Negligence

Question 1

Things to consider when determining duty

Answer 1

Yes

• superior knowledge
• superior physical ability
• sudden emergency
• physical disability/limitation

No

• mental disability/limitation
• age
• intoxication
• low intelligence

Question 2

Child Standard of Care

Answer 2

What a reasonable child of the same age, education, experience would do in a similar circumstance. Unless undertaking an adult or inherently dangerous activity. Then they would be held to the adult reasonable standard.

Question 3

Sudden emergency

Answer 3

a. An emergency is sudden when an unexpected and unforeseen incident or condition that calls for immediate action; AND
b. The incident or condition was not created by the party asserting the emergency.
c. The person’s reaction must be practically instinctive or intuitive.

this can be taken into account when determining reasonable person standard

Question 4

Duty

Answer 4

a legal responsibility owed to another person at a specified standard of care, usually reasonableness unless otherwise indicated. The judge determines what duty is owed.

Question 5

Negligence Per Se

Answer 5

Supplants duty of care. When failure of due care is in violation of a statute. The statute must be designed to protect a class of people which P is a part of, the statute must be created to protect against the harm which occurred. A defendant cannot be negligent per se if the statute does not adequately enumerate a class of plaintiffs, or if it includes a fine. Defendant can say they are not negligent per se if they can show they were exercising due care when they violated the statute, if the statute is unclear, D can show that non-compliance resulted in less harm than compliance, or that the violation was reasonable based on a physical limitation.

Does not usurp child standard of care.

Question 6

Invitee

Answer 6

a person who is there for the benefit of the landowner

a duty of reasonable care to discover and avoid harm.

Question 7

Licensee

Answer 7

a person allowed to be on the land for no benefit.

a duty to avoid willful and wanton harm.

Question 8

Trespasser

Answer 8

a person not permitted on the property.

a duty to avoid willful and wanton harm.

Question 9

known trespasser or known licensee + known peril

Answer 9

Landowner owes a duty of reasonable care to avoid harm.

Question 10

Child trespasser

Answer 10

a duty of reasonable care if the landowner knows, or should know of the danger, or that the child is there.

Question 11

Attractive nuisance

Answer 11

Something on a landowner’s property that might entice a child to trespass on land.
if a child would not appreciate the harm or risk, then comparative fault will not apply.

Question 12

Open and obvious doctrine

Answer 12

old rule: if risk was open and obvious, then it is a complete bar to recovery.
Newer rule is that if P was distracted then they could not have seen the open and obvious risk and therefore should not be barred from recovery.

Other jurisdictions have abolished the doctrine altogether.
Many of the issues of open and obvious have been solved with comparative negligence

Question 13

recreational use statutes

Answer 13

Only in some jurisdictions will protect landowners for negligence that occurs on their land if they do not accept payment for allowing the public on their land. This lowers the standard of care when a defendant’s failure to use reasonable care causes harm but does not eliminate duty to private guests entirely. This encourages efficient use of land.

Question 14

Firefighter rule

Answer 14

firefighters generally cannot recover for injuries occurring on duty from risks inherent to his job even if they are caused by another’s negligence. (People don’t have a duty to firefighter’s rescuing them). This ensures fairness since negligence is inherent to their job and they will be sure to get worker’s comp for their injuried.

Question 15

Good Samaritan Statutes

Answer 15

State that if a third party assists someone in need they cannot be held liable for any negligence or harm that occurs while rendering assistance unless they are grossly negligent or not acting in good faith. These are only in a few jurisdictions. These sometimes specifically protect physicians who render aid “off the clock”

Question 16

medical standard of care

Answer 16

based on what is customary not what is best or reasonable. Medical expert testimony determines the standard of care, rather than the judge.

Question 17

Medical Expert Testimony

Answer 17

Can only be industry standard, no opinions on what they think is best.

must be from the appropriate locality (see locality rules)

If there are multiple standard treatments they are all taken in as the standard

Policy considerations

• Harder for plaintiff bc its difficult and costly to find an expert
• Sets a standard for patients
• Ensures doctors don’t get flooded with tons of negligence cases

Question 18

Locality Rules (med standard)

Answer 18

• Same locality (old rule)
• Similar locality (from a place with similar demographics/population size)
• National (any doctor from anywhere can be called in as an expert to anywhere)
• -Can be a problem if an urban doctor testifies in a rural community because of likely disparity of resources

Question 19

Nonfeasance

Answer 19

when someone passively witnesses harm to another but fails to act in order to aid them. Generally, there is no duty to affirmatively act to aid a third party.

exceptions: are if you create the risk or the harm, when there is a statute or ordinance, when you affirmatively act to assist, or if you have a special relationship with the person in peril. Witnessing someone in peril is not enough to create a duty.

Question 20

Protecting someone from a third party

Answer 20

Generally, no duty.

Exceptions:
-special relationship + foreseeability

-voluntarily assume duty + foreseeability

Question 21

Spousal Duty

Answer 21

Generally, nowadays there is no duty for spouses to control each other

Question 22

Duties of Therapist

Answer 22

they might be required by law to break their code of ethics/code of silence to protect a third party from their patient.

Question 23

misfeasance

Answer 23

when a person acts to create an unreasonable risk of harm. If you create the risk they you automatically have a duty of reasonable care to aid.

Question 24

Landlord duties

Answer 24

Landlords owe no duty to protect tenants from attack except when they create a condition which increases the risk of criminal attack.

Landlords owe a duty of reasonable care to tenants with respect to common areas under the landlord’s control

No duty to provide security unless they voluntarily provide it, then they have assumed a duty.

Landlords have a duty to third persons to do all that they legal can to get rid of a dangerous condition on their premises even if it means getting rid of the tenant.

landlord/tenant is a special relationship according to R3d

Question 25

Common carriers

Answer 25

traditionally the highest duty of care

someone who transports anyone indiscriminately and is in the business of carrying passengers.

if you are giving a friend a ride for free, then guest statutes applies.

Question 26

Guest statutes

Answer 26

These statutes place the standard of care for nonpaying customers at refraining from grossly negligent, and willful and wanton misconduct.

No duty to house guests other than not over serving a drunk adult and not serving to minors.

Question 27

Breach

Answer 27

You breach a duty when your action, or lack of action fails to meet the standard of care. When the harm caused outweighs the cost of alternative action. Jury determined.

Can comply with a statute and still be in breach because the conduct fell below the standard of care.

Question 28

Res Ipsa Loquitor

Answer 28

“it speaks for itself”
when more likely than not the accident would not have occurred but for defendants’ negligence.

circumstantial evidence permitted.

3 elements

• instrumentality of harm must be in the complete control of the defendant
• the plaintiff can have no contributory negligence
• the accident must be the type that only occurs with negligence.

Question 29

Industry Standards

Answer 29

Industry standards and non-codified building codes are not a standard by which to determine breach. They can be evidence of negligence. Medical industry standards are the only exception to this.

Question 30

Actual Harm

Answer 30

Negligence must cause legally cognizable harm. If a duty is breach but no material harm occurs, then there is no claim for negligence.

Question 31

actual cause

Answer 31

an actor is the cause in fact of a person’s harm when they are the but for cause, a substantial factor in causing the harm, or when they caused the harm with another party.

Question 32

but for test

Answer 32

“but for defendant’s negligence plaintiff would not have suffered their harm” if this is true, they are the actual cause.

when this fails go to the substantial factor test

Question 33

substantial factor

Answer 33

if the defendant is a substantial factor in bringing about plaintiff’s harm then defendant is the actual cause.

Question 34

causal apportionment

Answer 34

when there are two defendants and two separate and divisible injuries that can be attributed to each of the defendants.

Question 35

fault apportionment

Answer 35

Used if there are multiple defendants and the injury is not separate and divisible. Once the jury decides what percentage each D is liable then they are liable for the percentage of the damages. Those are apportioned with jointly and severally or jointly.

Question 36

joint liability

Answer 36

The jury apportions fault to the defendant’s and they are only liable for that percentage of the damages. If one of the defendants cannot pay, P is out that money.

Question 37

joint and several liability

Answer 37

The jury finds the defendants jointly liable and then tells them they can apportion the payment of damages amongst themselves. If one of the Ds cannot pay, P can seek it from the other Ds.

Question 38

Alternative liability

Answer 38

If there are multiple Ds that caused divisible harm but there is no way to determine which defendant is liable, they are all found jointly and severally liable.

Question 39

Proximate Cause

Answer 39

An actor is the proximate cause of a person’s harm when the harm caused falls within the scope of risk of the negligent act.

Two common tests:

that come from the Palsgraf test. The first comes from Justice Cardozo who wrote the majority opinion. He stated that there is no liability when a plaintiff is not within the foreseeable zone of danger. The dissent came from Andrews who somewhat merged duty and breach. He stated that if there is ANY foreseeable harm that result from an action that there is a duty of care to everyone, not just within a “foreseeable zone.” This is referred to as “a duty to the world.

Question 40

Manner of harm vs. Type of harm

Answer 40

Generally, the manner of harm does not matter in a negligence claim, a defendant will still be liable even if the manner was not foreseeable. It is determined on whether the type of harm that occurred was foreseeable. The exception to this is if the manner of harm is truly bizarre.

Question 41

eggshell plaintiff

Answer 41

You take the plaintiff as you see them, including preexisting injuries or conditions you may not know about. Defendant is not responsible for under lying condition but they are liable for aggravation of preexisting injuries.

Question 42

Extent of harm

Answer 42

generally the defendant is responsible for the full extent of harm

Question 43

Superseding forces

Answer 43

break the chain of liability

Question 44

Negligent Intervening acts

Answer 44

Negligent acts are foreseeable as a matter of law and therefore do not break the chain on liability.

Question 45

Suicide Rule

Answer 45

Generally suicide is treated as a superseding cause and break the chain of all liability.

Some jurisdictions make an exception if D’s negligence cause the suicide or if the D had a special relationship with person who died by suicide.

Question 46

Rescue Doctrine

Answer 46

it is foreseeable when someone is in peril that another actor will try to help. Therefore, if the rescuer is harmed while aiding the harmed person, the negligent actor will be liable for their injuries as well. “Danger invites rescue”

Question 47

Medical treatment rule

Answer 47

states that if a person harmed by a negligent actor has to be taken to the hospital and suffers from medical malpractice

Question 48

apparent safety doctrine

Answer 48

If a plaintiff reached apparent safety then that breaks the chain of liability for negligent acts that occur after they reach safety.

Question 49

highly unforeseeable or extraordinary acts

Answer 49

outside scope of risk

Question 50

Comparative fault

Answer 50

when P negligently contributed to their own harm, used as a defense for D to lower their liability

The old rule is that if P had any amount of contributory negligence they could recover nothing.
The three more modern rules are pure comparative fault, modified I, and modified II.

Question 51

Pure Comparative fault

Answer 51

when a defendant recovers the percentage of damages the other party was responsible for only. They cannot recover the percentage of damages that was attributed to them. Pure is the majority rule.

Question 52

Modified I comparative fault

Answer 52

when P is barred from recovery if their negligence is more than D (51% or more)

Question 53

Modified II Comparative Fault

Answer 53

when P is barred from recovery if their negligence is equal to D’s negligence (50% or more)

Question 54

Assumption of Risk

Answer 54

Another defense that D might bring

is when the defendant claims that P voluntarily assumed a risk which means D cannot be liable for the harm that occurred.

Question 55

Express assumption of risk

Answer 55

when a P expressly, usually with a waiver or contract, assumes a risk relieving D of liability. The release must be valid (a meeting of the minds) and the injury that occurs must be within the scope of the release. If these two factors are met then this is a complete bar to recovery for P.

Question 56

Primary implied assumption of risk

Answer 56

when someone undertakes an endeavor that is inherently dangerous so the defendant does not have a duty to mitigate the risk. This applies to recreational activities such as baseball, or some work conditions. This is a complete bar to recovery, D has no duty and the judge decides which risks are inherent to the sport.

A risk is inherent to an activity if removing it would materially alter that activity. (ex: not throwing hot dogs at a baseball game vs. not throwing a baseball at a baseball game)

Question 57

secondary implied assumption of risk

Answer 57

when P knowing and voluntarily exposes themselves to danger. This is very similar to comparative fault and is sometimes merged

Question 58

Statute of limitations

Answer 58

a range of time when a charge can be brought for a specific offense. times starts running when the injury occurs.

• Sometimes they will begin when the injury is ascertainable
• Equitable estoppel can come into play is a plaintiff has been mislead by defendant.

Question 59

Statute of repose

Answer 59

Similar to a statute of limitations but the clock starts running when the last negligent act took place. Happens a lot with negligent construction.

Question 60

three common theories of liability

Answer 60

• D created and failed to take reasonable action to abate hazard
• D did not directly create condition but discovered or should have discovered condition and failed to take reasonable steps to prevent the hazard
• D mode or method of business operations made it foreseeable that others would create a dangerous condition and failed to take reasonable measures to discover or remove hazard.

(relates to slip and fall cases)

Question 61

Informed Consent

Answer 61

Minority rule- custom of the industry: physician must disclose to their patients only such information as is customarily disclosed in similar circumstances.

Majority rule - Material information rule: physicians must disclose all significant medical information the physician possesses or reasonably should possess that is material to an intelligent decision by the patient to undergo a proposed procedure

Material information includes:

• nature of patient’s condition
• Nature and probability or risks involved
• benefits to be reasonably expected
• the inability of the physician to predict results

Exception: therapeutic privilege - some patients cannot handle being told information without their condition being worsened.

Doctors also have a duty to inform of risks if P does not undergo the procedure.

Question 62

Informed consent - causation

Answer 62

P must show that they would not have consented to procedure if they had been told the risk AND a reasonable person would not have consented.

Question 63

Rules about doctors’ success rates

Answer 63

they do not have to disclose their exact success rates, but should disclose if there are more experienced doctors with a higher chance of success. They can also disclose the general success rate of the procedure.

Also, doctors cannot lie if when asked directly about their specific success rates.

Question 64

apologies by doctors

Answer 64

not admissible in court

Question 65

patient’s comparative negligence

Answer 65

can be after treatment, but not before

Question 66

Parental Immunities

Answer 66

Children can sue their parents once they are of majority age.

Immunity is limited to situations of parental authority or reasonable discretion of parental care.

Question 67

3 different rules regarding parental immunities

Answer 67

1. NY - no duty to supervise
2. A child can sue their negligent parent if their negligence is outside of the “parental duties to care/supervise” and would be a negligent act to anyone.
3. AZ rule - “reasonable parent standard” can be problematic when a court is determining how to parent. Opens door for more liability.

Question 68

Charitable Immunity

Answer 68

Charities are generally immune from negligence suits unless P is a paying member.

Question 69

4 tests when establishing duty to protect a third party

Answer 69

1. Specific harm rule- Landowner owes no duty to protect plaintiff from the violent acts of third parties unless he knows of specific, imminent harm about to befall them.
2. Prior incidents test - Foreseeability is established based on evidence of prior crimes on or near the premises.
3. Totality of circumstances test - Prior, similar incidents test, but the lack of incidents will not preclude a claim where the landowner knew or should have known that a criminal act was foreseeable. (MAJORITY RULE)
4. Balancing test - Foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm.

(3 and 4 are more common)

Question 70

Relationship with a dangerous person

Answer 70

Most states impose a duty of reasonable care on custodians of dangerous individuals to prevent them from harming members of the public.

Control means legal control not direct supervision.

Question 71

Intervening act

Answer 71

An intervening act of some second tortfeasor should relieve the first tortfeasor of liability only when the resulting harm is outside the scope of the risk negligently created by the first tortfeasor.

Question 72

When comparative fault doesn’t apply due to policy or justice

Answer 72

There can be no comparative negligence where the defendant’s duty of care includes preventing the self-abusive or self-destructive acts that caused the injury.

Factors:

a. If defendant knows of the plaintiff’s disability which prevents or inhibits the plaintiff’s care for himself.
b. The plaintiff’s risky conduct endangers himself but not others.

Question 73

When a liability waiver will be deemed invalid (re: express assumption of risk)

Answer 73

Tunkl factors:

1. Concerns a business of a type generally thought suitable for public regulation.
2. Party seeking exculpation is engaged in performing a service which is often a matter of practical necessity for members of the public
3. The party holds itself out as willing to perform this service for any member of the public who seeks it.
4. Party seeking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services
5. The waiver is a part of a contract of adhesion and there is no provision of that allows plaintiff to pay additional reasonable fees to obtain protection against negligence
6. As a result of the transaction, the person or property of the plaintiff is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Question 74

When statute of limitations can be tolled

Answer 74

1. For minors until they reach the age of majority
2. those who are unable to manage their day to day affairs because of mental incapacitiy
3. tolling pending a suit seeking class action certification
4. for plaintiff who is in jail or in the armed forces

Question 75

Latent potential harm

Answer 75

plaintiffs can recover for present damages and possibly sue a second time if substantially different damages occur