Negligence Flashcards
Negligence definition
- Conduct
- which creates unreasonable risk
- of harm to others.
Prima facie negligence elements
- Duty
- Breach
- Damages (legally cognizable)
- Cause (factual and proximate/legal)
Economic-only damages are generally insufficient, unless by a professional (malpractice).
Emotional harm, without physical impact, is insufficient. Sentimental (child’s drawings) are considered emotional damage.
Duty
- An obligation
- Which the law recognizes
- To conform to a standard of conduct
- Toward another
When does one owe a duty of care?
CCCCR
“In general, when an actor’s conduct, creates, maintains, or continues a risk of physical harm, he ordinarily has a duty of care.”
Is a question for a judge.
Care owed when Conduct Creates Continues or maintains Risk of harm
What is the standard of care owed under duty?
Ordinarily reasonable care under the circumstances so as to minimize risk of harm to others.
A child participating in adult activities will be held to an adult standard of care. Sec 283A and 283B. Robinson v. Lindsay, Wash. 1979
Palsgraf v. Long Island RR - views
Cardozo - A duty of care is owed if P is in the “zone of foreseeable danger”
Andrews - A duty is owed if D can foresee harm to anyone, without regard to their location (falls under causation analysis).
Easy to remember:
Cardozo - Zone
Andrews - Anyone
Res ipsa loquitur
and
What may a jury do once RIL is established?
Duty, breach and actual cause can be inferred.
P does not have the burden of proving negligence when it looks RILy bad:
Responsibility - when D has the exclusive control over the person or thing that caused the problem
Innocent - P is innocent of any fault (harm was not due to P)
Looks bad - harm would not happen without negligence and there’s no other explanation.
Commonly apply in exploding bottle cases.
The court’s finding that res ipsa loquitur applies would most likely permit, but not require, the jury to find the roofing company owed and breached a duty to the homeowner even if no other evidence is presented.
Breach
- Conduct posed
- an unreasonable risk of harm
- at the time it occurred (without hindsight)
- so as to outweigh utility.
Conduct failed to conform to the standard of care necessary to minimize risk of harm to others (failed to meet duty of care).
Recklessness
Acting with a high probability of risk of bringing about a particular consequence
Conscious disregard of a known risk
Negligent infliction of emotional distress (NIED) - definition
3 types of claims
Causation of severe emotional distress through negligent action
3 types of claims:
- Near miss (zone of danger & threat of physical harm)
- Bystander (outsize ZOD but witness and close relative - observed injury to them)
- Pre-existing relationship (doc/patient - mishandle corpse, false diagnosis of serious disease)
Near miss in ZOD
Innocent bystander OUTSIDE ZOD
Existing (pre-existing)
Duty
P need not witness physical violence as long as prima facie NIED is met.
What 3 factors will courts consider to determine whether a breach has occurred?
- Probability of harm of D’s conduct
- Potential severity of harm due to conduct
- Costs or burden incurred by D (and society) from conforming to the alternative.
Substantial factor test when…
- Multiple forces combine to cause injury
- Each would be sufficient alone
- Impossible to tell which caused what portion of the injury.
But-for cause fails, courts apply substantial factor test. Anderson v. Minn. St. Paul & Sault Ste. Marie, 1920
Proximate cause
The type of harm was a reasonably foreseeable result of a breach of duty.
Eggshell skull plaintiff rule. R3 Sec 31.
What is the general standard of care?
To conform one’s conduct to that of a:
- Reasonable person of
- Average knowledge and skill, with
- Defendant’s physical attributes.
Where a mental illness is caused by an underlying physical condition, then it is considered (e.g., dementia). Thus, physical attributes are considered in determining whether D was reasonable, where mental attributes are generally applied as an average (not considered in the analysis).
Sec. 283.
Steps 1 in a negligence analysis
- Does D owe a duty? Could P be reasonably, foreseeably be injured by D if D is not careful? If so, then D must exercise the degree of care that someone in D’s position must exercise to avoid injuring someone in P’s position.
