Do Now: Review Reasonable Person Fact Patterns.

1. 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.

2. 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.

3. 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.

4. Breach • The D’s conduct violated that duty. In other words, the defendant did not act reasonably.

5. Causation • The defendant’s conduct caused the plaintiff’s harm • And • The harm caused was foreseeable

6. Damages • The Plaintiff suffered actual damages.

7. 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.

8. 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.

9. 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?

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.