5. Negligence Flashcards
Negligence Elements:
* A D must (1) fail to exercise such care as a reasonable person in his position would have exercised; (2) his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in the plaintiff’s position; and (3) this breach must cause the plaintiff’s damages. ****
- Duty of Care
♣ D has a duty to conform to a specific standard of care.
♣ Usually it’s like a “reasonable prudent person” - Breach of Duty
- Causation
♣ Actual and proximate cause - Damages
DUTY OF CARE
Foreseeable Victims
D owes a duty of care to foreseeable plaintiffs in zone of danger
♣ Zone of danger: area around D’s activities in which a P could foreseeably be injured
♣ RESCUER’S EXCEPTION: if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable.
• Does not apply to emergency personnel if their injury results from a risk inherent to the job
♣ Prenatal injury: duty of care is owed to a viable fetus
♣ Intended economic beneficiaries: duty of care is owed to 3rd party beneficiaries if their harm is foreseeable
DUTY OF CARE
Default Standard
♣ Reasonable prudent person (RPP)
• “D’s duty is to behave like a reasonably prudent person under the circumstances”
DUTY OF CARE: Specialized Standard of Care
Children
Children: held to the standard of care of a like child of similar age, education, intelligence and experience (subjective test).
Normally, children under 7 lack capacity to be held negligent
DUTY OF CARE: Specialized Standard of Care
Common carriers and innkeepers
Held to an “utmost care” standard
o Liable for even the slightest negligence to passengers or guests
DUTY OF CARE: Specialized Standard of Care
Custom of usage in an industry
Custom of usage in an industry can be used to est. a standard of care, but failure to adhere does not automatically give rise to breach of duty
DUTY OF CARE: Specialized Standard of Care
Professionals
Expected to act with the care of an average member of the profession in good standing
DUTY OF CARE: Specialized Standard of Care
Statutory Standard of Care
- Requirements
- Exceptions
Requirement:
♣ 1. CRIMINAL PENALTY: Statute provides a criminal penalty
♣ 2. CLEARLY DEFINED: Standard of conduct is clearly defined in the statute
♣ 3. CLASS: P is within the class of people statute is designed to protect; and
♣ 4. TYPE OF HARM: Statute is designed to protect against the type of harm P suffered
Statutory standard of care does not apply if:
♣ 1. Compliance is more dangerous than non-compliance, or
♣ 2. Compliance is impossible under the circumstances
DUTY OF CARE: Specialized Standard of Care
Statutory Standard of Care
Neglidence per se
Violation of the statute means P must only prove causation, not breach of duty
DUTY OF CARE: Specialized Standard of Care
Statutory Standard of Care
Owner/occupier of land
Owners/occupiers of land may have a duty of care for anticipated trespassers and kid trespassers.
♣ Unknown/undiscovered trespasser: no duty
♣ Anticipated trespasser:
• ACTIVITIES: owner has duty of reasonable care in carrying out activities on her property
• DANGEROUS CONDITIONS: owner has duty to make safe or warn of any known, concealed, man-made hazard
DUTY OF CARE: Specialized Standard of Care
Statutory Standard of Care
Attractive nuisance doctrine for child trespasser
Owner must take REASONABLE CARE to eliminate dangers on her property/protect children from those dangers if:
o 1. AWARE OF DANGER: She is aware or should be aware of a dangerous condition (natural/artificial) on her property
o 2. KIDS: She knows or should know children are in the vicinity
o 3. CAUSE INJURY: Condition likely to cause injury if encountered; and
o 4. Magnitude of the risk outweighs the expense of remedying it
DUTY OF CARE: Specialized Standard of Care
Licensee vs. Invitee
♣ Licensee:
• One who enters land with owner’s permission for his own benefit (not for landowner’s benefit)
o E.g. relatives, friends, social guest
♣ Invitee:
• One who enters land open to the public or enters with owner’s permission to give a commercial benefit
o E.g. store patron, concert-goer
♣ Duty of care owed:
• Activities carried out in property: reasonable care
• Known dangerous condition: duty to warn or make safe
• Duty to inspect:
o N/A for licensee
o Invitee: owner has duty to conduct reasonable inspection for non-obvious dangers and make them safe.
BREACH OF DUTY
To demonstrate a breach, P can argue:
♣ 1. D breached the applicable standard of care – includes • RPP standard • Negligence per se • Specialized standard of care • Custom or usage in an industry
- Res ipsa loquitur
BREACH OF DUTY
Res ipsa loquitur
♣ the very occurrence of the accident causing P’s injuries suggests negligent conduct
• Requirements: (P must show)
o 1. Inference of negligence (harm would not normally occur absent negligence
o 2. Attributable to D (this type of harm normally results from negligence by one in D’s position)
o 3. Injury was not attributable to P
Arises if facts cannot establish breach of duty because circumstances surrounding the event are unknown to P
CAUSATION
Actual Cause
D’s conduct must first be a cause in fact of the injury. Several tests exist:
♣ 1. “But for” test
o But for D’s alleged breach of duty, P’s injury would not have occurred
♣ 2. Burden-shifting test:
o Used if multiple Ds acts (often simultaneously), only one causes P’s injury but it’s unclear which D caused the injury
o Burden of proving actual cause shifts to Ds
If no D can prove another D was responsible, all Ds are jointly and severally liable
♣ 3. Substantial factor test:
o Used if multiple causes bring about P’s injury and any one of them alone would have caused the injury
o For multiple causes of P’s injury
o D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury
