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I. Negligence Per Se (Violation of Statute)

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1. Black Letter Law / Rule

• Threshold Requirement: The statute must provide for a criminal penalty (infraction, misdemeanor, or felony). If there is no criminal penalty, it cannot be used for Negligence Per Se.
• The Applicability Test: To use a statute to establish the standard of care, the Plaintiff must prove:
  1. Class of Persons: The plaintiff is a member of the class of persons the statute was intended to protect.
  2. Type of Harm: The statute was designed to prevent the specific type of harm/injury that the plaintiff suffered.
• Legal Effect: Establishing Negligence Per Se creates an evidentiary presumption of the existence of a duty and breach thereof.
  • This shifts the burden of proof to the defendant.
• Rebuttal (Excused Violations): The defendant may rebut the presumption by showing the violation was excused. Valid excuses include:
  1. Compliance caused more danger: Where complying with the statute was more dangerous than violating it.
  2. Beyond Control: Where compliance was beyond the defendant’s control (e.g., impossibility).

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2. Key Cases

• Moore v. Regents of the University of California
  • Facts: Patient consented to spleen removal, but doctor used cells for lucrative genetic research without disclosure.
  • Rule: A physician must disclose personal pecuniary (financial) interests unrelated to patient health to obtain valid informed consent. (Note: Used primarily to discuss fiduciary duty and vocabulary).
• Baltimore & Ohio R.R. v. Goodman (1927)
  • Facts: Driver hit by train. Justice Holmes ruled he should have stopped, looked, listened, and exited the vehicle if necessary.
  • Rule: (Old Rule) Judge set a rigid standard of conduct as a matter of law, taking the decision away from the jury.
• Pokora v. Wabash Ry. Co.
  • Facts: Driver struck by train where view was obstructed; stopping and exiting would have been futile/dangerous.
  • Rule: (Justice Cardozo) Rigid rules of law shouldn’t replace the jury’s role in determining reasonable conduct in complex circumstances, unless there is a clear statutory standard.
• Osborne v. McMasters
  • Facts: Drugstore sold unlabeled poison in violation of a statute; plaintiff drank it and died.
  • Rule: Violation of a criminal statute (labeling poison) establishes negligence per se. The statute fixes the standard of care.
• Stachniewicz v. Mar-Cam Corp.
  • Facts: Bar fight resulted in head injuries. Plaintiff tried to use a statute prohibiting serving alcohol to intoxicated persons and a regulation regarding “boisterous conduct.”
  • Rule: Statutory applicability requires the plaintiff to be in the protected class and suffer the protected harm. (Court found the regulation applicable to safety in bars).
• Martin v. Herzog
  • Facts: Plaintiff driving buggy without lights (violation of statute) hit by Defendant driving on wrong side of road (violation of statute).
  • Rule: Unexcused violation of a statutory safety standard is negligence in itself (not just evidence of negligence).
• Zeni v. Anderson
  • Facts: Nurse walked on the street instead of the sidewalk (violating statute) because the sidewalk was icy/dangerous. She was hit by a car.
  • Rule: Violation of a statute is excused if compliance would increase the hazard (greater danger) or if compliance is impossible.

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3. Hypotheticals & Examples

• The Speeding Driver: If a driver goes 60mph in a 35mph zone and hits someone, the Plaintiff does not need to convince a jury that 60mph is unreasonable. They simply prove the violation of the speed limit statute (Negligence Per Se).
• The Smoker: If a tenant smokes in a hallway violating a “No Smoking” ordinance and another tenant gets lung cancer, Negligence Per Se applies (Class of person: Tenant; Harm: Lung disease). However, if the smoker rear-ends someone in the parking lot, the “No Smoking” statute is not applicable (wrong type of harm).
• The “Buick” Presumption: Illustrated the concept of evidentiary presumptions. A car bought during marriage is presumed Community Property. The burden shifts to the spouse claiming otherwise to rebut that presumption (e.g., by showing it was bought with inheritance).

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II. Proving Breach: Direct vs. Circumstantial Evidence

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1. Black Letter Law / Rule

• Direct Evidence: Eyewitness testimony of the specific negligent act (e.g., seeing an employee drop a banana peel).
• Circumstantial Evidence: Evidence from which a jury can infer facts. In “slip and fall” cases, this often turns on Constructive Notice.
  • Constructive Notice Rule: A store owner is liable if a dangerous condition existed for a sufficient length of time that a reasonable owner should have discovered and remedied it.

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2. Key Cases (The “Banana” Cases)

• Goddard v. Boston & Maine R.R.
  • Facts: Plaintiff slipped on a banana skin. No evidence of how long it was there.
  • Rule: Directed verdict for Defendant. Without evidence of time (duration), there is no proof of negligence/breach.
• Anjou v. Boston Elevated Ry. Co.
  • Facts: Banana peel was black, gritty, dry, and flattened.
  • Rule: The condition of the peel served as circumstantial evidence that it had been there a long time. Liability attached because reasonable inspection would have found it.
• Joyes v. Great Atlantic and Pacific Tea Co.
  • Facts: Banana peel found, but floor had been swept 35 minutes prior.
  • Rule: Insufficient time had passed to establish constructive notice. No liability.
• Ortega v. Kmart Corp.
  • Facts: Plaintiff slipped on a puddle of milk. Couldn’t prove how long it was there (temp/odor unknown).
  • Rule: In California, a plaintiff can rely solely on the owner’s failure to inspect within a reasonable time (e.g., sweep sheets) to infer the condition existed long enough to be found.
• Jasko v. F.W. Woolworth Co.
  • Facts: Store sold pizza on wax paper to be eaten standing up on a terrazzo floor.
  • Rule: Dangerous Mode of Operation. When the business practice itself creates a continuous foreseeable hazard (spillage), the plaintiff does not need to prove notice of the specific item (slice of pizza) that caused the fall.

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3. Hypotheticals & Examples

• The Sweep Sheet: Supermarkets maintain logs (sweep sheets) showing inspections every 20 minutes. They do this to prove they met the standard of care and to rebut claims of constructive notice.
• Deep Pocket Theory: A client slipping at Caesar’s Palace (deep pockets) has no case if they cannot prove why they fell or how long the hazard was there. The injury alone does not prove breach.

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III. Res Ipsa Loquitur (“The Thing Speaks for Itself”)

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1. Black Letter Law / Rule

• The Test (Elements):
  1. Type of Accident: The accident is of a type that does not normally occur in the absence of negligence.
  2. Exclusive Control: The instrumentality causing the injury was in the sole and exclusive control of the defendant. (Note: A third element regarding contributory negligence exists but is reserved for later study).
• Legal Effect: Creates an evidentiary presumption of breach. It shifts the burden of proof to the defendant to rebut the presumption (prove they were not negligent).

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2. Key Cases

• Byrne v. Boadle (1863)
  • Facts: Plaintiff walking on street was struck by a barrel of flour falling from the defendant’s window. Plaintiff had no evidence of who pushed it or why.
  • Rule: Barrels do not roll out of windows without negligence. The barrel was in the owner’s control. Res Ipsa Loquitur applies.
• Larson v. St. Francis Hotel
  • Facts: Plaintiff hit by a chair thrown out of a hotel window during a celebration.
  • Rule: Res Ipsa Loquitur failed. The hotel did not have exclusive control over the furniture; the guests in the room had control.
• Akiona v. United States
  • Facts: Plaintiff injured by a grenade used by a third party, 20 years after the government possessed it.
  • Rule: No exclusive control. Too much time (20 years) had passed, and the grenade could have been transferred to others without government negligence.

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3. Hypotheticals & Examples

• The Flying Broom: A landscape truck driving 65mph has a broom fly out and hit a windshield.
  • Analysis: Brooms don’t fly off trucks unless unsecured (negligence). The truck had exclusive control. Res Ipsa applies (assuming you can identify the defendant).
• The Loose Tire: A tire flies off a moving car. Tires don’t detach without negligent maintenance/installation. The driver has control. Res Ipsa applies.

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IV. Nuance & Policy

• Affirmative Defenses (Preview): Concepts like Contributory Negligence (common law complete bar to recovery) and Comparative Negligence (modern reduction of damages) were mentioned as context for cases like Martin v. Herzog, but are formally covered in the next semester.
• Subjective vs. Objective Standards:
  • General Rule: Standard is the Objective Reasonable Prudent Person.
  • Exception: Physical disabilities (blindness) are taken into account.
  • No Exception: Mental illness or inexperience (e.g., a “new” pilot or “new” doctor) is not taken into account. Professionals are held to the standard of a reasonable member of that profession, not a “new” member.
• Role of Jury vs. Judge: The progression from Goodman (Judge deciding standard) to Pokora (Jury deciding standard) highlights the shift in American jurisprudence toward letting juries decide factual reasonableness unless a statute (Negligence Per Se) dictates otherwise.