Negligence: The Cause of Action

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Negligence The Cause of Action

• The Prima Facie Case
• Duty
• Breach (Standard of Care)
• Causation
• Damages

• Defenses
• Contributory negligence / comparative fault
• Assumption of the risk

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Negligence B. The Central Concept 2. The
Reasonable Person
Negligence is the doing of something which a
reasonably prudent person would not do, or the
failure to do something which a reasonably
prudent person would do, under circumstances
similar to those shown by the evidence. Californi
a BAJI 3.10
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Negligence C. The Roles of Judge and Jury 1.
In General

• Whose account of the role of judge and jury is
  more persuasive Cardozos or Holmes?
• Is Cardozos opinion consistent with his
  decision in Adams and Green?

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Negligence B. The Roles of Judge and Jury 1.
In General
Rules or Standards Would it be better in
negligence cases to have rules defining what
conduct is negligent and what is not? Judges
or Juries Would it be better to have judges
decide what behavior is lawful, rather than
juries?
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Negligence B. The Roles of Judge and Jury 1.
In General
Kalven study Case decided by jury For
P For D Case decided For P 44 10 by
Judge For D 11 35 Result Agreement in
79 of the cases.
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Negligence B. The Roles of Judge and Jury 1.
In General
Ways in which a judge can control the jury, short
of establishing a rule of law Pretrial
Demurrer, regulation of discovery Summary
judgment no disputed issues of material
fact Rulings on admissibility of
evidence Motions for a directed
verdict Instructions Review of verdict
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Negligence B. The Roles of Judge and Jury 2.
Custom
Plaintiff left his car at a local filling station
for some minor repairs. Defendant, the garage
owner, left the car in an unfenced area between
the stations garage and the street. Overnight,
the cars transmission was stolen. Plaintiff
believes that if the area had been fenced, as new
car dealerships in that neighborhood all are, the
car would not have been stolen. Further,
plaintiff has evidence that several new car
dealerships in the area also have security
services to patrol their parking lots. Filling
stations, according to the defendant, do not
fence their lots because it would impede their
customers access to the gas pumps.
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Negligence B. The Roles of Judge and Jury 2.
Custom
Defendant seeks a directed verdict on the issue
of negligence. How do you rule?
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Negligence B. The Roles of Judge and Jury 2.
Custom
Defendant seeks directed verdict on the issue of
negligence. What is the standard for a directed
verdict where the issue is whether the defendant
complied with the standard of care?
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Negligence B. The Roles of Judge and Jury 2.
Custom

• What is the standard for a directed verdict where
  the issue is whether the defendant complied with
  the standard of care?
• plaintiff has not met his burden of producing
  evidence from which a reasonable jury could find
  that the defendant failed to use ordinary care.
• OR considering all the evidence, reasonable
  jurors could only reach one conclusion
• OR, there is a rule of law defining the standard
  of care under these circumstances.