Chapter 10 Negligence

Question 1

Negligence Elements

Answer 1

1) Duty. 2) Breach of Duty. 3) Causation. 4) Damages or injury.

Question 2

1. Duty

Answer 2

What (is) Duty: To act as a reasonably prudent person under all circumstances.
To Whom is the duty owed: Owed to all reasonably foreseeable plaintiffs.

Question 3

Palsgraf v. L.I.R.R. (Railroad case)

Answer 3

The Court said: “The duty of care is owed to reasonably foreseeable plaintiffs.” Railroad won this case! Also known as the zone of danger.

Question 4

Duty: Forseeability

Answer 4

Will figure into negligence law in all four of the elements.

Question 5

Hernandez vs. Arizona Board of Regents

Answer 5

A fraternity held a party where a minor consumed alcohol. The minor, leaving the party drunk, drove his car into the plaintiff causing injuries. Social host liability applies here. When you have a party, anyone who leaves your house drunk and drives, has your liability on the bumper of their car in CT! Frat was held responsible for the plaintiff, and any person that may be hurt by the plaintiff!

Question 6

What Duty? Prudent/Ordinary Care

Answer 6

Prudent: exercising caution or circumspection as to danger or risk under all circumstances. The circumstances matter!

Question 7

Owners and possessors (tenants) of land:

Answer 7

Duty to: Keep premises free from dangerous conditions, warn of the existence of known dangerous conditions and repair them, knowledge includes what you should have known (constructive notice).

Question 8

Culli vs. Marathon Petroleum Co.

Answer 8

Culli slipped on the clearish slippery substance in gas station. When she sued, the defendant claimed to have not had any knowledge of the existence of the dangerous condition.
The Court said: Based on the pattern of the owners, the court imposed knowledge onto the Gas station owner!
Owner had the knowledge to fix this recurring pattern but they turned their face away and did not. They had an obligation to stay in the kiosk, only to leave to restock things (apparently) and they knew that people always spill things, but they do not leave to clean it immediately, therefore they had the knowledge but chose to not to fix it.

Question 9

May a property owner avoid liability by claiming lack of knowledge?

Answer 9

Knowledge may be “constructed” by law and circumstances (constructive knowledge) even where actual knowledge was absent, if the dangerous condition: existed for a sufficient amount of time so that it would have been discovered, or was part of a pattern of conduct or a recurring incident.

Question 10

Duty: Professionals

Answer 10

Must act as a reasonably prudent professional (requisite skill, knowledge and expertise).
Example: Accountants must act with the requisite care, skill, knowledge and expertise of other accountants.

Question 11

Professional Negligence/Malpractice Claims

Answer 11

The jury does not know what the doctor is supposed to know or how the doctor is supposed to act or not act! Therefore they require expert testimony!

Question 12

No affirmative duty to help someone in danger

Answer 12

You have no duty to them! However if you choose to help someone in danger, you are going to be held as a reasonably prudent person!

Question 13

Good Samaritan Law

Answer 13

This insulates people from liability, if they do in fact act, but do not do so prudently! As long as you acted in good faith, then you wont be liable for not acting reasonably. Statutes are interpreted by courts, and they are different in states.
Exceptions: Relationship (parent-child; employer-employee. If you put someone in danger.

Question 14

2. Breach of Duty

Answer 14

May be shown by comparison of the costs of being careful versus the risk of harm.
Jury’s decision: Weighing the considerations to determine what the “reasonably prudent person” would have done under the circumstances.

Question 15

Breach of Duty may be shown by:

Answer 15

1) Failure to meet industry standards, customs or practice. 2) Proof of Violation of Statute (Negligence per se). 3) Res Ipsa Loquitor.

Question 16

Failure to meet Industry Standards, Customs or Practice

Answer 16

Caveat: The whole industry may be careless!

Question 17

Proof of Violation of Statute (Negligence per se)

Answer 17

Where the legislature has already determined what conduct is reasonably prudent and what conduct is not! Then it is no longer up to the jury to have to make that determination. Selling alcohol to a minor is a crime–and, therefore, is also a breach of the duty of care!

Question 18

Res Ipsa Loquitor

Answer 18

The thing speaks for itself!
1) The incident that produced the injury was of a kind that would not have resulted but for someone’s carelessness, and 2) the instrumentality of the injury was in the exclusive control of the Defendant, then the burden of proof is shifted to the Defendant to prove that he was NOT careless (Rather than remaining on the Plaintiff to prove that the Defendant WAS careless).

Question 19

Anderson vs. Service Merchandise Company

Answer 19

Anderson sued both SMC and Sylvania (about getting in head and neck by a light fixture at the retail store), relying on res ipsa loquitor to prove the breach of duty.
The Court said: Service Merchandise was in “exclusive control” of the premises for the purposes of res ipsa loquitor, because it possessed and controlled the site of the accident to protect Anderson. Anderson won!

Question 20

3. Causation

Answer 20

Causation requires both Actual Cause and Legal Cause.

Question 21

Actual Cause (Cause in Fact)

Answer 21

“But for the negligence, the injury would not have occurred” AND Proximate cause! Example: But for my failure to stop at the stop sign, the injury to the other driver would not have occurred.” Therefore my failure to stop at the stop sign caused the other drivers injury.

Question 22

Legal Cause (Proximate Cause)

Answer 22

Is the injury “a natural and probable result” of the breach of duty? (Foreseeability)

Question 23

Tu Loi vs. New Plan Realty Trust

Answer 23

1) Tu Loi sued the property owner for failure to maintain the Stop sign. The defendant claimed the incident that caused the injury was not foreseeable.
2) The Court said: A tortfeasor is not relieved from liability simply because his victim suffered a foreseeable harm in an unforeseeable manner!
3) You need to foresee that the conduct might result in the injury! (foresee a fire happening, do not necessarily need to see the EXACT mechanism of the fire starting (the terrorist who set the place on fire). Although the exact mechanism could not be foreseen, New plan Realty Trust can’t be relieved here! They are is still responsible!

Question 24

4. Damage or Injury

Answer 24

The plaintiff must actually suffer an injury-either a bodily injury or an economic loss (i.e. property damage).

Question 25

Compensatory Damages

Answer 25

To compensate for losses. Can be A) Economic or B) Non-economic!

Question 26

Economic Damages

Answer 26

Include: Past and future medical bills (past=prior to the trial), lost wages, impairment (diminution) of earning capacity.
For impairment, you need expert testimony, for example if you claim you can not lift things over 25 lbs, as now some jobs can no longer be available to you.

Question 27

Non-economic Damages

Answer 27

Include: Physical pain and emotional suffering, loss of society, permanent disfigurement, impairment of physical abilities, and loss of enjoyment of life!

Question 28

Punitive Damages

Answer 28

To punish the wrongdoer or tortfeasor and discourage others from acting in the same way. Extremely rare in all tort cases! Not allowed in many states; may be allowed in intentional tort cases. No punitive damages in negligence cases!

Question 29

Vicarious Liability

Answer 29

Respondeat Superior: an employer will be liable for the negligent acts of the employee as long as the employee acting within the scope of his/her employment at the time of this negligent act or omission.

Question 30

Defenses to Negligence:

Answer 30

Comparative Negligence and Liability Insurance.

Question 31

Comparative Negligence

Answer 31

Jury compares the negligence of the plaintiff and the defendant, and then to adjust the outcomes (award) in the end.

Question 32

Liability Insurance

Answer 32

Insurance that you buy to protect your assets so that if you act unreasonably or harm someone, your assets will not be harmed (House will not be taken if someone slips on your apartment). Intentional torts are not covered by insurance (Can not go around hitting people with a baseball bat).

Question 33

Insurance drives the handling of a tort case!

Answer 33

Liability insurance is never mentioned in the courtroom. It is not part of the jury’s deliberations or consideration, although it is a crucial factor in settlement negotiations.