Negligence Flashcards
Negligence elements
- Defendant owed a duty of care to Plaintiff
- Defendant breached that duty
- The breach is the actual and proximate cause of Plaintiff’s injury
- There are damages
The general duty of care in negligence
- To whom is the owed duty?
-To all foreseeable victims, including rescuers (but not firefighters/police)
-Unforeseeable victims are outside the zone of danger and always lose (i.e., people passing) - What is the applicable standard of care?
-Reasonably prudent person (basic)
-Special duty for children, professionals, and possessors of land
Basic standard of care
Everyone owes a duty to behave as a reasonably prudent person to avoid injuring foreseeable victims
-Objective standard: measured against hypothetical average person under similar circumstances
-Defendant’s stupidness, drunkenness, and inexperience are no excuse
Two exceptions:
1. Defendant with superior knowledge or experience is required to exercise that experience
2. Defendant with relevant physical characteristics is judged compared to a reasonable person with that characteristic (i.e., a blind person should not attempt to drive a care)
Special duty for defendant children
A child under 5 years of age cannot be liable for negligence
A child between the ages of 5 and 18 is held to the standard of a child of the same age, intelligence, and experience
-Subjective standard that is pro-defendant
Exception: child engaging in potentially dangerous adult activities are held to the basic adult standard of care
-Always operating some type of motor vehicle (i.e., car, boat, tractor, etc.)
Special duty for professional defendants
A professional is judged by a national standard of care for the AVERAGE member of the profession
-Always medical professionals on the exam
-Doctors must disclose serious risks of treatment to have informed consent
Special duties for possessors of land (premises liability)
Depends on status of plaintiff as:
- Unknown trespasser
- Known trespasser
- Licensee
- Invitee
Premises liability short hands
Known = known to land possessor
Man-made = artificial
Death = highly dangerous
Trap = concealed
Unknown trespasser (no duty)
A possessor of land (owner/lessee) owes no duty to an undiscovered trespasser because they are unforeseeable
Known trespasser (known, man-made death traps)
A possessor of land (owner/lessee) owes a duty to known trespassers to protect (warn/eliminate) from known, man-made death traps
-Artificial
-Highly dangerous
-Concealed
-Known to land possessor
Known trespasser = significant pattern of trespassing
Licensee (social guests - known traps)
A possessor of land (owner/lessee) owes a duty to licensees to protect (warn/eliminate) from known traps
-Concealed
-Known to the land possessor
Licensee = person who enters land with permission, but does not financially benefit the land possessor
-i.e., social guests
Invitees (business customers - reasonably knowable traps)
A possessor of land (owner/lessee) owes a duty to invitees to protect (warn/eliminate) from all reasonably knowable traps
-Concealed
-Known to land possessor or could have been discovered by a reasonable inspection (reasonable intervals + thoroughness)
Invitee = person who enters land with permission and financially benefits the land possessor
-i.e., business customers at a grocery store (don’t have to pay if open to public)
Attractive nuisance doctrine
Land possessor must exercise reasonably prudent person standard of care to protect TRESPASSING CHILDREN from artificial hazards
-Land possessor on notice if the condition is likely to attract children (i.e., ferris wheel on land)
-CHILDREN DO NOT HAVE TO BE ATTRACTED TO HAZARD
How to satisfy premises liability duty
- Eliminate hazardous condition
-Repair
-Replace
-Remove - Warn of hazardous condition
Duties of lessors and lessees
An injured guest of a tenant may bring suit against both the owner of the property and the lessee of the property (both have right of possession)
Lessee has general duty to maintain the premises
Lessor must:
-Warn of any known latent defects
-Not negligently repair
Negligence per se
A specific duty imposed by a criminal statute (including fines for regulatory offenses such as speeding) may replace the ordinary duty of care when:
-P is within the protected class (i.e., pedestrians); and
-Statute was designed to prevent the specific type of harm suffered by P
Exception: when complying with the statute would be more dangerous or impossible
Negligence per se conclusively establishes a duty and breach of the duty, but compliance with the statute at issue does not mean the defendant acted in accordance with the ordinary duty of care
Affirmative duty to act
There is no duty to affirmatively act, to rescue or to prevent harm from third parties, except when:
-Special relationship between the parties (i.e., parent-child, common carrier, innkeeper, or shopkeeper)
-Defendant placed the plaintiff in peril
-Defendant assumed the duty by acting (except in jurisdictions that enacted Good Samaritan statutes (assume no statute unless stated otherwise))
Negligent Infliction of Emotional Distress
If P has no physical injury resulting from a tort, he can still pursue emotional distress damages in three scenarios:
-Near miss cases
-Bystander cases
-Business relationship cases
*If a physical injury has been caused by a tort, P can add on emotional distress damages to his physical injury damages without needing to consider the elements of the emotional distress torts
Near miss cases
- P must be within the “zone of danger”
-Sufficiently close that they are subject to a high risk of physical impact - P must suffer physical symptoms from the distress
-i.e., severe shock
Bystander cases
A bystander outside the “zone of danger” of physical injury who sees D negligently injuring another can recover for his own distress when:
1. The person injured is closely related to P; and
2. P was present at the same and personally observed the event
Business relationship cases
A plaintiff may recover when a duty arises from the commercial relationship between plaintiff and defendant that makes D’s negligent performance highly foreseeable to cause emotional distress
-i.e., patient and medical lab, customer and funeral parlor, but NOT customer and dry cleaner
Breach
Occurs when D’s conduct falls short of the applicable standard of care owed to P
Breach is a fact question that can be shown by P through:
-Custom or usage of others to show how a reasonable person should have behaved
-Negligence per se (establishes duty and breach)
-Res ipsa loquitur (establishes duty and breach)
Res ipsa loquitur (“the thing speaks for itself”)
When the occurrence of an event tends to establish a breach of duty
-Used by a plaintiff that does not have knowledge of the defendant’s breach
Plaintiff must show:
1. Accident causing the injury would not normally occur unless someone was negligent; and
- Negligence was probably attributable to the defendant
-Shown by evidence that the instrumentality was in D’s exclusive control
Effect of res ipsa loquitur
Establishing res ipsa = P establishes duty + breach = no directed verdict for D
P failing to establish res ipsa + no triable fact = directed verdict for D
Always deny P’s motion for directed verdict because causation and damages must still be shown
-Usually reject directed verdict for D unless no triable fact
Causation
Plaintiff must show both factual and proximate causation
Factual causation tests:
-“But for” test
-“Substantial factor” test
-“Unascertainable cause” test
Factual causation
Factual causation tests:
1. “But for” test
- “Substantial factor” test
- “Unascertainable cause” test
But for test
An act or omission is a factual cause of an injury when the injury would not have occurred “but for” the act or omission
D can refute by showing that P would have been injured “even if” the act or omission did not occur
Substantial factor test
When two defendants, acting independently of each other, are negligent causing an indivisible harm (i.e., starting two fires)
-P can recover full damages from either D (“joint and severally liable”)
Unascertainable cause test
When two defendants both act negligently and only one causes the injury, but you cannot tell which defendant caused the injury (bird hunting problem)
-Burden of proof shifts to each defendant to show that his negligence was not the actual cause of the injury
Proximate causation
A defendant is liable for all the harmful results that are within the realm of foreseeable risks
-Limitation on liability for the unforeseeable consequences of one’s actions
-Any foreseeability issue for the jury means no MSJ should be granted
Foreseeability guidelines
-Passage of time: the more time that has passed, the less foreseeability
-Geographic distance: the more distance, the less foreseeability
-Prior occurence: if something has never happened before, its not foreseeable
Intervening forces
The natural response or reaction to the situation created by the defendant’s conduct
Common foreseeable intervening forces that do not cut off liability:
-Medical malpractice
-Negligence of rescuers
-Protection or reaction forces (i.e., causing panic that leads to injury)
-Disease or accident caused by the original injury
D might also be liable if his negligence increased the risk of harm from intervening forces:
-Negligent acts from third persons
-Crimes and intentional torts of third persons
-Acts of God
Superseding forces
Intervening forces that produce unforeseeable results and therefore break the causal chain between the defendant’s negligence and the plaintiff’s injury
Eggshell-skull rule (damages)
Defendant is liable for all damages, including the aggravation of an existing condition, even if it was unforeseeable
-D takes P as he finds him
Personal injury
A plaintiff is entitled to compensation for both economic (i.e. medical expenses) and non-economic (i.e., pain and suffering) damages stemming from his physical injury
May also recover any resulting emotional distress damages
Property damage
Property damaged (i.e., trespass to chattel) = cost of repair
Property destroyed (i.e., conversion) = fair market value at the time of the accident
*Pets are property, so no emotional distress damages for dead pets
Comparative negligence
Jury determines the plaintiff’s negligence and reduces damages accordingly (i.e., 10% fault = 10% reduction in damages)
-P’s negligence is not a bar to recovery
Two types:
1. Pure comparative (MBE default)
2. Partial comparative
Pure comparative negligence (MBE default)
Plaintiff’s own negligence contributes to his injuries, but proportional recovery is allowed no matter how great P’s negligence was
Partial comparative negligence
Plaintiff’s own negligence contributes to his injuries, barring his recovery if his negligence was more serious than the defendant’s negligence
-i.e., Plaintiff was 51% at fault and Defendant was 49% at fault
Contributory negligence
Plaintiff’s own negligence contributes to his injuries, completely barring his right to recover at common law
-Minority rule (MBE tests comparative negligence)
-Not a defense to negligence per se or intentional torts
