3. Calculus of Risk Hand formula: Primary negligence: D is liable if B D <PL p Contributory Negligence: P is contributorily negligent if B p <PL p

4. CUSTOM (a) If a party can establish a customary safety practice, then a DEPARTURE from the customary safety practice is evidence of negligence. (b) If a party can establish COMPLIANCE with a safety practice, then that compliance is evidence of due care. COMPLIANCE is not determinative of due care (“an entire industry may have lagged.”)

5. Violation of Safety Statute Introductory Comment Either a plaintiff or a defendant may invoke a statutory violation in a negligence case E.g.: –Plaintiff contends defendant’s violation demonstrates prima facie case of negligence –Defendant contends plaintiff’s violation demonstrates contributory negligence.

6. First Issue: What effect should (or will) a court give to proof of a statutory violation?

7. We’ll need to define some terms. “Mere evidence of negligence” Prima Facie evidence of negligence Negligence per se

8. n “Mere evidence”--Not necessarily enough evidence to avoid dismissal Prima Facie: The minimum necessary to avoid dismissal. Negligence per se: Duty/Breach have been established as a matter of law (I.e., “little n negligence”) Definitions: Note: These definitions apply to non-statutory claims as well

9. Illustration of Quantity of Plaintiff’s Evidence at Trial Prima Facie Case line (bare minimum) Negligence per se Range within which jury is free to find negligence or not Imagine a glass of water being filled by P’s “evidence.” Below this line, “mere evidence” of negligence Plaintiff’s

10. --Mere evidence? --Prima Facie? --Negligence per se?* *(Majority rule) So, what is the effect given by courts to the statutory violation?

11. Four Requirements to Invoke Statutory Violation (Negligence action): Notice how all 4 elements of Negligence prima facie case are satisfied.

12. Statutory Purpose Doctrine Steps 2 and 3 are together known as the “statutory purpose” doctrine. They limit the number of cases under which injured persons may utilize statutory violation to prove that the defendant was negligent. They therefore limit the utility of “borrowing” the statutory duty.

13. Illustration & Hypo In Gorris v. Scott (statute requiring ships to pen animals to avoid contagion), plaintiff may not use the statutory violation to establish pl’s prima facie case of Negligence. Why not? Q: Does Gorris plaintiff necessarily lose his claim that defendant was negligent?

14. ( 1) Did Defendant Violate the Statute?  This is the duty/breach question  Plaintiffs may “borrow” the duty from statutes, safe ordinances, administrative regulations Step 1 in the Analysis:

15. (2) Is the person within the class of persons the regulation was designed to protect? (part of duty question)  Ask this question before you know exactly how the person was injured.  Who is in the class? Who is protected?  Poisoning illustration Step 2 in the Analysis:

16. (3) Is the injury of the sort the regulation was designed to guard against? (part of duty question)  What injuries are covered by the statute?  review Gorris v. Scott Step 3 in the Analysis:

17. (4)The defendant’s violation of the statute must have caused the plaintiff’s injuries  E.g., Brown v. Shyne Note that the causation analysis is not that defendant’s ACT caused plaintiff’s injury, but that the defendant’s BREACH caused her injury. Step 4 in the Analysis:

18. Summary: Before Plaintiff may “borrow” the statute for use in her Negligence action, she must satisfy four Requirements: Notice How all 4 elements of Negligence prima facie case are satisfied.

19. What devices have courts used to escape the consequence(s) of the majority approach to statutory violation? I.e., what are the ESCAPE HATCHES?!

20. (2) Revise/rethink statutory purpose by narrowing or expanding the purpose Escape Hatches (I.e., Devices Courts use to escape Negligence per se rule): (1) Tedla (revise or impute unstated legislative intent)

21. (3) Excuses Recognized (i.e, the parental hard & fast rule “be home at 9:00pm” is too rigid & doesn’t take into account real circumstances): --necessity, --emergency, --incapacity Escape Hatches (cont.):

22. (4) IF jurisdiction follows Restatement (3d) 13(b): A statutory violation is excused when “the actor exercises reasonable care in attempting to comply with the statute.”

23. Skills Interlude Assume statute requiring removing keys & locking car door: What is the Court’s statement of the statutory purpose of the legislation? Is there an alternative explanation of the statutory purpose?

24. Alternative “Statutory Purposes” Alternative B: Anti-theft measure Alternative A: Safety measure for public How do you know which purpose is the “correct” one?

25. Skills Interlude—cont. How does a Court decide which of these two possible statutory purposes controls? What arguments will a Court make in support of its choice? What arguments would you make in support of the alternative choice? –[Rules, precedents, policy!]

26. THE END!