Negligence

Question 1

What are the elements of Negligence?

Answer 1

• Duty
• Breach
• Causation (actual and legal cause)
• Damages

Question 2

Duty Rule

Answer 2

Does the law impose obligations from D to P?

Rule: D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others

Question 3

Duty: The Foreseeable Plaintiff

Answer 3

D owes this duty only to those persons inside the geographic zone of danger at the time of D’s negligence

i) Rescuers owed an independent duty
ii) Nonprofessional rescuers are foreseeable P’s as a matter of policy and can recover against negligent party creating need

Question 4

Duty: Nonfeasance

When do you have no duty to rescue?

Answer 4

Failure to intervene/confer benefit on the P

i) No duty to rescue or aid, except when:
(1) D’s tortious conduct creates need to rescue;
(2) Undertaking to act—at common law, you do not have to intervene but if you do, must act reasonably (many states have enacted Good Samaritan statutes—rescuer protected unless rescuer is reckless or engages in intentional wrongdoing)
(3) Special relationship of dependence or mutual dependence (carrier/passengers, inn keeper/guest, captain/passengers, drinking buddies)

Question 5

Duty: Nonfeasance

Duty to Control 3rd Parties

Answer 5

(1) No duty to control the conduct of a third party as to prevent harm to another.

Exception: a special relationship between D and the third party that gives the third party a right of protection or imposes a duty on D to control the third party’s conduct

(2) Providers of alcohol
(a) Traditional Rule: Purveyor not responsible for DUI injuries
(b) Dram Shop Acts: impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party

(3) Negligent Entrustment
(a) When D gives something dangerous to someone D knows, or should know, is not competent to handle it (i.e., Father gives gun to infant who shoots P)

Question 6

Duty: Nonfeasance

Duty to Protect

Answer 6

Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless:

(a) Special relationship – Landlord/Tenant, Business/Invitee
(b) Some jurisdictions only find a duty where there is a special relationship and prior similar incidents that make the third party criminal conduct particularly foreseeable

Question 7

Duty: Nonfeasance

D is Government Entity

Answer 7

Whether a duty is owed depends on function

(1) Proprietary function (acting in private area) –> Treated as any other D for duty analysis
(2) Discretionary activity (using judgment and allocating resources i.e., setting policy) –> Courts will not find a duty
(3) Ministerial function –> Duty once government has undertaken to act (e.g.,: stop sign installed incorrectly leading to accident)
(4) Public Duty Doctrine: Courts find no duty when police officers/firefighters fail to provide an adequate response, except when:
(a) Special relationship; or
(b) Agency has increased the danger beyond what would otherwise exist

Question 8

Duty

Answer 8

If P’s injury is not a personal injury or property damages, duty issues arise

i) Negligent Infliction of Emotional Distress NIED (courts reluctant)
(1) D engages in negligent conduct and, as a result, P suffers emotional distress + some sort of physical manifestation
(a) Most jurisdictions require P to be in the zone of danger – At risk of physical harm
(b) P must have suffered a physical manifestation of the emotional distress, proving genuineness
(c) Exceptions to these requirements:
(i) D negligently shares information about the death of a loved one
(ii) D negligently mishandles a corpse

 (2) Bystander actions = Physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative
      (a) P was located near the scene of the incident
      (b) P suffered severe emotional distress
      (c) P had a close relationship with the victim (immediate family member)

ii) Wrongful Conception, Birth, and Life

Question 9

Duty: D is a land owner

Plaintiff’s on land = Invitees

Answer 9

i) Plaintiffs on the Land
(1) Invitees = Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities –> D has a duty to exercise reasonable care to prevent injuries caused by activities conducted on D’s land

Question 10

Duty: D is a land owner

Plaintiff’s on land = Licensees

Answer 10

(2) Licensees = Enters D’s land with D’s express or implied permission and are not there for a purpose benefiting D or D’s activities, nor is the land held open the public (i.e., social guest) –> Must warn of known concealed dangers (just warn, not cure)

Question 11

Duty: D is a land owner

Plaintiff’s on land = Trespassers

Answer 11

(3) Trespassers = Enters without express or implied consent of land possessor –> Duty to avoid infliction of willful or wanton harm

Question 12

Duty: D is a land owner

Other Duties Owed by Land Possessors

Answer 12

(1) D is engaged in an activity on the land –> Duty of reasonable care owed to all except trespassers
(2) ONLY for an invitee does LO have a duty to reasonably search out dangers on the property
(3) If known or frequent trespassers (must be obvious- e.g., a well-worn path) –> Duty to warn of concealed dangerous artificial conditions

Question 13

Duty: D is a land owner

Child Trespassers (Attractive Nuisance Doctrine)

Answer 13

A heightened standard of care may apply as to artificial conditions on D’s land. Even though the child is trespassing, if the below prerequisites are met, the child will be treated as an invitee:

 (1) Too young to appreciate the danger;
 (2) D knows, or has reason to know, of trespass;
 (3) D knows of the dangerous condition;
 (4) Condition is artificial (fountain, pool, equipment that looks fun to climb on); and
 (5) The risk of danger of the artificial condition outweighs its utility and burden to fix it

Question 14

Duty: D is a land owner

P’s not on the land but adjacent to it

Answer 14

iv) P’s not on the land but adjacent to it
(1) Artificial condition on land –> duty of reasonably care
(2) Natural condition from land –> no duty except trees in urban areas

Question 15

Duty: D is a land owner

Landlord/Tenant

Answer 15

v) Landlord / Tenant
(1) LL not liable unless:
(a) Common area over which LL retains control;
(b) Negligent repairs;
(c) At time of lease, LL knows of a concealed dangerous condition; or
(d) LL knows that T is going to hold property open to the public

Question 16

Standard of Care: Reasonable Prudent Person

Objective standard of care

Answer 16

Reasonable Prudent Person (RPP) under same or similar circumstances

i) Objective standard of care – D’s conduct measured against expectation of conduct within community
(1) Law does not take into account mental ability, speed of reflexes, or mental health
(2) The law does take into account:
(a) Physical conditions (blind, deaf, amputee) –> D held to the standard of a RPP with that condition (ex: RP blind person)
(b) Emergencies not of D’s own making considered by jury—(e.g., Rushing to hospital because child is dying). Jury can consider emergency to determine whether D acted reasonably under the circumstances

Question 17

Standard of Care: Reasonable Prudent Person

Breach = Failure to act as a RPP

Answer 17

Factors to analysis breach:

(1) What is the probability of harm occurring from D’s conduct?
(2) What is the likely magnitude of the harm going to be?
(3) What is the burden on D to avoid the harm?

Question 18

Standard of Care: Children

Answer 18

Minor D’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence, as D, would have done

 (1)	Exception: Children engaging in adult, inherently dangerous activities are held to an adult standard of care (ex: driving)

Question 19

Standard of Care: Statutory Negligence

Answer 19

Statutes that provide civil liability supersede common law of torts (ex: A state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort. Thus, if P was not wearing a seatbelt when injured in a car accident, P cannot recover in a negligence action)

Question 20

Standard of Care: Negligence Per Se

Answer 20

Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes (ex: crim traffic law)

i) Applicable if:
(1) P is member of a class the law is designed to protect; and
(2) Injury caused by D’s conduct is the type of statute sought to protect

ii) If statute applies –> (majority rule) unexcused violation of the law establishes D breached duty to
P. P still needs to prove proximate cause, damages, etc.
(1) Exception: Excused statutory violation, like an emergency not of D’s own making, or when it’s more dangerous to comply with the law
(2) Exception: Licensing statutes – Not having a license does not create liability
(a) Expired driver’s license is not negligence per se

iii) When statute does not apply –> statute will not set standard of care, case proceeds under RPP, not under negligence per se

Question 21

Standard of Care: Professionals

Med Mal

Answer 21

Custom establishes standard of care for professionals

i) Medical Malpractice: Physicians required to possess and use the knowledge, skill, and training of other physicians in good standing in relevant geographiccommunity
(1) Specialists = National standard
(2) General practitioners = Locality standard

Question 22

Standard of Care: Professionals

Lawyers, Architects, Accountants

Answer 22

so long as professional complies with custom, cannot be found to have breached duty—deviation from custom means breach of that duty

Question 23

Standard of Care: Professionals

Lack of Informed Consent

Answer 23

(1) Traditional (battery): Physician is liable for battery if no informed consent about risks; consent is negated because of lack of disclosure –> still the case when there is gross deviation from actual consent (ex: P agrees to tonsillectomy, but leg is amputated instead)
(2) Traditional (negligence): Physician must divulge risks that are customarily divulged
(3) New Trend – Standard of materiality: Physician must divulge all material risks, risks that a reasonable patient would want to know in deciding whether to undergo procedure. Failure to divulge material risk is malpractice IF P can show that P would have refused procedure if risk was divulged

Question 24

Breach of Duty = Failure to Meet Standard of Care

Answer 24

a) Direct Evidence (rare) – Eye witness or recording of the accident while occurring

b) Circumstantial – Evidence from which one can draw reasonable inference
i) Slip-and-Fall Cases –> P must show that D was negligent for not discovering, and repairing, the dangerous condition—dangerous condition was present long enough that D should have noticed it (Ex: Slipped on rotten banana peel)
ii) Res Ipsa loquitur –> Allows jury to infer D’s breach based on the nature of the accident and D’s relationship to it
(1) Only used to show breach
(2) P needs to show:
(a) This sort of thing does not occur absent negligence;
(b) D is probably the responsible party because D had control over instrumentality of harm; and
(c) P did not contribute to the injury

Question 25

Cause in Fact (Actual Cause) Generally

Answer 25

P shows that, more likely than not, but for D’s negligence, P would not have been injured –> other reasons don’t matter. Preponderance matters as long as more than 50%, then D is liable for full extent of damages under “the but” for test

There are four big areas where this arises

Question 26

Cause in Fact (Actual Cause)

Multiple Causes

Answer 26

(instead of “but for” test) = Used when 2 Ds cause harm, but each D alone would have been sufficient to cause the entire harm –> each D is a
cause-in-fact if D was a substantial factor in causing the harm (Ex: Two arsonists’ fires burn down same mansion)
(1) Assume joint and several liability = P can sue one or both Ds and collect entire amount from one D alone; D found liable can seek contribution from other D

Question 27

Cause in Fact (Actual Cause)

Loss of Chance

Answer 27

(typically medical malpractice situations) (not a majority rule)

(1) P must show that but for the medical malpractice, P would not have lost chance/died (e.g., if Doctor found the cancer, P would have had a 40% chance of survival—P would lose because there was a 60% chance P would have died)
(2) Many jurisdictions now recharacterize injury to loss of chance and damages are reduced but not extinguished

Question 28

Cause in Fact (Actual Cause)

Alternative Liability Theory

Answer 28

(Summer v. Tice – two hunters shoot at quail and hit P)

(1) When to apply:
(a) All Ds are tortious/negligent;
(b) All Ds are being sued together (can’t use if one D is left out); and
(c) Small number of Ds

(2) Burden shifts to Ds to show that they were not the cause. If D cannot do so, they will be jointly/severally liable

Question 29

Cause in Fact (Actual Cause)

Market Share Liability

Answer 29

(1) Generic product—P cannot show which of a large group of negligent D’s was responsible. P can sue those who might have caused P’s harm and each D is responsible based on its share of the market
(2) Several liability – X had 10% of the relative market; X will pay 10% of P’s damages unless X can show it could not have made product that harmed

Question 30

Proximate Cause (Legal) Cause: Policy reasons to cut off liability

Unforeseeable Extent of Harm

Answer 30

Does not matter that P suffered more harm than one would foresee –> D is responsible for the full extent of harm, as long as the type of harm is foreseeable
i) Eggshell skull rule: Take your victims as you find them. It does not matter if P is susceptible to greater harm because of a unique susceptibility, like an eggshell skull

Question 31

Proximate Cause (Legal) Cause: Policy reasons to cut off liability

Unforeseeable Type of Harm

Answer 31

Was the injury suffered within the risk created by D’s negligent conduct?
i) Ex: Rat poison on the spice rack. Poison is foreseeable. Its explosion is not

Question 32

Proximate Cause (Legal) Cause: Policy reasons to cut off liability

Unforeseeable Manner of Harm

Answer 32

i) Superseding Cause – Unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury –> Relieves original tortfeasor of liability for lack of proximate cause
ii) The more culpable the intervening force, the more likely it supersedes
iii) Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability. Look for passage of time to gauge whether the conduct moves from intervening to superseding (at some point liability is cut off)
iv) Examples of superseding causes: Unforeseeable criminal acts or torts of third parties, highly extraordinary harm arising from D’s conduct, including gross negligence by third parties, and acts of nature

Question 33

Damages Generally

Answer 33

P must affirmatively prove damages (must be a cognizable injury)

a) Personal injury and property damages are recoverable
b) Nominal damages are not available
c) Punitive damages are not available for just negligence

Question 34

Damages: Compensatory Damages

Answer 34

return P to pre-injury position

i) Requires:
(1) Type must be foreseeable (not the extent, but the type of damage);
(2) Must be reasonably certain (not speculative); and
(3) Not avoidable

ii) Two categories:
(1) Special Damages – Pecuniary (medical costs), lost wages, and cost of repair
(a) Can recover past, present, and future damages (future reduced to present value)
(b) Collateral Source Rule – The fact that P has insurance does not mean D does not have to pay up. Also applies to gratuitous services
(2) General Damages – More controversial because intangible and difficult to measure
(a) Pain and suffering

Question 35

Damages: Punitive Damages

Answer 35

never recoverable just for negligent conduct – D’s acts must be more culpable than negligence (like willful, malicious, or reckless)

i) Wealth of D is highly relevant
(1) The Due Process Clause limits the amount. Generally, more than 10% ratio to compensatory damages is considered to be unconstitutional

Question 36

Defenses to Negligence: Contributory Negligence

Answer 36

Any fault by P bars recovery

• D has the burden of proof to show that P’s conduct was unreasonable and fell below RPP standard
• Determination of legal effect depends on jurisdiction

Question 37

Defenses to Negligence: Pure Comparative Fault Negligence

Answer 37

where joint and several liability applies, unless told otherwise (default)

(1) P can recover no matter how much P is at fault. Recovery is the amount of damages minus the percentage that P is at fault
(2) Joint/several liability applies if multiple negligent D’s, and P is also at fault. Subtract out P’s percentage of fault and P can sue one or more Ds to get full remaining amount. If P sues only one D, the D found to be at fault can then seek contribution from the other Ds

• D has the burden of proof to show that P’s conduct was unreasonable and fell below RPP standard
• Determination of legal effect depends on jurisdiction

Question 38

Defenses to Negligence: Modified Comparative Fault Negligence

Answer 38

P is barred from recovery if P is as much at fault or more at fault than D

• D has the burden of proof to show that P’s conduct was unreasonable and fell below RPP standard
• Determination of legal effect depends on jurisdiction

Question 39

Defenses to Negligence: Last Clear Chance Doctrine

Answer 39

(generally the wrong answer!)

(1) Only applies in context of contributory negligence
(2) If D’s negligence occurs after P’s, so D had the last opportunity to avoid, P is entitled to full recovery

Question 40

Defenses to Negligence: Assumption of the Risk

Answer 40

i) P, orally or in writing, relieves D of responsibility to be non-negligent
(1) AR is not allowed for necessities (E.g., LL rents an apartment or a hospital provides care)

ii) P may impliedly assume the risk. Recovery will be barred, or reduced, if D establishes that P:
(1) Knew of and appreciated the nature of the risk;
(2) Appreciated the specific danger that injured him; and
(3) Voluntarily chose to subject himself to that danger

iii) Professional rescuers (firefighter rule) –> where P is a professional rescuer, and is injured due to an inherent risk of that job, P cannot recover in negligence against the person who created the need for rescue
(1) Different from Good Samaritans—we want to encourage Good Samaritans to rescue so the law allows them to sue for negligence

iv) Primary assumption of the risk:
(1) In certain contexts, there is no duty to be non-negligent
(2) Often arises in the context of sporting events (e.g., Playing basketball)

Question 41

Defenses to Negligence: Avoidable Consequences

Answer 41

P must take reasonable steps after injury to not increase/exacerbate