Torts Final Flashcards

1. the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; 2. it must be caused by an agency or instrumentality within the exclusive control of the defendant; AND 3. it must not have been due to any voluntary action or contribution on the part of the plaintiff (contributory negeligence).

  Pl was walking down a public street when a barrel of flour fell upon him from a window above the shop, Df was a dealer in flour, witness testified that he saw the barrel fall from Boadle’s window but had not seen the cause; court said there is a presumption of evidence (the thing that happened could not have happened without someone being negligent – applied rep ipsa loquitur) – PL wins!, DEF had duty to make sure nothing fall out window and this enough to allow jury to determine, court said that is there are any facts inconsistent with negligence, DEF must prove them & DEF didn’t (inference that DEF negligent & had burden to prove not)

chair thrown out window and hit PL, DEF not liable, use BPL rules, chair going out window not forseeable. It was likely that it could not be proven who was in control of the chair, compare to… Connolly v. Nicollet Hotel: crazy convention, manager did not try and control crazy party but knew crazy things happening – hotel was found liable, the absence of any preventions reinforces this idea of negligence (in res ipsa loquiter)

if multiple DEFs and jury cannot conclude “reasonably but” then the DEF can leap out of evidence and then there is not enough evidence for PL to prove case to lead to a jury, can rebut Pls case to take it away from the jury, PL denied recovery against 1 doctor

spare tire under truck dislodged and hit PL in windshield, cradled by old faulty chain, PL win!, reaches towards the main issue of res ipsa being appropriate where exclusive control of instrument but this exclusive control term is at best slippery, not enough evidence (the chain missing), it was responsibility of trailer driver to secure tire indicating that this accident would not happen without negligence, DEF had right to produce chain to prove innocence, Plaintiff is only required to show that there is a reasonable chance that it was negligent. Not that it was only and completely

give benefit of res ipsa loquitor if PL also finds negligence and claiming both, husband killed in helicopter crash, wife sue, pilot drinking, evidence burned in accident, when no access to other evidence then you have access to jury instruction to “infer negligence” since no evidence, if lack evidence court allow rep ipsa when inference is strong enough

Most states have adopted (1): That it may but need not find the defendant negligent (2) That it must find the defendant negligent unless the defendant presents plausible rebutting evidence. (3) That it must find the defendant negligent unless persuaded that the defendant was not negligent

DEF fall asleep at wheel, PL hit, burden of persuading jury that DEF negligent is placed with PL, but this case raises the questions of whether the DEF can more accessibly prove lack of negligence more easily than PL can (rep ipsa)

Ybarra (PL) awoke the next morning after surgery with a sharp pain between his neck and his right shoulder and eventually developed paralysis and muscle atrophy, PL wins, since P was rendered unconscious to receive medical treatment those entrusted with his care have the burden of explaining. All Ds who had any control over his body or instrumentalities may properly be called upon to meet the inference of negligence by giving an explanation of their conduct - P allowed to have a rep ipsa loquitor instruction b/c of the strength of the inference. Find an exception to the exlusive control requirement of rep ipsa loquito

Res ipsa is not applicable in cases where there are many explanations of negligence; D surgeon inserted stainless steel wire in P’s neck to stabilize it. Wire fragmented leading to additional surgery. P denied rep ipsa loquitor instruction b/c too many other potential explanation for the fragmenting of the wire such as the wire being left in storage too long

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