         Plaintiff developed tumors which might have been the result of radiation therapy which was common at the time (later discontinuted).
         
      2. 
         Appellate court held that res ipsa loquitur did not apply since the decision to conduct the treatment was not “a clearly negligent act” but “at best debatably negligent.”
         
10. 
    Medical malpractice and res ipsa loquitur.
    
    1. 
       Epstein: generally speaking trying to use res ipsa in a med/mal case is a two part analysis:
       
       1. 
          Was the injury doctor- or naturally-caused?
          
       2. 
          Was it the type of injury only occurring in the context of negligence?
          
       3. 
          Easiest way for D to defeat the inference of negligence supported by res ipsa loquitur is to affirmatively disprove P’s assumption of negligence (as opposed to a general denial)
          
    2. 
       Ybarra v. Spangard.
       
       1. 
          When a plaintiff received unusual injuries while unconscious and in the course of medical treatment, all the defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon the meet the inference of negligence created by res ipsa loquitur
          
       2. 
          Levmore: This is an “information forcing” case, getting all the members of the medical staff to rat each other out
          
    3. 
       See also: Anderson v. Somberg, 383 A.2d 1 (N.J. 1975).
       
       1. 
          Epstein: This is a much broader application of res ipsa than Chin (more Ds involved)
          
       2. 
          A surgical instrument broke off and remained in Plaintiff’s back despite defendant doctor’s efforts to get it out. Plaintiff brought claims against (1) the physician for negligence in the operation, (2) the hospital for negligently furnishing the instrument (3) the distributor who supplied the instrument on a warranty theory (4) and the manufacturer on a strict liability/products liability theory. Jury found against P on all 4
          
       3. 
          Appellate court, however, reversed the decision on the basis of res ipsa loquitur: the jury was obligated to impose liability on at least one of the named defendants; noting that this was an extension of res ipsa loquitur
          
       4. 
          Chin v. St Barnabas Medical Center, 734 A.2d 778 (N.J. 1999)
          
          1. 
             NJ Supreme Court affirmed Anderson. One of two nurses (unclear which) mis-hooked up a diagnostic hysteroscope so that it inflated the P uterus with gas and not liquid: P died as a result. Supreme Court held that jury had to find someone guilty.
             
          2. 
             RPD: see also Summers v. Tice
             
11. 
    Conditional Med/Mal res ipsa
    
    1. 
       Med/mal analysis generally has two steps:
       
       1. 
          Was the injury in question the result of natural causes or the doctor?
          
       2. 
          Was the doctor negligent in causing the injury?
          
    2. 
       While res ipsa loqutiur cannot apply to step (1) of this analysis, it can conditionally be brought into step (2). Thus, if the accident could have occurred in a manner in which negligence is the only possible reason, than res ipsa can conditionally apply.
       
    3. 
       Quin v. George Washington University, 407 A.2d 580 (D.C. 1979). Judge refused to give a conditional res ipsa instruction since the factual evidence regarding the cause of the injury (natural or doctor-related) was unclear.
       
12. 
    Statutory response. To avoid opening the door to strict liability under the aegis of res ipsa loquitur, statutory regimes have been imposed limiting the causes for action under res. E.g., Nev.Rev.Stat. §41A.100 limits res ipsa to instances where harm is caused by
    
    1. 
       foreign substance left in body
       
    2. 
       Explosion or fire resulting from treatment
       
    3. 
       Unintended burns
       
    4. 
       Injury unrelated to operation (think Ybarra)
       
    5. 
       Surgical procedure performed on wrong part
       

Focuses on the two defenses traditionally available to the tort defendant:

1. 
   Assumption of risk
   
2. 
   Contributory negligence
   
3. 
   BTW: IL is a comparative negligence state though P’s conduct must be <50%
   
   1. 
      21 states are a <50% bar
      
   2. 
      50% bar in 9 states
      
   3. 
      Pure comp in 13 states
      
   4. 
      7 contributory negligence
      

1. 
   Contributory negligence: Conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm. Two conditions:
   
   1. 
      Must be a substantial factor in bringing about P’s harm
      
   2. 
      Rules determining causal relation and harm are the same as those determining causal relation and harm b/t the D’s conduct and resulting harm to others
      
   3. 
      Burden of proof is on D (Gyerman)
      
2. 
   Basic Doctrine
   
   1. 
      Butterfield v. Forrester (1809)
      
      1. 
         P brought an action in Case against D for when he was “riding hard”, unintoxicated, and ran into an obstruction placed in the road by D though D had clearly marked the obstruction
         
      2. 
         P’s negligence barred recovery (court would not let P “avail himself” of his own negligence)
         
   2. 
      Beems v. Chicago, Rock Island & Peoria R.R.., 12 N.W. 222 (Iowa 1882)
      
      1. 
         P, an experienced engineer/mechanic was killed while attempting to uncouple two railroad cars. D attempted to allege that he was negligent in the manner in which he did so, despite the fact that D negligently got the cars moving (which killed P)
         
      2. 
         Verdict for P upheld on appeal.
         
         1. 
            A jury could have found that Beems was not contributorily negligent by attempting to disengage the cars a second time since Beems was authorized to believe that his instruction to reduce the speed of the cars would be followed
            
   3. 
      Gyerman v. United States Lines Co. (RPD: THIS IS NOT A STRANGER CASE)
      
      1. 
         Defendant failed to satisfy its burden of proof since record only demonstrates that plaintiff’s notification would only have removed plaintiff from the situation and it is unclear from the record (appellate court noted that trial judge used facts not in the trial record to reach his decision) whether or not the stacks would have actually become safer. Plaintiff is entitled to a trial of the facts regarding his contributory negligence
         
      2. 
         Facts:
         
         1. 
            Plaintiff, a longshoreman in the employ of Associated Banning, was injured while loading sacks of fishmeal. Fishmeal is a tricky thing to load, and significant precautions were customarily taken to secure the sacks
            
            1. 
               Prior to the incident, plaintiff noted that the sacks were improperly stacked
               
            2. 
               Stacks fell multiple times in the days prior to P’s injury (P knew this)
               
         2. 
            P’s contract as a longshoreman stated that
            
            1. 
               Gyerman should not be required to work in an environment he reasonably believed could affect his health and safety
               
            2. 
               Established a grievance procedure to determine such unsafe workplaces
               
            3. 
               P did not report this to his supervisor, but to the supervisor at the U.S. Lines warehouse. Supervisor told him “nothing could be done”
               
         3. 
            Plaintiff was injured when 12 sacks fell on him
            
      3. 
         Epstein: Gyerman represents a situation where there is an ongoing special relationship between the parties (reciprocity exists), which is different from stranger cases. There was an affirmative duty imposed upon the P by virtue of his contract which the P failed to fulfill
         
      4. 
         RPD: Pay attention to the distinction b/t patent and latent risks:
         
         1. 
            Patent: open
            
         2. 
            Latent: hidden
            
3. 
   Causation and contributory negligence.
   
   1. 
      Smithwick v. Hall & Upson Co., 21 A. 924
      
      1. 
         Plaintiff was working on a narrow platform erected in front of D’s icehouse, approx. 15 ft. above ground. D’s foreman warned P to stay away from the side of the platform without a railing and P might slip and fall off. P disregarded the instruction. P was hurt when that portion of the icehouse buckled.
         
      2. 
         P’s contributory negligence was held to be causally irrelevant since the harm was in no way related to the instruction
         
   2. 
      Mahoney v. Beatman, 147 A. 762 (Conn. 1929)
      
      1. 
         Plaintiff was driving at 60mph (a negligently fast speed). D was on the wrong side of the road. P pulled to the side of the road and was brushed by the D’s car.
         
      2. 
         Trial court awarded only nominal damages to P since P’s negligence contributed to the extent of the damages, if not to the actual accident itself.
         
      3. 
         However, Appellate court ruled that since D was the cause of the accident, P was entitled to full damages since the accident would still have occurred if P were driving at the proper speed.
         
   3. 
      LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry., 232 U.S. 340 (1914)
      
      1. 
         Does the flax hurt the train or does the train hurt the flax?
         
      2. 
         Plaintiff, a flaxmaker, had stacked approximately 700 tons of straw on its land. Straw was positioned in two rows.
         
         1. 
            First row was 70 ft. from the railway
            
         2. 
            Second row was 85 feet away
            
         3. 
            Sparks from a passing train were blown onto the stacks, igniting and consuming all of them.
            
      3. 
         Court holds: Contributory negligence should not be applied when the plaintiff, acting on his own land and in a lawful manner, has suffered harm through the negligence of the defendant
         
         1. 
            Opinion refuses to let the law get drawn into the “refinements and confusing considerations” that would be required by such decision
            
         2. 
            While a P may bear some risk by living near a railroad, the risk of negligence is not one of them.
            
         3. 
            Holmes’ concurring in part (per Epstein). Holmes adopts a different viewed based on the perceived difference in the cost of precaution.
            
            1. 
               Those who act are usually in a better position to protect their activities
               
            2. 
               Holmes’ point is that both are acting here. Therefore, if D is acting with due care, then the costs are shifted to P (he should’ve moved the flax)
               
            3. 
               But Holmes goes a step further and says even if both were acting badly, then D should still win given that the prevention costs are much higher for the D.
               
      4. 
         Epstein: McKenna correctly determines that you do not have to yield the use of your land to accommodate the wrong of another.
         
         1. 
            Both parties are wrong, says Epstein. You should have run a clean condemnation provision
            
         2. 
            As much a property case as it is a tort case. Harkens back to Rylands in the sense that tort law is essentially a model of invasion: here you have D who has crossed a boundary and a P who has not, the D loses
            
         3. 
            The cost of prevention was so much less for the D, that the D should bear the burden. Seatbelt cases pose a problem of a different point on the other hand.
            
            1. 
               There should be an incentive for P’s to take precautions in these cases which are much greater (relative to the cost) to the LeRoy Fibre case.
               
            2. 
               Wearing a seatbelt is not prohibitively costly relative to the benefit as opposed to forcing the P in LeRoy to adjust his activities.
               
         4. 
            The role of the D and P in LeRoy Fibre are non-reciprocal (can either party cause the accident?) and asymmetrical (symmetry being an affirmative answer to: Can both parties harm each other in the same way/degree?).
            
      5. 
         Smith v. Kenrick; Owner of a coal mine was not committing trespass when he worked out his mine and water naturally flowed into and obstructed the mine of another (cited in Rylands v. Fletcher)
         
         1. 
            The case gets to the problem of reciprocal relationships.
            
         2. 
            How do you encourage good behavior from P, while at the same time ensuring that D will act in a cautious manner?
            
4. 
   The seatbelt defense. Derheim v. N. Fiorito Co., 492 P.2d 1030 (Wash. 1972)
   
   1. 
      P was injured when struck by negligent D’s truck. D tried to mount a seatbelt defense since WA was a contributory negligence regime which would have been a complete bar to recovery
      
   2. 
      Court held the seatbelt defense was an invalid defense of contributory negligence since it would be “extremely unfair” to hold harmless the person who created the damages in the first place for damages to a blameless plaintiff
      
   3. 
      But see Speir v. Barker, 323 N.E.2d 164
      
      1. 
         Non use of a seatbelt and expert testimony in regards to non-use of a seatbelt is a factor which a jury may consider in arriving at a determination as to whether plaintiff had exercised due care, not only to avoid injury to himself but also to mitigate any injury he would likely sustain. This is limited only to causation and the question of damages
         
         1. 
            The opposite end of the spectrum from Derheim
            
         2. 
            That is, the defendant must prove that the accident (harms suffered by the P) would not have occurred if he had been wearing a seatbelt
            
      2. 
         Lack of seatbelt can then only be used to determine the extent of damages that could have been prevented by the use of a seatbelt
         
   4. 
      Note: Seat belt defense is currently a regulated field. 24 states reject the defense out of hand, with 15 allowing it only a very restricted form.
      
      1. 
         Washington state categorically rejects a seat-belt defense
         
   5. 
      Note: Motorcycle helmet requirements have been interpreted both ways by the courts in terms of liability and damages
      
      1. 
         There is a direct correlation b/t helmet laws and a reduction in motorcycle fatalities
         
5. 
   Contributory negligence and statutory duty
   
   1. 
      Osborne v. Salvation Army, 107 F.2d 929
      
      1. 
         Plaintiff, a resident of a Salvation Army home for the destitute, was ordered by D to clean windows from the outside. He was not provided with any of the required safety gear. Plaintiff was himself obligated to use proper safety gear. Plaintiff fell and hurt himself.
         
         1. 
            Court ruled P was an employee for the purposes of the statute
            
         2. 
            D was prevented from using contributory negligence or assumption of risk (since P was an employee)
            
   2. 
      Koenig v. Patrick Construction Corp., 83 N.E.2d 133 (N.Y. 1948). P allowed to recover after an accident from working on D’s scaffolding.
      
      1. 
         Statutory reglations for the safety of such scaffolding were in place
         
      2. 
         “If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified”
         
   3. 
      Weininger v. Hagedorn & Co., 695 N.E.2d 709 (N.Y. 1998)
      
      1. 
         An exception to the ladder cases (in which contributory negligence as a defense is not generally permitted). P, an electrical contractor, was injured when he fell from the ladder. Since the P was standing on the crossbar of the ladder, his actions constituted a “clear misuse” of the device and, as such, the defendant was liable since the P was the “sole cause” of P’s injury.
         

1. 
   Restatement (Second) of Torts §479 (1966). Last Clear Chance: Helpless Plaintiff
   
   1. 
      A plaintiff who has negligently exposed himself to harm may still recover if
      
      1. 
         P is un able to avoid the accident through exercise of reasonable care
         
      2. 
         Defendant is negligent in failing to utilize reasonable care in D’s opportunity to avoid the accident when the defendant should
         
         1. 
            Recognize the plaintiff’s peril or
            
         2. 
            Would recognize the peril if he was duly careful
            
   2. 
      
      
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