Negligence Flashcards
Negligence Rule
D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others.
Negligence Foreseeability
D owes this duty only to those persons inside the geographic zone of danger at the time of D’s negligence.
Negligence Rescuers
o Rescuers owed an independent duty (per se foreseeable Ps).
o Nonprofessional rescuers are foreseeable P’s as a matter of policy and can recover against negligent party creating need.
(EX) Della negligently fails to maintain a stool in her ice cream parlor. Xena falls to the ground. Parker runs across the ice cream parlor to help Xena, but slides on the ice cream Xena dropped when she fell, breaking his ankle.
Under Palsgraf, Parker would not be owed a duty but Xena is. As a matter of policy, because Parker is a rescuer, he is owed a duty.
Nonfeasance
Failure to intervene/confer benefit on the P.
When is there a duty to rescue?
▪ D’s tortious conduct creates need to rescue.
▪ Special relationship of dependence or mutual dependence (carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies).
Common law requirements of rescuer
At common law, if a person opts to undertake a rescue, even if he/she doesn’t have a duty to do so, he/she must act reasonably.
VA Good Samaritan Law
Protects from liability for ordinary negligence someone who:
● in good faith provides emergency aid w/o compensation to ill/injured:
● at scene of accident/fire/emergency
● en route to hospital
Duty to Control Third Parties
There is no duty to control the conduct of a third party as to prevent harm to another.
EXCEPT When a special relationship between D and the third party gives the third party a right of protection or imposes a duty on D to control the third party’s conduct.
● EX: The prison has a duty to warn people in the neighborhood of escaped prisoner.
● EX: She must warn the babysitter that son always tries to kill babysitters.
● EX: Psychotherapist - duty to warn a specific party who might be in danger.
Providers of Alcohol Rule (Traditional and in VA)
Purveyor not responsible for DUI injuries.
Dram Shop Acts
Impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party.
o These acts typically do not apply to social hosts, but only to those who are licensed to sell alcohol.
Do Dram Shop Acts apply in VA?
NO - not against establishments or social hosts
Negligent Entrustment
● When D gives something dangerous to someone D knows or should know is not competent to handle it (i.e. Father gives gun to a small child who shoots P).
Duty to Protect
▪ Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless:
● Special relationship: landlord/tenant, business/invitee.
Duty to Protect in VA
Landlord has duty to protect tenant against third-party criminal actor if heightened degree of foreseeablity based on prior conduct
● P must show in imminent danger of harm from criminal assault by third party of which Ds were aware
Government Duty (MBE)
Depends on Function
Government Duty (MBE) - Proprietary Function
(acting in private area): Treated as any other D for duty analysis
Government Duty (MBE) -Discretionary Activity
(using judgment and allocating resources i.e. setting policy): Courts will not find a duty.
Government Duty (MBE) - Ministerial Function
Duty once government has undertaken to act (Ex: stop sign installed incorrectly leading to accident).
Government Duty (MBE) - 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.
VA Government Immunity
absolute sovereign immunity
VA Gov’t immunity - municipalities
sovereign immunity protects municipalities from tort liability only arising from exercise of gov’t functions
Government function definition
Function is governmental if it involves the exercise of political, discretionary or legislative authority
(ex) designing streets = governmental; maintaining them = ministerial
Government Employees Immunity
only if acting w/in scope of their employment BUT NOT if they exceed their authority or engage in gross or willful and wanton conduct
What does 4 factors does a court consider to determine whether ordinary gov’t employee is entitled to protection of sovereign immunity for particular act?
- nature of function performed by the employee
- extent of the state interest and involvement in the function
- degree of control and direction exercised by the state over the employee
- whether the act involved use of judgment and discretion
Virginia Tort Claims Act
creates limited waiver of immunity for:
(1) property damage or personal injury (2) caused by negligent or wrongful act or omission of any gov’t employee while (3) acting in scope of his employment
Virginia Tort Claims Act Damages
Max damage award = $100,000 OR limit of any liability insurance policy maintained against such negligence (whichever is greater)
Who does the Virginia Tort Claims Act apply to?
Applies ONLY to Commonwealth and certain transportation districts
DOES NOT waive sovereign immunity for agencies of the Commonwealth
Duty issues arise when
P’s injury is not personal injury or property damages
Negligent Infliction of Emotional Distress (NIED) Rule
D engages in negligent conduct and, as a result, P suffers emotional distress that has some sort of physical manifestation.
NIED Requirements
● Most jurisdictions require that P be in the zone of danger, meaning at risk of physical harm.
● P must have suffered a physical manifestation of the emotional distress, which proves genuineness.
NIED Requirements Exceptions
o D negligently shares information about the death of a loved one.
o D negligently mishandles a corpse.
NIED - if P isn’t physically injured, can recover under three categories:
(1) near-miss rule
(2) bystander rule
(3) relationship cases rule
Near-miss rule
negligent D did not hurt P but almost did
- P has to show that neg act placed them in zone of physical danger
- P must have suffered subsequent physical manifestations
e.g. heart attack
VA NIED Requirements
Proof of physical jury required for P to recover
VA Bystander Rules
Bystander must be in zone of danger himself.
So close they could have been victim too, so pretty much not a bystander at all.
P must prove symptoms or manifestations of physical injury by clear and convincing evidence.
Bystander Actions (MBE)
Serious physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative.
o P was located near scene of incident;
o P suffered severe emotional distress; and
o P had close relationship with victim (immediate family member).
NIED Relationships Cases Rule
P and D have pre-existing business relationship and nature of business makes it highly foreseeable that careless will lead to emotional distress.
(ex) Patient and medical professional - maybe
(ex) Funeral home and loved one- could be
(ex) dry cleaner - unlikely
Wrongful Conception (MBE)
Birth of a healthy child after the P took steps to avoid conception, often a negligently performed sterilization procedure.
VA wrongful birth, etc. actions
VA recognises:
- wrongful pregnancy
- wrongful birth
VA does not recognize:
-wrongful life action in the child
Wrongful Birth (MBE)
Birth of a child with anomalies, disease, or disability when the physician failed to diagnose issues during the pregnancy.
● P must claim that she would have ended the pregnancy if the physician had not negligently failed to diagnose.
Wrongful Life (MBE)
Child’s claim for having been born with anomalies, disease, or disability because the physician failed to diagnose issues during the pregnancy.
Which wins - statute or common law of torts?
Statutes that provide civil liability SUPERSEDE common law of torts
ex: A state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort. Thus, if P was not wearing a seatbelt when injured in a car accident, P cannot recover in a negligence action
Negligence per se D Rule
Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes (ex: crim traffic law).
Negligence per se applies if:
▪ P is member of a class the law is designed to protect; and
▪ Injury caused by D’s conduct is the type the statute sought to protect.
EXAMPLE: Legislature in the state of Panic passes a law that says “anyone driving after sundown without headlights is guilty of an infraction punishable by up to a $1,000 fine.” This is a criminal law. Dana is driving after dusk without headlights and cannot see Tracy crossing the street, Dana runs over Tracy, injuring him. Tracy sues Dana in negligence and would prefer that the judge use the statute to set the standard of care because it limits the jury’s role.
Negligence Per Se Exceptions
Following statute would be more dangerous than violating it
e.g. swerving to avoid a kid
Compliance of the statute is completely impossible under the circumstances
e.g. driver has a heart attack
Negligence per se majority rule if statute applies
Unexcused violation of the law establishes that D breached a duty to P, but P still needs to prove causation and damages.
Exceptions to negligence per se majority rule:
(1) Excused statutory violation, like an emergency not of D’s own making, or when it’s more dangerous to comply with the law.
(2) Licensing statutes – Not having a license does not create liability.
● Expired driver’s license is not negligence per se.
If negligence per se statute doesn’t apply (majority rule)
The statute will not set standard of care, case proceeds under RPP, not under negligence per se.
EXAMPLE: State of Joy passes a statute that requires all railroads to construct secure fences between their property and neighboring property, failure to do so results in a fine up to $1,000. Dunn Railroad constructs a flimsy fence between their land and Pierre’s. Railroad workers mow the lawn next to the fence. On the other side of the fence is Pierre’s cow. Cow knocks the fence over and eats herself to death on the freshly cut grass. The statute is not designed to protect cows from overeating; therefore, it will not apply.
Virginia Negligence per se - for statutory prohibition to create civil liability in VA - 3 elements
(1) statute must be one enacted for public safety;
(2) injured party must belong to class of persons for whose benefit class was enacted;
(3) harm suffered must be of the type against which the statute was designed to protect
VA - if legislature has explicitly said safety statute doesn’t provide evidence of negligence per se, P may still….
provide common law negligence w/o reference to statute
VA negligence per se - sudden emergency defense
sudden and unexpected occurrence or condition not caused by D demanded prompt action without time for deliberation
