17 Negligence: Policy Considerations Regarding Duty and Breach (Socratic Script)

Alvarado is a viscerally-disturbing case, or so some may find. In its reliance on Palsgraf, it provides a review of duty and breach as well as an opportunity to think about the implications of following different legal rules (such as the majority and dissenting opinions in Palsgraf).

Questions or Areas of Focus for the Readings:

• What are the untaken precautions here?
• What are the social justice implications of finding, or denying, liability on these facts?
• Are there parties you would have liked to be able to reach (either intuitively, or normatively) to extend liability or to allocate it better?
• Do you see the difficulties involved with separating duty from breach in some instances?

Alvarado v. Sersch, Supreme Court of Wisconsin (2003)
(262 Wis.2d 74)

The petitioners, Dora Alvarado and her four minor children, seek review of a published court of appeals decision affirming a circuit court grant of summary judgment in favor of the respondents, Oakbrook Corporation, Meriter Retirement Services, Inc., and Meriter’s insurer. [fn] Alvarado asserts that the court of appeals erred in using public policy factors to limit liability before all the facts were considered. Because we conclude that there are genuine issues of material fact, we determine that the court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.

*79 Meriter Retirement Services, Inc. (Meriter) owns student apartments in Madison that are managed by Oakbrook Corporation (Oakbrook). On August 12, 1998, during the busy student turnover period, Oakbrook’s property manager walked through a vacated apartment to inspect the premises. In his deposition he testified that “mabinets” were on his checklist, but he did not remember checking them. On August 13, 1998, a painting crew entered the apartment. One of the painters discovered what he believed to be a “candle” in the kitchen cabinet. Another painter recognized it as a firework device. They moved the item out of the way and continued working. No one in the crew informed Oakbrook or Meriter about the firework.

On August 14, 1998, Dora Alvarado and Ron Boehm, the owner of the janitorial service retained by Oakbrook, entered the apartment to clean it. Alvarado had already completed a ten-to eleven-hour shift that day, but had been called back to work. Boehm noticed what he thought to be a candle on the windowsill. He commented to Alvarado that it was a “strange looking candle.” It was described as a wax candle with red, white, and blue colors, about six inches tall, and an inch in diameter. After Boehm left the apartment, Alvarado began cleaning the interior of the gas stove. She opened the stovetop to expose the burner trays for vacuuming. Alvarado knew it was necessary to preserve the flame of the pilot light, which occasionally extinguished during the cleaning process. Because she had forgotten to bring matches, she decided to use the “candle” to preserve the flame, and lit the device with the pilot *80 flame. The firework exploded as she was setting it down, blowing off most of her right hand.

Alvarado and her children filed a complaint in Dane County circuit court against Meriter, Oakbrook, the painting contractor, and each of their insurers. The plaintiffs sought damages as a result of Alvarado’s personal injuries. The circuit court granted Oakbrook and Meriter’s motion for summary judgment. It concluded that Oakbrook and Meriter did not have a duty of care to protect Alvarado from a potential harm they neither knew nor reasonably could have foreseen.

The court of appeals affirmed the circuit court’s grant of summary judgment for Oakbrook and Meriter, but employed a different rationale. Rather than focusing on negligence, the court of appeals considered public policy factors that limit a defendant’s liability. It concluded that the injury was too remote from the negligence, and in retrospect it appeared too highly extraordinary that the negligence should have resulted in the harm. Under this analysis, the court of appeals determined that public policy barred any imposition of liability, and therefore it affirmed the circuit court’s grant of summary judgment.

Alvarado seeks a reversal of the court of appeals’ decision, and a remand for a jury trial. She argues that it was improper for the court of appeals to use public policy considerations to limit liability before all the facts had been presented to a jury for a determination of negligence. She asserts that the grant of summary judgment was error because there remain genuine issues of material fact. [***]

Wisconsin has long followed the minority view of duty set forth in the dissent of Palsgraf v. Long Island Railroad. [c] In that dissent, Judge Andrews explained that “[e]veryone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others.” Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928) (Andrews, J., dissenting). *82 Every person has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care. Gritzner, 235 Wis.2d 781, ¶¶ 20 & 22. In Wisconsin a duty to use ordinary care is established whenever it is foreseeable that a person’s act or failure to act might cause harm to some other person. Id. ¶ 20. Under the general framework governing the duty of care, a “ ‘person is not using ordinary care and is negligent, if the person, without intending to do harm does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property. [c]

The question of duty is nothing more than an “ingredient in the determination of negligence.” [c] Once it has been determined that a negligent act caused the harm, “the question of duty is irrelevant and a finding of nonliability can be made only in terms of public policy.” [c] The “duty” ingredient of negligence should not be confused with public policy limitations on liability. [fn] “[T]he doctrine of public policy, not the doctrine of *83 duty, limits the scope of the defendant’s liability.” [c] “In Wisconsin, one always owes a duty of care to the world at large, which is why ‘[t]he consistent analyses of this court reveal that the question of duty is not an element of the court’s policy determination.” [cc]

Thus, negligence and liability are distinct concepts. [c] After negligence has been found, a court may nevertheless limit liability for public policy reasons. [cc] The public policy considerations that may preclude liability are:

(1) the injury is too remote from the negligence;
(2) the injury is too wholly out of proportion to the tortfeasor’s culpability;
(3) in retrospect it appears too highly extraordinary that the negligence should have resulted in the harm;
(4) allowing recovery would place too unreasonable a burden on the tortfeasor;
(5) allowing recovery would be too likely to open the way for fraudulent claims; [or]
(6) allowing recovery would enter a field that has no sensible or just stopping point.

Gritzner, 235 Wis.2d 781, ¶ 27.

In most cases, the better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability. Only in those cases where the facts are simple to ascertain and the public policy questions have been fully presented may a court review public policy and preclude liability before trial. [Citations omitted]

A jury’s determination of negligence includes an examination of whether the defendant’s exercise of care foreseeably created an unreasonable risk of harm to others. [c] Public policy factors can also implicate the concept of foreseeability. In a sense, evidence regarding foreseeability can play a dual role. Besides having the aid of the jury’s opinion when assessing liability, a judge will also be *85 aided by the facts that were brought to light during the jury trial. Having examined the law, we next apply those principles to the facts in this case.

The court of appeals erred in affirming the summary judgment on public policy grounds. This case requires a full factual resolution before application of a public policy analysis. It is not one of those simple cases where public policy can be used to limit liability before finding negligence. Here, there remain genuine issues of material fact, and public policy factors limiting liability should be considered only after a full resolution of the facts at trial.

It is desirable to have a full trial to precede the court’s determination because the issues in this case are complex and the factual connections attenuated. [c] A jury will hear testimony about the standard of care that a reasonable property manager would exercise in inspecting a vacated apartment. Oakbrook and Meriter claim that there was no negligence on their part. Alvarado, however, claims that if Oakbrook had performed a thorough inspection of the apartment, as it should have, then the firework would have been found. In his deposition, Alvarado’s expert opines that industry practice is to conduct an adequate inspection before allowing employees and contractors onto the premises. He asserts that ordinary care requires a property manager to have a safety program which anticipates and addresses potential hazards:

“Well, they have a big responsibility in their capacity of managing residential housing…. There’s all kinds of things to be considered by a company that—that’s in *86 charge of managing property…. I could talk about that for hours, but the main idea is that you have to anticipate potential hazards and deal with them in some way. And having a hazardous material or hazardous item in an apartment is something that they’re required to anticipate and have a plan and a program to deal with.”^[1]

This case is similar to Coffey, in which this court concluded that a full trial should precede a determination that policy considerations preclude liability based on a negligent inspection. Coffey, 74 Wis.2d at 543. In that case, a tenant suffered losses as the result of a fire at its leased premises. The tenant sued a building inspector and the City of Milwaukee claiming that they were negligent because the standpipes necessary to furnish the water to fight fire at the leased premises were defective and had not been properly inspected.

In examining whether public policy considerations should preclude liability, the Coffey court determined that a full factual resolution was necessary for a fair and complete evaluation of the policy considerations. The court explained that the case involved the complex issue of municipal tort liability arising out of the alleged negligence of a building inspector in carrying out fire inspections. The court concluded that findings as to actual negligence, damage, and the causal relationship between them would be material and helpful in evaluating the public policy considerations. Accordingly, it refused to preclude liability on public policy grounds prior to a full factual resolution.

*87 Analogous to Coffey, this case involves facts that are not simple to ascertain. It addresses the tort liability of property managers arising out of the alleged negligence of an inspector in carrying out apartment inspections. Like Coffey, a sufficient factual basis is not presented here for considering, evaluating, and resolving the public policy issues involved. Findings as to actual negligence, damages and the causal relationship between them would be material and helpful in evaluating the public policy considerations.

¶ The parties dispute the purpose of Oakbrook’s inspection. Alvarado claims part of the inspection’s purpose was safety, while Oakbrook contends the inspection was only to note needed repairs, cleaning, and security-deposit withholdings. A jury would hear testimony about what constitutes a proper inspection, and whether Oakbrook’s inspection satisfied that obligation. Ultimately, a jury would have determined whether Oakbrook had instituted adequate safety measures, and whether Oakbrook was negligent for failing to instruct contractors about what procedure to follow when a dangerous object is found.

When the circuit court granted summary judgment in favor of Oakbrook and Meriter, it concluded that Oakbrook and Meriter did not owe Alvarado a duty to exercise ordinary care. However, everyone owes a duty of ordinary care to all persons. The effect of the circuit court’s summary judgment was to limit the imposition of liability. [c]; Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 183 (1956) (“whenever a court holds that a certain act does not constitute negligence because there was no duty owed by the actor to the injured party, although the act complained of caused the injury, such court is making a policy determination”).

*88 Likewise, albeit with a different rationale, the court of appeals limited liability by applying public policy factors. Neither the court of appeals nor the circuit court had the benefit of a full presentation of facts or a jury’s verdict on negligence before limiting liability. Because there remain genuine issues of material fact, summary judgment was erroneously granted.

Summary judgment is uncommon in negligence actions, “because the court ‘must be able to say that no properly instructed, reasonable jury could find, based on the facts presented, that [the defendants] failed to exercise ordinary care.’” [c] The concept of negligence is peculiarly elusive, and requires the trier of fact to pass upon the reasonableness of the conduct in light of all the circumstances, “ ‘even where historical facts are concededly undisputed.’” Id. Ordinarily, this is not a decision for the court.

In sum, we determine that there remain genuine issues of material fact. Here, public policy factors limiting liability should be considered only after a full resolution of the facts at trial. The court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.

¶ 32 DIANE S. SYKES, J. (dissenting).

I respectfully *89 dissent. The majority concludes that “the court of appeals erred when it affirmed the grant of summary judgment limiting liability based on public policy factors.” I disagree. The court of appeals properly evaluated the public policy limitations on liability in this case, and properly did so in advance of trial, affirming the circuit court’s order of summary judgment.

As the majority notes, negligence law in Wisconsin is based on the dissent in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339 (1928)(Andrews, J., dissenting), in which Judge Andrews of the New York Court of Appeals described negligence as a breach of the duty shared by all members of society to “refrain[ ] from those acts that may unreasonably threaten the safety of others.” [c] This is the duty of ordinary care, and it is measured by reference to a “reasonable person” standard, which is applied to evaluate the nature and foreseeability of the risk of harm associated with the conduct in question in order to determine whether a defendant was negligent. [c] [***] *90 The determination of negligence is followed by a determination of causation and damages. [fn] Although these are generally factual questions for the jury, there are some circumstances, not implicated here, under which the determination of negligence involves a mixed question of fact and law. [c]

However, it is not always true that negligence causation damages = liability. Considerations of public policy may preclude the imposition of liability even where the facts establish that a negligent act or omission on the part of the defendant was a cause of the plaintiff’s damages. This is purely a question of law for the court. [c] (“The application of public policy considerations is a function of the court.”); [c] (“A finding of nonliability made in terms of public policy is a question of law which the court alone decides.”).

Accordingly, we observed last term that “in Wisconsin, common law limitations on liability are determined not by reference to the absence of a duty, *91 but as a matter of public policy.” [c] This is because “[a]ll members of society are ‘held, at the very least, to a standard of ordinary care in all activities.’” [c]. This distinction between the determination of negligence and the imposition of liability is consistent with the Palsgraf dissent: “As was said by Mr. Justice Holmes many years ago, ‘[t]he measure of the defendant’s duty in determining whether a wrong has been committed is one thing, the measure of liability when a wrong has been committed is another.’” Palsgraf, 162 N.E. at 102.

The majority recites the public policy limitations on liability but refuses to apply them, concluding that “[t]his case requires a full factual resolution *92 before application of a public policy analysis.” [***] I disagree.

I recognize that we have said it is usually “better practice” or “generally better procedure” to await resolution of the factual issues in a negligence case before submitting it to public policy analysis. [c] However, we have also said that “[t]he assessment of public policy does not necessarily require a full factual resolution of the cause of action by trial.” [cc] As a further example, in our seminal case on the tort of negligent infliction of emotional distress, we held:

The application of public policy considerations is a function solely of the court. While it is generally better *93 procedure to submit negligence and cause-in-fact issues to the jury before addressing legal cause, that is, public policy issues, … the circuit court or this court may grant summary judgment on public policy grounds before a trial or a court may bar liability on public policy considerations after trial. When the pleadings present a question of public policy, the court may make its determination on public policy grounds before trial. In contrast, when the issues are complex or the factual connections attenuated, it may be desirable for a full trial to precede the court’s determination. [c]

In this case this court is determining public policy considerations before trial because the facts presented are simple, and because the question of public policy is fully presented by the complaint and the motion to dismiss. [c] Thus, it is not uncommon for courts to decide on summary judgment that negligence liability should be limited based upon considerations of public policy. Some cases are factually uncomplicated and fully conducive to a pre-trial legal determination on the applicability of public policy limitations on liability. This is such a case.

The majority’s rejection of pre-trial public policy analysis in this case is unwarranted. To the extent that it discourages the lower courts from evaluating public policy liability limitations on motions for summary judgment, it will produce two divergent effects: 1) there will be an increase in unnecessary trials and appeals (where the circuit or appellate courts would otherwise have precluded liability pre-trial but now consider themselves constrained to do it only post-trial *94 because of the majority’s decision here); and 2) there will be an expansion of liability (where the circuit or appellate courts consider themselves constrained against precluding liability on public policy grounds because of the presence of a jury verdict on negligence).

While I have no quarrel with the “better practice” general rule noted above, I do not agree that the facts of this case are so complex that the evaluation of public policy limitations on liability must await a jury verdict on negligence, cause-in-fact and damages. Judicial gate-keeping on this potentially dispositive legal issue is extremely important given the breadth and potential reach of the definition of negligence in this state. This was an important part of the Palsgraf dissent. What we in Wisconsin refer to as public policy limitations on liability, Judge Andrews catalogued as factors that govern the court’s determination of legal or “proximate cause.”

Judge Andrews said that the duty of ordinary care is owed to all who might be injured as a consequence of an unreasonably risky (i.e., negligent) act or omission, but he also said “there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former.” Palsgraf, 162 N.E. at 103. The negligence, he said, might be “[a] cause, but not the proximate cause. What we [ ] mean by the word ‘proximate’, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.” Id. This judicial line-drawing relies upon “common sense” and “fair judgment,” and “endeavor[s] to make a rule in each case that will be practical and in keeping with the general understanding of mankind.” Id. at 104.

Public policy limitations on liability are decided by the court as a matter of law, but the majority nevertheless considers the “jury’s opinion” to be an “aid” to the court in making that decision. In this regard, the majority seems to be suggesting that the jury should influence the court’s assessment of whether public policy requires non-liability as a matter of law. Courts decide questions of law independently, without deference to the jury. As a practical matter, however, most judges find it difficult to throw out a jury verdict.

This case is amenable to a pre-trial application of the six-factor public policy analysis. The case is not complex, and the historical facts are undisputed. We do not need a jury verdict on negligence, causation, and damages in order to determine whether public policy requires nonliability as a matter of law. I agree with the court of appeals that the first public policy factor (remoteness) and the third (extraordinary result) preclude liability here, even if a jury were to find causal negligence on the part of the apartment owner and manager. I would also conclude that the second factor (disproportionality of culpability to injury) is implicated in this case.

Dora Alvarado’s injury was unquestionably tragic and devastating. But the accident that caused it occurred because she mistook a firework for a candle, and lit that firework in the pilot light of an oven that she was cleaning, in an attempt to preserve the pilot light flame in case it went out while she was vacuuming the oven’s interior. As a matter of law, such an injury is too remote from the alleged negligent inspection by the apartment owner and manager, as well as too extraordinary and too disproportionate to that alleged negligence. I would affirm the court of appeals.

*96 I am authorized to state that Justice DAVID T. PROSSER, JR. joins this dissent.

Note 1. Do you think it was reasonable for Alvarado to confuse a firework for a candle? Would your answer be relevant to your assessment of the case? The lower court’s ruling included a bit more factual detail that you might find helpful in considering that issue.

Many of the apartments managed by Oakbrook are occupied by University of Wisconsin students. Leases on these apartments generally run from August 15 of one year to August 14 of the next. Each year a high number of the apartments “turn over” during August. As apartments are vacated, an Oakbrook employee *756 walks through the apartments to inspect them for damage and to determine whether any cleaning or repairs are necessary.

In August of 1998, Oakbrook employee Larry Keleher was responsible for overseeing 240 rental units. Between 150 and 175 of these units turned over between August 12 and August 15 of 1998. Oakbrook’s “Operating Handbook” instructs employees to inspect apartments “thoroughly” and inspect all areas on a checklist. The checklist includes cabinets. Oakbrook does not have a hazardous materials policy and conducts no safety training for either its employees or its painting or cleaning contractors. Oakbrook’s manual does, however, generally advise employees to be safety conscious. Its manual states: “Staff should put safety first at all times. Staff should use common sense to not engage in work which endangers the safety and health of themselves and others.” Under the job description for various positions, including “property manager,” the manual states: “Continually inspect property and improvements for curb appeal, protection of property value, and potential safety hazards.” On August 12, 1998, Keleher conducted a move-out inspection of apartment 303 at Meriter’s West Main Street property. There is no evidence of complaints relating to the vacating tenant. During his inspection, Keleher did not see a firework device located in a wall-mounted cabinet in the kitchen. Keleher does not remember whether he opened any of the cabinets during his inspection.

The next day, August 13, three painters from D.P. Painters entered apartment 303 to paint at Oakbrook’s request. While in the kitchen, one of the painters found in the kitchen cabinet what turned out to be an M–250 firework, an explosive device equivalent *757 to one-quarter of a stick of dynamite. The firework was about four inches tall and about an inch in diameter with a wick in the top. Statements regarding its color varied, but there was general agreement that it was white with either red and blue, or red or blue, stripes. At least one of the painters believed that the firework was a candle. Another painter, who had previously seen an M–80 firework, recognized the object to be a firework explosive device. The painters removed the firework from the cabinet, but left it in the apartment and did not notify Oakbrook.

The day after the painters left, August 14, Alvarado and her supervisor, Ron Boehm, employees of a janitorial service employed by Oakbrook, entered and began cleaning apartment 303. Boehm noticed the firework device on the windowsill and said to Alvarado something to the effect: “That’s a strange looking candle.” Boehm described the device as a wax candle with a red, white, and blue exterior.

Alvarado similarly believed the firework was a candle and decided she could use it to relight the pilot light on a gas stove in the apartment. Alvarado knew that when she cleaned the top of the stove with a vacuum, the vacuum would extinguish the pilot light. She had no matches and decided to light the “candle” from the pilot light, vacuum the oven, and then relight the pilot light with the candle. Alvarado lit the device and it exploded, blowing off most of her right hand. Prior to the accident, Alvarado had no experience with any firework-type device.

During his eleven prior years of employment with Oakbrook, Keleher had not discovered or heard of anyone discovering fireworks in a property managed by Oakbrook, but he did know that hazardous and flammable materials had been found in an occupied apartment *758 in 1996. There is no evidence that any abandoned firework had ever been discovered in a Meriter-owned or Oakbrook-managed apartment. Neither party presented evidence of the frequency with which hazardous materials are left behind by vacating tenants.

Having read these additional facts, do any new questions or factors arise that seem relevant for the court’s analysis?

Note 2. In its ruling, the lower court (2002 ruling) stresses its holding is case-specific, and it intends its impact to be narrow.

“This case involves a highly unusual *770 cause of an injury to a cleaning person employed by a contractor. We do not hold that landlords have no obligation to assure that apartments are hazard-free prior to the time new tenants take occupancy. Neither do we suggest that landlords never have an obligation to search for hazardous materials. To take one of many possible examples, it might be that a landlord could be found negligent and held liable for failing to inspect for hazards if the landlord knew a vacating tenant was involved in the reckless use of firearms. Given this knowledge, the landlord might properly be held liable for permitting new tenants with children to take occupancy without a thorough inspection.”

Do you think it would have had a narrow impact as applied in practice, had it not been reversed on appeal? From what you understand so far about duty and breach, should a ruling pertaining to duty be highly fact-specific? Alvarado v. Sersch, 257 Wis. 2d 752, 756-758, 760-761, 768–71 (2002), rev’d, 262 Wis. 2d 74.

Note 3. Should Alvarado be able to rely on the apartment managers’ inspection for hazardous materials before allowing cleaners on the premises? Should the managers be required to provide hazardous materials training to every plumber or electrician or cleaner it hires, just in case they encounter hazardous materials onsite? (The court below formed and answered both of these questions succinctly: “Certainly not.”) What do you think it is reasonable for contractors and cleaners to expect under such circumstances? Might your answer depend on whether alternative sources of compensation for injury were available?

Negligence: Breach (Issues of Proof)

Determining whether conduct was reasonable can involve complicated questions of evidence and proof. In some torts cases, evidence has literally been destroyed in a fire or explosion, thus making the case harder to make in court. In many other cases, there are missing facts or mysteries regarding how an accident came to happen. In a significant number of cases, plaintiffs must resort to using circumstantial evidence to build a case regarding the unreasonableness of the conduct. Over time, certain legal devices have arisen to provide shortcuts or to allow the parties to shift the burden of proof back and forth on certain points. One of these is the admissibility of industry standards or “custom evidence” that tends to establish what others similarly situated believed to be reasonable versus unreasonable.

Trimarco v. Klein, Court of Appeals, New York (1982)
(436 N.E.2d 502)

After trial by jury in a negligence suit for personal injuries, the plaintiff, Vincent N. Trimarco, recovered a judgment of $240,000. A sharply divided Appellate Division, 82 A.D.2d 20, 441 N.Y.S.2d 62, having reversed on the law and dismissed the complaint, our primary concern on this appeal is with the role of the proof plaintiff produced on custom and usage. The ultimate issue is whether he made out a case. The controversy has its genesis in the shattering of a bathtub’s glass enclosure door in a multiple dwelling in July, 1976. Taking the testimony most favorably to the plaintiff, as we must in passing on the presence of a prima facie case, we note that, according to the trial testimony, at the time of the incident plaintiff, the tenant of the apartment in which it happened, was in the process of sliding the door open so that he could exit the tub. It is undisputed that the occurrence was sudden and unexpected and the injuries he received from the lacerating glass most severe.

The door, which turned out to have been made of ordinary glass variously estimated as one sixteenth to one quarter of an inch in thickness, concededly would have presented no different appearance to the plaintiff and his wife than did tempered safety glass, which their uncontradicted testimony shows they assumed it to be. Nor was there any suggestion that defendants ever brought its true nature to their attention.

Undeveloped in the trial record is the source of a hospital record entry which ascribed the plaintiff’s injuries to a “fall through his bathroom glass door”. Obviously, this may have been taken into account by the jury, since its verdict called for a reduction of its $400,000 gross assessment of damages by 40% to account for contributory negligence.^[2]

As part of his case, plaintiff, with the aid of expert testimony, developed that, since at least the early 1950’s, a practice of using shatterproof glazing materials for bathroom enclosures had come into common use, so that by 1976 the glass door here no longer conformed to accepted safety standards. *504 This proof was reinforced by a showing that over this period bulletins of nationally recognized safety and consumer organizations along with official Federal publications had joined in warning of the dangers that lurked when plain glass was utilized in “hazardous locations”, including “bathtub enclosures”.^[3] [***] And, on examination of the defendants ‘managing agent, who long had enjoyed extensive familiarity with the management of multiple dwelling units in the New York City area, plaintiff’s counsel elicited agreement that, since at least 1965, it was customary for landlords who had occasion to install glass for shower enclosures, whether to replace broken glass or to comply with the request of a tenant or otherwise, to do so with “some material such as plastic or safety glass”.

In face of this record, in essence, the rationale of the majority at the Appellate Division was that, “assuming that there existed a custom and usage at the time to substitute shatterproof glass” and that this was a “better way or a safer method of enclosing showers” (82 A.D.2d, p. 23, 441 N.Y.S.2d 62), unless prior notice of the danger came to the defendants either from the plaintiff or by reason of a similar accident in the building, no duty devolved on the defendants to replace the glass either under the common law or under section 78 of the Multiple Dwelling Law.^[4][***]

Which brings us to the well-recognized and pragmatic proposition that when “certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that [the one charged with the dereliction] has fallen below the required standard.” [c] Such proof, of course, is not admitted in the abstract. It must bear on what is reasonable conduct under all the circumstances, the quintessential test of negligence.

It follows that, when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care (Bennett v. Long Is. R. R. Co., 163 N.Y. 1, 4 [custom not to lock switch on temporary railroad siding during construction]), and, contrariwise, when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability (Levine v. Blaine Co., 273 N.Y. 386, 389 [custom to equip dumbwaiter with rope which does not splinter]). Put more conceptually, proof of a common practice aids in “formulat[ing] the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common sense or expert intuition of a jury or commission when called on to judge of particular conduct under particular circumstances” (Pound, Administrative Application of Legal Standards, 44 ABA Rep, 445, 456–457).

The source of the probative power of proof of custom and usage is described differently by various authorities, but all agree on its potency. Chief among the rationales offered is, of course, the fact that it reflects the judgment and experience and conduct of many (2 Wigmore, Evidence [3d ed.], § 461; Prosser, Torts [4th ed.], § 33). Support for its relevancy and reliability comes too from the direct bearing it has on feasibility, for its focusing is on the practicality of a precaution in actual operation and the readiness with which it can be employed (Morris, Custom and Negligence, *506 42 Col. L. Rev. 1147, 1148). Following in the train of both of these boons is the custom’s exemplification of the opportunities it provides to others to learn of the safe way, if that the customary one be. (See Restatement, Torts 2d, § 295A, Comments a, b.)

From all this it is not to be assumed customary practice and usage need be universal. It suffices that it be fairly well defined and in the same calling or business so that “the actor may be charged with knowledge of it or negligent ignorance” (Prosser, Torts [4th ed.], § 33, p. 168; Restatement, Torts 2d, § 295A, p. 62, Comment a).

However, once its existence is credited, a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence (1 Shearman & Redfield, Negligence [rev ed], § 10). Before it can be, the jury must be satisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of the behavior which adhered to the custom or the unreasonableness of that which did not (see Shannahan v. Empire Eng. Corp., 204 N.Y. 543, 550). After all, customs and usages run the gamut of merit like everything else. That is why the question in each instance is whether it meets the test of reasonableness. As Holmes’ now classic statement on this subject expresses it, “[w]hat usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not” (Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470).

So measured, the case the plaintiff presented, even without the [Editor’s insertion: improperly admitted evidence concerning a statute that applied to new installations of glass and not existing glass] *** was enough to send it to the jury and to sustain the verdict reached. The expert testimony, the admissions of the defendant’s manager, the data on which the professional and governmental bulletins were based, the evidence of how replacements were handled by at least the local building industry for the better part of two decades, these in the aggregate easily filled that bill. Moreover, it was also for the jury to decide whether, at the point in time when the accident occurred, the modest cost and ready availability of safety glass and the dynamics of the growing custom to use it for shower enclosures had transformed what once may have been considered a reasonably safe part of the apartment into one which, in the light of later developments, no longer could be so regarded.

Furthermore, the charge on this subject was correct. The Trial Judge placed the evidence of custom and usage “by others engaged in the same business” in proper perspective, when, among other things, he told the jury that the issue on which it was received was “the reasonableness of the defendant’s conduct under all the circumstances”. He also emphasized that the testimony on this score was not conclusive, not only by saying so but by explaining that “the mere fact that another person or landlord may have used a better or safer practice does not establish a standard” and that it was for the jurors “to determine whether or not the evidence in this case does establish a general custom or practice”.

Nevertheless, we reverse and order a new trial because the General Business Law sections [on future installations] should have been excluded. True, if a statutory scheme intended for the protection of a particular class, as is the one here, does not expressly provide for civil liability, there is responsible authority for the proposition that a court may, in furtherance of the statutory purpose, read in such an intent (see Martin v. Herzog, 228 N.Y. 164, 168; Restatement, Torts 2d, § 286; see, generally, James, Statutory Standards and Negligence in Accident Cases, 11 La. L. Rev. 95). Be that as it may, the fact is that the statutes here protected only those tenants for whom shower glazing was installed after the statutory effective date. Plaintiff was not in that class.

Thus, while new installations made during the three-year interval between July 1, 1973, the effective date of the new General Business Law provisions, and July, 1976, when plaintiff was injured, could have counted *507 numerically in the totality of any statistics to support the existence of a developing custom to use safety glass, defendants’ objection to the statutes themselves should have been sustained. Without belaboring the point, it cannot be said that the statutes, once injected into the adversarial conflict, did not prejudice the defendants. Nor is it any answer to suggest that balancing the risk of prejudice against the asserted relevancy of the statutes here was a supportable discretionary judicial act. Unlike hearsay, which at times may be rendered admissible by necessity, the other proof of custom here eliminates the possibility of this justification.

For all these reasons, the order should be reversed and a new trial granted. In so ruling, we see no reason for a retrial of the damages issue. Instead, the new trial will be confined initially to the issue of liability and, if plaintiff once again should succeed in proving that defendants were negligent, to the issue of apportionment of fault between the parties (cf. Ferrer v. Harris, 55 N.Y.2d 285).

Accordingly, the case should be remitted to Supreme Court, Bronx County, for further proceedings in accordance with this opinion.

Order reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new trial in accordance with the opinion herein.

Note 1. How does the court treat the evidence of industry custom, as well as the prescriptions by the legislature for the use of improved safety measures regarding glass in dwellings? What is its relevance to the plaintiff’s case?

Note 2. Why is the plaintiff’s conduct with respect to use of the shower raised?

Note 3. The court lists several rationales for the admission of custom evidence. What are they?

Note 4. Custom evidence as a “sword.” Trimarco clarifies that use of custom evidence is not conclusive (“common practice or usage is still not necessarily a conclusive or even a compelling test of negligence… Before it can be, the jury must be satisfied with its reasonableness.”) What effect does custom evidence have, in that case? Why is its use potentially powerful for the plaintiff?

Consider that case law continues, as Trimarco did, to cite this long-approved dicta: “What usually is done may be evidence of what ought to be done.”  Texas & P.R. Co. v. Behymer, 189 U.S. 468, 470 (1903). Beving v. Union Pac. R.R. Co., 2020 WL 6051598, at *4 (S.D. Iowa Sept. 8, 2020)

Note 5. Custom evidence as a “shield.” In Trimarco the court seems to suggest that compliance with custom could provide a defense: “when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care (Bennett v. Long Is. R. R. Co., 163 N.Y. 1, 4, 57 N.E. 79 [custom not to lock switch on temporary railroad siding during construction]). Despite Trimarco’s dicta regarding compliance with custom, it is rarely successfully used as a shield against liability. Merely showing that one didn’t adopt a precaution, but neither did anybody else in your industry does not make that conduct reasonable. That was the scenario in the next case (excerpted).

Note 6. The T.J. Hooper, Second Circuit Court of Appeals (1932)

If evidence of customary practices can be used to establish breach, what happens if an industry is rapidly emerging (and norms aren’t yet settled, or behavior is unusually risky)? What about if the industry is one that evolves frequently and norms are hard to catalog? What if social changes to conduct or business practices end up meaning that an entire industry has failed to take the proper precautions?

Judge Learned Hand, an extremely important jurist on the Second Circuit, faced a dispute over losses of coal that plaintiff’s barges sustained when the defendant’s tug boats, towing the barges, were lost in a storm off the Jersey Coast. Had the tugboats been equipped with radios, the crew could have received a widely publicized warning from the Weather Bureau and made for a safe haven in the Delaware Breakwater. Defendant pointed to industry custom to argue that barge lines didn’t provide radio receiving sets to crews. Learned Hand upheld the lower court’s verdict against the defendants, writing: “[I]n most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.”

The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932).

Can you think of areas of evolving technology, or changing practices around privacy and data collection, that would illustrate the need for a rule like this one? Professor Jennifer E. Rothman considers the issue in The Questionable Use of Custom in Intellectual Property, 93 Va. L. Rev. 1899 (2013): “Defenses to uses of others’ IP are generally rejected when deemed, either explicitly or implicitly, “unreasonable,” and courts frequently defer to customary practices to determine whether a use is reasonable. [fn] It is not easy to define what constitutes a reasonable use of another’s IP. A reasonable use is not the same as a just or moral use; instead, like the reasonable person standard in tort law, it asks more generally what is appropriate in a given circumstance, not what is optimal or ethical. Because it is difficult to determine when a use of another’s IP is reasonable and there is little available guidance, courts often use custom as a shortcut or proxy for such determinations.” Rothman worries that courts will entrench suboptimal behaviors simply because they are customary (no matter whether they are reasonable) and fail to consider “reasonable” newer practices simply because they are not yet customary. How should rapidly evolving areas of law proceed with respect to custom evidence?

Circumstantial Evidence

A Primer on Burdens of Proof: Eventually, law students learn about the burden of proof in classes such as civil procedure and criminal law. However, in most law schools, students encounter and issues pertaining to the burden of proof in tort law before they have gotten much past questions of jurisdiction in civil procedure. These issues are important to tort law yet assumed rather than explained in the cases assigned. This brief explanation is meant as a stopgap to assist your understanding in torts. The burden of proof is the party’s obligation to prove their case, but it applies to each claim or defense relevant to winning the case overall.

First, the burden of proof differs in criminal and civil cases. You’ve certainly heard the burden of proof in criminal cases since it’s so often evoked in legal dramas as well as in news accounts of significant criminal trials: the state must prove defendants’ guilt beyond a reasonable doubt. Lawyers tend to think of this as requiring something like a 90-95% likelihood of certainty. Note that in criminal cases, the prosecutor is proving guilt. In civil cases, it is appropriate to use “liability” instead. Although older cases still sometimes state that a party is “guilty of negligence,” be attentive to the confusion it could create to use the terms guilt and liability interchangeably and stick with liable instead. In most cases, civil claims must be proven by a preponderance of the evidence, which is more like 51%. The standard requires that the account be more likely than not to have happened in the way the moving party claims. There is a third standard somewhere in between, known as the clear and convincing standard. Legislators and courts can use this in instances in which they wish to ratchet up the difficulty of proving something, to signal some sort of protection or a policy emphasis in the law.

Second, the burden of proof includes different aspects: the burdens of production and persuasion.

Both parties carry the burden of persuasion and it never “shifts” between them; if the party cannot persuade the judge or factfinder to accept their account as the likelier one, they will lose. The burden of production consists of the party’s obligation to present sufficient evidence on a claim that they can win on that issue. Quite often the plaintiff will win on this issue if the opposing party does nothing to rebut or defeat that evidence. It is sometimes called the “burden of going forward.” This begins with the pleadings: the plaintiff introduces all her evidence and the judge must decide whether the plaintiff has offered enough evidence that the jury could conclude that the defendant was negligent. If the plaintiff can do this, she has made out a prima facie case, that is a case in which the jury does not have to side with the plaintiff, but could do so. Then the defendant responds with an answer attempting to produce enough evidence that the jury could not conclude in the plaintiff’s favor.

The burden of production shifts; think of it like a tennis game in which a ball (the burden) may travel back and forth between the parties or be caught in the net, thus ending the play on a given issue (and possibly the entire case). For example, if a party, X, bears the burden of proving that another party, Y was negligent in their conduct and caused X’s injuries, X will lose the entire case if X cannot bear the burden of production on the existence of a duty running from Y to X. Perhaps X can plead a duty and Y cannot rebut it. As the moving party, X must next prove breach, causation and damages. On the questions of breach and causation, in particular, they may be many smaller factual questions in which gaps in the factual record require filling. The plaintiff’s case might fail if these gaps mean she cannot establish what the defendant did to cause her harm. In the materials that follow, you will learn several burden-shifting devices that assist in shifting the burden from one party to another so that the case will not fail too early. Sometimes the burden shifts, for instance, from the plaintiff who must ordinarily prove breach by the defendant and causes the defendant to have to disprove breach. Burden-shifting devices are one of the ways in which parties can prove or defend against negligence claims given the complexity and factual gaps that arise with frequency in the fact patterns in torts cases.

Using circumstantial evidence is not formally a burden-shifting device, but it is one of the mechanisms by which the law may slightly relax the burden of production in cases where direct or real evidence is unavailable. A party may satisfy their burden of production on an issue only to have the opposing party successfully rebut it, of course, but the theory holds that it is fairer to force this exchange than it would be to prematurely end a claim merely because the plaintiff lacked particular kinds of evidence at the outset.

In a subset of torts cases—particularly cases of injury caused by filling on a slippery or poorly maintained floor—plaintiffs may be unable to prove the source of their injury or to identify how the defendant breached their duty of due care. In traditional cases, a plaintiff may prove their case using “real evidence” such as physical objects, forensic data, documentary evidence including video recordings or employee logs. Or they may offer proof in the form of “direct evidence” such as eyewitness testimony or deposition of the defendant and related parties. Sometimes, however, these forms of evidence are unavailable or only partially so and the plaintiff must in some other way produce sufficient circumstantial evidence that the jury can draw inferences of the defendant’s negligence. The outcomes in these cases hinge on the strength and sufficiency of the evidence. Also, fruit. The next cases focus on slippery fruit (and other foods) that may cause injury.

Goddard v. Bos. & M.R. Co., Supreme Judicial Court of Massachusetts (1901)
(179 Mass. 52) (Chief Justice Holmes)

The banana skin upon which the plaintiff stepped and which caused him to slip may have been dropped within a minute by one of the persons who was leaving the train. It is unnecessary to go further to decide the case.

Exceptions overruled.

Note 1. The plaintiff was injured in a “slip-and-fall” accident which is sometimes considered the “bread-and-butter” action of tort law given the frequency with which such claims continue to be brought. They are usually settled but sometimes involve significant injury or small but important points of law. They are also responsible for many safety measures taken by stores and other premises owners who fear liability and can pass the costs of precautions on to their consumers via raising the price of their goods, tickets or services. However, tort law does not seek to reduce risks to zero and premises owners are not the “insurers” of all who enter on their premises. How should courts determine the point at which liability for injury attaches? What sorts of inferences should be permitted when customers appear blameless but cannot explain the reasons for the accident that occurred? Banana peels are just the beginning.

Scaccia v. Bos. Elevated Rail Co., Supreme Judicial Court of Massachusetts (1944)
(317 Mass. 245)

[***] When the plaintiff boarded the defendant’s motor bus at Cleary Square in the Hyde Park section of Boston at noon on October 2, 1934, it could have been found that there was on the floor in the aisle, near the front of the bus, a banana *252 peel ‘four inches long, all black, all pressed down, dirty, covered with sand and gravel, dry and gritty looking.’ When the plaintiff left the bus nine minutes later, she slipped and fell on the banana peel, which remained in the same position. Only three passengers were in the bus during the trip. It could have been found that Cleary Square was one terminus of the line, and that the bus remained there without passengers in it for ‘a minute or two’ at least. The bus was operated by one man.

The question is whether the foregoing basic facts warrant an inference of negligence on the part of the defendant or its operator. No one would be likely to enter the bus except servants of the defendant and passengers. In the ordinary course of events, no passenger would carry into the bus a banana peel, or a banana, in the condition shown by the agreed facts. Such a condition naturally would result from lying a considerable time on the floor. We think that it could be found that the peel had remained on the floor of the bus so long that in the exercise of due care the defendant should have discovered and removed it. [cc]

A number of cases in which the unexplained presence on floors or stairs of discarded parts of fruit was held insufficient evidence of negligence may be distinguished. In Goddard v. Boston & M. R. R., 179 Mass. 52, the banana peel did not appear to be other than fresh. In Mascary v. Boston Elevated R. Co., 258 Mass. 524 where a banana peel was much like that described in the Anjou case, it lay on stairs leading from the street, and might have been recently thrown there by a child in play. In McBreen v. Collins, 284 Mass. 253, and Newell v. Wm. Filene’s Sons Co., 296 Mass. 489, the plaintiff fell on a lemon or orange peel that showed no marks of age comparable to those in the present case. In other cases the cause of the injury was an apple core or other fruit which would become discolored sooner than a banana peel would become in the condition described in the evidence in the present case. [cc]

In accordance with the terms of the report, judgment is to be entered for the plaintiff as upon a finding for $750.

So ordered.

Note 1. Why is the court discussing the condition of the banana (or lemon or orange) peel?

Note 2. What implicit theory does this observation address, when the court notes “no passenger would carry into the bus a banana peel, or a banana, in the condition shown by the agreed facts”?

Note 3. Without evidence that a child actually has thrown the peel in this case, what purpose does it serve for the court, in dicta about an earlier precedent, Mascary, to add that the banana peel “might have been recently thrown there by a child in play”?

McDonald v. Safeway Stores, Inc., Supreme Court of Idaho (1985)
(109 Idaho 305)

On April 17, 1981, at approximately 1:00 p.m., Alta McDonald entered a Twin Falls Safeway Store to make a purchase. As she walked down the aisle, her foot went out from under her and she fell, landing on her right hip. Safeway had been conducting an ice cream demonstration since 10:00 a.m. that day. The substance that Mrs. McDonald slipped on was cream colored and appeared to be melted ice cream. As a result of the fall, Mrs. McDonald suffered severe injuries, requiring the replacement of a total hip transplant which she had received shortly before the fall. Thereafter, Alta McDonald brought the action for damages for injuries she had sustained, her husband joining with a claim for loss of consortium, services, care, comfort and companionship. A jury trial resulted in a special verdict finding Safeway’s negligence at 100% and awarding Alta McDonald damages of $196,000 and Donald McDonald damages of $35,000.

Safeway first assigns error to the trial court’s denial of its motion for summary judgment, asserting that reasonable minds could not differ on the issue of whether the actions of the Safeway employees were reasonable under the circumstances. For reasons which follow we conclude that the trial court properly denied the motion.

The complaint alleged, in part:

That on or about Friday, April 17, 1981, at some time prior to plaintiff Alta McDonald’s arrival at said store defendant negligently caused and/or permitted a slippery substance consisting of melted ice cream to be deposited and to remain *307 on the floor of said store in a place allowed for the passage of plaintiff and other customers and shoppers.​

That defendant knew or reasonably should have known that slippery substances, including ice cream, would foreseeably be dropped by passing shoppers and would accumulate on the floor and would endanger the safety of persons walking on the floor. The melted ice cream had been dispensed negligently by the defendant and had been negligently allowed to remain on the floor for such a period of time immediately preceding the accident that persons of ordinary prudence in the position of defendant knew or reasonably should have known of the same, and in the exercise of ordinary care would have remedied the same, prior to the happening of the accident herein alleged. In spite of defendant’s notice of the presence of the melted ice cream on the floor, defendant negligently failed and omitted to remove the slippery substance within a reasonable time and failed to take any precaution to prevent injury to plaintiff and other invitees that foreseeably would be injured. The accident and injury hereinafter alleged were proximately caused by the negligence of defendant in causing the ice cream to be dispensed in a manner in which it was foreseeable that it would cause injury to others, and in causing and permitting the melted ice cream to remain on said floor and in failing to take reasonable precautions to prevent injury to plaintiff or to warn of the dangerous, unfit or unsafe conditions.

In its memorandum opinion denying Safeway’s motion for summary judgment, the trial court stated:

In most supermarket slip and fall cases the plaintiff merely slips on an item or slick spot, the presence of which cannot be explained by anyone. Normally, the hazard exists during the normal business operation of the supermarket. Naturally, in those cases, the focus of attention is on the knowledge, actual or constructive, of the market that the hazard involved was on the floor.

Here we have a substantially different situation. Three separate demos were being conducted on the premises of Safeway where food and napkins were being handed out to customers, including infants. This, giving plaintiff the benefit of all inferences, could have created an unreasonable risk of harm to people, even if the store had very efficient clean-up procedures. The mode of operation of the ice cream demo on a very busy Good Friday, combined with the abnormally large crowds and other demos, in and of itself could constitute an act of negligence on the part of defendant. It is also possible that Safeway should have taken super extraordinary supervisory precautions considering the mixture of ice cream and infants.

A jury question is presented regarding Safeway’s negligence.

Safeway argues that the McDonalds’ claim of negligence was based on two distinct theories, the first being that the Safeway employees had actual or constructive knowledge of the dangerous condition and failed to remedy it and the second being that by permitting three separate demonstrations on a busy sales day and furnishing ice cream to infants, Safeway created a foreseeable risk of harm to its customers. Safeway contends that it was entitled to an order of summary judgment on the negligence claim regardless of the theory upon which the McDonalds relied.

[***] Clearly, as to the first theory of negligence, the record before the trial court permitted the reasonable inference that Safeway knew or should have known of the dangerous condition, that it had sufficient time to remedy the situation and that in the exercise of *308 reasonable care, its employees should have cleaned the spill.

Safeway contends that Idaho law does not permit a plaintiff to recover under the second negligence theory, that is, negligent creation of a foreseeable risk of harm. That theory does not require that the owner or possessor of land have actual or constructive knowledge of the dangerous condition. Safeway insists that in dispensing with the knowledge requirement, the second theory is inconsistent with Idaho law regarding the liability of an owner or possessor of land for injuries to an invitee. In support of this proposition Safeway cites Tommerup v. Albertsom’s, Inc., 101 Idaho 1 (1980) wherein we stated:

The law is well settled in this state that to hold an owner or possessor of land liable for injuries to an invitee caused by a dangerous condition existing on the land, it must be shown that the owner or occupier knew, or by the existence of reasonable care, should have known of the existence of the dangerous condition.

In Tommerup, the plaintiff-appellant Mrs. Tommerup, had slipped and fallen on a cupcake wrapper which apparently had been discarded in the parking lot near the doorway of a grocery store. The record was devoid of evidence indicating that the condition which caused Mrs. Tommerup’s injury was anything other than an isolated incident. In Tommerup, we distinguished the “isolated incident” situation from circumstances where an alleged tortfeasor is charged with having actively created a foreseeable risk of danger in its course of business [***]. Certainly, the trial court could not have concluded as a matter of law that the presence of the ice cream on the floor was merely an isolated incident. Hence, it did not err in denying Safeway’s motion for summary judgment.

Safeway next complains that the trial court erroneously permitted the McDonalds to introduce certain opinion testimony *309 and expert testimony at trial. Safeway contends that the McDonalds’ counsel improperly elicited “expert testimony” from James Anderson, the Safeway’s store manager. This “expert testimony” consists of the following exchange:

COUNSEL: Wouldn’t you agree with me, Mr. Anderson, that two hours is more than ample time to insure cleaning up a spill like an ice cream spill and preventing an accident like this?

MR. ANDERSON: Yes.

The question and answer were not objected to at trial and the objection cannot be raised for the first time on appeal. [c] [***] The question posed by McDonalds’ counsel properly elicited testimony tending to rebut Anderson’s general line of testimony that the store had exercised due care.

[***] Safeway next maintains that the trial court erred in allowing McDonalds’ counsel to conduct an “experiment” during closing argument. At the opening of closing argument, McDonalds’ counsel unveiled a carton of Lucerne ice cream and placed a spoonful on a paper plate next to a thermometer and left it on counsel table in full view of the jury during his argument. When Safeway’s counsel inquired as to what the McDonalds’ counsel was doing, the McDonalds’ counsel stated, “I’m conducting an experiment. I’m not sure what the results are going to be, but I think it’s proper argument.” Safeway’s counsel objected. The trial court overruled the objection, concluding that the “experiment” was an allowable, demonstrative argument. *310 Safeway submits that the “experiment” was not supported by the evidence, and that the use of the ice cream during closing argument should not have been allowed unless it was supported by evidence already admitted. Moreover, Safeway contends that the trial court should have, at a minimum, cautioned the jury that the “experiment” was not evidence and should not be given any consideration in reaching its decision. Clearly, the “experiment” was not proper evidence; however, that fact may not have been apparent to the jury. It is generally stated in 75 Am.Jur. Trials § 197 (1974) that:

It appears to be entirely legitimate for counsel in addressing a jury to use, by way of illustration or elucidation, diagrams and maps or other visual aids not put in evidence, provided that the jury understands that they are employed merely for such purposes and are not evidence in any sense. However, the use of charts or diagrams by counsel has been held not permissible in the absence of adequate foundation in the form of material actually introduced into evidence.

In Meissner v. Smith, 94 Idaho 563, 494 P.2d 567 (1972), we approved the use of charts in closing argument so long as the record did not reflect any unfair, misleading or inflammatory tactics by counsel in the use of the chart. Research has revealed no case on point and counsel for both parties were unable to provide authority for their respective positions on this matter. Nonetheless, we conclude that the “experiment” should not have been allowed, in that experiments are admissible as evidence only during the evidentiary phase of the trial, when the opposing party has the opportunity for objection to foundation, cross-examination, and rebuttal. We strongly admonish counsel against such antics and would order a declaration of mis-trial but for the fact that a complete review of the record reflects that the effect and purpose of the experiment was only to establish that even a small chunk of ice cream requires an hour or two to fully melt at room temperature. Since two witnesses had testified to that phenomenon and since Safeway did not dispute it, the error was harmless and cannot be said to have changed the result of the trial. Appellants have the burden to show prejudicial error and this they have failed to do. [c] Because we conclude that the result would have been the same had this “experiment” not taken place, we do not deem the error to be cause for reversal. [c] [***]

In support of its motion for a new trial, Safeway alleged the following specific errors:

(1) The ice cream experiment was improper;
(2) The jury verdict was excessive and unreasonable; *311
(3) The verdict was contrary to the evidence; [***]

[The] asserted grounds in support of the new trial motion have been previously addressed in this opinion. We therefore affirm the judgment. Costs to respondents. No attorney fees.

Note 1. In your own words, how would you define “actual knowledge” versus “constructive knowledge”?

Note 2. What is the practical difference between the two theories of negligence: (1) failing to remedy a dangerous condition of which Safeway had actual or constructive knowledge versus (2) creating a foreseeable risk of harm by permitting three separate demonstrations on a busy sales day and furnishing ice cream to infants? Why does it matter to distinguish the theories?

Note 3. Without employee testimony, how do you think a court should determine whether there was “sufficient time” to remedy a dangerous situation? Is time the right proxy for constructive notice? What others can you imagine working well?

Note 4. If tort law forced stores to internalize the costs of all possible accidents on its premises, it would effectively convert such entities into “insurers” of the wellbeing of customers. This could overdeter the store and misalign the incentives for consumers to take their own proper precautions. A rationale response to increasing the scope of storeowner liability is to take increased precautions and pass the costs of those on to the consumer. Consider the following case in which the store was not held liable for a customer’s slip and fall on a slippery floor the source of whose wetness the plaintiff could not adequately prove; the court describes an employee’s testimony, in which “she estimated that 98 percent of her time was spent walking the floors of the store looking for hazards. She also testified that any employee who sees a hazardous condition on the floor is responsible for either cleaning it up or getting someone else to do so.” Another employee corroborated that and further testified:

“Q [ATTORNEY FOR APPELLANT]: Now, in terms of whether things were on the floor, were you required or were you supposed to patrol around the store and look for anything that could probably [sic] be on the floor?
A: Well, we were always walking around the store, pretty much at all times except when we were on break. So you don’t have an assigned route, but yes, we were always walking around the floor.
Q: And then if you noticed something on the floor, you were supposed to take care of it right away?
A: Yes.”

Maans v. Giant Of Maryland, L.L.C., 161 Md. App. 620, 631 (2005)

Does this strike you as the optimal level of precaution in practice? Might some precautionary practices develop in order to defeat legal claims rather than out of a conviction that they will optimize for safety and employee efficiency?

Note 5. Dangerous Methods of Operation. Are you persuaded by the distinction of “isolated incidents” versus “continuous or recurring” conditions? In nearly two dozen jurisdictions, some version of a “recurring condition” rule has arisen to cover situations in which a business regularly confronts hazards associated with its “mode of operation.” Kelly v. Stop & Shop, Inc., 281 Conn. 768, 783 (2007)(noting that there is a “distinct modern trend favoring the rule, and it appears that most courts that have considered the rule have adopted it”; Kelly reversed judgment for the defendant on the grounds that plaintiff should be allowed to adopt the mode of operation theory of negligence after she slipped on a “wet and slimy” piece of lettuce and found herself on the floor next to the cottage cheese and other fruit she’d been serving herself from the salad bar. While she lay there, an employee appeared at her feet to sweep up the cottage cheese and fruit. Id. at 253). This doctrine has often been justified by the growing number of self-serve restaurants or food service points in supermarkets. One of the early and influential cases involved pizza.

In Jasko v. F. W. Woolworth Co., 177 Colo. 418 (1972), for example, the plaintiff had slipped and fallen on a slice of pizza that had wound up on the terrazzo floor of the defendant’s store. The shop sold slices of pizza on waxed paper sheets to 500-1,000 buyers every day and there were no chairs or tables by the pizza counter so most consumers stood in the shop while they ate. The court record showed that so many slices were dropped daily that porters were continually sweeping it up. The appellate court affirmed the trial court’s dismissal on the grounds that the defendants lacked actual or constructive knowledge of the dangerous condition. The Supreme Court of Colorado reversed, reasoning that “when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. Then, actual or constructive notice of the specific condition need not be proved.” Although the Colorado state legislature enacted legislation to preempt common law duties of landowners, the case continues to be cited with approval for this doctrine. The dangerous mode of operation doctrine is sometimes criticized for being a form of strict liability; can you see why?

The next hypothetical applies the doctrine outside the context of food service to provide students with practice synthesizing the rules for duty and breach and applying them to new facts.