Negligence Flashcards
Basic negligence frame
DUTY
BREACH
CAUSATION
DAMAGES
Duty
Does the law impose an obligation from D to P?
Rule: D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others
Duty: foreseeable plaintiffs
D owes duties only to those persons inside the GEOGRAPHIC ZONE OF DANGER at the TIME OF NEGLIGENCE
Rescuers are PER SE FORESEEABLE
Duty: nonfeasance
Failure to intervene/confer benefit. Starting point: NO DUTY to rescue
Exception: if D’s tortious conduct created NEED for rescue
Common law: if you do rescue, must act reasonably
Good Samaritan statutes tend to protect unless reckless
Exception: relationship of dependence/mutual dependence
e.g. carrier/passenger, innkeeper/guest, drinking buddies
Duty: control of third parties
Rule: no duty to control the conduct of a third party
- exception: special relationships might impose. parent/child, prison, therapists
Providers of alcohol: statute imposes liability for DUIs if they reasonably should know patron drunk
Negligent entrustment: giving something dangerous to party not competent to handle
Duty to protect
Generally no duty to protect from 3rd parties
Exceptions:
- special relationship (landlord, business)
Duty: governmental agencies
Proprietary Function (acting in private area): Treated as any other D for duty analysis.
Discretionary Activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty.
Ministerial Function: Duty once government has undertaken to act (Ex: stop sign installed incorrectly leading to accident).
Public Duty Doctrine: Courts find no duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, except when:
- there is a special relationship between P and the agency; or
- the agency has increased the danger beyond what would otherwise exist.
Duty: special case for NIED
Same basic framework: duty-breach-causation-damages. So NIED is basically a damages theory
Courts DO NOT like emotional damages for negligence. Restrictions:
- P was in the zone of danger - at risk of PHYSICAL harm
- emotional distress had PHYSICAL MANIFESTATION
Two exceptions to these requirements:
- negligently shared info about death of loved one
- negligently mishandled corpse
Bystander actions: physical harm to CLOSE RELATIVE, P suffers emotional distress as result. requirements:
P located near scene (ZONE OF DANGER), suffered severe distress, had close relationship w victim
Duty: special case for wrongful conception, birth, life
Wrongful conception: birth of healthy child after steps to avoid. Usually, negligently performed sterilization procedure
Wrongful birth: birth of child w anomalies, disease, disability when physician failed to diagnose. MUST claim would have terminated pregnancy if physician had disclosed
Wrongful life: child’s claim for wrongful birth. These nearly never win
Duties by landowners - types of plaintiffs (3)
Invitee: entered onto D’s land by express/implied invite for purpose relating to D’s interest or activities. Duty: REASONABLE CARE. Must reasonably search out dangers
Licensee: entered D’s land w express/implied permission, NOT there for purpose of benefiting D, and land is not open to public. Duty: WARN OF KNOWN, NON-OBVIOUS CONCEALED DANGERS
Trespasser: entered D’s land without permission. Duty: AVOID WANTON OR WILFUL HARM
Other duties by land possessors (2)
If D is engaged on ACTIVITY on the land, duty of REASONABLE CARE owed to all but UNKNOWN trespassers
For known/frequent trespassers (obvious - well-worn path), have duty to warn of known and concealed dangerous ARTIFICIAL conditions
Child trespassers / attractive nuisance doctrine (5 step test)
Child trespassers are INVITEES if 5 factors met:
Too young to appreciate the danger;
D knows, or has reason to know, of the trespass;
D knows of the dangerous condition;
Condition is artificial (fountain, pool, equipment that looks fun to climb on); and
The risk of danger of the artificial condition outweighs its utility and burden to fix it.
Plaintiffs adjacent to, but not on, land
Artificial conditions on the land: reasonable care
Natural conditions on the land: no duty, except trees in urban areas
Landlord/tenant duty
Landlord not liable except for:
- common areas LL retains control over;
- negligent repairs;
- concealed dangerous condition, known AT TIME OF LEASE;
- LL knows that T will hold property open to public
Standard of care: reasonable prudent person
This is the default scope for duties
Objective test: would a reasonable prudent person in same position act similarly?
- does NOT consider mental ability, reflex speed, or mental health
- DOES consider physical conditions (blind, deaf, amputee)
- DOES consider emergencies not of D’s own making (rushing to hospital etc)
Breach: factors to analyze
- probability of harm
- likely magnitude of harm
- burden to avoid harm
Standard of care: child defendants
Majority rule: compare to reasonable child of same AGE, EXPERIENCE, EDUCATION, and INTELLIGENCE
Exception: child engaging in adult activity that is inherently dangerous (driving car, shooting gun, etc). If so, hold to reasonable PERSON standard, not child standard
Statutory negligence
Statutes that provide civil liability supersede common law.
e.g. law says anyone not wearing seatbelt can’t recover for car accident
Negligence per se
If D’s conduct violates a criminal statute, that statute can establish standard of conduct, meaning they are per se negligent. Applicable when:
- P member of class law is designed to protect; AND
- injury is type law is designed to protect
Majority rule: breach of law only establishes DUTY AND BREACH. P must still show causation and damages
Exceptions:
- excused statutory violations, like emergencies, or when complying is more dangerous
- licensing statutes; no or expired license doesn’t create liability
Standards for professionals
Custom establishes standard of care. Besides medical professionals, if D complies with profession custom, no breach of duty - deviation from custom means breach. Exception for unreasonable/outdated customs
Medical malpractice: physicians must possess and use knowledge and training of physicians in GOOD STANDING in relevant geo community.
- specialists: national standard
- GPs: local standard
Informed medical consent:
- traditional rule: liable for battery if NO informed consent, liable for negligence if no consent for risks customarily divulged.
- modern trend: MATERIALITY. Physician must divulge all MATERIAL risks - any that reasonable patient would want to know
Breach of duty: failure to meet standard of care
Two types of evidence: direct evidence (eyewitness or recording of breach - rare) or circumstantial. Remember: evidentiary standard on P is PREPONDERANCE
Slip-and-fall cases: must show D was negligent for not discovering and repairing condition. Must have been present long enough that D should have noticed
Res ipsa loquitor
Allows jury to INFER a breach based on nature of accident and D’s relationship to it. Arises when P can’t precisely identify what the breach was, but situation wouldn’t normally occur without negligence
P must show:
- this sort of accident does not normally occur w/o negligence
- D is likely responsible because D had control over instrumentality of the harm
- P did not contribute to injury
Works in medical malpractice - for instance, equipment left inside P after surgery
Cause-in-fact / but-for causation
P shows that, more likely than not, without D’s negligence, P would not have been injured. REMEMBER: doesn’t have to be the ONLY but-for cause!
Under but-for test, if more than 50% likely, full damages - no reduction to match chance
Multiple causes / substantial factor test
INSTEAD of but-for test, for multiple Ds that each cause harm, but each D would have been sufficient to cause the ENTIRE harm. In this case, each D is a cause-in-fact if a substantial factor in causing harm
Joint and several liability - full damages can be collected from one or more Ds. If not all, liable D can sue for contribution from the others.
Loss of chance
MINORITY rule. P must show that, because of medical malpractice, P would not have lost (sub-50%) chance to treat.
e.g. doctor fails to diagnose cancer when it was 40% treatable, cancer progresses and is now incurable. P loses under but-for theory, because 60% chance she still dies with no malpractice! But minority rule allows a suit for full damages
Most jx don’t use this formulation anymore, they just reduce damages to match the lower chance of success
Alternative liability theory
For situations when exact cause of harm can’t be shown - e.g. two people shoot at quail, P is hit by 1 bullet.
When all Ds are tortious/negligent, all Ds are being sued together, and there’s a small number of Ds - burden shifts to Ds to show NOT the cause. Unless they can, they’re jointly/severally liable
Market share liability
P injured by generic product manufactured by several possible Ds. Every D pays equal to their market share unless they can rule out their product
Proximate cause
Basically, policy reasons to sever causation
- Unforeseeable extent of harm: does NOT matter, as long as TYPE of harm foreseeable. “Eggshell skull” rule
- Unforeseeable TYPE of harm: severs prox cause if harm is of a type not within the risk created. e.g. spice rack rat poison overheats and detonates chandelier - not w/in risk
- unforeseeable MANNER of harm: severs prox cause if a superseding cause INTERVENES and breaks chain of causation. Intervening cause that IS foreseeable will not sever liability - e.g. LL does not install locks, house robbed. negligence usually foreseeable, beyond that less so
Negligence damages
P has burden to prove damages - must be cognizable injury. No nominals
Punitive damages aren’t recoverable for ordinary negligence
Compensatory damages
Return P to pre-injury position. Requires:
- foreseeable TYPE of damage
- reasonably certain, not speculative
- not avoidable. P must take reasonable steps after injury to not exacerbate
Special damages: medical costs, lost wages, cost of repair
- collateral source rule: insurance covering damages doesn’t reduce D liability
General damages: pain and suffering. Controversial
Punitive damages
NEVER recoverable for mere negligence - must be willful, malicious, reckless
D’s wealth highly relevant. Due process clause limits - usually no more than 10% of compensatory
Defenses to negligence: 3
ONE of these, depending on jurisdiction:
Contributory negligence
Comparative fault
Assumption of the risk
Contributory negligence
MINORITY RULE
Burden on D to prove P also fell below reasonable standard
In CN jurisdictions, this is a complete bar. Also common law rule.
Last Clear Chance doctrine (usually wrong answer):
- if D’s negligence is after P’s, so that D had last chance to avoid harm, then P get full recovery
Comparative fault
MAJORITY RULE
Usually PURE comparative fault.
Same analysis - did P’s conduct fall below reasonable care? Burden on D
If so, reduce damages by percentage that P is at fault. MODIFIED comparative fault means if P is more than 50% at fault, no recovery
Assumption of the risk - explicit
P, orally or in writing, relieves D of duty. Usually via athletics waiver
No AR for necessities - apartment rentals, hospitals
Assumption of risk - implied
Recovery reduced or barred if D can show that P:
- knew of and appreciated the risk,
- appreciated the specific danger that caused injury, AND
- voluntarily subjected self to danger
Professional rescuers assume risk of injury ONLY against person who created need for rescuer - firefighter can’t sue arsonist
Primary assumption of risk
Context means there is no duty not to be negligent. Usually sporting events
