> ## Documentation Index
> Fetch the complete documentation index at: https://lawmaxxing.com/llms.txt
> Use this file to discover all available pages before exploring further.

# Negligence Per Se, Direct vs. Circumstantial Evidence, Res Ipsa Loquitur, Nuance & Polic

> Session 8

# I. Negligence Per Se (Violation of Statute)

### 1. Black Letter Law / Rule

**Negligence Per Se** (synonymous with "Violation of a Statute") serves as a shortcut to prove the element of **Breach** without requiring a jury to determine if conduct fell below the standard of care of a reasonable prudent person.

* **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).

### 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.

### 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).

***

# II. Proving Breach: Direct vs. Circumstantial Evidence

### 1. Black Letter Law / Rule

To prove **Breach** (conduct falling below the standard of care), a plaintiff may use:

* **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.

### 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.

### 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.

***

# III. Res Ipsa Loquitur ("The Thing Speaks for Itself")

### 1. Black Letter Law / Rule

**Res Ipsa Loquitur** is a doctrine used when there is no direct evidence of the specific negligent act, but the circumstances imply negligence. It serves as the third pathway to prove Breach.

* **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).

### 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.

### 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.

***

# 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.