Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
7. The Restatement approach. Section 874 of the Second Restatement recommends that
implied private causes of action be recognized when such a cause of action “is appropriate in
furtherance of the purpose of the legislation and needed to assure the effectiveness of the
provision. RESTATEMENT (SECOND) OF TORTS, § 874A.
The Third Restatement contains no analog to Section 874. However, the Third
Restatement does note that in “a suit brought by the victim of [a statutory violation], the court,
relying on ordinary principles of legislative interpretation, may in appropriate cases infer from the
statute a cause of action for damages against a violator.” RESTATEMENT (THIRD) OF TORTS: PHYS.
AND EMOT. HARM §14, cmt. b (2010). Additionally, the Third Restatement permits a court to rely
on a statute to find that the plaintiff owes an affirmative duty to the defendant, which, when
breached, creates a common law cause of action. See id. § 38 (“Affirmative Duty Based on
Statutory Provisions Imposing Obligations to Protect Another”).
For a discussion of the relationship between Section 38 and Section 874A of the Second
Restatement, see RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM §38, cmt. A (2010); see
also id. at §38, cmt. d.
F. Proof of Negligence
It is one thing to understand the basic elements of the negligence cause of action. But in
practice, a plaintiff needs to prove her case, too. The question of what precisely it means to meet
a plaintiff’s burden of proof turns out to be a tricky one. Consider Judge Posner’s opinion in
Howard v. Wal-Mart:
1. The Basic Problem
Howard v. Wal-Mart Stores, Inc., 160 F.3d 358 (7th Cir. 1998)
POSNER, C.J.
We have before us a charming miniature of a case. In 1993 Dolores Howard, age 65,
slipped and fell in a puddle of liquid soap that someone—no one knows who—had spilled on the
floor of the aisle in a Wal-Mart store in Cahokia, Illinois. . . . The jury awarded her $18,750.
Wal-Mart has appealed out of fear (its lawyer explained to us at argument) of the precedential
effect in future slip-and-fall cases of the judge’s refusal to grant judgment for Wal-Mart as a
matter of law. We don’t tell people whether to exercise their rights of appeal, but we feel
impelled to remind Wal-Mart and its lawyer that a district court’s decision does not have
precedential authority . . . let alone a jury verdict or an unreported order by a magistrate judge . . .
refusing on unstated grounds to throw out a jury’s verdict.
The issue on appeal is whether there was enough evidence of liability to allow the case to
go to a jury, and, specifically, whether there was enough evidence that an employee rather than a
customer spilled the soap. . . . Even if a customer spilled it, Wal-Mart could be liable if it failed to
notice the spill and clean it up within a reasonable time. . . . It has a legal duty to make its
premises reasonably safe for its customers. But there is no evidence with regard to how much
231