Negligence

Question 1

Negligent Infliction of Emotional Distress (NIED)

Three theories of recovery

Answer 1

NIED has three theories of recovery:

1) zone of danger
2) bystander, and
3) special situation.

Question 2

NIED - Bystander Theory of Recovery

Answer 2

Liability under the bystander theory arises when:

1) the defendant negligently causes serious bodily injury to a close relative of the plaintiff–bystander
2) the plaintiff contemporaneously perceives (ie, sees or hears) that event, and
3) the plaintiff consequently suffers serious emotional distress.

Question 3

Contributory Negligence

(traditional common law)

Answer 3

General rule: Plaintiff’s negligence completely bars recovery

Last Clear Chance Exception: Recovery permitted if defendant:

1) had last clear chance to avoid plaintiff’s injury and
2) failed to use reasonable care to do so.

Question 4

Intervening Causes

Answer 4

1) Foreseeable cause

• Foreseeable intervening act or force that contributes to plaintiff’s harm
• Defendant remains liable
  
  • e.g., medical malparactice is regarded as foreseeable and does not break the chain of proximate causation.

2) Superseding cause

• Unforeseeable intervening act or force that breaks chain of causation between defendant’s tortious conduct & plaintiff’s harm
• Defendant is not liable

Question 5

Special Relationships

Imposing duty to protect others

Answer 5

Special relationships

imposing duty to protect others

Parent/child

Hospital/patient

Employer/employees

Shopkeeper/business invitees

Common carrier/passengers

Custodian/person in custody

Innkeeper/guests

Mnemonic: Please Help Eliminate Safety Concerns Causing Injuries

Question 6

Innkeeper Duty

Answer 6

In most jurisdictions, an innkeeper owes a duty to use ordinary care to protect its guests while they are on the premises.

Evidence that the innkeeper complied with (or deviated from) community or industry custom is relevant to—but not conclusive on—the issue of negligence.

*The Third Restatement of Torts requires innkeepers to use reasonable care to protect their guests while they are on the premises.

Question 7

Common-Carrier Duty

Common Law v. Modern

Answer 7

Under the common-law approach (majority rule), common carriers can be liable for even slight negligence because they owe the highest duty of care to their passengers that is consistent with practical business operations.

But under the modern approach (minority rule), common carriers are negligent only if they fail to use reasonable care to protect passengers from harm that arises within the scope of that relationship.

Question 8

Negligence Per Se

Answer 8

One way the defendant can establish the plaintiff’s failure to use reasonable care is through the doctrine of negligence per se.

Under this doctrine, the plaintiff’s negligence is presumed if:

1) the plaintiff violated a statute
2) the statute was intended to prevent the type of harm suffered by the plaintiff and
3) the plaintiff is within a class of persons that the statute was intended to protect.

However, even when negligence per se is established, the defendant still must prove that the plaintiff’s violation of the statute caused the plaintiff’s harm.

Question 9

Duty of Land Possessor to a known or anticipated trespasser:

Answer 9

If the person is a known or anticipated trespasser, the landowner owes a limited duty to:

1) warn the trespasser about, or protect the trespasser from, hidden, artificial (i.e., man-made) dangers that are known to the land possessor but unlikely to be discovered by the trespasser AND
2) use reasonable care in active operations conducted on the land.

A land possessor who breaches this duty and causes the trespasser physical harm is liable for negligence.

Question 10

Under the traditional standard for res ipsa loquitur, negligence is inferred if:

Answer 10

(1) the plaintiff’s harm would not normally occur unless someone was negligent,
(2) the defendant had exclusive control over the thing that caused the harm, and
(3) the plaintiff did nothing to cause the harm.

Question 11

When does the substantial factor test apply?

Answer 11

Where multiple forces combined to cause the plaintiff’s harm and any one alone would have been sufficient to cause the harm, the test for actual causation is whether the defendant’s conduct was a substantial factor in causing the harm.

Question 12

Modified (or partial) comparative negligence with Several Liability

Answer 12

Under modified (or partial) comparative negligence, recovery is reduced by the plaintiff’s percentage of fault and barred if it exceeds 50%.

• If multiple defendants cause the plaintiff indivisible harm, then several liability limits the plaintiff to recovering the portion of damages that corresponds to each defendant’s share of fault.

Several liability – when multiple defendants cause the plaintiff indivisible harm, the plaintiff can only recover from each defendant the portion of damages that corresponds to that defendant’s proportionate share of fault (e.g., 15% of the damages for 15% of the fault)

Question 13

Market Share Liability

Answer 13

When a plaintiff can show that a defective product produced by several manufacturers was fungible in its relation to its capacity to cause harm, and it is impossible to identify which defendant placed the harmful product into the market, the court may permit the jury to apportion damages on the basis of each manufacturer’s share of the market for the product.

Products must be identical (?)

Question 14

Alternative Causation Doctrine

Answer 14

Under the alternative causation doctrine, if the plaintiff’s harm was caused by:

(i) one of a small number of defendants,
(ii) each of whose conduct was tortious, and
(iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.

Question 15

Concert of Action Doctrine

Answer 15

Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable.

Question 16

Res Ipsa Loquitur

(the thing speaks for itself)

Answer 16

Res ipsa loquitur permits an inference of negligence when the plaintiff’s harm was the type usually caused by negligence and evidence tends to eliminate other potential causes of that harm.

If there is no direct evidence of negligence, then the doctrine of res ipsa loquitur permits an inference of negligence when:

1) the plaintiff suffered a type of harm that is usually caused by negligence of someone in the defendant’s position AND
2) the evidence tends to eliminate other potential causes of that harm (e.g., the instrumentality that inflicted the harm was under the defendant’s exclusive control).

Question 17

Comparative Fault

• Pure Comparative Fault
• Modified Comparative Fault

Answer 17

Traditionally, a plaintiff who was contributorily negligent was barred from recovering damages. But almost all jurisdictions have now adopted some form of comparative fault (i.e., comparative negligence). There are two forms of comparative fault:

1) Pure comparative fault (default rule on the MBE) – the party’s recovery is reduced by his/her percentage of fault
2) Modified comparative fault – the same as pure comparative fault, except that the party’s recovery is barred if his/her fault exceeds 50%

In a pure comparative-fault jurisidiction, when both parties are entitled to recover damages, the plaintiff’s recovery is reduced (i.e., offset) by the defendant’s recovery—and vice versa.

Question 18

Causation

Actual & Proximate

Answer 18

Negligence requires proof that the defendant breached a duty owned to the plaintiff and thereby caused the plaintiff harm.

Causation requires proof of both:

1) Actual (factual) causation – the plaintiff’s harm would not have occurred “but for” the defendant’s actions AND
2) Proximate (legal) causation – the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct, meaning that the conduct was of a type that generally increases the risk of that harm.

Question 19

Scope of Defendant’s Duty of Care

Answer 19

Cardozo view (majority rule)

• Duty owed only to persons who might be foreseeably harmed as a result of defendant’s negligence (ie, persons within zone of foreseeable harm)

Andrews view (minority rule)

• Duty owed to everyone on earth if anyone might be foreseeably harmed as a result of defendant’s negligence

To prevail on a negligence claim, a plaintiff must establish all four elements of negligence: duty, breach, causation, and damages.

The majority rule is that a defendant owes a duty of care to a plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed as a result of the defendant’s negligent conduct (sometimes called “foreseeable plaintiffs”).

Question 20

Attractive Nuisance Doctrine (visual)

Answer 20

Question 21

Affirmative Duty to Act (visual)

Answer 21

Question 22

NIED - Liability under the Zone-of-danger theory arises when:

Answer 22

Liability under the zone-of-danger theory arises when:

1) the defendant’s negligent conduct placed the plaintiff in danger of immediate bodily harm and
2) that danger caused the plaintiff serious emotional distress.

Question 23

Affirmative duty to act arises when:

Answer 23

To be liable for negligence, the defendant must have breached a duty owed to the plaintiff.

A defendant generally has no affirmative duty to act. But such a duty arises when, for example:

1) the defendant’s conduct creates a foreseeable risk of harm to the plaintiff
2) the defendant assumes such a duty by voluntarily aiding or rescuing the plaintiff, OR
3) the defendant and plaintiff share a special relationship.

Question 24

Hierarchy of tortious conduct (visual)

Answer 24

Question 25

Guest Statutes

Answer 25

In most jurisdictions, automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride).

However, a minority of jurisdictions distinguish between the two with “guest statutes,” which impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car.

• Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest.

Question 26

Attractive Nuisance

Answer 26

Under the attractive-nuisance doctrine, land possessors have a duty to exercise reasonable care to protect child trespassersfrom artificial (i.e., man-made) conditions on their land when:

1) the condition exists where the land possessor knows or should know that children are likely to trespass
2) the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children
3) children of the trespasser’s age cannot reasonably discover or appreciate the risk and
4) the risk outweighs the condition’s utility and the burden of eliminating the risk.

A land possessor that breaches this duty and causes the child trespasser physical harm is liable for negligence.

Question 27

Negligence Per Se

Answer 27

A negligence claim requires proof that the defendant breached a duty owned to the plaintiff and thereby caused the plaintiff harm.

In most jurisdictions, duty and breach can be presumed* under the doctrine of negligence per se if the plaintiff proves that:

1) the defendant violated a statute or ordinance
2) that statute or ordinance was intended to prevent the type of harm suffered by the plaintiff and
3) the plaintiff was in the class of persons that the statute or ordinance was intended to protect.

*A minority of jurisdictions hold that the violation of a statute is merely evidence of negligence—i.e., a rebuttable presumption as to duty and breach.

Question 29

Doctrine of Resondeat Superior

Answer 29

Under the doctrine of respondeat superior, an employer is vicariously liable for any tortious conduct of an employee that is within the scope of employment.

An employer is generally not liable for an intentional tort (e.g., battery) committed by its employee because that conduct typically falls outside the scope of employment.

However, such liability will arise in two instances:

1) When the use of reasonable force is inherent in the employee’s job and the employee acts in the course of his/her work
2) When the employee is authorized by the employer to act on its behalf and the employee’s position provides an opportunity to commit an intentional tort.

Question 30

Land Possessor’s Duty to Land Entrants

Modern Approach

Answer 30

Main rule: (land entrants)

• Reasonable care owed to all land entrants regardless of status on land (eg, invitee)

Exception: (flagrant trespassers)

• Reasonable care not owed to flagrant trespassers BUT land possessor must:
  1) not act in intentional, willful, or wanton (ie, tortious) manner that causes physical harm and
  2) exercise reasonable care to flagrant trespassers in peril

Under the modern approach, land possessors owe all land entrants—except flagrant trespassers—a duty of reasonable care to protect them from foreseeable risk of harm.

A flagrant trespasser is one who enters another’s land without permission and whose entry is particularly egregious—e.g., entry that results in commission of a crime.

Question 31

Involuntary Intoxication - Standard of Care

Answer 31

The standard of care typically imposed in negligence cases is that of a reasonably prudent person under the circumstances.

A defendant’s voluntary intoxication is not considered in determining whether his/her conduct was negligent. This means that voluntarily intoxicated defendants will be held to the same reasonable-person standard as sober persons in negligence actions.

• However, a defendant’s involuntary intoxication will be considered in determining whether his/her conduct was negligent.
• This means that the conduct of a defendant who is involuntarily intoxicated will be measured by the standard of a reasonably careful person with the same level of intoxication.

Question 32

Essay Rule Statement for Negligence

Answer 32

In a negligence action, a plaintiff must show that the defendant owed a duty to the plaintiff, that the defendant breached that duty, that the defendant caused the plaintiff’s injuries, and that damages exist.

Generally, the standard of care imposed on a defendant is that of a reasonably prudent person under similar circumstances. A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.

In determining whether a specific precaution was warranted, a jury must weigh the probability and gravity of the injury against the burden of taking such precautions.

Question 33

Essay rule statement for cost-benefit analysis

Answer 33

A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.

The modern trend is to perform a cost-benefit analysis to determine whether the defendant has acted in accordance with the standard of care.

This analysis considers:

(i) the foreseeable likelihood that the defendant’s conduct would cause harm,
(ii) the foreseeable severity of any resulting harm, and
(iii) the defendant’s burden in avoiding the harm.

Evidence of custom in an industry may be offered to establish the standard of care, but such evidence is not conclusive.

Question 34

Tort liability of Parents

Answer 34

1. Negligence
   * Liable for failure to use reasonable care to prevent minor child from causing foreseeable harm to others

a) e.g, parent fails to warn others about child’s violent tendencies

2. Vicarious liability
   * Liable for child’s tort committed when:
   1) child acts as parent’s agent
   * eg, child trespasses on stranger’s lawn while working for parent’s landscaping company
   2) state statute imposes liability on parent
   * e.g., child vandalizes school or commits school violence

A defendant generally has no duty to control another’s conduct unless the parties have a special relationship.

• Since parents and children have a special relationship, parents have a duty to exercise reasonable care to preventtheir minor child from causing foreseeable harm to others.
• Therefore, parents are liable for negligence if they breach this duty and cause the plaintiff harm.

Question 35

Exception to contributory negligence jurisdictions

Answer 35

In contributory-negligence jurisdictions, the last-clear-chance rule allows a plaintiff to recover despite his/her contributory negligence if the defendant:

(1) had the last clear chance to avoid the plaintiff’s injury and
(2) failed to use reasonable care to do so.

Question 36

“Last clear chance” doctrine

Answer 36

In contributory-negligence jurisdictions, plaintiff may mitigate legal consequence of contributory negligence if defendant had last clear chance to avoid injuring plaintiff but failed to do so*

Scenario

1) Helpless plaintiff
- Plaintiff, due to contributory negligence, is in peril from which plaintiff cannot escape
- Defendant is liable if defendant knew or should have known of plaintiff’s peril & harm could have been avoided but for defendant’s negligence
2) Inattentive plaintiff
- Plaintiff, due to contributory negligence, is in peril from which plaintiff could escape if plaintiff was paying attention
- Defendant is liable if defendant had actual knowledge of plaintiff’s inattention

*This doctrine has been abolished in most comparative-fault jurisdictions (default rule on MBE).

Question 37

Intervening & Superseding Causes

Answer 37

1) Foreseeable cause
- Foreseeable intervening act or force that contributes to plaintiff’s harm
- Defendant remains liable.
2) Superseding cause
- Unforeseeable intervening act or force that breaks chain of causation between defendant’s tortious conduct & plaintiff’s harm
- Defendant is not liable.

Superseding causes—i.e., unforeseeable, intervening acts that occur after the defendant’s negligence and contribute to the plaintiff’s harm—break the chain of proximate causation. But negligent intervening acts are typically regarded as foreseeable and therefore do not cut off the defendant’s liability.

Question 38

To prove causation, the P must show that the D was the actual and proximate cause of the P’s injuries:

Answer 38

1) Actual (factual) cause – the plaintiff’s harm would not have occurred “but for” the defendant’s actions.
2) Proximate (legal) cause – the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct.*
* *This is the majority rule for proximate causation that should be applied unless the question states otherwise.

Question 39

Doctrine of Avoidable Consequences

Answer 39

Under the doctrine of avoidable consequences, the plaintiff’s failure to mitigate damages reduces the plaintiff’s recovery by the amount of damages that could have been avoided had the plaintiff used reasonable care after the defendant’s tort was committed.

Question 40

To recover damages in a medical malpractice action, the plaintiff must prove that the defendant’s conduct was:

Answer 40

To recover damages in a medical malpractice action, the plaintiff must prove that the defendant’s conduct was

the actual and proximate cause of the plaintiff’s injuries.

Actual cause exists when the plaintiff’s harm would not have occurred but for the defendant’s conduct.

Proximate cause exists when the plaintiff’s harm was reasonably foreseeable consequence of the D’s conduct.

Question 41

Does a LO owe a duty to unforeseeable land entrants (e.g., undiscovered or unanticipated trespassers)?

Answer 41

NO

A land possessor owes a duty of reasonable care to foreseeable land entrants. But no such duty is owed to unforeseeable land entrants (e.g., undiscovered or unanticipated trespassers).

Question 42

What duty does a LO owe a licensee?

Answer 42

Under the traditional common-law approach,* land possessors owe a duty of reasonable care to foreseeable land entrants—including persons who enter the land with permission (i.e., licensees).

When this occurs, the land possessor owes licensees a duty to:

(1) warn about concealed dangers that are known or should be obvious to the land possessor and
(2) use reasonable care in active operations conducted on the land.

A land possessor who breaches this duty and causes the licensee physical harm is liable for negligence.

Question 43

Liability for multiple tortfeasors for indivisible harm

Answer 43

1) Joint & several liability
- Any tortfeasor can be held liable for plaintiff’s total amount of damages
- Tortfeasors can sue each other for contribution
2) Several liability
- Each tortfeasor is liable for portion of damages corresponding to his/her proportionate fault (eg, 15% of damages for 15% fault)

Joint and several liability arises when two or more defendants were negligent and any one of them could have caused the plaintiff’s indivisible harm. This allows the plaintiff to recover the full amount of damages from any of the negligent defendants, even if it is impossible to prove which one actually caused the harm.* However, the plaintiff must first prove that each defendant was negligent.

Question 44

In a contributory negligence jx, is the P’s contributory negligence a defense to strict liability?

Answer 44

NO.

In contributory-negligence jurisdictions, the plainti!’s contributory negligence is not a defense to strict liability, i.e., it does not bar recovery.

Question 45

Firefighter’s Rule

Answer 45

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent to the job (“firefighter’s rule”).

Question 46

Common Carrier Duty

Cruise ship & Passengers

Answer 46

A special relationship exists between common carriers, such as operators of cruise ships, and their passengers.

As such, a common carrier has a duty to use the highest level of care consistent with the practical operation of its business.

Example:

Question where man locked friend in cruise ship small cabin room…lock in cabin was broken…ship knew about the broken lock…cruise ship operators are liable for friend’s negligence claim

Question 47

Is expert testimony always required to establish a standard of care for a professional?

Answer 47

NO.

Expert testimony is not always required to establish a standard of care for a professional.

Although it may be helpful when it is necessary to explain what standard of care an ordinary practitioner in the same community would use, expert testimony is not required when the defendant’s negligence is so apparent that a layperson could identify it.

Question 48

Brief rule statement on negligence/standard of care

Answer 48

One is liable in negligence if the following four elements can be established: duty, breach, causation, and damages.

The usual standard of care imposed is that of a reasonably prudent person under the circumstances.

Question 49

“Thin-skull” or “Eggshell-plaintiff” Rule

Answer 49

Under the “thin-skull” or “eggshell-plaintiff” rule, the extent of the damages need never be foreseeable.

• The defendant is liable for the full extent of the plaintiff’s injuries that may increase due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 50

Can a plaintiff who suffers only economic loss without any related personal injury or property damage recover such loss through a negligence action?

Answer 50

NO.

A negligence plaintiff must prove actual injury.

A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action.

Question 51

When must a psychotherapist act/warn to protect a third party?

Answer 51

The special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party.

• When a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim.
• The threat must be a serious threat of physical violence against an ascertainable intended victim,
• determined by the objective standard of a reasonable psychotherapist in the same circumstance.

Question 52

What is the standard of care for an intellectually disabled person?

Answer 52

That of a reasonable person with ordinary intelligence and knowledge.

An intellectually disabled person is presumed to have average mental abilities and the same knowledge as an average member of the community.

The defendant’s own mental or emotional disability is not considered in determining whether his conduct is negligent.

Question 53

Is a defendant still liable when an intervening force is unforeseeable but the result was nevertheless foreseeable?

Answer 53

YES.

When an intervening force is unforeseeable, a defendant will still be liable for his acts (or omissions) if the result was nevertheless foreseeable.

• If both the intervening cause and the harm are unforeseeable, however, the intervening cause becomes a superseding cause, and the defendant’s liability is cut off by that superseding cause.

Question 54

When are doctors not under an obligation to disclose risks?

Answer 54

Doctors are not under an obligation to disclose when the risk is a:

i) commonly known risk,
ii) the patient waives or refuses the information,
iii) the patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian), or
iv) disclosure would be detrimental to the patient (e.g., it would upset the patient enough to cause extreme illness, such as a heart attack).

Question 55

Negligence Per Se

Answer 55

Negligence per se occurs when a defendant violates a criminal or regulatory statute that imposes a penalty for failure to meet a specific duty, and the defendant’s failure to satisfy that duty caused the kind of harm the statute was designed to prevent.

Question 56

Negligent infliction of emotional distress

mishandling of a corpse

Answer 56

A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that:

(i) he was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and
(ii) the threat of physical impact caused emotional distress.

Under the majority rule, damages for negligent infliction of emotional distress without physical symptoms are not recoverable; however, an exception exists for the negligent mishandling of a corpse.

Question 57

Attractive Nuisance

Examples of exercising reasonable care in protecting children from the danger

Answer 57

1. Rec Center Mini golf had artifical creek with live wire from motorized windmill in it…Mom opened the lock and let her daughter into the creek to retrieve her ball…kid was electricuted and suffered long-term disability.

• Rec Center successful in defending suit because creek was protecting by a childproof locked fence and warnings. The only way for kids to enter was by help from an adult…by entering, kid exceeding the scope of invitation as an invitee and is considered a trespasser.
• The duty of reasonable care owed to an invitee does not generally extend to trespassers.

2. Colorful Water Fountain in backyard. Kid grabbed ladder from his parent’s garage to hop the fence and slipped on the wet concrete of the fountain and fractured wrist…

• Because children were enthralled by the fountain and the concrete was very slippery, the Woman erected a five-foot fence around backyard with a locked gate that could only be opened by a passcode. Also posted warning and no trespassing signs
• The woman exercised reasonable care to protect children from any potential harm caused by the fountain.

Question 58

Under the Attractive Nuisance Doctrine, a LP may be liable for injuries to children trespassing on the land if:

Answer 58

Under the “attractive nuisance” doctrine, a land possessor may be liable for injuries to children trespassing on the land if:

(i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass,
(ii) the land possessor knows or has reason to know the condition poses an unreasonable risk of death or serious bodily injury to children,
(iii) children do not discover or cannot appreciate the danger of the condition,
(iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and
(v) the land possessor fails to exercise reasonable care.

Question 59

How may a P establish causation when multiple Ds have contributed to P’s injury?

Answer 59

The Substantial Factor Test

• When multiple defendants have contributed to the plaintiff’s injury, the plaintiff may establish causation by showing that the defendant’s conduct was a substantial factor in causing the plaintiff’s injury.

Question 60

Negligent Entrustment

Answer 60

The owner of a vehicle (or any other object that carries the potential for harm, such as a gun or lawn mower) may be liable for the negligent acts of a driver or user to whom the car or other property was entrusted if the owner knew or should have known of the user’s negligent propensities.