Limited Duty:Breach of Duty 6-11-21 PDF

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lecture notes on breach of duty for Brooklyn law...

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Notes Finish Limited Duty, Start Breach of Duty 6-10-21 Strauss V Belle Realty Co What constitutes breach for both defendants? Landlord: Failure to maintain the basement stairway Con Edison: Failure to maintain the power grid Con Edison won the case, even though it was unjustified. Ruling came about due to public policy decisions (The court felt that if they decided Con Ed owed a duty to Strauss, they would become inundated with lawsuits, which could lead to circumstances that harm the public overall.) Dissent In Strauss The dissent argued using Rowland factors, arguing that Con Ed was guilty of “gross negligence” and should be held responsible to legitimate claims. Dissent also disagreed with the majority regarding the risk of economic chaos should Mr. Strauss reach a jury. 5 Categories of limited duty 1. No duty to rescue unless exception applies a. If a special relationship exists between parties, a duty to exercise reasonable care to prevent or minimize harm exists. b. When an actor’s actions, even if not tortious, create a continuing risk or physical harm, a duty to exercise reasonable care to prevent or minimize the harm exists. 2. Limited duty owed to trespassers and licensees. 3. Limited duty with respect to consequential economic loss 4. “Policy” no duty is rare but occasionally occurs 5. Limited duty with respect to emotional distress (not yet discussed) Cheapest Cost Avoider – A person who can most cheaply climate risk and take precautions that matter should be the one to owe the duty of care. EX: Court ruled that even though they were negligent Con Ed should owe no duty to Strauss, however they ruled Belle Realty Co., as the cheapest cost avoider, did owe a duty to Strauss. CONCLUDES DUTY, NOW DISCUSSING BREACH Injury – Never disputed in this course

Duty – going forward, this element is done. Defendant either did not deny owing duty or tried to win this element and lost.* *EX: MacPherson, Mussivand, Rowland, Tarasoff, Baker Breach – WE ARE HERE. The jury is now weighing in. Causation – Coming soon to a classroom near you I.

Breach is a jury question, but it is not just what a group of lay people think. a. There is law here – law meaning the domain of judges.

There are two aspects of law within breach: 1. Jury instructions: Seen in Myers 2. The summary judgement standard for this element: Seen in Campbell a. Campbell: “Viewing the evidence in a light most favorable to plaintiffs, reasonable minds could not disagree” that defendants must prevail on the question of breach. Myers This case teaches the importance of jury instruction How did the defendant get injured? Improper use of a Hoyer lift, plaintiff fell from the lift. Negligence in this case comes from the incorrect use of the Hoyer Lift. Defendant is arguing that there was not a breach of duty. They admit a duty existed to the plaintiff. Grounds for appeal: The dueling jury instructions If a trial judge mis-instructed the jury about law on an element it is assigned (breach or causation) then that’s a reversible error An appellate court that finds reversible error will conclude that “a remand for a new trial is required” Please put jury instructions in your own words (see Myers and work on this) Have to be able to point to a mistake made by a judge to have grounds for an appeal. Complaints about a jury being inadequate will not suffice. What did the plaintiff want by way of an instruction?

a. The plaintiff wanted the jury to be instructed that their verdict should be derived on the grounds of ordinary negligence. What did the defendant get by way of an instruction? a. The defendant, which won on the jury instruction, asked that the jury compared the CNA’s actions to the definition for professional negligence. The mistake in Myers jury instruction centers around the decision to use the definition for professional negligence rather than ordinary negligence. The common law of negligence would have been available to Myers even if Illinois had not enacted this statute. Plaintiffs prefer to pursue negligence claims with reference to this statute rather than as common law negligence because… a. This statute prohibits nursing homes from contending that acts of their employees were (see slides) b. c. d. Campbell V Kovich Teaches importance of summary judgement Plaintiff’s pleadings assert claims of negligence, negligent infliction of emotional distress. Just because a plaintiff was injured that doesn’t mean that the defendant was negligent....