1. Alternate Ways of Determining Breach: Negligence Per Se; Res Ipsa Loquitor

2. Negligence Per Se and RIL
Effects:
Substantive: They affect the definition of standard of care/breach
Procedural: They affect the jury’s role
Negligence per se permits an issue that ordinarily would be decided by a jury (standard of care/breach) to be taken away from the jury:
Violation of statute establishes negligence as a matter of law (or, sometimes, is used as evidence of negligence).
Res ipsa loquitur - a rule of evidence, not substantive law - permits cases that normally might not reach a jury (because there’s no evidence of breach) to be sent to the jury anyway.

3. Negligence Per Se

4. Negligence Per Se
Negligence per se permits an issue that ordinarily would be decided by a jury (standard of care/breach) to be taken away from the jury:
Violation of statute establishes negligence as a matter of law (or, sometimes, is used as evidence of negligence).
Elements:
Statutory violation (with no excuse)
Statutory intent: Protecting against this kind of harm; protecting this class of persons
Causal link between the violation and the injury

5. Negligence Per Se – Case Law
Generally (Martin)
And Excuses (Tedla)
And Statutory Intent (Vesely)
And Licensing (Brown)

6. Negligence Per Se: Excuses
Rest. 3d §15: An actor's violation of a statute is excused and not negligence if:
(a) the violation is reasonable in light of the actor's childhood, physical disability, or physical incapacitation;
(b) the actor exercises reasonable care in attempting to comply with the statute;
(c) the actor neither knows nor should know of the factual circumstances that render the statute applicable;
(d) the actor's violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or
(e) the actor's compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.

7. Negligence Per Se: Statutory Intent
Rest. 3d §14: An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.

8. Negligence Per Se: Statutory Intent
Why is there no negligence per se in the following cases?
“No poisons in commercial kitchens.” Rat poison near the stove explodes.
“Cars must have child safety seats.” Unrestrained child climbs out of the backseat, crawls on the floor, and gets his hand stuck under front seat, suffering injury.
“Can’t sell gas into containers not approved for gas.” D pumps gas into an unapproved container; the buyer takes it and intentionally starts a fire in his enemy’s house.
“Act to Protect Workers requires covering elevator shafts on work sites.” Visitor to the building falls down elevator shaft.

9. Negligence Per Se Exercise
Write up a statute, statutory violation, and injury that would not constitute negligence per se, either because:
there is a good excuse for the statutory violation (see factors in Rest. 3d §15), or
because the statutory intent requirements are not satisfied (see Rest. 3d § 14)
Then modify your hypothetical so that negligence per se would be satisfied.

10. Negligence Per Se and Licensing
Many (but not all) jurisdictions reject the idea that you can be NPS just by failing to have a license.
Licensing statutes seen as “merely administrative requirements” not defining the standard of care.
See also Rest. 3d:
“If, for example, a person operates a motorcycle in a way that suggests a lack of skill, and if the evidence shows that the person does not have a license to operate a motorcycle because the person has failed the test that assesses skills, then, depending on the jurisdiction's evidence rules, the lack of the license may be admissible as tending to show the person's negligent unskillfulness.”

11. Negligence Per Se
So when is a statutory violation treated as evidentiary rather than dispositive?
Unclear. This may happen:
In licensing cases;
When the court thinks the per se rule is too demanding; or
Where the statutory intent element isn’t satisfied

12. Res Ipsa Loquitor

13. Res Ipsa Loquitor P did not contribute to the injury.
Res ipsa loquitur permits cases that normally might not reach a jury (because there’s no evidence of breach) to be sent to the jury anyway.
P must show by a preponderance of the evidence:
0. The P is unable, due to lack of information or access to evidence, to identify the specific circumstances surrounding the D’s breach of duty.
An accident occurred that does not usually occur absent negligence.
The instrument of the accident is under D’s exclusive management and control. Consider also D’s superior knowledge.
Note: This requirement has been weakened. Now must show that D, as compared to others, was probably the responsible party.
P did not contribute to the injury.
Note: This requirement has effectively been eliminated as a result of comparative negligence doctrine.

14. Res Ipsa Loquitor Consequences:
If P satisfies these two elements, D’s MTD/MSJ will be dismissed.
The case then goes to the jury, and the jury can infer negligence.
Then, the burden of proof is shifted to D to disprove negligence.

15. Res Ipsa Loquitor
“An accident occurred that does not usually occur absent negligence.”
A. If due care had been used, it’s unlikely the injury would have occurred.
Restatement 2d approach
Describes most accidents: i.e., If due care is used, only 1% chance of injury.
B. This kind of injury becomes more likely as a result of negligence than as a result of due care.
Describes most accidents: i.e., If due care is used, only 1% chance of injury; if no due care is used, 90% chance of injury.
C. This kind of injury usually results from negligence.
Restatement 3d approach
Rarely the case! Using the figures on p. 199, injury results from negligence only 8.3% of the time.

16. Res Ipsa Loquitor
1 worker negligently secures a barrel. Result is a 90% chance (0.90) of harm per incident. 999 workers correctly secure barrels. Result is a 1% chance (0.01) of harm per incident.

17. Res Ipsa Loquitor
1 worker negligently secures a barrel. Result is a 90% chance (0.90) of harm per incident.
1 x 0.90 = 0.90 harms
999 workers correctly secure barrels. Result is a 1% chance (0.01) of harm per incident.
999 x 0.01 = 9.99 harms
Total harms: = 10.89

18. Res Ipsa Loquitor Total harms: 9.99 + 0.90 = 10.89
Of those total harms, 0.90 are caused by negligence, and 9.99 are caused by careful workers.
What percentage of harms are caused by negligence?
0.90 / =
Only 8.3 % of harms are caused by negligence!

19. Expanding Res Ipsa: Ybarra
The traditional RIL doctrine relieves the P of the obligation to identify the negligent conduct.  
Usually, P must still identify the negligent D.
But see Ybarra, which extends the reach of RIL, relieving the P of the obligation to identify the negligent D.

20. Res Ipsa Loquitor: Policy
Why have a doctrine that allows P to recover without proving negligence?
Information asymmetry: Ps are in a worse position than Ds to find evidence of negligence. Byrne, Ybarra.
Unilateral care: Ds are the only ones in a position to protect against injury. Byrne, Judson, Ybarra.
Conspiracy of silence. Need to incentivize Ds to speak up if they know something. Ybarra.
Preventing pockets of immunity. Judson, Ybarra.