Negligence Flashcards
Prima facie case
1) Duty
2) Breach
3) Actual Cause
4) Proximate Cause
5) Damage
General Duty of Care
When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person.
To whom is duty owed.
General rule - must be forseeable plaintiff
Unforseeable problem
When breach of duty to P1 causes injury to P2 to whom forseeable injury might or might not have been contemplated. P2 can recover if located in the zone of danger.
Rescuer?
A rescuer is a forseeable plaintiff - except for firefigters, police or EMT - if D negligently puts himself in peril and P is injured trying to rescue, D is liable.
Specialty unforseeable issues
1) Prenatal injuries - duty if viable - no wrongful life, but wrongful birth or pregnancy allowed (parents can collect)
2) Beneficiary of economic interest - will, etc.
Duty analysis
1) Is there a forseeable plaintiff
2) What standard applies and what is that standard
Typical Standards of care
1) Basic reasonable person
2) Professional
3) Physical Characteristic
4) Children
NOTE: individual mental handicaps not considered
1) Reasonable person
Defendant’s conduct measured against reasonable, ordinary, prudent person - objective standard
2) Professional
A professional or one with special skills is held to that higher standard.
3) Physical
Duty to exercise care of reasonabler person with like physical characteristics - i.e. blind, etc.
4) Children
Like age, education, intelligence, and experience - subjective evaluation of these factors. EXCEPTION - if child engage in adult activity ordinary standard applies
Common carrier and innkeeper standard
They will be liable for slight negligence
Owner occupier standards
Step 1 - Make sure D is o/o or in privity with one.
Step 2 - Determine if injury occurred on or off land
Step 3 - Determine if activity or dangerous conditon - if activity status is irrelevant, this is ordinary negligence case
Step 4 - if dangerous condition, determine plaintiff status
What is privity as it relates to o/o?
Family member, employee
Types of plaintiff - need to determine for dangerous condition
1) Discovered trespasser
2) Licensee
3) Invitee
Discovered trespasser
P responsible for:
1) artificial conditions involving
2) risk of serious injury
3) that o/o knows of
Licensee
On land for his own purposes, responsible for
1) dangerous conditions - no limitation
2) o/o knows of - actual knowledge
Invitee
On land for o/o purpose, responsible for
1) dangerous conditions - no limit
2) o/o should know of - reasonable inspection of premises
If not sure licensee or invitee?
Select invitee
Bar four favorite issues
1) Discharge of Duties
2) Very obvious dangerous condition
3) Infant trespassers/attractive nuisance doctrine
4) Statutory Standards
How does a D discharge a duty?
1) Make Safe - will never see if it was safe, there would be no injury and there will be an injury
2) Warning - look for this one
Very obvious dangerous condition?
No liability - this is an inherent warning because it is very obvious
Infant Trespasser/Attractive Nuisance
1) The child must be able to show he did NOT understand the risk involved.
2) Child NO LONGER has to show attraction to the condition
Statutory Standards
Two part Test:
1) Plaintiff must fall w/in a protected class - rarely an issue
2) Statute must be designed to prvent this kind of harm
What if statute is inapplicable?
Lawsuit is NOT over, apply a different standard of care
Effect of Non-compliance w/ statute?
Conclusive presumption of negligent conduct on D’s part. This des NOT mean D is liable
Excuses for non compliance w/ statute?
1) Compliance would be more dangerous
2) Compliance would be impossible
Effect of compliance (asserted by D as opposed to P which is normal)
OK, but may not meet duty of care requirement, i.e. driving 45 in a 55 MPH zone in a raging blizard.
Misc Duty problems
NIED
1) Physical injury required (unlike IIED)
2) Must be w/in target zone (MODERN view/exception - mother sees child hit by car and has heart attack - yes, P can recover if close relative and perceived the injury to child)
Affirmative duty to act?
General Rule NO
Exceptions to affirmative duty to act.
1) Special relationship (o/o, business invitee, family member, EE/ER, Common carrier/passenter, inkeeper, guest)
2) Duty to contgrol third person - right and ability and must know or should know
3) Assumption of duty to act by acting
4) P’s peril due to D’s negligence
What is Breach?
Negligent conduct
How do you determine if there is a breach?
Did D meet standard of care? - yes, no breach, no there was a breach
What is RES IPSA LOQUITUR
Presumption of negligence - look for fact pattern where P does not have hard evidence of negligence
Test for Res Ipsa is…
Probability inference test
Probability Inference Test
Part one - Infernce of negligence
Part two - negligence attributable to D - exclusive control
Part three - Plantiff not contributorily negligent
What if Res Ipsa applies?
Plaintiff does NOT automatically win, but P’s case will not survive motion for directed verdict - goes to jury who can accept or reject inference
Elements 3&4
Actual and Proximate cause
Actual cause
Three tests for actual cause:
1) But for
2) Substantial factor - more than one D either could have caused by himself
3) Alternate Causes - more than one D either could have caused, but you can’t tell which caused it - burden shift
Proximate cause
actual cause satisfied, but D not liable based on lack of forseeability
Type types of cases
- Direct Cause - uninterrupted chain of events between negligent act and injury - forseeability more clear.
- Indirect cause - intervening force which combines with the prior act to cause injury - forseeability more difficult.
Two rules with forseeability and proximate cause
1) if Unforseeable, let the D go!!!
2) if Forseeable - hold defendant liable UNLESS the interv ening force was an UNFORSEEABLE intentional tort or crime - even though result was forseeable.
Egg shell skull plaintiff
P wins b/c it is not necessary to foresee the extent of the injury, only the injury - this will be a foreseeable result case.
Damages
Property damage rule - take property as you find it, will be responsible to repair or replace
Two additional damage rules
1) Duty to mitigate and
2) Collateral Source Rule - damage not reduced by other sources.
Three Negligence Defenses
1) Contributory Negligence
2) Comparative Negligence
3) Assumption of Risk
Contributory Negligence
- May be knowing or unknowing - difference is knowing has CN and AOR as defenses
Distinctions b/w Contributory Negligence and Comparative Negligence systems (4)
1) Effect of contributory negligence
2) Implied Assumption of risk - availability
3) Last clear chance doctrine
4) Defendant’s tortious conduct was “reckless”
Distinction #1 - effect
In CN state, contributory negligence BARS recovery.
In CompN state, CN reduces recovery in one of two ways, Partial Comp N State - no recovery if P is > 50% CN, Pure Comp N State, P may recover even if more CN
Distinction #2 - AOR
In CN State, available as a defense along with CN
In CompN state, NOT available
Distinction #3 LCC Doctrine
In CN State w/ LCC doctrine, will forgive P for his or her CN (to get around harsh effect of CN rule)
In CompN State, will not forgive P, but this may mean D will have a higher % of fault assigned to him or her.
Distinction #4 - D’s tortious conduct was reckless
CN State - CN will not be a good defense
CompN State - CN will offset the amount - D more liable as a percentage.
