Proof of Negligence – Torts

Stores were negligent in their practices if the danger had been there for a while, eg dirty floor broken jars case

Some states but not all, Stores will not be liable UNLESS you can prove length of time that danger was there

Business practice rule Vermont,

If business practice (like store with produce out) creates reasonable risk of harm then the defendant (store) has the burden of showing adequate steps were taken to avoid the risk (plaintiff does not have to show constructive notice)

Chiara It will apply if you can reasonable assume hazardous conditions will regularly arise, courts that adopt this can spread from produce stores, to the pizza parlor salad bar, Kmart Palattes, can keep expanding, then the exception becomes the rule if it is allowed to continue

Traditional Rule of Constructive notice has two alternatives

  1. Business Practice
  2. Mode of Operation

Randall Court

How does the federal court apply the Vermont Law???

Plaintiff says method of merchandise (bird seed bins) creates a reasonable method of harm

Court refuses to apply the Vermont business practice rule

Self service in general is not enough to prove, the product being served needs to create the risk.


Alternative to bus prac rule is the Mode of Operation rule (Different Jurisdiction)

Must be able to reasonably anticipate that hazzardous conditions will regularly arise

Lanier v. Wal-Mart – Employees deposed that spills of creme rinse regularly occurred.

Hazardous conditions are surely to regularly arise in every aisle of the supermarket

Should constructive notice be removed because of this risk? Because produce, pizza parlor, boxes cases all did

Dont know….maybe?!?!

This would be similar to strict liability

Suppose a jury would find that a reasonable super market would inspect aisle every 30 min

But the store inspected every 1 hour

Say the banana peel fell to the ground right after inspection and the customer then slipped on it. (even if they had inspected every 30min then the P still would have fell)

Did the negligence cause the injury? NO, therefore no casual link between the negligence and the accident

This is sort of like strict liability, because you are imposing liability when the negligence didnt cause the accident.

Res Ipsa Loquitor

  1. the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence
  2. it must be caused by an agency or instrumentality within the exclusive control of the defendant
  3. it must not have been due to any voluntary action or contribution on the part of the plaintiff

Byrne v Boadle

Byrne walking past store, is hit in the head by a barrel and knocked out cold.

It is the duty of persons who keep barrals in a warehouse to keep the barrels secure. The barrels could not roll out unless someone was negligent

Some jurisdictions creates a mere inference, if the elements are met the jury will be told that they CAN but NEED NOT infer that negligence was present

California gives more wieght to Res Ipsa, creates an assumption affecting the burden of producing evidence. The jury will be told to find Negligence, unless def has produced enough evidennce that they might not be  negligent : no evidence or less than might, then they were negligent.

At the time of Escola, cases dont make law, it is just reasoned from precedent but its not law.

No liability without fault.

Judges arernt lawmakers and dont use policy


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