Negligence Flashcards
What is NIED?
Negligent Infliction of Emotional Distress
Plaintiff can recover if in zone of danger and threat of physical impact caused emotional distress.
- Must be manifested by physical symptoms
- Pure economic loss = no recovery.
Bystander outside zone of danger can recover if
- closely related
- was present at scene AND
- personally observed injury
Special Relationship
- Mishandling a corpse
- Common carrier mistakenly reporting death of relative.
- No physical symptoms needed.
What is comparative fault?
Pure Comparative Fault
- Proportioned equally
Modified/Partial Comparative Fault
- P 50% at fault = 50% recovery
- P 49% at fault = 51% recovery
- P 51% at fault = No recovery.
What is the test for actual cause?
But for
What is the test for actual cause when there are multiple or indeterminate causes?
Substantial factor
Note: concert of action: common plan or scheme = all liable joint and severally.
What is proximate cause?
Majority: reasonably foreseeable consequences, type of harm must be foreseeable but extent of harm does not need to be.
Minority: direct cause or all consequences.
What is a land possessor’s duty in regard to landlord-tenant issues?
Landlord is liable for injuries in
- Common areas
- Hidden dangers landlord fails to warn about
- Areas leased for public use
- Result of landlord’s negligent repair
- Hazard landlord agreed to repair.
What is joint and several liability?
When 2+ defendants are liable, can sue either of them for entire harm.
What is several liability?
Each defendant is liable for his proportionate share of harm.
What is contribution?
One defendant can collect money from other when plaintiff sues first defendant for entire harm.
What are the two trends for determining whether there has been a breach of the duty of care?
Traditional: reasonably prudent person
Modern: cost-benefit analysis
- foreseeable likelihood that defendant’s conduct would cause harm.
- Foreseeable severity of harm; and
- The defendant’s burden in avoiding harm.
What is res ipsa loquitor?
Trier of fact may infer negligence when there is only circumstantial evidence.
Traditional Elements
- Accident was of the kind that ordinarily does not occur in absence of negligence
- Caused by agent/instrument in defendant’s exclusive control; and
- was not due to any action plaintiff
Modern Trends
- Medical malpractice - breach unless can exonerate
- Products liability: ignore exclusivity
- Comparative fault: loosely apply 3rd element.
What are the four elements of negligence?
- Duty
- Breach
- Causation
- Damages
Can a plaintiff who suffers only pure economic loss without any personal or property injury recover in negligence?
No.
Note: Can recover if also physical injury.
What is the general duty of care for negligence?
Owed to all foreseeable plaintiffs.
Majority: Cardozo - within the zone of foreseeable harm
Minority: - Andrews: anyone harmed.
What are the specific classes of foreseeable plaintiffs?
Rescuers: danger invites rescue.
Fetuses
Anticipated victim of a crime
- Psychotherapist/patient - credible threats.
Is there generally an affirmative duty to act?
No.
Unless
- Voluntary aids: must act with reasonable care.
- Places another in peril
- Contract
- Authority/Control
- Special Relationship
- By statute that imposes obligation for protection of another.
What is contributory negligence?
Traditionally: complete bar
Last Clear Chance
- Defendant liable to helpless plaintiff if he knew or should have known they are helpless.
- Inattention: if plaintiff is inattentive and could escape if paying attention, then defendant is not liable unless had knowledge.
What is an intervening and superseding act?
Foreseeable Intervening Cause: will not cut off liability.
- Examples: medical malpractice, negligent rescue.
Unforeseeable Intervening Cause: Superseding cause
- Breaks chain
- Example: criminal acts of 3rd parties. Unless duty that is breached is one to fail to use reasonable care to protect plaintiff.
Damages need not be foreseeable. Egg-Shell Plaintiff Rule.
What are the standards of care for land possessors?
Traditional Approach
- Invitees (public/business): inspect/discover/protect.
Note: an invitee who exceeds scope is a trespasser.
Note: Non-delegable duty.
- Licensees (special guests/police): duty to correct or warn of concealed dangers that are known/should be obvious. No duty to inspect.
- Trespassers: refrain from intentional/willful misconduct, no spring traps. If discovered, owe duty to protect from concealed, dangerous artificial condition.
Note: anticipated trespass.
Modern Trend (also 3rd Restatement)
- Duty of reasonable care to everyone but trespassers.
- Artificial conditions or conduct on land: generally no duty to remove or protect against natural conditions (exception for rotting trees in densely populated areas).
- Known/Obvious: warnings are insufficient
- Trespassers: flagrant: only not to act willful or wanton
When is an employer vicariously liable for employee’s torts?
Respondent Superior
- Within scope of employment
- Intentional Torts: Force is inherent and employer authorized to act on behalf.
Detour (minor): liable
Frolic (major): not liable.
Can also be liable for negligence in hiring, training, supervising.
When is one vicariously liable for the torts of an independent contractor?
Generally, not liable unless;
- Non-Delegable Duties; (1) inherently dangerous; inherently risky or affect public (construction on road; (3) duty of shopkeeper to keep land safe; (4) (minority) comply with safety statutes.
Apparent Agency
- Reasonable belief they are employees
Negligent hiring or supervision.
For vicarious liability, when is one liable for;
- Business partners?
- Automobile owners?
- Children?
- Alcohol Consumption?
- Partners in a partnership are joint and severely liable.
- Negligent entrustment - if known or should have known negligent propensities.
- Family Purpose Doctrine: liable for any family member which has owner’s permission.
- Owner liability statutes: liable for anyone driving.
- Generally no liability for parents; unless
- acts as parent’s agent
- Statute permits for vandalism or school violence.
- Statute permits when parent agrees when signs for child’s driver’s license - Dram-Shop: must limit to minors.
Social Hosts
What are the different immunities from tort liability?
FTCA: government waives immunity except for certain enumerated torts, discretionary functions, traditional government actives.
State governments: varies.
Municipalities: liable for proprietary functions.
- Public duty rule: no one citizen can claim liability for duty owed to public unless special relationship, promises action, knowledge that failure will lead to harm, direct contact, and reliance.
Government Officials: applies if discretionary functions without malice.
Intra-Family: liable.
-Generally not for core parenting functions. Liable for serious abuse, car accidents, dual capacity
What is the attractive nuisance doctrine?
Land possessor may be liable for injuries to children trespassers if;
- An artificial condition exists in a place where land possessor knows or has reason to know children likely to trespass;
- Possessor knows/has reason to know condition poses unreasonable risk of death or serious injury;
- Children cannot appreciate danger;
Utility and burden of eliminating danger are slight compared to risk.
- Land possessor fails to exercise reasonable care to protect children from har.
What is negligence per se?
Elements (Establishes duty and breach)
- A criminal/regulatory statute imposes a specific duty;
- The defendant violates it;
- The plaintiff is in lass of persons statute designed to protect; and
- The type of harm is the same the statute is designed to protect against
Compliance with statue does not prove absence of negligence.
Defenses:
- Greater risk of harm by compliance
- Defendant is physically disabled/child
- Reasonable care in complying
- Vagueness
- Reasonable ignorance
When does custom affect the duty of care and breach?
Within Industry: Admissible but not conclusive.
Professionals: Higher standard: same knowledge, skill and care as ordinary practitioner in same community.
Physicians
- Majority uses a national standard.
- Informed consent to risks of treatment. Majority: governed by custom. Minority: material risks.
- No duty to disclose when; (1) risk is commonly known; (2) unconscious; (3) patient waives or refuses information; (4) incompetent - reasonable attempt to reach guardian; (5) disclosure is detrimental (heart attack causing)
What is a wrongful-death action?
A descendants spouse, kin, etc. may bring suit do recover losses suffered as a result of decedent’s death.
- Loss of support/companionship, but not pain and suffering.
What is a survival action?
Personal representative can bring any claims the decedent himself would have had at the time of he’s death.
What is a wrongful life claim?
Most states do not permit. Some do only for special damages attributable to disability. Failure to use contraceptives.
What is a wrongful birth claim?
Most states allow. Failure to diagnose deflect/preform.
When can family members recover?
Spouses - loss of consortium
Parent - loses of services of a child (if dies).
What is the assumption of risk?
Express
- Contracts. But no enforcement if disclaims reckless/wanton misconduct or gross negligent. Disparity in bargaining power. Fraud/Duress. Public Policy.
Implied: athleticL but not if exceeds scope.
Implied: Voluntary proceeding in face of known specific risk. Must be unreasonable.
What are the different types of negligence damages?
Actual
- Emotional - allowed if physical injury
- If emotional only, no. Unless physical manifestation, then NIED.
- No attorneys fees.
Compensatory
Mitigation - Duty
Personal Injury
- Past and Future
- Pain and suffering
- Lost income
Property Damage
- Difference between FMV before injury and FMV after injury
Punitive
Collateral Source
- Traditionally not credited,
- Modern- Eliminate rule
What is the general standard of care when looking at duty of care?
Act as a reasonably prudent person under the circumstances.
- Mentally disabled, held to standard of ordinary person.
- Physical: held to standard of similarly disabled.
- Intoxication: Held to standard of ordinary person, unless involuntary.
- Children: reasonable child, unless high risk adult activity.
What are the classes that have a unique standard of care?
Common Carriers/In-keepers
- Majority: higher standard
- Minority: only ordinary negligent.
Automobile Drivers
- Most jurisdictions - ordinary care to guests and passengers.
- Minority: guest statute - only a duty to refrain from wanton or willful misconduct.
Bailors and Bailees
- Bailors duty: when gratuitous, inform of any known or dangerous defects. If compensated, known or should have known.
- Bailee: if sole benefit, duty to not be ordinarily negligent.
