Negligence Flashcards
Res Ipsa Loquitur
“The thing speaks for itself.” In cases where there is no showing of exactly how an accident happened, but the fact that it happened at all suggests that someone was probably negligent. The jury is PERMITTED (not required) to make an educated inference (at breach) that the D’s failure to exercise due care caused the injury. Res Ipsa satisfies the more probable than not standard of proof in Negligence cases.
Elements:
- The injury ordinarily only happens in the presence of carelessness
- The instrumentality causing the injury was in the D’s exclusive control, AND
- Plaintiff had NO HAND in causing her own injury.
Tender Years Doctrine
0-6: incapable of negligence
7-13: rebuttable presumption of incapacity for negligence; if rebutted, compare objectively to like child/judge as a reasonable person of similar age, intelligence, and experience in similar circumstances (quiz language)
14+ OR ADULT ACTIVITY: ordinary reasonable person standard
Massachusetts Rule
Compare to a like child in similar circumstances. Similar approach from Res.(?), but with cut-off somewhere for the very-littles.
Can a business owe its invitees more than one duty?
YES! See Taco Bell. As a business, you can owe the duty as a landowner holding land open to the public with respect to premises liability. You can also owe an affirmative duty to R/W/P based on special relationships. You also owe plenty of other duties that are not restricted to your landowner capacity, you should owe reasonable care under all the circumstances…
Multiple Necessary Causes
but for the concurrence of the defendant’s negligent acts, the P would not have been injured.
Common intent, purpose, or design is NOT necessary for multiple necessary causes. Defendants would be joint and severally liable.
Superseding Cause
If superseding cause is found, the first actor gets off the hook even though the still meet all the elements of a negligence analysis.
TEST: look to first and second breach… was the chain of responsibility broken somehow? Look for elements of intentionality that would relieve a party of liability
EX – party deliberately colliding with a stalled vehicle
“The intentionality of the colliding party was not foreseeable and therefore relieves the negligent manufacturer of liability.”
Multiple Sufficient Causation
Each, independently, can be shown to meet the but-for test. (Any given alleged breach has to have been A sufficient cause - if more than one party caused a sufficient exposure, EACH is responsible. Existence of other sufficient causes, whether innocent or at-fault, do not provide a defense.
Express Assumption of the risk
REQUIRES A WRITING (usually an exculpatory clause) expressly assuming liability for the plaintiff.
Contract/exculpatory clause will be upheld if contract as a whole – is an adhesion contract. If not, then look at the exculpatory clause – must be sufficiently clear. If yes, then can it be upheld as a matter of public policy?
“Qualified” Duty Cases (3 categories)
- Affirmative duty to rescue/warn/protect (D unreasonably failed to provide assistance or protection to the P)
- Premises liability (D permitted or maintained unreasonably dangerous conditions on property in her possession)
- Pure economic loss (D acted without reasonable care for the P’s economic prospects)
What is an “easy duty” case?
Cases in which neither litigants nor the court will spend much time on the duty issue because all are satisfied that the person being sued owed it to the complainant to take reasonable care. It’s “easy” in the sense that the existence of a duty owed by the defendant tends to be take for granted.
Wagon Mound 1 vs. Wagon Mound 2?
Wagon Mound No. 1 explains that a negligent defendant won’t be liable for unforeseeable damages caused by that negligence, but Wagon Mound No. 2 explains that even if the consequences of a defendant’s negligence seem unlikely, the defendant may still owe a duty to minimize the unlikely risk.
3 Exceptions to the “No Duty” Rule:
- Special relationships! where the D had a pre-existing special relationship with the P.
- Defendant created peril! Where the D had a hand in placing the plaintiff in peril.
- Voluntary undertakings! Where the defendant voluntarily undertook the rescue
Premises Liability: Duty owed to trespassers/licensees/invitees?
(Varies by state)
Trespassers: those who have no permission, express or implied, to be on the property
DUTY OWED: No duty except to not intentionally hurt them
Licensees: those who have express or implied permission to be on the property (licensor actually or constructively knows of their presence on the property) – typically social guests
Duty owed: to warn of non-obvious dangers of which possessor is aware or should be aware
Invitees: those present with the consent of the possessor, furthering material or institutional goals of the possessor / for the mutual benefit of the possessor and the invitee – typically for business or other similar institutional purposes.
Duty owed: keep premises in reasonably safe circumstances
Difference between Superior Knowledge Rule and Professional Trade Principal?
SKR = If you have superior knowledge you have to use it and it is a factor in determining whether you acted reasonably under the circumstances.
PTP = means that we expect people in trades such as doctor lawyer truck driver to act as an ordinary person in the trade would in determining reasonableness of that person’s actions
Define BPL. When is there a breach under this rule?
BPL:
B = Burden (of taking adequate precautions)
P = Probability of harm (in absence of those precautions)
L = gravity of harm
If B > PL: no breach
If B < PL: breach
If B = PL: no breach (must be proven greater than 50% by preponderance of evidence rule)
Difference between Kaplan & Canterbury Standard?
Kaplan standard - Professional standard: what a reasonable physician thought a patient in those circumstances would want to know
Canterbury standard - Prudent Patient standard/materiality of RISK standard; that patients have autonomy and need to be able to participate in their care
Insufficient Evidence (in Causation)
Think of asbestos – impossible to know which instance actually caused the injury
Concert of action (in Causation)
Independent Defendants engaged in negligent conduct JOINTLY; Intent does not matter, harm only has to be foreseeable
EX - Cars A & B are racing, A hits a pedestrian and drives off, but B is still liable because they were also driving negligently in tandem
Doomed! (Causation)
EX - Person falls off a bridge and is electrocuted by wires on the way down
If they were doomed, wire company may not be liable for negligence; they were doomed anyway! If they would have just been seriously hurt by fall, then court could rule that damages are the difference between injuries.
No bright line rule – courts take diff. approaches depending on the facts and what approach would be more pragmatic
Scope of the Risk Test
Is the injury a realization of the specific risks that lead us to determine that the conduct was a breach of the duty owed?
EX - rat poison in the kitchen
Negligence Per Se
Allows jury to infer breach element (by violation of statute)
Requirements:
- Statutory Standard of care
- Violation of that standard (breach)
- Defendant has no excuse
- Injury was of the specific type within contemplation when statute was created
- Plaintiff was of the specific type intended to be protected by the statute
Difference between Wrongful Death & Survival Actions?
WD - Actions to be brought by “next of kin” or family members; On behalf of themselves; Can recover for harm done to them (economic or emotional etc…)
SA - actions brought by decedent of estate; can recover for harm suffered up to moment of death (statute will define recovery limits and will differ by state)
Difference between detour and frolic?
Detour – personal errand, minor deviations
Frolic – significant detour
(Employers are not vicariously liable for the employee’s tortious conduct that occurs during a frolic. However, an employer may be vicariously liable for the employee’s tortious conduct if that conduct occurred after the employee completed a frolic and returned to work tasks.)
Difference between Discovery Rule/Inquiry Notice/Accrual Rule?
DR = Injury occurs when it is discovered and tolls SOL until:
- P knows or has reason to know of injury and
- has sufficient reason to believe D’s conduct is causally connected to injury such that investigation would reveal that connection
Inquiry Notice = Gained information sufficient enough to let a reasonable person of the need to investigate
Accrual Rule = Clock starts when:
- D acts carelessly AND harm caused to P
Types of Comparative Fault (3; Affirmative Defenses) What are the differences?
- Contributory Negligence (If P is AT ALL at fault, P CAN’T RECOVER ANYTHING)
- Pure Comparative Negligence (P recovers the REMAINING PERCENTAGE of whatever their carelessness DIDN’T CAUSE)
- Modified Comparative Negligence (If P caused 50-51% of their own injuries, they CAN’T RECOVER; Some states are 50%, some are 51%)
Difference between Statute of Limitations and Stature of Repose?
Limitations – clock starts at occurrence of tortious conduct AND harm is caused by that conduct
Repose – sets limits based on date (of sale, reaching majority, product defect etc…)
When does Respondeat Superior apply? (Vicarious Liability in employer/employee relationship)
Applies when we are talking about an employer/employee relationships AND the act occurred within the scope of employment
Can parents be held liable for their child’s negligence?
Yes, parents are directly (not vicariously) liable if:
- They were negligent in their supervision
- Negligent Entrustment (EX - leave out car keys or firearms)
Implied Assumption of risk
Only involves P’s CONDUCT
Needs to be a reasonable risk to take
If it’s unreasonable, look at comparative fault
If it’s reasonable, think about whether P encountered the risks fully conscious of what they were, did so willingly, and was reasonable in doing so
Bystander Liability in NIED
D negligently causes a emotional distress (resulting in physical injury?) to one person in the PRESENCE of a close relative of that person
Criteria:
Must be a close relation (literally blood relative like mom, spouse, child) to the victim of negligence
Must have been present and aware of the negligence as it happened
Must have suffered emotional distress BEYOND what others witnessing would have experienced, but cannot be an ABNORMAL reaction
(There is a public policy argument here to potentially expand the close relation definition)
