Negligence

Question 1

The Four Elements of Negligence

Answer 1

1. Duty Exists
2. Breach of that Duty
3. Causation
   
   1. Cause in Fact (Actual Cause)
   2. Proximate Cause (Legal Cause)
4. Damages as a Result

Question 2

Does Duty Exist?

Answer 2

Generally, duty is owed to all persons who may foreseeably be injured by defendant’s action.

There is not a general duty to act affirmatively.

Majority Approach (Cardozo): Duty is owed to a plaintiff ONLY IF the plaintiff is a member of a class of persons who might foreseeably be harmed by the conduct.

Minority Approach: Anytime conduct could harm someone then there is a duty to everyone. Whether this particular plaintiff’s injury was foreseeable is an issue under proximate cause.

Question 3

Rescuers as Plaintiffs (Duty)

Answer 3

A person who comes to the aid of another (situation caused by defendant) is considered a foreseeable victim if rescuer is injured.

“Danger invites rescue.”

Question 4

Crime Victims as Plaintiffs (Duty)

Answer 4

In certain circumstances, a crime victim could be a foreseeable victim of which a duty is owed. (Bus fails to stop at your station and instead leaves you in a high crime area).

Question 5

Exceptions to the No Duty to Act Doctrine

Answer 5

Generally, there is no affirmative duty to act to help others. Exceptions include:

• Assumption of Duty: A voluntary undertaking (to rescue or act) creates a duty of reasonable care in performance of the aid/rescue.
• Placing Another in Danger: A sees B drowning, no duty. A sees B drowning because A pushed them into water, then duty exists.
• By Authority: When a person has the ability and actual authority to control another then a duty exists to act reasonably. (Warden must act reasonably when controlling inmates.)
• By Relationship: A special relationship exists.

Question 6

Negligence and the Standard of Care

Answer 6

Rule: The general standard of care is to act like a “reasonably prudent person.” This is an objective standard.

Mental Characteristics: Does not Matter, no modification. Defendant is presumed to have average knowledge and abilities.

Physical Characteristics: The standard of care is modified to that of a reasonably prudent person with that physical characteristic. (I.e. a reasonably prudent blind person if defendant is blind.)

Intoxication: Does not matter, held to the same standard of a reasonably prudent (sober) person. No modification UNLESS intoxication is involuntary.

Children: Modified standard. Held to the standard of a reasonable child of similar age, intelligence, and experience. EXCEPTION: If the child is engaging in a high-risk adult activity (such as driving a car) then they are held to the objective standard for adults.

Question 7

Standard of Care for Common Carriers and Innkeepers

Answer 7

Traditional Rule: Standard was the Utmost Care (highest duty of care consistent with the practical operation of business).

Modern Rule: Many jurisdictions are using normal negligence standard (reasonable care) for innkeepers.

Question 8

Standard of Care for Automobile Drivers

Answer 8

Most jurisdictions apply the standard reasonable care to the driver of the car.

Guests and Friends in Cars: Traditionally, drivers were only liable for grossly negligent, wanton, or willful misconduct against their guests. As stated above, jurisdictions are moving away from this standard.

Question 9

Standard of Care for Bailors and Bailees

Answer 9

[Bailment: When a bailee temporarily takes possession of another’s (the bailor’s) property.]

Common Law Rules

• Bailor must warn bailee of dangerous conditions associated with the property
• If the bailor receives the sole benefit of the bailment, then the bailee has a lesser duty
• If bailee receives a benefit then he has a higher standard of care

Question 10

Standard of care in Emergency Situations

Answer 10

Rule: Standard of care is that of a reasonable person under the same circumstances

Question 11

Standard of Care for Possessors of Land

Answer 11

[Relates to negligence in the maintenance of the property.]

Two Approaches:

• Traditional tripartite structure: (½ of Jurisdictions use): The standard of care depends on the status of the entrant (a) trespasser = lowest standard of care, (b) licensee = intermediate standard of care, and (c ) an invitee/guest = highest standard of care.
• Modern (California) Approach: Reasonable care is owed under the circumstances – status of entrant may be a factor of the circumstance evaluation.

Question 12

Standard of Care for Trespassers

Answer 12

Duty not to use willful, wanton, intentional, or reckless conduct against trespasser.

Rule: Use of spring guns or traps will against trespassers will result in liability.

Undiscovered Trespassers: No duty owed.

Discovered or Anticipated Trespassers: Must warn or protect them from hidden dangers.

“Flagrant Trespassers”: Not used in all jurisdictions, but lesser duty of care applied. [Think burglars.]

Question 13

The Attractive Nuisance Doctrine

Answer 13

Property owner may be liable for injuries to children trespassing on land IF:

• An artificial condition exists on the property in a place where the owner KNOWS/HAS REASON TO KNOW that children are likely to trespass;
• The possessor knows/has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm;
• The children, because of their age do not discover or cannot not appreciate the danger;
• The utility of maintaining the dangerous condition on the land is slight compared to the risk of injury; AND
• The land possessor fails to exercise reasonable care.

Question 14

Standard of Care of Licensees

Answer 14

Traditional Rule: Land possessor has duty to either make the property reasonably safe or warn licensee of concealed dangers.

There is no duty to inspect/look for dangers.

Use for social guests as well.

Question 15

Standard of Care for Invitees

Answer 15

Rule: Duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable care to protect invitee against those dangerous conditions.

This is a non-delegable duty.

Used when someone comes to land for an economic or material purpose (customer at a store, i.e.).

Question 16

Standard of Care for Entrants California Approach for Land Possessors

Answer 16

Minority Approach.

Rule: Reasonable care is owed to all entrants. Status of entrant can be used as a factor for fact finder if reasonable care was provided.

The Third Restatement is similar to California Approach except that it excludes “flagrant trespassers” who are only owed the duty not to intentionally, willfully, or wantonly harm.

Question 17

Standard of Care between Landlords and Tenants

Answer 17

Landlord Must:

• Maintain safe common areas
• Warn of hidden dangers AND
• Repair hazardous conditions.

If the Victim is Off Premises then:

• Landlords are not liable for injuries resulting from a natural condition (unless it is a tree in an urban setting).
• Landlord must act reasonably when conducting activities on land
• Must prevent unreasonable risk of harm to persons not on the premise.

Question 18

Breach of Duty

Answer 18

A violation of the standard of care is a breach of duty.

Two approaches to determine breach of standard of care:

• Reasonable person standard.
• B > PL (Burden is less than Probability of Harm X Severity of Loss

Don’t worry about memorizing, both lead to the same result.

Question 19

Breach of Duty and Customs

Answer 19

Custom: A breach of a majority practice within an industry/profession (“custom”) if generally admissible to show breach, but it is not dispositive.

Professional Customs: Lawyers, Physicians, Electricians, etc.

• Evidence involving professional customs is admissible and dispositive. The compliance with the custom acts as a shield to liability. Deviation from the custom results in a breach.

Question 20

Physicians and Professional Customs (Breach)

Answer 20

Traditional Rule: Based on the physician’s locality (what is a rural v urban custom)

Modern Rule: Uses a National Standard for Custom

Informed Consent: Doctors must have informed consent from patient. Includes doctor explaining the risks of the procedure.

NOT REQUIRED when

• The Risk is Commonly Known
• That patient is Unconscious
• Patient waives/refuses the information
• Patient is incompetent
• Patient would be harmed by disclosure

Question 21

Negligence Per Se

Answer 21

Occurs when there is a breach of a statute/law that establishes Negligence per se

Elements:

1. There is criminal law/statute that imposes a particular duty for the protection/benefit of others;
2. Defendant violates that law/statute;
3. The Plaintiff is in a class of people for which the law/statute was meant to protect;
4. The accident that resulted in the breach was of a type of harm that the statute was intended to protect against; AND
5. Harm was caused by violation of the statute

Question 22

Defenses to Negligence Per Se

Answer 22

• Defendant shows that compliance with the statute would have been more dangerous than violating it
• Compliance was impossible
• Emergency justifies violation
• Physical incapacity limited ability to comply (and acted with reasonable care of people with that disability)

NOTE: Compliance with a statute does not automatically prove reasonable care.

Question 23

Res Ipsa Loquitur

Answer 23

Used for situations where an event would not have happened but for negligence.

Elements:

1. The accident was of a kind that does not normally occur in the absence of Negligence;
2. It was caused by an agent or instrumentality within the exclusive control of the Defendant; AND
3. Accident was not due in any part of the Plaintiff

General Trends:

• Some comparative fault districts do not require third prong
• Some products liability rulings do not require exclusive control when it is clear that product was defective upstream and before it was packaged
• Minority of jurisdictions will hold all defendants in medical malpractice cases presumed jointly/severally liable

Question 24

Res Ipsa Loquitur and the Third Restatement

Answer 24

More lenient elements:

1. Accident is of a type that ordinarily happens as a result of Negligence of a Class of Actors; AND
2. The Defendant os a member of that Class

Question 25

Causation - Cause in Fact

Answer 25

There are Two Components:

• Cause in Fact (Actual Cause)
• Proximate Cause (Legal Cause)

Need BOTH

Question 26

Cause in Fact

Answer 26

“But For” Test - Plaintiff must show that injury would not have occurred “but for” the Defendant’s Negligence

Question 27

Complicating Factors of the But For Cause in Fact Test

Answer 27

Certain Fact Patterns May Create Issued in Proving this Test

1. Common Problematic Circumstances
   
   1. Multiple Tortfeasors
   2. Multiple Possible Causes of Harm

Resolving These Issues:

Substantial Factor Test: Used when multiple factors in causation. Tries to show Defendant’s action was a “substantial factor”

Alternative Causation: If unable to show which defendant caused injury (usually in cases of two) then court will shift burden of proof to the joint defendants. Holds them in join and several liability until they prove otherwise.

Concert in Action: If two or more tortfeasors were acting together collectively and causes Harm, then all defendants held jointly and severally liable.

Question 28

Cause in Fact and Loss of Chance

Answer 28

Loss of Chance is an attempt to show that the Negligence harmed the Plaintiff by removing their chance/opportunity to do something.

Traditional Rule: A patient could not prove but for causation if their chance of survival was less than 50% when they were misdiagnosed.

Modern Rule: If a physician negligently reduces the plaintiff’s chance of survival, then plaintiff can recover got the lost chance of recovery (portion of the survival that was affected).

Question 29

Negligence - Proximate Cause

Answer 29

Proximate Cause shows that the defendant’s actions are not so removed from the harm.

General way of analysis is foreseeability. Majority rule is there is no liability for an unforeseeable harm.

Question 30

Intervening Causes

Answer 30

An event that does not break the chain of causation under a Proximate Cause analysis.

Question 31

Superseding Cause

Answer 31

An event that breaks the chain of causation in a Proximate Cause analysis.

Question 32

Eggshell Plaintiff Rule

Answer 32

Rule: Defendant is liable for full extent of plaintiff’s injuries even if the extent of the injuries is unusual or unforeseeable.

Question 33

Actual (Compensatory) Damages

Answer 33

Purpose is to make the plaintiff whole again.

Sometimes if a physical injury is suffered (as opposed to property damage) then emotional damages are awarded.

Emotional damages is an example of a “parasitic damage”.

Plaintiff has obligation to mitigate damages. Failure to do so can lessen an award amount.

Question 34

Personal Injury and Compensatory Damages Examples

Answer 34

• Medical Expenses (Past and Future)
• Lost Income and Reduced Earning Capacity
  
  • Pain and Suffering (Past and Future)

Question 35

Property Damage and Compensatory Damages Examples

Answer 35

General Rule: Plaintiff can recover the difference in the market value of the property before and after the injury.

Cost of Repair or Replacement Value may be offered as an alternative.

Question 36

Collateral-Source Rule

Answer 36

Rule: Benefits or Payments to the Plaintiff from outside sources are not credited against the liability of the tortfeasor.

[So an insurance payout does not lessen what tortfeasor owes.]

Evidence of such payments are inadmissible in court.

Modern Trend: Most jurisdictions have modified this rule to limit double recovery.

Question 37

Punitive Damages

Answer 37

Purpose: To punish and deter future conduct.

Might be available when the defendant acted willfully, wontonly, recklessly, or with malice.

Limitations

• By statute
• US Supreme Court: As a matter of Due Process, punitive damages must be within a single-digit (1-9) ratio of any compensatory damages.

[Punitive Damage award that is 10x higher than compensatory damages award would be suspect. If it was 9x greater, it would be less so.]

Question 38

Negligent Infliction of Emotional Distress

Answer 38

Different than Intentional Infliction of Emotional Distress!

At common law, could not recover unless accompanied by physical injury. Modern trend allows recovery in specific circumstances:

1. Zone of Danger Recovery
   
   1. The plaintiff was in a “zone of danger” of the threatened physical impact AND the threat of physical impact caused emotional distress.
2. Bystander Recovery
   
   1. The bystander must be closely related to the person injured by the defendant;
   2. They were physically present when the injury occurred (Seeing on TV or over the Phone is not enough); AND
   3. Plaintiff personally observed the injury.
3. Special relationship
   
   1. Negligent mishandling of a corpse
   2. Negligent medical information (i.e. negligent diagnosis)

NOTE: Most jurisdictions require a physical manifestation of distress to recover (nausea, miscarriage, insomnia, etc.)

Question 39

Recovery for Pure Economic Loss

Answer 39

Rule: Plaintiff cannot recover from a purely economic loss. MUST have a physical injury or property damage to recover economic loss.

Question 40

Wrongful Death and Survival Action

Answer 40

Wrongful Death is brought bu decedent’s spouse or representative to recover losses suffered by the spouse/representative as a result of the negligence that caused decedent’s death. (Can include loss of economic support and loss of consortium)

Survival Action is brought by the representative of decedent’s estate on behalf of the decedent.

Question 41

Wrongful Life and Wrongful Birth Claims

Answer 41

Wrongful Life is a claim by the child that defendant’s negligent actions resulted in child’s birth (usually associated with birth defects/undiagnosed birth defects). Available in few jurisdictions.

Wrongful Birth is claim made by parents for negligence in performing contraceptive procedure or failure to diagnose birth defect. Many states allow.

Question 42

Definition of Vicarious Liability

Answer 42

When a person is liable for another person’s negligence.

Question 43

Respondeat Superior

Answer 43

Occurs when an employer is held vicariously liable for the negligence of an employee IF it occurred with the scope of employment.

Rule: Does not include intentional torts of employees unless within scope of employment

Detour: A detour (or minor deviation) from scope of work will not block respondeat superior.

Frolic: A frolic (or major deviation) from scope of work will block use of respondeat superior.

Question 44

Torts Committed by Independent Contractors and Employer Liability

Answer 44

Generally, employers are not liable for torts committed by independent contractors.

An independent contractor is distinct from an employee if the employer does not have control/direction over the contractor.

Exception: Apparent Agency Doctrine:

• An independent contractor will be treated as an employee if:
  
  • The injured person accepted the IC’s services based on the reasonable belief that the Contractor was an employee based on manifestations from the employer AND
  • The Contractor’s negligence is a factual cause of harm to person who received services AND
    
    • The harm occurred within the scope of liability of the Contractor

NOTE: Employers cannot delegate inherently dangerous activities to contractors to avoid liability.

Question 45

Liability between Business Partners

Answer 45

A business partner can be liable for torts of other business partners committed within the scope of the business’s purpose.

Question 46

Negligent Entrustment

Answer 46

Negligent Entrustment: Owner can be directly liable for negligently entrusting a vehicle (or other dangerous object) to someone who is not in the position to care for it. [Applies to automobiles as well.]

Question 47

Family Purpose Doctrine

Answer 47

The owner of an automobile may be vicariously liable for the tortious acts of any family member driving the car with permission.

Question 48

Automobile Owner Liability Statutes

Answer 48

The owner of an automobile may be vicariously liable for tortious acts of anyone driving a car with permission.

Question 49

Liability of Parents and Children

Answer 49

General Rule: Parents are not vicariously liable for torts done by minor children.

This does not remove parents liability for own negligence that might be involved (i.e. negligent supervision).

Question 50

Dram Shop Liability

Answer 50

Rule: Owners of bars, bartenders, and even social hosts may be liable for injuries caused they over serve guests/patrons and those guests injure third parties.

• Based on statute–varies from jurisdiction
• Law holds the bartenders liable IN ADDITION to negligent party, not instead of.

Question 51

Federal and State Immunity from Tort Liability

Answer 51

Generally, federal and state governments have immunity from tort liability UNLESS they waive that immunity.

• Federal Tort Claims Act waives immunity for some torts

Question 52

Joint and Several Liability

Answer 52

Rule: When two or more defendants are each liable for a single and indivisible harm to the plaintiff; each defendant is subject to liability to the plaintiff for the entire harm.

Damages: Plaintiff can recover all of their damages from either negligent party. [Double recovery is not allowed though]