Negligence Flashcards
Negligence
- Duty
- Breach
- Actual Cause
- Proximate Cause
- Damages
Rescuers Duty
owe independent duty to per se F P’s. Only liable if they leave the victim worse off than when they found them.
No duty to rescue or aid except when:
- D’s tortious conduct created need to rescue
- At CL, if person opts to rescue they must act Rly
- Good Samaritan statute protects rescuer unless they’re reckless or engage in intentional wrongdoing
May a special relationship create a duty?
Yes, carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies
Duty to control TP
No duty UNLESS when a special r between the D and TP gives the TP a right of protection or imposes a duty on D to control the TP’s conduct.
Providers of alcohol duty
Traditional: not responsible for DUI injuries.
Dram Shop: impose liabilit on establishments if they know or should a patron is drunk and that person drives and harms another
Duty when governmental entity?
- Proprietary function: acting in private area, treated as any other D for duty
2 Discretionary activity: using judgment and allocating resources, no duty. - Ministerial function: duty once gov has undertaken to act.
Public Duty Doctrine
Courts finds no duty when professional rescuers (police/firefighters) fail to prove adequate responses, except:
- special relationship, or
- agency increased danger
Negligent Infliction of Emotional Distress
- D engages in N conduct and P suffers emotional distress as a result w/ some sort of physical manifestation
- Exception: mishandling of corpse, D Nly shares info about the death of a loved one
Bystander actions
- P located near scene or incident,
- P suffered severe emotional distress; and
- P had close r w/ victim (immediate family member)
CL - zone of danger
Wrongful conception
Birth of a healthy child after P took steps to avoid conception
Dmgs - cost of N procedure
Wrongful Birth
Birth of child w/ abnormalities, disease, or disability when physician failed to diagnose issues during pregnancy. Mother must testify that she would have had an abortion if the knew.
Wrongful Life
Childs claim for having been born w/ anomalies, disease, or disability b/c physician failed to diagnose. Most states don’t allow
Duties landowner owes
- invitees
- licensees
- trespassers
Invitees
Enter onto Ds land at D’s express or implied invite for a purpose relating to D’s interest or activities.
- public purpose
- D has duty to exercise RC t prevent injuries caused by activities conducted on D’s land.
- duty to Rly search out dangers on property
- RC
Licensees
Enters D’s land w/ D’s express or implied permission and are not there for a purpose of benefitting D or D’s activities. Social guests
- D must warn of known concealed dangers
- RC
Trespassers
Enter D’s land w/o exp or implied consent of land possessor. Duty to avoid infliction of willful or wanton harm
- if known, duty to warn of known and concealed dangerous artificial condtion. RC if known
Attractive Nuisance Doctrine
Child treated as invitee if:
- too young to appreciate the danger
- D knows or has reason to of the trespass
- D knows of the dangerous condition,
- condition is artificial, and
- risk of danger of the artificial condition outweighs its utility and burden to fix it.
If P is not on the land but adjacent to it
Artificial condition - duty of RC
Natural condition - no duty except tress in urban areas
When is a LL liable?
- Common areas over which LL retains control
- N repairs
- At time of lease, LL knows of a concealed dangerous condition; or
- LL knows that t is going to hold property open to public
Standard of Care?
R prudent person of ordinary sensibilities. May take into account (physicial conditions and emergencies not of D’s own making)
Children std of care
Minor d’s conduct is assessed according to what a R child of the same age, experience, education, and intelligence as D would have done.
Exception: engaging in adult activities.
Statutory N
Statutes that provide civil liability supersede CL of torts.
N per se
Criminal Statute: right person and right harm.
- expired drivers license doesn’t count
Medical Malpractice S of C
- Relv geographical community
- liable for battery if lacking informed consent
- physician must divulge risks
- material risks
Specialists S of C
National Std
General Practicioners S of C
locality std
Lawyers, architects, accountants
So long as the professional complies w/ custom, professional can’t be found to have breached their duty.
Breach of Duty
May show direct or circumstantial evidence to prove
Slip and Fall Cases Breach
Dangerous condition was present long enough D should have noticed it.
Res ipsa loquitur
Allows jury to infer D’s breach based on nature of the accident.
P must show:
1. sort of accident doesn’t normally occur absent N
2. D is probably the responsible party b/cD had control over instrumentality of the harm; and
3. P did not contribute to the injury.
Actual Cause
P shows that, it is more likely than not, that but for D’s Negligent, P would not have been injured.
but for test or substantial factor test
Substantial Factor Test
When more than one D causes harm, but each along would have been enough to cause the entire harm. Assume joint and several liability so that D’s may seek to indemnify themselves.
Loss of Chance
P must show that but for the med mal, P would not have lost chance/died. Minority rule
Alternative Liability Theory
When to apply: all d’s are tortious/N, all D’s are being sued together, and small number of D’s.
Market Share Liability
Generic product: P can’t show which of a large group of N D’s was responsible for manufacturing the product that caused her harm. P can sue those who might have caused her harm and each D is responsible based on its share of the market.
Proximate Cause
F plaintiff, F injury (even if extent of harm is unF)
Eggshell P Rule
Take your victim as you find them.
Superseding Cause
Unf, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. Typically criminal conduct.
Damages
P must prove dmgs, meaning there must be a cognizable injury. Nominal dmgs are not avaiable.
Avoidable Consequences Rule
P must take R steps after injury to not increase/exacerbate injury.
Special Dmgs
Pecuniary medical costs, lost wages, and cost of repair. Easy to put a dollar amount to.
Collateral Source Rule
Fact that P has insurane to cover some or all dmgs does not mean that the D does not have to pay.
General Dmgs
Pain and suffering and punitive dmgs (ratio)
