(2) Torts: Negligence Flashcards
Negligence Overall Rule
Negligence requires (1) a Duty owed to the P by the D; (2) a Breach of that duty; (3) Causation (the breach was the actual and proximate cause of P’s injuries); AND (4) Damages. (Must be established by preponderance of the evidence)
How to analyze:
Duty
Analyze duty by looking at Foreseeable P and applicable Standard of Care
Foreseeable Plaintiff Views
Duty
A duty of care is owed to all foreseeable P’s under the Andrews (minority) view. However under the Cardozo view (majority) a duty of care is only owed to foreseeable P’s who are within the zone of danger.
Affirmative Duty to Act
Foreseeable Plaintiff Views
There is generally no duty to act affirmatively unless (a) a pre- existing relationship exists between the parties; (b) the D put the P in peril; (c) assumption of duty (the D has undertaken aiding or rescuing the P); (d) a duty is imposed by law; OR (e) by contract.
Rule:
General Standard of Care
Every person owes a duty to act as a reasonable prudent person would act under like circumstances to all foreseeable P’s.
General Standard of Care in an Emergency
General Standard of Care
Must meet the standard of care of a reasonably prudent person who is forced to act in an emergency but only if the D’s actions did not cause the emergency.
General Standard of Care of intoxicated persons
General Standard of Care
Intoxicated individuals are held to the same standard as sober persons unless the intoxication was involuntary.
General Standard of Care of Disabled Persons
General Standard of Care
A mentally disabled person is held to the standard of someone with ordinary intelligence and knowledge.
General Standard of Care of a Person w/physical disabilities
General Standard of Care
A D’s physical characteristics (ex. Blind) are taken into account. Must analyze conduct based upon a reasonably careful person with the same disability.
Landowner Standard of Care - Traditional Rule
Jurisdictions follow the traditional approach which states land possessor’s standard of care owed to land entrants depends upon their status (invitee, licensee, or trespasser).
Unknown Trespasser
Landowner Standard of Care - Traditional Rule
A trespasser is one that enters the land of another without consent. A landowner does not owe a duty to undiscovered trespassers nor do they have a duty to inspect property for evidence of trespassers.
Known Trespasser
Landowner Standard of Care - Traditional Rule
Land possessor/owner owe a duty toward discovered or anticipated trespassers to use reasonable care in operations of the land AND warn or protect them from concealed, dangerous, artificial conditions (but not natural).
Licensee
Landowner Standard of Care - Traditional Rule
The land possessor/owner must exercise reasonable care in operations on the property AND warn of or make safe dangerous conditions that are known to the land possessor/owner but are not apparent to guest.
Invitee
Landowner Standard of Care - Traditional Rule
Invitee’s are invited on the property for the land possessor/owners benefit. The landowner owes the duty to make reasonable inspections to the property to find and make safe non-obvious dangerous conditions.
A land possessor/owner is liable for failing to warn of dangerous conditions that would have been discovered upon reasonable inspection.
Attractive Nuisance Doctrine
Landowner Standard of Care - Traditional Rule
A land possessor/owner may be liable for injuries to trespassing children (less than 14 years old) if: (1) the land possessors knows or should know of a dangerous artificial condition on the land that is likely to cause death or serious bodily injury; (2) the possessors knows or should know that children are likely to frequent/trespass; (3) children are unlikely to appreciate the risks involved; (4) the risk of harm outweighs the expense of making the condition safe; AND (5) the possessor fails to exercise reasonable care to protect children from the harm.
Less likely to apply for adult activity.
Landowner Standard of Care - Modern Trend Approach
Landowner Standard of Care
Land possessors owe a standard of care to all land entrants except for trespassers. The land possessor must use reasonable care to prevent harm by artificial conditions or conduct on land.
A land possessor must take reasonable precautions for known or obvious dangers when the possessor should anticipate the harm despite such knowledge or obviousness.
Duty of a Parent
No duty for their minor childs negligent actions, unless under their instructions.
Duty of a Child - General Standard of Care
Standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.
Duty of a Child - in Adult Activities
A child engaged in high-risk adult activity will be held to the same standard as an adult and must act as a reasonable adult.
Duty of a Child - Physically Disabled Children
Must act a reasonable child with the same disability would in a similar circumstance.
Duty of a Child - Very Young Children Standard
Children under the age of 5 are exempt from negligence liability.
Duty of a Child - With Instructions from a Parent
When a child receives instructions from a parent about taking necessary precautions, the child can be found negligent for failing to follow.
Traditional Rule and Modern Trend:
Duty of a Medical Doctor
Traditional Rule: A doctor is held to the same or similar locale rule of custom in terms of degree of care and skill.
Modern Trend (Majority): A doctor is held to the degree of care and skill of the average qualified practitioner under the national standard.
Minority vs Majority
Informed Consent
Duty of a Medical Doctor
A doctor has a duty to obtain informed consent from the patient before treatment which requires disclosing risks of treatment before obtaining consent.
*Majority: Disclosure of risk is governed by customs
*Minority; Must disclose “material risk” which are risks that might make a difference in deciding whether to proceed with the treatment.
Disclosure Rule
Duty of a Medical Doctor
A doctor is not required to disclose when (a) the risk is commonly known; (b) the patient is unconscious or incapable of giving consent; (c) the patient waives or refuses the information; (d) the patient is incompetent (Dr. must make a reasonable effort to obtain informed consent from a guardian); OR (e) the disclosure would be detrimental to the patient (would upset them enough to cause extreme illness).
Rule / How is the Standard Established / Types of professionals?
Duty of a Professional (Lawyer’s Standard)
A professional person is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.
Expert testimony is required to establish both the standard of care and D’s deviation from the standard unless D’s negligence was so apart then the expert testimony is not required.
A professional includes lawyer, electrician, architect, accountants, engineers.
Duty to Rescue
Reasonably prudent person standard applies unless there is a good Samaritan statute.
Assumption of Duty Rule
Duty to Rescue
A rescuer is a foreseeable (Note: they always are) P if the D negligently puts either the rescued party or the rescuer in danger (then D is liable for the rescuers injuries) or if they are in a special pre-existing relationship (Family; Common Carrier; Innkeeper/Guest; Teacher/Student; Employer/Employee).
Overall Rule
Breach of Duty
A breach of duty occurs when the D departs from the required standard of care. There are two approaches to determine if a breach occurred the (1) Traditional Approach and (2) Cost Benefit Analysis.
Traditional Approach
Breach of Duty
Courts compare the D’s conduct with what a reasonably prudent person under the circumstances would have done.
Cost-Benefit Analysis
Breach of Duty
The 3 factors are examined (a) the foreseeable likelihood that D’s conduct would cause harm; (b) the foreseeable severity of any resulting harm; and (c) the D’s burden in avoiding the harm.
Note: If you forget everything else then just discuss (1) What D did; (2) What D should have done; (3) then say D didn’t do what they were supposed to do.
Causation
A P must show that the D’s conduct was both the actual and proximate cause of the injury.
Actual Cause
Actual Cause (“but for”) [substantial factor test]
Rule: Is the “but for” cause – but for D’s negligence, p would not have been injured.
Substantial Factor Test
Actual Cause
Substantial Factor Test: When conduct of 2 or more persons may have contributed to the injury the test is whether D’s conduct was a substantial factor in causing P’s harm.
Alternative Causation
Actual Cause
Alternative Causation: If the harm was caused by one of a small number of D’s the court will ask the D’s to prove their conduct was not the cause in fact of the P’s harm.
Proximate Cause
This is the legal cause, which means that the injury must have been a foreseeable result of the breach. A D is liable for reasonably foreseeable consequences resulting from their conduct.
Intervening Cause
Proximate Cause
An intervening cause is an act that occurs after D’s act but before P’s injury. D is liable if the type of harm is foreseeable even it if occurred due to an unforeseeable manner. Negligent intervening acts are usually foreseeable.
Eggshell Plaintiff Rule
Proximate Cause
D must take the P as you find them. The extent of the damages need never be foreseeable. The D is liable for the full extent of P’s injuries even if they are increased due to P’s pre-existing conditions even if it is unforeseeable.
Superseding Cause
Proximate Cause
Most courts hold that an unforeseeable intervening act is a superseding cause and breaks the chain of causation if the results are unforeseeable.
Damages
P must prove actual damages in the form of person injury or property damage. Nominal damages are not recoverable.
*Economic harm alone is not sufficient for a claim of negligence.
Collateral Source Rule
Damages
Any payments or benefits provided to P from outside sources are not credited against D’s liability.
Property Damage Rule
Damages
The P may recover the difference in the fair market value immediately before and after injury.
Personal Injury Rule
Damages
Damages recoverable for personal injury include (a) medical and rehabilitation expenses both past and future; (2) past and future pain and suffering (emotional distress); AND (3) Lost income and any reduction in future earnings capacity.
Punitive Damages
Damages
P may recover for punitive damages if they can show by clear and convincing evidence that D acted willfully and wantonly, recklessly or with malice.
What are the Defenses to Negligence?
- Pure Comparative Negligence
- Modified/Modern Comparative Negligence
- Contributory Negligence
- Assumption of Risk
Pure Comparative Negligence
Defenses
P’s recovery will be reduced by the percentage of their fault (i.e., negligence or assumption of risk).
Modified/Modern Comparative Negligence
Defenses
If P contributed less than 50% to their own injury then their damages will be reduced by their percentage of fault. However if P contributed more than 50% then P’s claim is barred.
Contributory Negligence
Defenses
P cannot recover damages if they contributed to his own injury. However, there are 2 exceptions: (a) Last Clear Chance Exception: When the D had the last opportunity to avoid the accident OR (b) if the D was reckless.
Assumption of Risk
Defenses
Applies if P: (1) voluntarily assumed (2) a known risk. The assumption of risk can be express by agreement or implied where an average person would appreciate the risk involved.
Can a firefighter or police offer bring a negligence claim against someone?
Assumption of Risk
NO, a professional firefighter or police offer cannot bring a coa against someone whose negligence caused their injuries as they assume the risk of injury when taking the job.
Negligence Per Se
If the following elements are met duty and breach are presumed. (1) A criminal or regulatory statute (ordinance or regulation) imposes a penalty for violation of a specific duty; (2) The D violates the statute by failing to perform that duty; (3) The P is in the class of persons intended to be protected by the statute; AND (4) The harm is of the type the statute was intended to protect against.
AKA: If met, duty and breach are satisfied.
Negligence Per Se Exception
An excused violation of a statute is a defense in the following circumstances: (a) compliance posed a greater risk of physical harm to D; (b) Violation is reasonable due to D’s disability, incapacitation or if D is a child; (c) D excersized reasonable care in attempting to comply; (d) requirements of the statute were posed in a confusing or vague manner; (e) reasonable ignorance – D was not aware of the obligation established by the statue.
Definition and Rule:
Res Ispa Loquitor
Definition: The thing speaks for itself
Rule: Applies when (1) the event is of a kind that ordinarily does not occur in the absence of negligence; (2) other responsible causes are sufficiently eliminated by the evidence; AND (3) the indicated negligence is within the scope of the D’s duty to the P.
*P just must show it ordinarily does not occur in the absence of negligence.
AKA: If met, breach is satisfied
Overview:
Neligent Infliction of Emotional Distress
Applies to Duty
There is a Zone of Danger rule, Bystander Claim rule, and Special relationship rule.
Plus breach and causation.
Zone of Danger
Neligent Infliction of Emotional Distress
P must show: (1) P was in the zone of danger of the threatened physical impact (they feared for their own safety due to D’s negligence) AND (2) the threat of physical impact caused subsequent physical manifestation of emotional distress (ex. Heart attack, miscarriage)
*No physical manifestation is required if D’s negligence created a great likelihood of severe emotion emotional distress.
Bystander Claim
Neligent Infliction of Emotional Distress
A bystander P can recover if they are outside the zone of danger if: (1) P is closely related to the person injured by the D; (2) P was present at the scene of the injury; AND (3) P personally observed (or otherwise perceived) the injury.
*A physical manifestation of the emotional distress must occur.
Special Relationship
Neligent Infliction of Emotional Distress
If a pre-existing special relationship between the P & D. AND the negligent act can foreseeably cause distress.
*Ex. Mortitian mishandling a corpse or a common carrier mistakenly reporting the death of a relative or a Dr. mistakenly diagnosing a patient with a terminal illness they do not have and the patient going into shock.
