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)
