53. How should the trial judge proceed?

Negligence per se requires: (i) there was a criminal or other regulatory statute/ordinance/law that imposed a penalty for its breach; (ii) the defendant violated that law; (iii) the harm caused by the violation was the type of harm that the law was intended to protect against; (iv) the plaintiff was in the class of individuals the law was intended to protect; and (v) the violation of the law caused (both proximate and actual causation) the harm to the plaintiff.

C is correct. Here, although the first and second elements are met, the harm caused is not the type that was intended to be prevented (inefficient traffic flow) nor is the plaintiff in the class intended to be protected. Finally, it's likely proximate causation is also lacking here because the facts state the puddle freezing was «sudden and unexpected weather,» and the proximate cause analysis focuses on foreseeability. The ordinance does not offer a presumption of negligence, and the pedestrian would need some other basis to sustain her motion for a directed verdict. The facts do not provide any indication that the car owner breached a duty to the pedestrian by washing her car and, even if she did, the same proximate causation problem exists for a general negligence claim. Thus, there is no basis to sustain the motion for a directed verdict (now often referred to as a motion for judgment as a matter of law).

A is incorrect. By referencing an inference of negligence, this answer choice raises the doctrine of res ipsa loquitur. Res ipsa loquitur is a doctrine that permits the factfinder to infer negligence when there is no direct evidence that the defendant acted negligently. To establish res ipsa loquitur, the plaintiff must show (i) the event that happened is one that usually does not occur absent the negligence of a party; (ii) the harm was caused by something in the defendant's exclusive control; and (iii) the plaintiff is not the one who caused the event to occur. Courts generally apply the «exclusive control» element liberally. If the above elements are met, res ipsa loquitur creates an inference of negligence. Here, however, the sudden and unexpected weather is effectively a superseding cause that would cut off the car owner's potential negligence even if res ipsa loquitur otherwise applied. Thus, there is no evidence on which the jury could infer the car owner was negligent.

B is incorrect. The ordinance was not adopted to reduce the risk of accumulating ice on public walkways. In fact, complying with the ordinance by washing the car in a private driveway rather than on the street would not have reduced the risk of ice accumulating on a pedestrian walkway and may even have increased that risk. Therefore, violation of the ordinance is irrelevant to the cause of action, and because the pedestrian offered no evidence supporting the claim of negligence except the ordinance violation, the car owner's motion should be granted.

D is incorrect. The ordinance was enacted solely to reduce a particular safety risk (congested traffic lanes) that did not materialize and therefore did not contribute to the pedestrian's injury. In fact, complying with the ordinance by washing the car in a private driveway rather than on the street would not have reduced the risk of ice accumulating on a pedestrian walkway and may even have increased that risk. Therefore, the car owner's motion should be granted, because the pedestrian offered no evidence supporting the claim of negligence except the ordinance violation, and the ordinance does not speak to the risk that materialized in this case.