(2) Torts: Negligence

Question 1

Negligence Overall Rule

Answer 1

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)

Question 2

How to analyze:

Duty

Answer 2

Analyze duty by looking at Foreseeable P and applicable Standard of Care

Question 3

Foreseeable Plaintiff Views

Duty

Answer 3

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.

Question 4

Affirmative Duty to Act

Foreseeable Plaintiff Views

Answer 4

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.

Question 5

Rule:

General Standard of Care

Answer 5

Every person owes a duty to act as a reasonable prudent person would act under like circumstances to all foreseeable P’s.

Question 6

General Standard of Care in an Emergency

General Standard of Care

Answer 6

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.

Question 7

General Standard of Care of intoxicated persons

General Standard of Care

Answer 7

Intoxicated individuals are held to the same standard as sober persons unless the intoxication was involuntary.

Question 8

General Standard of Care of Disabled Persons

General Standard of Care

Answer 8

A mentally disabled person is held to the standard of someone with ordinary intelligence and knowledge.

Question 9

General Standard of Care of a Person w/physical disabilities

General Standard of Care

Answer 9

A D’s physical characteristics (ex. Blind) are taken into account. Must analyze conduct based upon a reasonably careful person with the same disability.

Question 10

Landowner Standard of Care - Traditional Rule

Answer 10

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).

Question 11

Unknown Trespasser

Landowner Standard of Care - Traditional Rule

Answer 11

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.

Question 12

Known Trespasser

Landowner Standard of Care - Traditional Rule

Answer 12

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).

Question 13

Licensee

Landowner Standard of Care - Traditional Rule

Answer 13

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.

Question 14

Invitee

Landowner Standard of Care - Traditional Rule

Answer 14

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.

Question 15

Attractive Nuisance Doctrine

Landowner Standard of Care - Traditional Rule

Answer 15

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.

Question 16

Landowner Standard of Care - Modern Trend Approach

Landowner Standard of Care

Answer 16

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.

Question 17

Duty of a Parent

Answer 17

No duty for their minor childs negligent actions, unless under their instructions.

Question 18

Duty of a Child - General Standard of Care

Answer 18

Standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.

Question 19

Duty of a Child - in Adult Activities

Answer 19

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.

Question 20

Duty of a Child - Physically Disabled Children

Answer 20

Must act a reasonable child with the same disability would in a similar circumstance.

Question 21

Duty of a Child - Very Young Children Standard

Answer 21

Children under the age of 5 are exempt from negligence liability.

Question 22

Duty of a Child - With Instructions from a Parent

Answer 22

When a child receives instructions from a parent about taking necessary precautions, the child can be found negligent for failing to follow.

Question 23

Traditional Rule and Modern Trend:

Duty of a Medical Doctor

Answer 23

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.

Question 24

Minority vs Majority

Informed Consent

Duty of a Medical Doctor

Answer 24

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.

Question 25

Disclosure Rule

Duty of a Medical Doctor

Answer 25

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).

Question 26

Rule / How is the Standard Established / Types of professionals?

Duty of a Professional (Lawyer’s Standard)

Answer 26

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.

Question 27

Duty to Rescue

Answer 27

Reasonably prudent person standard applies unless there is a good Samaritan statute.

Question 28

Assumption of Duty Rule

Duty to Rescue

Answer 28

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).

Question 29

Overall Rule

Breach of Duty

Answer 29

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.

Question 30

Traditional Approach

Breach of Duty

Answer 30

Courts compare the D’s conduct with what a reasonably prudent person under the circumstances would have done.

Question 31

Cost-Benefit Analysis

Breach of Duty

Answer 31

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.

Question 32

Causation

Answer 32

A P must show that the D’s conduct was both the actual and proximate cause of the injury.

Question 33

Actual Cause

Answer 33

Actual Cause (“but for”) [substantial factor test]
Rule: Is the “but for” cause – but for D’s negligence, p would not have been injured.

Question 34

Substantial Factor Test

Actual Cause

Answer 34

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.

Question 35

Alternative Causation

Actual Cause

Answer 35

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.

Question 36

Proximate Cause

Answer 36

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.

Question 37

Intervening Cause

Proximate Cause

Answer 37

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.

Question 38

Eggshell Plaintiff Rule

Proximate Cause

Answer 38

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.

Question 39

Superseding Cause

Proximate Cause

Answer 39

Most courts hold that an unforeseeable intervening act is a superseding cause and breaks the chain of causation if the results are unforeseeable.

Question 40

Damages

Answer 40

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.

Question 41

Collateral Source Rule

Damages

Answer 41

Any payments or benefits provided to P from outside sources are not credited against D’s liability.

Question 42

Property Damage Rule

Damages

Answer 42

The P may recover the difference in the fair market value immediately before and after injury.

Question 43

Personal Injury Rule

Damages

Answer 43

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.

Question 44

Punitive Damages

Damages

Answer 44

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.

Question 45

What are the Defenses to Negligence?

Answer 45

1. Pure Comparative Negligence
2. Modified/Modern Comparative Negligence
3. Contributory Negligence
4. Assumption of Risk

Question 46

Pure Comparative Negligence

Defenses

Answer 46

P’s recovery will be reduced by the percentage of their fault (i.e., negligence or assumption of risk).

Question 47

Modified/Modern Comparative Negligence

Defenses

Answer 47

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.

Question 48

Contributory Negligence

Defenses

Answer 48

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.

Question 49

Assumption of Risk

Defenses

Answer 49

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.

Question 50

Can a firefighter or police offer bring a negligence claim against someone?

Assumption of Risk

Answer 50

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.

Question 51

Negligence Per Se

Answer 51

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.

Question 52

Negligence Per Se Exception

Answer 52

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.

Question 53

Definition and Rule:

Res Ispa Loquitor

Answer 53

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

Question 54

Overview:

Neligent Infliction of Emotional Distress

Answer 54

Applies to Duty

There is a Zone of Danger rule, Bystander Claim rule, and Special relationship rule.

Plus breach and causation.

Question 55

Zone of Danger

Neligent Infliction of Emotional Distress

Answer 55

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.

Question 56

Bystander Claim

Neligent Infliction of Emotional Distress

Answer 56

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.

Question 57

Special Relationship

Neligent Infliction of Emotional Distress

Answer 57

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.