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
