Negligence Flashcards
negligence - PF case (and who decides each element?)
• There are four elements to a prima facie case of negligence: duty, breach, causation, and damages.
– The “duty” element is a question of law for the court; the remaining elements are questions of fact for the jury.
duty - 2 components
– a. A foreseeable plaintiff: in negligence actions, the defendant owes a duty of care only to “foreseeable” plaintiffs; virtually all plaintiffs are foreseeable, so this issue is rarely tested; if it is tested, it will be done using the Palsgraf facts (or facts quite similar thereto)
• the Palsgraf case involved a negligent act committed on plaintiff no. 1 (who was clearly foreseeable) that injured plaintiff no. 2 (whose foreseeability was debatable); the two tests that were used in that case were:
»> The Cardozo Test (majority view today): under such facts, the defendant is liable to plaintiff no. 2 only if plaintiff no. 2 is in the “zone of danger” of (i.e., very near) defendant’s negligent conduct (duty theory) - SO NOT LIABLE FOR PALSGRAF INJURY
»> The Andrews Test: for all practical purposes, Andrews held that if the defendant owes a duty of care to plaintiff no. 1 he also owes a duty of care to plaintiff no. 2 (proximate cause theory)
– b. Standard of Care: If the plaintiff is foreseeable (which will almost always be true), then defendant owes plaintiff a duty of care to protect plaintiff from UNREASONABLE risk of harm
»> The type of duty depends on the defendant’s status (and, in some cases, the plaintiff’s status)
duty - where there is no duty/limited duty (firefighter’s rule; assumption of the risk)
• Firefighter’s Rule: As a general rule, a firefighter, police officer, or other emergency professional may not hold a person (including a property owner) liable for injuries suffered by the professional in responding to a situation created or caused by the ordinary negligence of such person.
»> This rule does not apply to injuries UNRELATED TO the special dangers of the job (e.g., injuries from a routine traffic accident).
• Primary Implied Assumption of the Risk: Under the majority view, a defendant owes no duty to the plaintiff to avoid creating unreasonable risks of harm for injuries that are inherent in sports and recreational activities.
duty of care of owner/occupier - when does duty arise (prerequisite); key note about labelling someone present on your land; duty owed to those not on defendant’s land
• prerequisite: the defendant owes such duties only if he or she is the owner/occupier at the time plaintiff is injured.
»> remember - it is owner/possessor, so duty can be owed even by a TENANT or ADVERSE POSSESSOR (b/c its owner/OCCUPIER)
- note: you can change between these categories – like a business invitee that trespasses onto a part of the land that is not open to guests
- Duty owed to those not on defendant’s land: The defendant must act like a reasonable person to protect those not on defendant’s land from:
(a) activities on the land,
(b) overhanging trees in urban areas, AND
(c) dangerous artificial conditions near the border of the land.
duty of care of owner/occupier - duty owed to undiscovered trespassers, discovered trespassers
• Duty owed to UNDISCOVERED trespassers: Defendant owes NO DUTY to undiscovered trespassers for activities or static conditions on the land, until such trespassers are discovered.
»> Exception: The defendant is liable to undiscovered trespassers for intentional torts and reckless (willful and wanton) misconduct.
• Duty owed to DISCOVERED trespassers (those persons the defendant knows or should know—from known facts—are actually present on the land; defendant has no duty to search for trespassers):
> > > a. Activity on land: defendant owes a duty to act like a reasonable person
> > > b. Static Condition on land (e.g., an uncovered well, a concealed hole, a high-voltage electric fence): defendant owes a duty to warn of concealed, known, ARTIFICIAL (i.e., man-made) conditions that pose a risk of death or serious bodily injury; there is no duty to warn of obvious dangers (i.e., those not concealed)
» i.e. no duty to warn of snow/ice
– SUMMARY: you only have a duty to protect discovered trespassers from known, man-made death traps (traps being concealed)
duty of care of owner/occupier - duty owed to licensees
• Duty owed to licensees (those on the land for their own purpose, including social guests, visiting relatives, police, firefighters):
– a. Activity on land: defendant owes a duty to act like a reasonable person
– b. Static Condition on land: defendant has a duty to warn of concealed, known, dangerous (natural and artificial) conditions; there is no duty to warn of obvious dangers (i.e., those not concealed) and there is NO DUTY to inspect the property for dangerous conditions
– SUMMARY: you only have a duty to protect licensees from ALL known traps (traps being concealed)
duty of care of owner/occupier - duty owed to business/public invitees
• Duty owed to business or public invitees (those on the land for the purpose of the landowner, including customers, visitors to public property, and non-emergency public employees):
– a. Activity on land: defendant owes a duty to act like a reasonable person
– b. Static Condition on land: defendant has a duty to warn of (or preferably make safe) concealed, dangerous conditions known to defendant or should have been known (i.e., defendant has a DUTY TO MAKE REASONABLE INSPECTIONS); there is no duty to warn of obvious dangers (i.e., those not concealed)
– c. If the plaintiff goes into an area not intended for customers (e.g., a room labeled “for employees only”), plaintiff will revert to a licensee or trespasser
– SUMMARY: you only have a duty to protect licensees from all REASONABLY KNOWABLE traps (traps being concealed)
duty of care of owner/occupier - duty owed to infant trespassers (attractive nuisance doctrine); key note on the misnomer!
• Duty owed to infant trespassers (usually children 12 or younger)
– Infant may recover for injuries if she can show :
• (1) owner knew or had reason to know children could be likely to trespass
»> **foreseeability of harm to a child is the main basis of liability
»> CAN SIMPLY COME FROM THE FACT THAT CHILDREN LIVE NEXT DOOR
• (2) owner knew the artificial condition posed an unreasonable risk to children;
• (3) because of her age, infant did not realize the danger;
»> **distinguish between the infant realizing that they are trespassing and appreciating the risk of trespassing - that is NOT our inquiry
- (4) the cost of remedying the danger was slight compared to the risk; and
- (5) owner failed to exercise reasonable care.
– The owner must take reasonable measures to protect children; there is no requirement to make the premises “child-proof.”
MISNOMER: a child trespasser NEED NOT have been attracted onto the property by the condition!
duty - negligence PER SE (key inquiry; result of proper showing; protected classes)
– Negligence Per Se: **typically tested when a CRIMINAL statute (or ordinance or traffic regulation) is quoted in a torts question. • Ask: Does the statute establish the standard of care? This requires (i) that the statute was designed to protect against this type of harm; and (ii) that the plaintiff is within the class protected by the statute >>> ***must be a class more narrow than "thepublic at large")
• If this showing is made, the statute (and the defendant’s failure to comply therewith) constitutes negligence per se and is conclusive proof of duty and breach (but not causation or damages).
»> plaintiff will thus survive a MSJ
– In addition, if the plaintiff is within the class protected by the statute (e.g., children in a school zone), the plaintiff’s contributory negligence will not bar recovery.
duty - negligence PER SE (instances of excusal; results of unsuccessful/excused claim; results of compliance with the law)
• There are some circumstances where the defendant’s failure to comply with a statute will be EXCUSED:
(i) where compliance would be MORE dangerous;
(ii) where compliance is beyond the defendant’s control (e.g., defendant has a heart attack while driving and has not had such attacks before); OR
(iii) where the violation is reasonable in light of the defendant’s young age or physical disability.
- If Negligence Per Se is unsuccessful or excused, the plaintiff may rely on an ordinary negligence claim – so just because you lose on NPS, doesn’t mean you necessarily lose altogether
- **defendant’s COMPLIANCE with the law is evidence that the defendant met the standard of care, but is NOT CONCLUSIVE
duty - NIED & Near Miss cases
– Near Miss NIED:
• emotional distress that resulted in PHYSICAL INJURY (i.e., physical consequences, such as a nervous breakdown, miscarriage, paralysis, heart attack, etc.), AND
> > > evidence of physical injury is not required for (a) the negligent handling of a relative’s corpse or something in close connection with the corpse, (b) the erroneous reporting of a close relative’s death, or (c) a negligent diagnosis from a medical professional
- plaintiff was in the TARGET ZONE of defendant’s negligence (i.e., there is no requirement that defendant make physical contact with plaintiff, but there must be at least a NEAR MISS)
- **NOTE: If the plaintiff suffered actual physical injuries from contact with the defendant, she may always seek damages for emotional distress as part of that claim (i.e., “parasitic emotional distress damages” or “pain and suffering”)
breach - general rules
• 2. Breach: Whether the defendant breached the applicable standard of care is a FACT QUESTION.
– If the defendant failed to meet the applicable standard of care, there is a breach.
»> By contrast, if the defendant met the applicable standard of care, there is no breach.
– Compliance with or failure to meet an industry custom is admissible as evidence, but is not conclusive.
»> Exception: In medical malpractice cases, the defendant’s compliance with established medical customs is often dispositive (i.e., there is no breach).
– While breach of duty is ordinarily a question for the trier of fact, a plaintiff’s failure to offer ANY EVIDENCE on that element of the prima facie case will permit a directed verdict for the defendant.
»> i.e. if res ipsa loquitur fails, you still need to put forth some evidence of deviation from a standard of care
breach - res ipsa loquitor (elements, effect)
– Res Ipsa Loquitur (“RIL”). In some cases, the very fact that a particular harm has occurred may satisfy (at least to some degree) the breach requirement. If a question provides that the plaintiff was injured but the plaintiff has no direct evidence to prove that the defendant was negligent, consider using res ipsa loquitur.
• Elements: RIL applies where:
> > > (1) the accident that injured the plaintiff is of a type that does not generally occur without negligence;
> > > (2) the defendant had exclusive control over the instrumentality or condition that caused the injury; AND
» so cannot use when you had multiple individual defendants with control over the instrumentality!
> > > (3) there is no evidence that the plaintiff was contributorily negligent (this element is generally NOT REQUIRED in states that use comparative fault)
• Effect: If these conditions exist, a PERMISSIBLE INFERENCE of negligence will result, allowing the plaintiff to survive a motion for summary judgment or a motion for directed verdict (a/k/a motion for judgment as a matter of law) and permitting, BUT NOT REQUIRING, the jury to rule in favor of the plaintiff.
»> **not like negligence per se, where in satisfying the elements, you’ve essentially won your case (RIL is just a way to get your case to a jury, but really doesn’t mean much once you get there)
causation - general rule
• 3. Causation: There are two types of causation, both of which must exist for the plaintiff to prevail:
> > > First, the plaintiff must show causation-in-fact (a/k/a actual or factual causation).
> > > If (and only if) that can be shown, the plaintiff must then prove proximate (or legal) causation (a/k/a scope of liability).
causation - cause-in-fact (but for test; substantial factor test; alternative liability test)
• i. “But for” test. This test requires that, “but for the defendant’s negligent act, the plaintiff would not have been injured.” The “but for” test applies any time there is only one tortfeasor.
»> The “but for” test also applies where the negligent acts of two or more tortfeasors—each of which alone would not have caused the injury—combined to cause it; in such cases, each tortfeasor’s negligent act is a “but for” cause.
- ii. Substantial Factor Test (a/k/a Independent Concurrent Causation). If two or more tortfeasors commit negligent acts and either act alone would have been enough to cause the same indivisible injury to the plaintiff, both are jointly and severally liable for the damage.
- iii. Alternative Liability Test (Summers v. Tice - quail hunting case). If two or more defendants commit NEGLIGENT (so this point MUST be proven first) acts and only one act caused plaintiff’s injury, but plaintiff does not know which one, the court will shift the burden of proving causation to the defendants and, if they are unable to prove who caused the accident, they will be held jointly and severally liable.
