Module 6: Negligence

Question 1

Negligence

Answer 1

An unintentional tort

- Harm arises by accident

Question 2

Plaintiff mus show four elements in order to prove a negligent claim:

Answer 2

Defendant:

1) has a (Duty of Care) to the plaintiff.
2) Defendant has Breached that duty of Care (Breach of Duty).
3) Defendant’s breach of duty Caused the plaintiff harm (Causation)
4) The plaintiff suffered (Damages) (harm)

Question 3

Duty of Care

Answer 3

The obligation to not cause any unreasonable harm or risk of harm to another.

Question 4

Two Types of Duty of Care

Answer 4

• General Duty of Care

- Affirmative Duty of Care

Question 5

General Duty of Care

Answer 5

– A duty to behave as a hypothetical reasonable person would under given circumstances
– The courts apply a reasonable person standard.
– Did the defendant act as a reasonable person in the same or similar circumstance?
– EX: duty to drive while not being distracted; duty to keep own child out of danger; duty of keep one’s
own dog leashed

Question 6

Affirmative Duty of Care

Answer 6

– Created by contract. Defendant agrees to take on a particular duty of care
– EX: Lifeguard duty to monitor pool safety; babysitter to take care of child not his own; paramedic duty
to provide medical assistance; lawyer’s duty to give good legal advice to his client

Question 7

Duty of Care

Answer 7

Duty of care is sensitive to context such as time, place, and manner
• EX: Driving 55 MPH on a highway on a sunny day is a reasonable act
• EX: Driving 55 MPH on a highway in the middle of a blizzard at night is an unreasonable act
Duty of care varies according to professional obligation
– Doctor has a different duty than a nurse. Nurse has a different duty than an orderly, etc.
• Duty of care varies according to professional standards/expectations
– Using 1995 information technology security standards in today’s world be a breach of a firm’s duty
of care to keep its customer’s information private (assuming it had that responsibility)
– Modern hospitals must use modern medical standards and practices

Question 8

Special Duties of Care: Landowners to Individuals on

Their Land - 3 Distinctions:

Answer 8

1) Trespasser
2) Licensee
3) Invitee

Question 9

Trespasser

Answer 9

Person on property without the landowner’s consent.
– No duties of care, except can’t intentionally injure trespasser
– Attractive nuisance – if man made object on land that reasonably expected to attract children
(tree house), liable for harm

Question 10

Licensee

Answer 10

Person on property by invitation or permission, such as a social guest
– Duty to warn hidden dangers that the landowner knows about
– No duty to warn about obvious dangers to licensees

Question 11

Invitee

Answer 11

Person on property for a business purpose, such as a shopper, or is a
public place, such as a beach or park
– Duty to warn against hidden and obvious dangers
– Liable regardless if you knew about danger or not

Question 12

Breach of Duty of Care

Answer 12

• Failure to act as a hypothetical reasonable person would under the same or similar
circumstances. This element is tied to element #1 Duty of Care.
• Plaintiff meets this requirement if the defendant did not meet the standard set in her duty of
care (see element #1)
• Did the defendant fail to act as a reasonable person or a reasonable professional?
• Did the defendant fail to warn social guests of hidden dangers on his land?
• Did the babysitter fail to closely watch the child under her care?

Question 13

Causation

Answer 13

• Plaintiff must show that the defendant’s breach of duty of care caused the plaintiff’s harm
• Factual Cause
– If the defendant’s act led to plaintiff’s harm, this is factual cause. Did “A” cause “B”?
• Proximate Cause
– A person is not necessarily liable for all harms set in motion by his or her negligent act
– Was it reasonably foreseeable that the defendant’s action would cause someone like the plaintiff
harm? Is it foreseeable that if…
• a person drives intoxicated that he/she could injure others? Yes
• a lawyer gives incorrect legal advice that a client could be harmed? Yes
• a driver honks their horn to avoid danger that a passerby could suffer a heart attack from the noise? No

Question 14

Harm

Answer 14

• Plaintiff must show damages to recover from defendant’s negligence
– Personal injury
– Damages to property
– Effect on plaintiff’s life or profession

Question 15

Three Defenses to Negligence

Answer 15

1) Contributory Negligence
2) Comparative Negligence
3) Assumption of the Risk

Question 16

Contributory Negligence

Answer 16

– If plaintiff is at all at fault for her own negligence, plaintiff recovers no damages from defendant
– EX: If a speeding motorcycle collides with a truck who ran a red light, both are negligent. The motorcyclist
will not be able to recover any damages from the truck driver.

Question 17

Comparative Negligence

Answer 17

– If plaintiff is at all at fault for her own negligence, jury can award a reduced percentage of damages
based upon how much plaintiff was at fault.
– EX: If a speeding motorcycle collides with a truck who ran a red light, both are negligent. If the
motorcyclist is 20% responsible for her own injuries and the truck is 80% responsible for the motorcyclist
injuries, the truck driver will be liable for 80% of the motorcyclist’s injuries.

Question 18

Assumption of the Risk

Answer 18

– A person who voluntarily engages in an activity where danger is inherent part of that activity, the
individual cannot recover for negligence against the activity’s provider
– EX: attending a baseball game, assume the risk of errant foul balls
– EX: go skydiving, assume the risk of injury or death from sudden high winds
– Individuals do not assume risks from negligent conduct
– EX: Jane rents skis that are defective from poor maintenance, Jane crashes because the skis fail. Jane
does not assume the risk of poor maintenance and can sue the defendant for negligence

Question 19

A Defense from Negligence

Answer 19

is a barrier to partial or full recovery that is raised by the defendant against the plaintiff (Even if the plaintiff has proven all elements of negligence, the plaintiff can still lose their case if a defense applies.

Question 20

Strict Liability

Answer 20

Some activities are so inherently dangerous that the law places
a very high burden on anyone who engages in that activity
• If a defendant engages in an ‘ultra hazardous’ activity, they are
almost always liable for harm that results
– No matter how careful they are
– No matter how unforeseeable the harm may be
• Examples:
– use and storage of explosives
– blasting and demolitions
– use, transport or storage of hazardous chemicals
– activities involving radioactive materials
– Keeping wild animals

Question 21

Product Liability - 4 Types

Answer 21

• Negligent Design
• Negligent Manufacturing
• Failure to warn
• Strict Liability

Question 22

Negligent Design

Answer 22

Consumer injured because manufacturer designed product poorly.

Question 23

Negligent Manufacture

Answer 23

Adequate design, but the way the product was manufactured was negligent.

Question 24

Failure to Warn

Answer 24

• Manufacturer did not warn against reasonable uses.

- Manufacturer does not have to warn against unreasonable uses.