Name: Vaughan v. Menlove

FACTS: The defendant built a hayrick near the plaintiff’s land. The hayrick caught fire and spread to the plaintiff’s land destroying his cottages. The plaintiff sought damages that the alleged fire was caused by the defendant’s improper build of the hayrick. Following a verdict for the plaintiff, the defendant won an order (Rule Nisi→ an order “to show cause”, meaning that the ruling is absolute unless the party to whom it applies can show why it should apply) requiring a new trial. The grant was reviewed by the court of common pleas.

ISSUE: Whether applying the good faith standard as suppose to the reasonable person standard is justified.

RULE: For the purpose of negligence, applying the good faith standard in this case would leave a vague line as to afford no rule at all, the degree of judgments belongings to each individual being various: and though it has been urged that the care which a prudent man will take is not an intelligence proposition as a the rule of law.

APPLICATION: Here, the defendant’s hayrick caused the fire that destroyed the plaintiff’s cottages. In this case, has the defendant acted in a way a prudent man in similar situation would have acted to prevent the spreading of the fire and if so not liable for negligence. ??????

CONCLUSION: Therefore, adhering to a rule that will required looking at each individual judgment based on the liability of negligence is too vague and we ought to stick with a rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.

Name: Parrots v. Wells, Fargo & Co. (The Nitro-Glycerine Case)

FACTS: The defendants were paid to ship a crate upon arriving at their destination discovered the contents were leaking. The leaking appeared to have stained another box, in accordance to defendant’s business policy the content and stained box were taken to the defendants’ building to be examined. In the present of the defendant and other people with a mallet and chisel proceeded to open the case and thus engage the substance in the case resulting in an explosion. The explosion destroyed the properties and also caused injuries to the building occupied by the defendant but owned by the plaintiff. The trial court held the defendants are not liable for the damage to other property than the one they leased.

ISSUE: Whether the plaintiff is entitled to recover for the injuries caused by the explosion to his buildings, outside of the portion leased by the defendants.

RULE: For the purpose of negligence, negligence has been defined as the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or something which a prudent and reasonable man would not do. The law does not charge culpable negligence upon any one who takes the usual precautions against accident, which careful and prudent men are accustomed to take under similar circumstances.

APPLICATION: Here, the leaking content caused the explosion that destroyed properties and caused injuries to the defendants’ leased building. It is not require for the defendant to know the contents in which they are being asked to transport when there is no attendant circumstances awakening suspicions to that character, there is no presumption of law that he had such knowledge in any particular case of any kind, and cannot be held liable for negligence.

CONCLUSION: Therefore, the measure of care against accident, which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interests were to be affected, and the whole risks were his own.

Name: McCarty v. Pheasant Run Inc

FACTS: The plaintiff checked into the defendant’s hotel room equipped with a sliding door with a lock, a safety chain and the door leads to a walkway with stairs leading a lighted courtyard accessible by the public. While the plaintiff was out, an intruder broke the safety chain, pried open the unlocked sliding door from the outside, then attacked the plaintiff, beat and threatened to rape her. She fought off the intruder and he fled. The defendant filed suit charges negligence and bases federal jurisdiction on diversity of citizenship. The parties agree that Illinois law governs the substantive issues. The jury found verdict in favor of the defendant. Plaintiff appeals…

ISSUE: Whether the defendant failed to take precautions of reasonable cost and efficacy that could have prevented the mishap.

RULE: For the purpose of negligence, the court applied the “Hand Formula” which states an actor conduct will be negligence if the burden of precaution is less than the magnitude of the accident, if it occurs, multiplied by the probability of occurrence. If the burden is less, the precaution should be taken. An actor is negligent if the burden of prevention or avoidance is less than the probability of loss, multiplied by the magnitude of loss that would be avoided with the possible prevention or avoidance.

APPLICATION: Here, the plaintiff was attacked, beat and threatened to be raped. However, the burden of prove is on the plaintiff to show the defendant was negligent. She must demonstrate that the burden of prevention and avoidance is less than the magnitude of risk imposed by the defendant.

CONCLUSION: Therefore, the defendant failed to show that the mishap could have been prevented by precautions of reasonable cost and efficacy.

Stewart v. Motts

FACTS: The plaintiff stopped by the defendant auto repair shop and offered to help the defendant in repairing a fuel tank. During the repair the car back fired, caused an explosion and resulted in the plaintiff suffering severe burn injuries.The Court of Common Pleas in Monroe County found verdict in favor of the plaintiff. The defendant appeals from the order and memorandum opinion of the Superior Court affirming that verdict.

ISSUE: Whether the trial court instruction to the jury to use a “higher degree of care” as oppose to the “reasonable care” for the use of dangerous instrumentalities create a different standard? Whether the defendant used reasonable care handling dangerous instrumentalities when he was repairing the fuel tank that caused the car to backfired and exploded causing severe burn injuries?

RULE: For the purpose of negligence, the standard of care applicable in negligence action involving dangerous instrumentalities is that of “reasonable care” so when a reasonable person is presented with circumstances involving the use of dangerous instrumentalities, he must necessarily exercise a “higher” degree of care proportionate to the danger.

APPLICATION: Here, the trial court instructed the jury to decide whether the defendant exercise a higher degree of care when he was repairing the automotive fuel tank. The trial court instructions imply applying the reasonable care standard whether the word used was “higher degree of care” instead of reasonable care. The use of the word is not inconsistent with what the court considered to be reasonable care. The totality of the instruction adequately presents a clear and concise instruction.

CONCLUSION: Therefore, the trial court instruction as presented to the jury was adequate.

Myhaver v. Knutson

FACTS: The defendant was heading north on 43rd Avenue when another car existing from a shopping center driveway pulled out and heading south on the defendant’s lane. Upon seeing the car, the defendant accelerated and swerved left to avoid a head on collision but in doing so crossed the double yellow line onto oncoming traffic and collided with the plaintiff’s car.

The jury found the defendant not liable and the plaintiff appeals claiming the trial judge erred in giving the sudden emergency instruction to the jury.

ISSUE: Whether the “sudden emergency” instruction as applied confused the jury as to whether the reasonable person standard of care in these circumstances is more applicable when the defendant swerved and crossed the double yellow line onto oncoming traffic thereby colliding with the plaintiff’s car to avoid a head on collision?

RULE: For the purpose of negligence, the “sudden emergency” instruction should be confined to cases in which emergency is not the of the routine sort produced by the impending accident but arises from the events the driver could not be expected to anticipate but explain that the existence of a sudden emergency and reaction to it are only some factors to be considered in determining what is reasonable conduct under the circumstances.

APPLICATION: Here, the defendant did swerved and collided with the plaintiff’s car to avoid a head-on collision. Considering the facts, there was no evidence of negligence on the defendant’s part. His reflexive reaction to the situation is simply that which a reasonable person would have done to avoid an accident.

CONCLUSION: Therefore, given the facts, and the circumstances in which the accident occurred, the trial court has discretion to instruct on the sudden emergency as a factor in the determination of negligence.

Cervelli v. Graves

FACTS: The plaintiff was driving on a road that is icy and slick described as covered with black ice while driving had difficulty controlling his vehicle, began to fishtail on the ice and eventually loss control of the vehicle and started to slide. The defendant while driving behind the plaintiff attempted to pass the plaintiff’s swerving first on the left and then the right, and he too eventually lost control of his vehicle both vehicles collided. Based upon his own admission, the defendant is an (1) experienced professional driver with ten years of truck driving experience (2) possessed a class A driver license which entitled him to drive most vehicles including heavy trucks (3) attended a Wyoming Highway Patrol’s defensive driver course and kept up-to-date with various driving safety literature and (4) he was senior driver employed by his employer

The jury found no negligence for the defendant and judgment was entered on the verdict. Plaintiff appeals to the district court for a new trial claiming the jury was not instructed properly. Upon no action on the motion by the district court; it was deemed denied in sixty days.

ISSUE: Whether the district court in instructing the jury limits the circumstances necessary for the jury to take into consideration the defendant knowledge and skills relevant to determine negligence?

RULE: For the purpose of proving negligence, the jury must be allowed to consider all circumstances surrounding an occurrence, including the characteristics of actors in reaching their decision.

In defining circumstances, “circumstances are the index to the reasonable man’s conduct. His degree of diligence varies not only with standard of ordinary care, but also with his ability to avoid injuries to others, as well as the consequences of his conduct.

Although a reasonable man standard provides a minimum standard below which an individual’s conduct will not be permitted to fall, the existence of knowledge, skill, or even intelligence superior to that of an ordinary man will demand conduct consistent therewith.

Superior qualities of actor→ the standard of the reasonable man require only a minimum of attention, perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk. If the actor has in fact more than the minimum op these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances. The standard becomes, in other words, that of a reasonable man with such superior attributes.

APPLICATION: Here, the defendant possesses superior attributes such as (1) experienced professional driver with ten years of truck driving experience (2) possessed a class A driver license which entitled him to drive most vehicles including heavy trucks (3) attended a Wyoming Highway Patrol’s defensive driver course and kept up-to-date with various driving safety literature and (4) he was senior driver employed by his employer. Those superior attributes are characteristics relevant to the jury to determine whether he was liable.

CONCLUSION: Therefore, the trial court instruction to the jury was an incorrect statement of the law and more importantly capable of misleading. Decision reversed and remanded.

Robinson v. Lindsay

FACTS: The plaintiff, a 11 years old lost full use of a thumb in a snowmobile accident driven by the plaintiff who was 13 years old at the time of the accident. Record shows the 13 years old defendant had operated snowmobiles for about 2 years. When the injury occurred, the defendant was operating a 30-horsepower snowmobile at speeds of 10-20 miles per hour and the snowmobile was capable of operating at 65 miles per hour.

ISSUE: Whether the adult standard of care should be applicable to the defendant, a child operating a powerful motorized vehicle capable of going 65 miles per hour as suppose to the children special standard of care?

RULE: For the purpose of negligence, the children special standard of care is required of a child is for the child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances except when the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care.

Exceptions to the reasonable standard are applicable when the individual whose conduct was alleged to have been negligent suffered from physical impairment, such as blindness, deafness, or lameness. Objective standard is also inapplicable in respect to children.

APPLICATION: Here, the 13 years old defendant was operating the snowmobile that caused the 11 years old plaintiff injuries. The children standard of care is not applicable to the defendant because he was operating a powerful motorized vehicle, an activity which is normally that of adults only. Engaging in such dangerous activity is therefore been asked to be held to an adult standard of care, which mandates engaging in that activity as a reasonable man would have done.

CONCLUSION: Therefore, because the defendant was operating a powerful motorized vehicle normally consider adults only activity, he should be held to the standard of care and conduct expected of an adult.

Peterson v. Taylor

FACTS: The plaintiff, a seven year old boy was returning from school when he stopped at his neighbor’s house and when no one was home decided to gather some twigs and build a fire. The plaintiff frustrated that the wind blew the fire out he then went to his neighbor’s storage shed, removed a can of gasoline, smelled it to confirm that it was gasoline, threw a lighted match into it and watched the fire burn out of the can. When the fire died out, he went back to the shed, removed another can of gasoline and accidently spill some on his pant. The plaintiff either lit another match or knocked over the first can with flame still inside; somehow the plaintiff’s soaked pant caught on fire and he rolled on the floor to put out the fire but suffered serious burns.

The plaintiff brought suit of negligence but the jury returned verdict for the defendant and the plaintiff appeals.

ISSUE: Whether the defendant contributory negligence lacks sufficient evidence that prove a reasonable child in is age, intelligence, and experience under similar circumstances won’t have acted similarly?

RULE: For the purpose of determining negligence, the jury must first apply a subjective test: what was the capacity of the child−─given what the evidence shows about the age, intelligence, and experience ─ to perceive and avoid the particular risk involved? And second, once the first has been determined the focus becomes objective: How would a reasonable child of like capacity have acted under similar circumstances? The child can be found negligent only if his actions fall short of what may reasonably be expected of children similar capacity. And, no expert testimony or any testimony is required to determine what a reasonable person will do in similar circumstances and thus should be left to the jury to decide.

APPLICATION: Here, the defendant retrieved the can of gasoline, smelt it to confine it was gasoline, lit and threw the matches into the cans, and when he gasoline soak pant ignited rolled on the floor to put it out. Based on those facts, the defendant could be perceived as having the capacity a reasonable person of his age, intelligent, and experience to understand the risk involve.

CONCLUSION: Therefore, there was ample evidence to support the fact that the defendant could be found capable of contributory negligence as a matter of law

Poyner v. Loftus

FACTS: The plaintiff, partially blind and can see approximately six-eight feet in front of him was walking in an area he had walked three or four time. He was familiar with the area as to what along the platform can prevent his fall such as bushes. While he was walking, someone called out his name and the plaintiff turned his head and continue walking along the platform unbeknown to him that the bush along the platform had be removed. The plaintiff fell and suffers personal injuries.

The plaintiff brought suit against the defendant. The defendant moved for a summary judgment and was granted by the trial judge. The plaintiff appeals…

ISSUE: Whether the defendant who is partially blind exercised reasonable care required of a person with physical disabilities?

RULE: For the purpose of negligence, the reasonable standard applies to people with physical and mental disabilities in a such a way that a blind or otherwise handicapped person, when using the public ways, must exercise for his own safety due care, or care commensurate with the known or reasonable foreseeable dangers. Due care is such care as an ordinarily prudent person with the same disability would exercise under the same or similar circumstances.

APPLICATION: Here, the plaintiff who can see approximately six-eight feet in front of him was walking without aid or assistance and when called upon looked away then continue walking without looking where he was going fell and suffers injuries. The plaintiff have paid more attention to where he was heading and also employ the use of some aid or assistance to prevent such mishap from happening. It’s not the defendant fault that the plaintiff got distracted and he shouldn’t be held liable for someone else mistakes.

CONCLUSION: Therefore, the plaintiff who is partially blind was walking alone without aid or assistance, got distracted at the critical moment that required his attention shows prove of contributory negligent as a matter of law.

Creasy v. Rusk

FACTS: The defendant, an Alzheimer’s patient was placed in a nursing home. Over the course of three years at the nursing had display erratic behaviors typical of an Alzheimer patient. While been changed by the plaintiff, kicked her in the knee several times resulting to an injury.

The plaintiff filed a negligence suit for the injuries suffered from the hand of the plaintiff. The defendant moved for a summary judgment and was granted. The plaintiff appealed and the Court of Appeals reversed the trial court verdict stating that a person’s mental capacity, whether that person is a child or an adult, must be factored into the determination of whether a legal duty exists. Defendant appeals…

ISSUE: Whether the general duty of care imposed upon adults with mental disabilities is the same as that for adults without mental disabilities and (2) whether the circumstances of the defendant care are such that the general duty of care imposed upon adults with mental disabilities should be upon on him?

RULE: For the purpose of negligence, the general rule is that mental disability does not excuse a person from liability for conduct which does not conform to the standard of a reasonable man under such circumstances. In applying the reasonable standard care, mental disabilities is generally held to the same standard of care as that of a reasonable person under same circumstances without regards to the alleged tort-feasor’s mental capacity to control or understand the consequences of his or her actions. Public policy concerns for such rationale are as such:

1. Allocates between two innocent parties to the one who caused or occasioned the loss.→In regard to this case, the nature of the plaintiff and defendant relation was

such that the plaintiff cannot be presumed to not have assume the risk with respect to the cause of the injury

2. Provides incentive to those responsible for people with disabilities and interested in their estates to prevent harm and retrain those who are potentially danderous.→In this case, the defendant made a conscious decision to

institutionalized her partner from being violent and harming himself, herself, and others and as such entrusted the his care to the nursing home who received compensation for its services.

3. Removes inducements for alleged tort-feasors to fake mental disabilities in order to escape civil liability.→ In this case, it is virtually impossible for someone to

feign the symptoms of mental disability and agree to be institutionalized avoiding civil liability. No such evidence is presented under these facts.

4. Avoids administrative problems involved in court and juries attempting to identify and assess the significance of an actor’s disability.→ In this case, there was no administrative difficulties present to determining the degree and existence of the defendant’s mental disability.

5. Forces persons with disabilities to pay for the damage they do if they are to live in the world.

APPLICATION: Here, the defendant did kicked the plaintiff but when applied what a reasonable person would do under similar circumstances, the defendant suffering from a mental disabilities can be held to the duty of care in regards to other because of his disability which was why he was institutionalized for and knowing the plaintiff was hired to look after the defendant to prevent such behavior, he is not liable for negligence.

CONCLUSION: Therefore, the motion of summary judgment because public policy and the nature of the relationship between the defendant, the plaintiff and the nursing home preclude holding the defendant owed a duty of care to the plaintiff under such circumstances.

Sandler v. Commonwealth

FACTS: The plaintiff was riding a bicycle under a tunnel controlled by the defendant when he fell. Records show the plaintiff fell due to an uncovered, eight-inch wide, twelve-inch long drain in the unlit tunnel. The drain, which was about eight-inches deep, had had a cover, and the tunnel was designed to be lit, but vandals had removed the drain cover and had made the lights inoperative.

The plaintiff filed suit for recklessness and was verdict was found in his favor. The defendant appeals from the a judgment for the plaintiff, arguing that the evidence was insufficient to warrant submission of the case to the jury and, that, therefore, its motion for a directed verdict and its motion for judgment n.o.v should be allowed.

ISSUE: Whether the there was sufficient evidence to show prove of recklessness by the defendant?

RULE: For the purpose of negligence, “reckless conduct” is a failure to act involving the intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another. It defines “wanton conduct” as arrogance, insolence, or heartlessness that reckless conduct lacks and “willfulness” as an intention to cause harm. The risk of death or gravely bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of the defendant’s election to run the risk or of the his failure reasonably to recognize

APPLICATION: Here, the defendant knew about (1) risk of harm created by the unlit tunnel (2) lights were frequently broken (3) use only unattached covers (4) one drain in the tunnel was without cover for 10 months, which particularly caused the plaintiff’s injury were frequently stolen (4) lack of cover posed a danger to individuals (5) also that the regularly used tunnel was often flooded with water because of inadequate drainage. The defendant was aware of all the risks the unlit tunnel posed but took no precautions to prevent any mishap even when expert testimony shows feasible alternatives were available at reasonable costs, including vandal-resistant lighting and drains capable of being fastened. While all these precautions could have been made, the injury sustained by the plaintiff were not so severe that rendered the conduct reckless to the standard necessary for compensation.

CONCLUSION: Therefore, the degree of the risk of injury in this case does not meet the standard established for recklessness

Martin v. Herzog

FACTS: The plaintiff was driving and was struck by the defendant’s automobile coming from the other direction. The collision occurred on at a point where the highway was at a curve. The defendant’s car was rounding the curve when it came upon the plaintiff’s car emerging from the curve.

The defendant was charged with negligence for not keeping to the right center of the highway and the plaintiff was charged with negligence for traveling without lights. At the trial court, the jury found the defendant delinquent and the plaintiff blameless. The Appellate Court reversed the decision and ordered a new trial.

ISSUE: Whether the jury instruction to omit the absent of lights mislead the jury of the duty owed under the statute?

RULE: For the purpose of negligence, the omission of the statutory signals is more than some evidence of negligence, it is negligence itself. To omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. Jurors has no dispersing power by which they may relax the duty that one traveler on the highway owes under the statute to another

APPLICATION: Here, the plaintiff was driving without light and the inclusion of that fact is a necessary component needed by the jury determine contributory negligent. To state otherwise is incorrect because driving with lights when it darkens is statutory required to provide guidance and to protect others travelers on the road. The absent of light itself is not prove of negligence unless the absent of light is a contributory factor in the accident.

CONCLUSION: Therefore, the evidence of a collision occurring more than an hour after sundown between cars, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals.

Thomas v. McDonald

FACTS: The defendant’s car which had stalled and now disabled on a hill due to mechanical problems was blocking the entire eastbound lane of the highway. The defendant’s truck was not equipped with warming devices in the event of vehicle breakdown and as such the plaintiff’s car collided with the defendant’s car, causing the plaintiff’s injury.

The plaintiff filed for negligence and the trial court returned verdict for the defendant. The plaintiff died due to prior medical problem after filling suit and was perfected by his administratrix. The plaintiff appealed claiming the trial court erred in refusing to instruct the jury the defendant’s failure to place warning signals on the highway was negligence per se.

ISSUE: Whether the violation of statute in this case allows for the negligence per se instruction to be given to the jury?

RULE: For the purpose of negligence, in order for a doctrine of negligence per se to apply, the plaintiff must show that he is a member of the class that the statute was designed to protect and that the harm he suffered was the type of harm which the statute was intended to prevent. Following precedent, signals and warnings must be given with reasonable and proper diligence, or promptly under all the facts and circumstances of the case and whether the driver acted promptly under the circumstances or within ten minutes time limit must be determine by the under proper instruction.

As of the plaintiff contention that the trial court erred in denying the P-11, based on Miss Code Ann. Which states no person is allowed to operate a truck or bus between one half hour prior and after sundown, the plaintiff failed to establish the requisite time component of the statute.

APPLICATION: Here, the defendant’s car was disabled blocking the entire eastbound lane on the highway with no lights and no other warning devices to warn oncoming cars.

CONCLUSION: Therefore, the circuit court should have granted negligence per se jury instruction.

Wawanesa Mutual insurance Co v. Matlock

FACTS: The defendant bought two packs of cigarettes and gave one to his friend. While walking and smoking, they trespassed onto a private storage facility where a couple of hundred telephone poles were stacked on the ground; joined later by two other minors started climbing the poles. The defendant’s friend had a lit cigarette in his hand and while being playful was bumped in the hand by one of the minor boys causing him to drop his cigarette between the poles. He attempted to retrieve and spit on it to put it out but he was unsuccessful. When they came out later they saw the base of the pole was in flame.

The defendant’s friend was insured and the insurance company covered the cost for the damages. The insurance company subrogated the defendant’s friend right and filed suit against the defendant for contributory negligence. After a bench trial, the court awarded the insurer $45,000 against the defendant and his father, which included $25,000 against the father based on a statute which fixes liability on a custodial parent willful misconduct of a minor stating the statute that makes it unlawful to give cigarette to minor. The defendant and his father appeal claiming there is no basis on which the defendant should be held liable for the damages caused by some else.

ISSUE: Whether the defendant should be held liable for violating a statute as pertaining to the negligence per se doctrine?

RULE: For the purpose of negligence, the doctrine of negligence per se is not applicable when a person is not within the class of which the statute was designed to protect and when the harm that occurred is not the type of harm the statute is designed to prevent.

APPLICATION: Here, the defendant did buy the cigarette as a minor but the statute he violated has nothing to do with fire, which may be cover by the negligence per se doctrine.

CONCLUSION: Therefore, there is no basis on which to hold the defendant liable. Decision reversed.

Sikora v. Wenzel

FACTS: The plaintiff suffers injury as a result of a collapse deck. Evidence showed that the deck collapse due to improper construction and design in violation of OBBC. Further document also showed that the building was modified to include decks which require OBBC permission as to whether the design is within its code. Evidence also showed that the city rejected the plan and afterwards made no inspection or received a follow up as to the modified plans or other document sufficient to approve the building of the deck but nevertheless issued a certificate of occupancy to the contractor. The defendant bought the property from Zink Investment without knowledge of any defect in the deck.

The plaintiff filed suit alleging negligent claiming the defendant violated OBBC codes which requires compliance from all landlords. The trial court granted summary judgment in the defendant’s favor on the basis that he lacked notice of the defect in the deck. Plaintiff appeals the trial court decision to the Second District Court of Appeals.

ISSUE: Whether the lack of knowledge to the defect is not a legal excuse to the violation of duties?

RULE: For the purpose of negligence, in situation where statutory violation constitutes negligence per se, the plaintiff will be considered to have “conclusively established that the defendant breached the duty that he or she owed to the plaintiff.” In such instances, statute “serves as a legislative declaration of the standard of care of a reasonably prudent person applicable in negligence action.” Thus a reasonable person standard is supplanted by a standard of care established by the legislature. So, landlord’s failure to make repairs as required by the OBBC constitutes negligence per se, but that a landlord’s notice of the condition causing the violation is a prerequisite to liability.

APPLICATION: Here, the deck was not built according to the OBBC causing the deck to collapse injuring the plaintiff. Such violation of statute constitutes negligence per se and a person can be found liable for negligence if the jury found proof that they possessed knowledge of the defect but acted as below what a reasonable prudent person would have acted under similar circumstances. The defendant lack the knowledge of the defect given him a legal excuse.

CONCLUSION: Therefore, a landlord’s violation of duties constitutes negligence per se unless he neither knew nor should have known of the factual circumstances that caused the violation.

The T.J. Hooper

FACTS: The plaintiff sought damages from the defendant, owners of the tugboat in regards to sinking their barges. The trial court imposed strict liability, holding that the lack of a radio made the vessel unseaworthy.

ISSUE: Whether the lack of a radio even though it is not the industry custom to have one still makes the defendant liable?

RULE: While there was no industry standard for every tug boat to be equipped with a radio, having one is imperative to the protection of their tows.

APPLICATION: Here, the defendant sank the plaintiff’s barges because their radio equipment was not in proper working order. While it not require across the board for all tug boat owners to be equip with one, there is a some conventional wisdom that such equipment can be obtain at a small cost and having one is a great source of protection against dangers.

CONCLUSION: Therefore, if the defendant’s tug boat had been equipped properly, they could heard the warning and prevented the loss of the cargo.

Elledge v. Richland/Lexington School District Five

FACTS: The plaintiff nine yrs old slipped and fell while playing in her school’s playground modified monkey bars. Evidence shows that the bars were originally designed to stand four approximately four and one half off the ground with a bench running underneath. It was modified to prevent kids climbing them by removing the bench and lowering the bars. It was after the modification that the plaintiff fell.

The plaintiff sued the defendant for negligence and gross negligence. Prior to the trial, the defendant filed a motion of limine, which was granted, to exclude any testimony and/ or documentary evidence relating to the CPSC’s guidelines for playground safety or ASTM standards for playground equipment. The jury returned verdict for the defendant and denied all post-trial motions. Plaintiff appealed claiming the trial court erred in excluding evidence of the CPSC guidelines and ASTM standards, because evidence is needed to determine standard of care.

ISSUE: Whether the inclusion of the industry standards regarding playground safety and equipment is relevant to determine standard of care?

RULE: Applying precedent, a safety code ordinarily represents a consensus of opinion carrying approval of a significant segment of an industry, and is not introduced as substantive law but most often as illustrative evidence of safety practices or rules generally prevailing in the industry that provides support for expert testimony concerning the proper standard of care.

APLLICATION: Here, the plaintiff slipped and fell at the school’s playground while playing on the monkey bars. Records show the defendant modified the monkey bars in the playground to deter kids from climbing them. The modification to the monkey bars itself falls short of what the industry considered for safety and its equipment as a reasonable standard of care and any altercation to the equipment is necessary to demonstrate an applicable standard of care. Prove of not abiding to that standard shows negligence on the defendant.

CONCLUSION: Therefore, the court committed reversible error in refusing to admit relevant evidence of industry standards, judgment reverse and remanded.

Walmart Stores, Inc v. Wright

FACTS: The plaintiff sustained injuries when she slipped on a puddle of water. Plaintiff alleged defendant was negligent in the maintenance, care, inspection of the

premises and defendant asserted contributory negligence. By stipulation of both parties, the defendant store manual was admitted for evidence at the trial. The jury found for the plaintiff and the defendant appealed contending that the 2ND paragraph of the instruction was improper statement of the law that incorrectly altered the standard of care from an objective standard to the subjective one.

Court of Appeals affirmed the decision of the trial court stating 2nd part of instruction was proper because it did not require the jury to find that ordinary care, as recognized by the defendant was the standard to which they should be held and because the trial court had not instructed the jury that a reasonable or ordinary care was anything other than that of a reasonably careful and ordinarily prudent person. Defendant appealed..

ISSUE: Whether the 2nd paragraph of the instruction told the jurors to hold the defendant to the degree of care set in its store manual as ordinary care?

RULE: It is axiomatic that in a negligence action the standard of conduct which the community demands must be an external and objective test, rather than the individual judgment, good or bad, of the particular actor. A defendant’s belief that it is acting reasonably is no defense if its conduct falls below reasonable care, likewise, a defendant’s belief that it should perform at a higher standard than objective reasonable is equally irrelevant.

APPLICATION: Here, the defendants slipped on a water puddle on the defendant’s premises and the defendant’s store manual was allowed to be used as evidence to demonstrate the standard of care the defendant hold itself to. While such evidence is allowed, it is not a rigid standard to which the defendant has to be held to. The degree of care speculated in the manual does not replaced the objective standard just because the defendant set itself standard that exceed that of an ordinary care and failed to meet that standard.

CONCLUSION: Therefore, the 2nd paragraph of the instruction was an improper invitation to deviate from the accepted objective standard of ordinary care and therefore incorrectly stated the law.

Byne v. Boadle

FACTS: The plaintiff was walking pass the front of the defendant’s shop when a barrel fell out the shop’s second-story window and hit him.

The plaintiff was nonsuited at trial on the ground that there was no negligence. Plaintiff appealed..

ISSUE: Whether there was circumstantial evidence to find the defendant negligent?

RULE: The facts support a prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without negligence, but if there are facts inconsistent with negligence it is for the defendant to prove it.

APPLICATION: Here, the barrel fell out of the defendant’s second-story window and hit the plaintiff. It is unlikely that the barrel magically flew out the defendant’s window. There is a negligent somewhere, while it might not be proven we can infer the barrel fell to someone’s fault and the plaintiff should not bear the cost and likewise if the defendant can show prove of no fault then it may not be negligent.

CONCLUSION: Therefore, the fact that the barrel fell is prima facie evidence of negligence.

Shull v. B. F. Goodrich Co.

FACTS: The plaintiff a truck driver motor freight company was directed by his employer to pick up a load at the defendant’s premise. While standing on the defendant’s loading dock and the truck trailer, the dock-plate, a mechanical device that form a bridge between the dock and the truck trailer while the plaintiff was standing on malfunction, throwing the plaintiff to the floor of his trailer. Testimony evidence showed the dock-place had not been working properly and on the date of the accident both the plaintiff and an employee of the defendant had trouble locking the dock-plate in place and had to fumble with it several times before it appeared to have been locked.

The plaintiff sued for negligence and the jury returned a defendant’s verdict in a personal injury and loss of consortium. The plaintiff appealed the judgment. The plaintiff tendered the doctrine of res ipsa loquitor and the court refused.

ISSUE: Whether the plaintiff presented evidence from which a reasonable jury could conclude that the dock-plate would not malfunction in the absence of negligence on the part of the party in control and that the defendant was the party in exclusive control?

RULE: The requirement of res ipsa loquitur necessitates a reasonable showing that the accident was indeed one which would ordinarily occur in the absence of proper care on the part of those who mange or maintained the instrumentality causing the injury and had exclusive control of the instrumentality under circumstances permitting an inference of negligence.

APPLICATION: Here, the plaintiff was thrown to the floor due to mechanical malfunction of the dock-place. Admitted testimony from the defendant showed the dock-plate was serviced only after trouble arose, defendant had experienced previous malfunction with the dock-plate cause by a problem or a defect in the ratchet device and that the mechanism was faulty and should have been replaced. And, since evidence also showed the defendant had maintained sole occupancy of the factory since it built, performed all maintenance, its employee did all maintenance requirements because no outside contractors were employed. These demonstrate ordinarily such incident would not have happen had proper maintenance had been done to ratified the defects.

CONCLUSION: Therefore, the plaintiff’s tendered instruction on the doctrine of res ipsa loquitur was correctly stated the law, was supported by sufficient evidence and was not covered by other instructions, it was error for the trial court to refuse it. We do not know what the jury’s decision would have been had they been properly instructed, therefore, decision reversed and remanded.