Negligence Flashcards
Standard Duty of Care
D owes general duty of care to act as reasonably prudent person to all foreseeable plaintiffs.
* Cardozo (majority): D owes duty of care to all people in foreseeable zone of danger from D’s acitivities
* Andrews (minority): D owes duty of care to everyone
Negligence Per Se - Statutory Duty of Care
The duty of care imposed by a statute with a criminal penalty can REPLACE general common law duty of care IF:
* P was in class that statute intended to protect
* P’s injury was type of harm statute intended to prevent
Majority: Violation of statute constitutes negligence per se (presumption of duty + breach of duty)
* Minority: Violation only creates rebuttable presumption of duty/breach OR prima facie evidence of negligence
Firefighter’s Rule
General duty of care limited for firefighters and police officers on public policy/assumption of risk grounds IF:
* D is firefighter/cop
* D’s injuries arose from risks inherent in their job (as firefighter or law enforcement)
Duty of Care - Children
General duty of care that children owe is based on children of like age, intelligence, and experience
EXCEPTION: When child engages in adult activity (ex. driving car), child is held to reasonably prudent person standard
Duty of Care - Professionals
Duty of care of professionals requires them to
* possess and exercise knowledge and skill of member of profession in good standing
* professional must apply his superior knowledge, skill, and judgment
Doctors: duty based on national standard of care
* Includes duty to disclose risk of treatment (provide patient with enough info about risks so patient can make informed consent)
Breach of Duty
D breaches duty when D’s conduct falls below level required by applicable standard of care
- Negligence per se (arises from violation of statute) constitutes presumption of duty + breach of duty
Actual Causation
P’s injury wouldn’t have occurred but for D’s conduct
Merged Causes - Substantial Factor Test: If several causes lead to injury and any of them standing alone was sufficient to cause it, D’s conduct is “cause-in-fact” if it was substantial factor in causing injury
* Here, both parties cause harm
Unascertainable Causes: There are two acts but only one causes injury and it’s not clear which one. Each D has burden of proving he wasn’t the cause.
* Here, both parties acted negligently but only one party caused actual harm
Proximate Causation
- D liable for all harmful results that result from conduct + harm from increased risk created by conduct.
- Indirect cause case: intervening force after D’s negligence combines with it to cause P’s injury. If D’s negligence made it foreseeable the intervening force would harm P, D is liable.
- Superseding force: If D’s negligence created foreseeable risk that third party would commit intentional tort/crime, D’s liability is NOT cut off by tort/crime. If tort/crime wasn’t foreseeable, it is a superseding force that cuts of D’s liability
- Ex. D’s negligence is leaving door open and intervening force is burglary. If burglary wasn’t foreseeable, then it’s superseding force.
Damages
D can recover damages even if extent of harm and severity of it wasn’t foreseeable (tortfeasor takes his victim as he finds her)
* Eggshell plaintiff: If plaintiff has a physical or mental condition that made them more susceptible to injury than a person in regular good health, doesn’t matter, D still liable for full extent of injury
Negligent Infliction of Emotional Distress
(a) P was in the zone of danger created by D’s negligence and P suffered physical symptoms from distress
(b) P was bystander and NOT in zone of danger but can recover damages for distress caused by seeing D negligently injuring a third party IF:
* (i) P and the third person are closely related
* (ii) P was present at scene of injury
* (iii) P personally observed or perceived the event
Defenses - Negligence
If P’s negligence contributed to injury:
(a) Under traditional contributory negligence rules, P barred from recovery
* P who knowingly and voluntarily assumed risk of injury also barred from recovery
(b) Under modern comparative negligence rules, P’s damages are reduced accordingly
* Modern rules replaced traditional contributory negligence and implied assumption of risk rules
Res ipsa loquitur
Negligence is in the air and is attributable to D. P must prove that
* (a) the harm would not ordinarily have occurred without negligence
* (b) the object that caused the harm was under the defendant’s control, and that
* (c) there are no other plausible explanations.
