Custom and Negligence Per Se
Custom and Negligence Per Se
Custom
Definition: Custom refers to the regular or typical practice within a field.
Use in Breach Arguments:
Plaintiff: Argues breach of duty of care due to failure to adhere to custom.
Defendant: Argues no breach of duty of care due to adherence to custom.
General Rule: Custom does not set the standard of care.
Rationale (BPL): If a reasonable person should take a precaution where the benefits (harm reduction) outweigh the costs, custom is irrelevant. The reasonable person acts independently of custom if it conflicts with these rules.
Evidence of Negligence: Custom can be introduced as evidence and may influence juries.
TJ Hooper Case
Facts: A barge lost coal in a storm. The tugboat towing it lacked a two-way radio (customary at the time). Other ships with radios avoided the storm.
Breach Analysis (BPL):
Untaken precaution: Having a two-way radio.
Cost of radio: ΔB = $10
Loss of coal without radio: PL = $100,000 \times 1\% = $1,000
Loss of coal with radio: PL = $100,000 \times 0\% = $0
Reduction in expected harm: ΔPL = $1,000
Conclusion: Breach, because $10 < $1,000
Policy Rationales for Ignoring Custom
Economic Efficiency: Benefits vastly outweigh costs in the BPL analysis. Ignoring custom (no radio) is inefficient.
Deterrence: Ignoring custom encourages investment in safety measures (radios) to avoid liability.
Administrability: Letting custom set the standard of care would be easier to administer becauset it's essentially a rule. But this is outweighed by the other factors.
Custom Exceptions
Professional Negligence: Custom sets the standard of care in medical/legal malpractice and similar fields.
Rationale: Primarily administrability. It's difficult for a jury to determine what a reasonable physician would do vs evaluating if the physician followed the custom.
Trend: Some states are moving towards a reasonable physician standard in medical malpractice.
Rules and Administrability
Informed Consent: Custom does not set the standard of care in medical malpractice cases related to informed consent.
Relevant Custom (Physicians): National custom is relevant for physicians.
Relevant Custom (Medical Facilities): Local custom is relevant for medical facilities.
Introduction to Negligence Per Se
Definition: Negligence Per Se is a common law doctrine transforming violation of a regulation into breach itself.
Regulation: Broadly defined to include statutes, administrative rules, etc.
Exclusions:
Does not apply if the regulation creates a civil liability (separate tort claim) for a violation directly (e.g., Civil Rights Act of 1964).
Applies only if the regulation is silent regarding civil suit consequences.
Rationale (Reasonable Person): The reasonable person obeys the law.
Legal Issue: Determining when a violation of a regulation establishes breach.
Analysis:
If Negligence Per Se applies: Regulation sets the standard of care; violation establishes breach. Jury has no discretion.
If Negligence Per Se does not apply: Breach is determined by BPL alone.
Important: Negligence Per Se establishes breach based on a regulation violation, it does not establish compliance with a standard of care given compliance with a regulation.
NPS: Class of Persons, Type of Harm, Particular Hazard
General Rule: Violation of regulation establishes breach if:
The regulation protects the class of persons harmed.
The regulation prevents the type of harm that occurred.
The harm arose from the particular hazard the regulation addresses.
Class of Persons: The injured party must be someone the legislator intended to protect.
Type of Harm: The injury must be what the legislator intended to prevent.
Particular Hazard: The manner of harm must be what the legislator worried about.
Note: Some states combine type of harm and particular hazard elements.
Determining Intent: Requires statutory/regulatory intent (legislative intent).
Analysis Advice:
Construe intent as both the plaintiff and defendant would.
Plaintiff: Seeks a broad definition of class of persons, type of harm, and particular hazard.
Defendant: Seeks a narrow definition of class of persons, type of harm, and particular hazard.
Assess the most reasonable way to construe the elements.
Martin v. Herzog
Facts: Plaintiff driving a buggy without lights (regulation violation) was hit by defendant crossing the median.
Issue: Plaintiff possible contributorily negligent.
Class of Persons:
Broad: Anyone harmed by no headlights.
Narrow: Anyone harmed by accident caused by no headlights other than the driver of the buggy without headlights.
Better Argument: Broad.
Type of Harm:
Broad: Any harm from any accident on the road.
Narrow: Only protects others on the road, not driver of buggy.
Better Argument: Broad.
Particular Hazard:
Broad: Accidents from decreased visibility due to lighting.
Narrow: Accidents caused by the driver of the buggy without lights not seeing others.
Better Argument: Broad.
Gorris v. Scott
Facts: Sheep washed overboard because they weren't in pens as required by "Contagious Diseases (Animals) Act."
Issue: Does Negligence Per Se apply?
Class of Persons:
Broad: Anyone harmed when sheep are not penned, including sheep owners.
Narrow: Consumers buying bad meat or owners of animals interacting with a diseased animal.
Reasonable: Somewhere in between.
Type of Harm:
Broad: Keeping animals alive during transportation.
Narrow: Harm from disease only.
Particular Hazard:
Regulation about disease.
Hazard is drowning, which is different than disease. Difficult for Plaintiff to argue.
Tingle v. Chicago, Burlington, and Quincy Railroad
Facts: Trains run on Sundays in violation of a regulation and hits the plaintiffs cow.
Unclear if Negligence Per Se applies.
NPS: Exceptions
Presumption of Breach: When class of persons, type of harm, and particular hazard elements are met, there is presumption of breach.
Exception: Compliance with the regulation involves greater danger than violation.
BPL-like analysis where the actual precaution taken is non-compliance and the untaken precaution is compliance.
*Factor relevancy to the BPL analysis are all relevant.
Tedla v. Ellman
Facts: Plaintiff walking with traffic (regulation violation) was hit by a car. Regulation required people to walk against traffic.
Issue: Plaintiff possible contributorily negligent.
Compliance with the regulation is more dangerous than the violation.
NPS: Difficult Example 1: Drunk Driving
Does drunk driving satisfy breach under Negligence Per Se?
Does the answer depend on BAC?
Case Examples:
Yost v. Miner: Head-on collision in plaintiff's lane; defendant drunk. Negligence Per Se and/or BPL apply.
City of Little Rock v. Cameron: Defendant with BAC of 0.05 swerved to avoid another car and hit a traffic signal pole. Negligence Per Se and/or BPL apply.
Anderson v. Morgan: Plaintiff passenger in defendant's car; defendant drunk; collision with another car in defendant's lane. Negligence Per Se and/or BPL apply.
NPS: Difficult Example: Licensing Violations
Should not having a license satisfy breach under Negligence Per Se?
Examples:
Defendant's license expired two minutes before the accident.
Lawyer forgot to renew license during a trial and the client sues for malpractice.
Brown v. Shyne:
Defendant practiced chiropractic without a license and the plaintiff was paralyzed after a treatment.
The court reversed a judgment for the plaintiff, holding the lack of a license was not, by itself, sufficient to establish negligence.
The dissent argued for the public health law meant to protect the public. And the doctor must be measured with more strict standards.
Custom
Definition: Custom refers to the regular or typical practice within a field, representing the established patterns of behavior that professionals and individuals typically follow in particular situations.
Use in Breach Arguments:
Plaintiff: Argues that a breach of duty of care has occurred due to the failure to adhere to the custom, establishing that the defendant did not meet the expected standard of care upheld by the profession or relevant field.
Defendant: Contends that there has been no breach of duty of care, arguing instead that they adhered to the established custom, thus fulfilling the standard of care required.
General Rule: Custom does not set the standard of care; rather, it serves as one piece of evidence in evaluating whether a breach occurred.
Rationale (BPL): According to the Burden/Probability/Loss (BPL) analysis, if a reasonable person would take a precaution because the benefits of harm reduction exceed the associated costs, then adherence to custom may be irrelevant. The reasonable person takes independent action when custom conflicts with this cost-benefit analysis.
Evidence of Negligence: Although custom may not establish the standard of care, it can still be introduced as evidence in court and may significantly influence the jury's perception of the situation and the defendant’s conduct.
TJ Hooper Case
Facts: In this landmark case, a barge lost a substantial amount of coal during a storm, leading to a monetary loss. The tugboat towing the barge did not possess a two-way radio, which was considered a customary safety measure at that time. Other vessels equipped with radios managed to avoid the storm effectively, demonstrating the importance of such equipment.
Breach Analysis (BPL):
Untaken precaution: Lack of a two-way radio resulted in significant financial loss.
Cost of radio: ΔB = $10 which represents the investment required to obtain the radio.
Loss of coal without radio: PL = $100,000 imes 1 ext{%} = $1,000 signifies the potential loss without the precaution in place.
Loss of coal with radio: PL = $100,000 imes 0 ext{%} = $0 indicating no loss if the precaution were taken.
Reduction in expected harm: ΔPL = $1,000 delineates the decrease in expected harm resulting from the adoption of the precaution.
Conclusion: The case concluded with a finding of breach, as the potential loss incurred by failing to invest in the equipment (10) was significantly lower than the expected loss (1,000).
Policy Rationales for Ignoring Custom
Economic Efficiency: The analysis shows that the benefits of taking precautions far outweigh the costs, rendering adherence to custom inefficient if it leads to greater harm.
Deterrence: By ignoring outdated or unsafe customs, the law encourages investment in updated safety measures, like radios, which enhance overall safety and reduce liability.
Administrability: While establishing custom as the standard of care might seem administratively simpler, this viewpoint is outweighed by the imperative of addressing safety and efficiency.
Custom Exceptions
Professional Negligence: In fields such as medical and legal malpractice, established custom can set the standard of care due to the unique nature of these professions.
Rationale: The primary justification for this exception is that juries may struggle to assess what a reasonable physician would do compared to a straightforward evaluation of whether the custom was followed.
Trend: Increasingly, some jurisdictions are transitioning towards a standard that emphasizes a reasonable physician's conduct rather than strictly adhering to custom.
Rules and Administrability
Informed Consent: It is essential to note that in cases related to informed consent in medical malpractice, custom does not dictate the standard of care.
Relevant Custom (Physicians): The national custom is pertinent for physicians, as it reflects the expected practices across the broader medical community.
Relevant Custom (Medical Facilities): Local custom is critical for assessing practices within specific medical facilities, which may vary based on regional needs and standards.
Introduction to Negligence Per Se
Definition: Negligence Per Se is a legal doctrine in common law that deems the violation of a regulation as direct evidence of breach, simplifying the plaintiff's burden of proof in showing negligence.
Regulation: It is important to define regulations broadly to encompass statutes, administrative rules, and other regulatory measures. This ensures a comprehensive understanding of legal obligations.
Exclusions:
Negligence Per Se does not apply if the regulation itself establishes a civil liability for violation through a direct tort claim, such as found within the Civil Rights Act of 1964.
The doctrine only applies when the regulation is silent regarding the consequences of civil suits stemming from violations.
Rationale (Reasonable Person): The underlying principle is that a reasonable person is expected to comply with the law, which defines community standards of behavior.
Legal Issue: A critical point to address is how to determine when a regulation's violation constitutes a breach of duty in a legal context.
Analysis:
If Negligence Per Se is deemed applicable: The regulation clearly sets the standard of care; thus, its violation conclusively establishes breach, with no leeway for a jury's discretion.
If Negligence Per Se does not apply: The determination of breach proceeds solely under the BPL framework.
Important: The doctrine of Negligence Per Se clarifies that breach is established through a regulatory violation, though it does not necessarily demonstrate compliance with a standard of care merely through adherence to regulations.
NPS: Class of Persons, Type of Harm, Particular Hazard
General Rule: A violation of a regulation establishes breach if three criteria are met:
The regulation must protect the class of persons who suffered harm.
The regulation must prevent the specific type of harm that occurred.
The resultant harm must arise from the particular hazard that the regulation addresses.
Class of Persons: To establish a valid claim, the injured party must fall within the class of individuals that the legislator intended to protect through the regulation.
Type of Harm: The injury sustained must align with the harm that the regulation seeks to prevent, ensuring that the regulatory framework remains relevant to the situation.
Particular Hazard: The specific manner in which the harm occurred must relate directly to the identified hazard that the regulation was designed to minimize or eliminate.
Note: Some jurisdictions may combine the analyses of type of harm and particular hazard in their decision-making processes.
Determining Intent: This aspect necessitates a review of statutory or regulatory intent, examining legislative purpose to discern the appropriate scope of protection.
Analysis Advice:
Consider both perspectives in constructing definitions: adopt the stance of both the plaintiff and defendant according to their respective interests.
Plaintiff: Will favor a broad interpretation of the definitions concerning the class of persons, types of harm, and particular hazards to widen protections.
Defendant: Will strive for a narrow interpretation, limiting liability and exposure to claims involving harm.
Assess the most reasonable and justifiable way to frame the statutory elements to ensure balanced outcomes.
Martin v. Herzog
Facts: In this case, the plaintiff was driving a buggy without lights, violating regulatory standards, and subsequently struck by the defendant who was crossing the median in a vehicle.
Issue: The potential for the plaintiff to be considered contributorily negligent arising from their own violation of the regulation.
Class of Persons:
Broad: Encompasses anyone harmed due to the absence of headlights.
Narrow: Specifies individuals harmed by accidents from the lack of headlights, excluding the driver of the buggy without lights.
Better Argument: The broader interpretation is more compelling.
Type of Harm:
Broad: Includes any harm from road accidents.
Narrow: Protects others on the road, excluding the buggy driver.
Better Argument: Again, the broad argument is stronger.
Particular Hazard:
Broad: Addresses accidents resulting from decreased visibility linked to the lack of proper lighting.
Narrow: Is focused on accidents that arise when drivers of buggies without lights fail to see others on the road.
Better Argument: The broad interpretation is more persuasive.
Gorris v. Scott
Facts: This case involved sheep being washed overboard because they were not penned as mandated by the "Contagious Diseases (Animals) Act."
Issue: The applicability of Negligence Per Se in this scenario.
Class of Persons:
Broad: Could include anyone affected when sheep are not properly penned, such as sheep owners.
Narrow: Might involve consumers who purchase inferior meat or the owners of livestock that interact with infected animals.
Reasonable: A position that accommodates aspects of both definitions may be most suitable.
Type of Harm:
Broad: Ensures the preservation of animal life during transport.
Narrow: Concentrates solely on harm arising from disease transmission.
Particular Hazard: The regulation pertains to disease control.
Hazard is the potential for drowning, which does not align with disease-related risk, complicating the plaintiff's argument.
Tingle v. Chicago, Burlington, and Quincy Railroad
Facts: This situation involves trains operating on Sundays against a regulatory directive, leading to a collision that involved the plaintiff's cow.
The applicability of Negligence Per Se remains unclear, prompting further examination of the case specifics.
NPS: Exceptions
Presumption of Breach: When the elements of class of persons, type of harm, and particular hazard are satisfactorily met, there is a presumption of breach.
Exception: If compliance with the regulation leads to greater danger than what the violation presented, then traditional BPL-like analysis applies.
The actual precaution taken—non-compliance—should be assessed alongside the untaken precaution—compliance—echoing the factors relevant to the BPL analysis, thereby integrating broader safety considerations.
Tedla v. Ellman
Facts: The plaintiff was walking with traffic in breach of regulatory requirements, ultimately being struck by a vehicle. The regulation mandated pedestrians to walk against traffic.
Issue: The question of whether the plaintiff may be considered contributorily negligent arises.
Compliance with the regulation could introduce more danger, casting doubt on its effectiveness in this scenario.
NPS: Difficult Example 1: Drunk Driving
Questions that arise: Does drunk driving meet the threshold for breach under Negligence Per Se? Is the determination impacted by the driver's blood alcohol concentration (BAC)?
Case Examples:
Yost v. Miner: Involved a collision in which the plaintiff's lane was struck head-on by a defendant under the influence, raising questions regarding the application of Negligence Per Se and/or BPL.
City of Little Rock v. Cameron: The defendant had a BAC of 0.05 when swerving to avoid another vehicle and collided with a traffic signal pole. The applicability of Negligence Per Se and/or BPL is discussed.
Anderson v. Morgan: The plaintiff was a passenger in a car driven by an intoxicated defendant; after a collision with another vehicle, the case scrutinizes Negligence Per Se and/or BPL frameworks.
NPS: Difficult Example: Licensing Violations
A pertinent question arises: Should the absence of a valid license constitute a breach under Negligence Per Se standards?
Examples:
A defendant’s license expired just minutes before an accident, raising questions about valid compliance and negligence.
A lawyer forgetting to renew their license mid-trial leads to a malpractice claim from a client, prompting examination of regulatory adherence.
Brown v. Shyne: The defendant practiced chiropractic medicine without a valid license, resulting in paralysis to the plaintiff after treatment.
The court ultimately reversed a judgment for the plaintiff, concluding that the absence of a license alone didn’t establish negligence, although dissenting opinions pointed to public health law intended to provide broad protections, advocating for stricter standards for licensed practitioners.