TORTS I
10.14.09
In addition to the questions remaining from last week, please consider the following in connection with next week’s classes:
1. Would Gipson v. Kasey have turned out differently if Watters, after receiving the pills from Kasey, had given them to another person at the party whom Kasey did not know and about whom Kasey had no information?
 Yes, he would be within the prescribed class within the group of individuals to be protected by the statutes provided in the case o You have to be one of the persons that the statute intended to protect and apart of the crime attempted to prevent
 The statutes are trying to protect individuals who are not prescribed such medicine
 Legislature establishes a duty of care (negligence)
 Designed to avoid injury and death to people
2. Can the court’s decision in Gipson to treat the decedent’s voluntary ingestion of prescription drugs as merely a comparative defense, rather than as a total bar to recovery, be reconciled with the “unlawful conduct defense” discussed in Chapter 3? Wasn’t the decedent’s death the direct result of knowing participation in serious criminal conduct of a wholly prohibited nature?
 There does appear to be an unlawful conduct defense and understanding its application
(understanding what the statute is trying to do) then it will most likely change the outcome of the case from a criminal to civil sense.
3. Explain whether the Oregon Supreme Court relied on a statute or on a regulation as the basis for setting the standard of care in Stachniewicz v. Mar-Cam Corp.
 The Oregon Supreme Court relied on a regulation for their holding in setting the standard of care o The duty reasonably owed to establish a standard of care
 The Oregon Supreme Court held that a violation of either the statute or the regulation did not constitute negligence per se o Statute
 (3) No person shall give or otherwise make available any alcoholic liquor to a person visibly intoxicated… o Regulation
 (2) No licensee shall permit or suffer any loud, noisy, disorderly or boisterous conduct, or any profane or abusive language, in or upon his licensed premises, or permit any visibly intoxicated person to enter or remain upon licensed domain
4. Assume that lawyers in State X are required to pay a $200 occupational tax annually and failure to pay this tax may result in suspension of a lawyer's license to practice law. Assume further that lawyer L fails to pay the tax but has not been suspended because the state has failed to take action.
While in violation of this statute, L handles a case in a way that the client believes has caused harm to the client. Can the client successfully sue L and argue that the violation of the statute establishes negligence?

 No, the lack of a licensee does not constitute a violation of the statute establishing negligence
5. What is the rule that comes out of Martin v. Herzog?
 The unexcused omission to perform a statutory duty is negligence per se.
 Trial Court found the car driver to be negligent o Appeals reversed the order finding the buggy driver to be contributory negligent
6. Explain the difference among: (a) negligence per se, (b) violation of a statute as prima facie evidence of negligence, and (c) violation of a statute as some evidence of negligence. o Mastering Torts p. 98-9 o Negligence per se- o Once establishing a breach of the duty, one cannot rebut offense o Violation by prima facie- o  has an opportunity to rebut the offense through reasonable excuse or care o “If the buggy was prima facie evidence for negligence” o A prime example of what is a standard of law; rebuttable presumption o Violation by negligence-
NEGLIGENCE o Duty o Breach o Causation o Damage
7. Examine Ranard v. O’Neil and Zeni v. Anderson and provide examples of when conduct may amount to an excused violation of a statute. o In Ranard, 8 y/o child crossed the street and was hit by a car. Child was deemed to not have sufficient knowledge to exhibit due care and look both ways, therefore establishing a case in violation by Prima Facie. o In Zeni, individual was hit by car while walking on main portion of the highway because excess snow made it more dangerous to walk on overloaded sidewalk. The sidewalk was inaccessible and Trial Courts held for  . Appeals reversed decision because although it was more dangerous to walk on sidewalk, the sidewalk was still available and the  cannot be held liable for being negligent for  ’s refusal to use provided sidewalk. (Rest.3d §15(b))
8. What is the rule that comes out of the Montgomery v. Royal Motel case? What type of legislative enactment was at issue? What facts would have qualified as special circumstances requiring greater precautions than mandated by Las Vegas municipal ordinance 4-10-2? o The ordinance once establishes only a minimum standard of conduct and that reasonably prudent conduct might require additional precautions under the circumstances (i.e., a selflocking door), raising a question of fact for the jury.
9. Review the discussion of contributory negligence, comparative negligence, and comparative fault at pages 19-20 of the text and be able to explain the differences. o
10. What role did the plaintiff's alleged contributory negligence play in the outcome of Seim v.
Garavalia? o The  alleges 50% negligence for equal parties
11. Aside from the statute at issue in the Seim case, is it likely that the defendant could have been held liable for negligence? o I f a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in the

damages to the person so attacked or injured to the full amount of the injury sustained…Minn. Stat § 347.22 (1980). o The court is applying strict liability and not negligence, therefore, comparative fault is nullified
Chapter 6 – Proving Negligence
1. What “custom” was at issue according to Judge Hand’s decision in The T.J. Hooper? Was it: (a) whether coastal ship owners equipped their tugboats with radio receivers, or (b) whether coastal tugboats had radio receivers on board, or (c) something else? What difference does it make? In
Note 1 on page 322 of the text, the authors suggest that “Judge Hand may have been misled by the fact that many of the receivers [on coastal tugs] belonged to the captains of the tugs, rather than to the tugs’ owners.” Do you think that Judge Hand was misled? Or was it necessary for Judge Hand to characterize industry custom in a certain way to make a point? What point was that?
2. Compare the opinion in The T.J. Hooper with the decision in Helling v. Carey (J&G at 294-95).
Are the two courts applying the same reasoning?
3. Look at Judge Hand’s statement from T.J. Hooper that an industry or profession “never may set its own tests, however persuasive be its usages.” Can you formulate an argument that Learned Hand’s statement is overly broad, particularly in highly specialized areas of expertise? Does it help you to know that there is no constitutional right to a jury trial in federal admiralty proceedings such as those in T.J. Hooper? What difference would it make to know this?
4. What rule are you able to glean from Low v. Park Price Co.?
5. What sort of facts should the plaintiff in Low have introduced into evidence to show that it was unreasonable for the defendant to follow the custom of leaving cars in unfenced areas?
6. Compare Goddard v. Boston & M.R. Co. with Anjou v. Boston Elevated Ry. Co. How do the cases differ procedurally? Factually?
7. In Anjou was it significant to the outcome of the case that “the crowd had left the platform,” that the platform was “narrow,” and that the plaintiff was “following a few feet behind” an employee of the defendant?
8. Describe the conduct of the defendant that the court in Sheehan v. Roche Brothers Supermarkets determined to constitute negligence. Explain the court’s reasoning.
9. In a negligence action, is it essential to prove that the defendant was on notice of the hazard that caused the harm?
10. Would it have made a difference in Mobil Chemical Co. v. Bell if the harm had been caused by a minor leak in the equipment the first time it was switched on after being turned over by the installer to the defendant?
11. According to the court in Mobil, what is the procedural effect of establishing a res ipsa case?
12. Why weren’t the claims in Mobil “on-the-job” injuries that would have been barred by workers’ compensation?
13. Supposed that a pedestrian on the sidewalk is struck by a chair that falls from a window of a hotel?
Can the pedestrian make out a res ipsa case against the hotel? What if the only window on the hotel that can be opened belongs to a maintenance closet, rather than to a guest room? What if the object that caused the harm was not a chair but a ladder of the type to which only the maintenance staff of the hotel ordinarily has access.
14. A restaurant patron bites into a taco and damages his tooth on a machine screw that was concealed in the taco filling. A customer slips on a banana peel outside the entrance to a grocery store. Will the plaintiff in either of these cases be able to rely on res ipsa loquitur?

15. Compare the following statements from the decision in Mahowald v. Minnesota Gas Co.: (1) “Really what we are considering in a determination of whether res ipsa loquitur applies is the shifting of the burden of proof to someone who is responsible for the instrumentality that caused the damage,”
(J&G at 350), and (2) “[T]he rationale of res ipsa loquitur [is] to allow a plaintiff to get to the jury by allowing the jury, in an appropriate case, to draw an inference of negligence on the part of the gas company” (J&G at 351). Now review the authors’ discussion of the “procedural effect” of res ipsa
loquitur (J&G at 343). Can you spot the inconsistency in the two quotes from Mahowald?
16. What was the Minnesota Supreme Court’s conclusion about whether exclusive control is necessary in a res ipsa case?
17. What factors did the court find to be significant in Mahowald in concluding that the plaintiff could rely on res ipsa loquitur?
18. What if the plaintiff in Mahowald had pleaded or proven that the gas line had been installed a depth less than the depth required by law? Could the plaintiff still rely on res ipsa loquitur? Would there be any need to invoke the doctrine?