Aim: How do we use the elements
of negligence to determine if there
was negligence in a series of fact
patterns
 Do Now: Review Reasonable Person Fact Patterns.
Objectives
 Examine the elements of negligence.
 Understand how the elements of negligence impact
the holding of a case.
 Guided Practice:
 A. Negligence scenarios. Students will act out different
situations in which negligence is an issue. The other
students will evaluate the skit, issue spot and determine
whether there was negligence.
 B. Evaluate cases to determine how the courts use facts
and the elements of negligence to determine whether a a
defendant was in fact negligence in varying scenarios.
Elements of Negligence
 Duty – The Defendant
owed the plaintiff a duty
to act like a reasonable
person.
 A reasonable person
would:
 1. Consider the burden of
taken the precaution.
 2. the likelihood of the
harm
 3. The seriousness of the
harm
 B < P * L a reasonable
person would take that
precaution.
Breach
 The D’s conduct violated that duty. In other words, the
defendant did not act reasonably.
Causation
 The defendant’s conduct caused the plaintiff’s harm
 And
 The harm caused was foreseeable
Damages
 The Plaintiff suffered actual damages.
Activity:
 Each group is given a hand-out with a prop and a
background.
 Groups will get together, study the props and
background and create a skit. Students will complete
two skits in total.
 Each group will write up a summary/explanation of
their skit that identifies the 4 elements of negligence.
This will be collected, so should be clear and legible.
 On Wednesday, each group will present their skit and
ask their classmates to identify the four elements. The
group will then explain their skit.
Aim: How do we examine specific cases as
they establish the rules and standards of
negligence?
 Which case/skit of your classmates do you think posed
the most egregious example of negligent behavior?
Explain your answer 3-5 sentences.
Anjou v. Boston Elevated Railway
Co
 Citation. 208 Mass. 273, 94 N.E. 386, 1911 Mass.
Brief Fact Summary.
The Plaintiff, Anjou (Plaintiff ), slipped and fell on a banana peal
left on the Defendant, Boston Elevated Railway Co.’s
(Defendant), train platform.
Facts.
The Plaintiff, a passenger on the defendant’s railway, injured
herself when she slipped and fell on a banana peel. The Plaintiff
had been following behind one of the railroad’s uniformed
workers when she slipped. The banana peal was described as
black, dry and gritty and appeared as if it had been trampled on.
Issue. Whether the Defendant is negligent?
Anjou v. Boston Elevated Railway
Co
 Held. The Defendant was negligent in not removing the banana
peal.
Discussion. Because the appearance of the banana peal
suggested that it had been on the ground for some time, it could
be inferred that the peal had been seen and could have been
removed by one of the employees of the railway. This fact
distinguishes this case from Goddard, as there is evidence upon
which to base a conclusion that the peal was not dropped a
moment before the Plaintiff’s fall by another passenger. Here,
the railway employees had time to pick up the hazard and they
did not.

Synopsis of Rule of Law. Circumstantial evidence can be used to
establish proof of negligence.
Lubitz v. Wells (1955)
Facts:
Wells left his golf club lying on the ground in his
backyard. While playing in the yard, Wells’ son swung
the club hitting and injuring Lubitz.
Issue:
Does leaving an intrinsically non-dangerous object
unattended constitute negligence?
Rule:
Conduct that normally presents no danger is not
unreasonable and, hence, not negligent.
Gulf Refining Co. v. Williams
(1938)
Facts:
Williams was severely burned when a gasoline drum distributed
by Gulf Refining Co. exploded due to a spark produced by the
poor condition of the cap
Issue:
Is a party liable for negligence when the injuries produced by its
actions are the result of an unusual, extraordinary and
improbable occurrence?
Rule:
Even if an injury causing event is improbable, one may be
negligent if there is some real and appreciable likelihood of
damage in a particular situation and that person does not take
action to avoid the damage when a reasonable and prudent
person would have.
Chicago, B. & Q. R. Co. v.
Krayenbuhl (1902)
Facts:
Krayenbuhl, age 4, had his leg severed while playing on a railroad
turntable. The turntable was close to a path in common use by
the general public and was often left unlocked.
Issue:
Does a person’s duty of care require one to take all possible
precautions to eliminate injury to another?
Rule:
The nature of precautions which must be taken depends on:(1)
the character and location of the premises; (2) the purposes for
which they are used; (3) the probability of injury; (4) the
precautions necessary to prevent injury; and (5) the relation of
such precautions to the beneficial use of the premises.
Osborne v. McMasters (2003)
 Brief Fact Summary. A woman died as a result of ingesting poison from an
unlabeled bottle purchased at the Defendant, McMaster’s (Defendant) drug
store. The Defendant was required by law to label all poisons.
Synopsis of Rule of Law. If a person neglects to perform a duty imposed by
either statute or common law and that law is designed for the protection of
others, then the evidence of the act or omission constitutes negligence per se.
Facts. A clerk working in the Defendant’s drug store sold an unlabeled bottle of
poison to the Plaintiff, Osborne’s (Plaintiff) wife. Not knowing that the drug
was poisonous, the Plaintiff’s wife took the drug and died. By statute the clerk
was required to label the drug as poison and by failing to do so, he broke the
law.
Issue. Whether the Defendant was negligent in failing to abide by the statutory
requirement to label all poisons.
Osborne v. McMasters (2003)
 Held. The Defendant was negligent. The non-
performance of a legal duty constitutes negligence per
se.
Discussion. When a statute imparts a specific duty for
the specific protection of others and a person neglects
to perform that duty, it is evidence of negligence per
se. This is also true when there is a clear duty imposed
by common law that requires the exercise of due care.
Boyce v. Brown (2005)
 Brief Fact Summary. Nannie Boyce (Ms. Boyce) suffered pain and disability seven years
after the Defendant, Brown (Defendant), placed a metal screw in her ankle. The
Plaintiffs, Nannie and Berlie Boyce (Plaintiffs), sued the Defendant.
Synopsis of Rule of Law. Medical malpractice can only be shown where, by expert
testimony, it is established that the doctor acted outside of the community norms in their
treatment of the patient.
Facts. Ms. Boyce sought the services of the Defendant, a medical doctor, to reduce a
fracture of her ankle. The Defendant performed the operation, using a metal screw to
keep the bones in place. Seven years latter, the Ms. Boyce returned to the defendant
complaining of pain in her ankle. The Defendant examined the ankle and wrapped it
before sending her home. For the next two years, the ankle continued to worsen and Ms.
Boyce eventually saw a second doctor who surgically removed the screw, offering Ms.
Boyce a full recovery. The Plaintiffs sued the Defendant for malpractice, claiming he was
negligent in not removing the screw when Ms. Boyce returned to his office seven years
after surgery. At trial, the second doctor testified to the condition of Ms. Boyce’s ankle at
the time she was seen by him, but could not say if the Defendant acted outside the scope
of proper medical standards when the Plaintiff was seen two years prior.
Boyce v. Brown (2005)
Issue.
Whether the Defendant was negligent when he failed to remove the screw from
the Ms. Boyce’s ankle.
Held.
The expert testimony could not establish that the Defendant acted outside of
the community standards and therefore the Defendant did not commit
malpractice.
Discussion. Medical doctors are required to possess the degree of skill and
learning possessed by an average member of the medical profession in good
standing in the community in which they practice and apply that skill and
knowledge with reasonable care. To be liable for malpractice, a doctor must
have used a treatment that the medical community where the doctor practices
forbids, or have neglected to do something that community standards would
require. To successfully allege malpractice, a plaintiff must offer expert
testimony on the community standards of medical care. In this case, because
the expert testimony could not establish that the Defendant acted outside of
the community medical standards when the Ms. Boyce returned seven years
after surgery, the Defendant cannot be found guilty of malpractice.
Aim: How do we examine specific cases as they
establish the rules and standards of negligence?
 Assignment: For each of the cases described in your packet





please answer the following questions on a separate sheet of
paper (to be collected)
A. What is the issue in the case? (Be more specific than
whether there was negligence)
B. Which element(s) of negligence is/are at issue? (Duty
Breach, Causation, Injury)
C. What is/are the most important fact/facts in the case?
D. What fact, if any, do you think would have changed the
holding in the case. In other words, what is your strongest
argument in favor of a different outcome using the facts of the
case? (no injury is not an option )
E. Do you agree with the discussion? Why do you think the
court ruled the way it did, i.e. policy reasons, deterrence,
punishment? Explain your answer.