Negligence Flashcards
Element of Negligence
- Duty
- Breach
- Actual Cause
- Proximate Cause
- Damages
What is general duty of care?
Defendant owes a duty of reasonable care (reasonably prudent person) to all foreseeable plaintiffs in the zone of harm.
What is the reasonably prudent person standard of care?
D must act as a reasonably prudent person would under the same circumstances with the same knowledge and capacity as an average person
⭐️ Objective standard
Who are foreseeable plaintiffs?
Presons who are in zone of danger (area where the person is reasonably at risk of suffering physical harm from defendant’s conduct)
What are the different standards of care?
Reasonable Prudent Person standard (RPP);
Standards imposed on children;
Standards imposed on physically disabled
Standard defined by statute;
Standard for professionals;
Standards for landowners;
Standard for common carriers & innkeepers and
Standard defined by industry custom
Standard for Emergencies
What is the standard of care for children?
Child must act as a child of similar age, experience, and intelligence would.
⭐️ More subjective than RPP standard.
⚠️ However, if the child is engaged in a high-risk activity that is usually undertaken by adults, they will be held to the same standard of care as an adult
Exception for adult activities
When are children held to the adult standard of care (RPP)?
When engaging in inherently dangerous adult activities (e.g. driving a car or motorcycle)
What is the standard of care for people with physical disabilities?
Must behave a reasonable person with similar disability
Is there a different standard for people based on mental characteristics?
No, d’s mental characteristics are irrelevant
What is the standard of care for emergencies?
Must behave as a reasonable person would if confronted with same emergency if they have to respond and there’s no time to reflect
Good Samaritan Rule
D who rescues another will not be liable for negligent harm, only for reckless or intentional harm.
What is the standard of care for professionals?
Must act the same as a professional with the same expertise & experience who is in good standing in a similar community
What is the standard of care for doctors?
Must act the same as a doctor in good standing would.
Some jurisdictions: compared to a doctor in good standing in the same geographic area
Some jurisdictions: compared to a doctor in good standing nationally
What is the standard of care for specialists?
National standard of care for that speciality
Do doctors have a duty to explain medical risks?
Yes, unless:
Commonly known risk;
Patient refuses;
Patient is incapacitated or incompetent; or
Disclosure would harm/injure patient
Is there an affirmative duty to intervene, rescue, or aid another?
A
No, unless:
D has a special relationship with P;
D creates a need for rescue; or
D undertakes the rescue and P relies on the rescue attempt
What is the duty of care for common carriers?
Common carrier- person or business that transports passengers or goods for a fee and establishes they are open to the public
Highest duty of care; liable for even the slightest negligence
What is the duty of care for innkeepers?
Third restatement approach: utmost standard of care (same as the common carrier standard)
Majority approach: only responsible for ordinary negligence
Define
Invitee
Either:
A business customer: someone invited on the land to confer an economic benefit on the land possessor; or
A public invitee: someone invited on land that is open to the public
What duty is owed to invitees?
Property owner must:
Inspect area where invitees have access;
For non-obvious, unknown dangers;
Warn the invitee of the dangers; and
Protect them from the dangers
⚠️ Note: Duty is non-delegable
What is non-delegable duty?
Duty that does not absolve D of liability when contracted out to a third party (i.e. D is still ultimately liable)
Define
licensee
Person who enters onto D’s land with D’s express or implied permission (e.g. friends, social guests, emergency personnel)
What duty is owed to licensees?
Property owner must:
Exercise reasonable care on the property;
Warn or correct concealed dangers;
That are known or should be known;
In areas where P has access as a licensee
⚠️ Note: No duty to inspect for dangers
What duty does a landlord owe to its tenants?
Reasonably inspect and keep safe all common areas; and
Warn tenants of hidden dangers
Is D’s duty to licensees non-delegable?
Yes
What duty is owed to foreseeable trespassers?
Property owner must correct or warn of dangerous, artifical conditions on land that could cause death or serious bodily harm
⚠️ There is no duty to warn about natural conditions
What duty is owed to unforeseeable trespassers?
None
What is the attractive nuisance doctrine?
D is liable for child trespassers if:
D knows of a dangerous, artificial condition on the property;
That poses a risk of death or great bodily harm to children;
In a place that D knows or should know children are present;
Children are too young to appreciate the danger;
The risk of harm to children outweighs the burden of fixing the condition; and
D failed to remedy the dangerous condition
What is a defense to an attractive nuisance claim?
D posted a very specific warning about the dangers; cannot be a general warning.
Define
negligence per se
Negligence that arises from violating a law that was designed to protect a specific class of persons from a specific harm.
P doesn’t need to show that D was negligent, only that D didn’t follow the statute.
(Ex. speeding)
Elements for negligence per se
Statute imposed duty;
D did not perform duty;
P is a member of a class that the statute was designed to protect; and
Injury caused by D is the type of injury that the statute was designed to protect against
What are the defenses to negligence per se?
- D’s non-compliance was reasonable given the circumstances; or
- Full compliance was impossible
When has a breach of duty occurred?
When D fails to follow the appropriate standard of care
What is res ipsa loquitur?
A
Arises when P does not have direct evidence of D’s negligence, but her injuries suggest D was negligent
If D contracts out a non-delegable duty to a third party, are they still considered to be in exclusive control of the premises for the purposes of res ipsa?
- Injury would not occur without negligence;
- D had exclusive control over instrumentality that caused the injury; and
- P did not contribute to the injury
If D contracts out a non-delegable duty to a third party, are they still considered to be in exclusive control of the premises for the purposes of res ipsa?
Yes, if the duty is non-delegable, D remains in exclusive control
What is actual cause (“cause-in-fact”) and what are the 3 tests to determine its existence?
Factual cause of P’s injuries.
Tests:
1) “But-for;”
2) Substantial factor; and
3) Burden-shifting test
What is the “but-for” test for actual cause?
Actual cause exists when, “but for” D’s negligence, P would not have been harmed
What is the substantial factor test for actual cause?
Actual cause exists when D’s negligence was a substantial factor in bringing about P’s injury
⭐️ Used when there are multiple causes or tortfeasers that could have caused P’s injuries
What is the burden-shifting test for actual cause? (also called alternative liability)
If one or more D’s simultaneously engaged in negligent conduct that could have caused P’s injuries, the court will ask each D to prove their actions were not the actual cause of P’s injuries.
If D cannot prove that the other D was responsible for the injury, both will be held jointly & severally liable.
See Summers v Tice
What is proximate cause?
Legal limitation on actual cause. Asks: “Is it legally fair to impose liability on D?”
Holds that P’s injuries must be foreseeable and a direct consequence of D’s actions (i.e. no intervening or superceding causes)
“eggshell skull” rule
D is responsible for the full extent of harm he caused, even if extent of damages was not foreseeable.
Define
Intervening cause
Event that happens after D’s conduct that contributes to P’s injuries (e.g. medical malpractice).
Can be either foreseeable or unforeseeable. If unforeseeable, D is relieved of liability.
Define
Superseding Cause
Unforeseeable, freakish, or bizarre intervening event that breaks the chain of causation between the initial wrongful act and the ultimate injury.
Negates proximate cause, thereby relieving D of any liability.
Examples of foreseeable & unforeseeable intevening events
Foreseeable (D still liable)
- Medical malpractice;
- Rescuer negligence;
- General negligent acts/accidents by third parties
Unforeseeable (D not liable)
- Acts of God;
- Gross or bizarre medical malpractice (much more than ordinary negligent malpractice);
- Intentional tortious or criminal acts by third parties
⚠️ Note: Defendant can be liable if his conduct set the stage for an intentional criminal act (left someone’s car unlocked and it was broken into, etc.), and can also be held liable if the risk of harm from an Act of God was increased by his negligence.
What type of harm does P need to prove to recover on a negligence claim?
Actual damage; i.e. actual harm to person or property
Nominal damages & damages for solely for economic harm are not sufficient
Define
Compensatory Damages
Damages designed to return P to her pre-injury position; i.e. make P whole
What types of damages can P recover?
1) Medical expenses (past & future);
2)Pain and suffering (past & future);
3) Lost income/earnings (past & future);
4) Property damages (reasonable value of repair or fair market value at time of injury if irreparable)
What is the extent of a claim for property damage
Reasonable cost of repair, or if property has been totaled or destroyed the fair market value at timem of accident
Define
collateral source rule
The fact that P is getting compensated from a third party source (insurance, union contract, etc.) does not alleviate D’s obligation to pay, nor is such evidence admissible at trial.
Is P entitled to punitive damages for ordinary negligence?
No, only if D acted recklessly, maliciously, willfully
Is D’s net worth relevant when calculating damage awards?
Only when determining punitive damages
Does P have a duty to mitigate?
Yes, P must take reasonable steps to mitigate damages.
Contributory negligence jurisdiction: failure to mitigate bars recovery for harm caused by aggravation of injury
Comparative negligence jurisdiction: May reduce recovery but does not bar it
What are the defenses to negligence?
1) Contributory Negligence;
2) Comparative Fault; and
3) Assumption of Risk
⚠️ Note: Assume comparative negligence applies unless otherwise stated by MBE
Define
Contributory Negligence
P’s conduct fell below the relevant standard of care and contributed to P’s injury
⭐️ Complete bar to recovery
What is the “last clear chance” rule?
P can defend contributory negligence claim by alleging that D had last clear chance to avoid injuring P, but failed to do so
⚠️ Note: Not allowed in comparative fault jurisdictions
Define
Comparative Fault
Apportions fault between P and D and reduces P’s damages proportionally.
Two types:
Pure comparative negligence
Modified comparative negligence
Pure comparative fault jurisdiction
P cannot be more than 50% at fault for the resulting injury or else recovery will be barred.
If P is less than 50% at fault, recovery is reduced by percentage P was at fault (same as pure comparative negligence)
Define
Partial Comparative Fault
plaintiff assigned more than 50% of the fault is barred from recovery
This is** not** the default standard for the bar. Default is pure comparative negligence
What is the default jurisdiction on the MBE, contributory negligence or comparative fault?
Pure comparative fault in which joint and several liability applies
What must D show to prevail on an assumption of risk defense?
P knew or should have known the risk of the activity; and
P voluntarily participated in the activity anyways
Can be express (written waivers) or implied.
Is assumption of risk a defense in a comparative negligence jurisdiction?
No. Assumption of risk can reduce the amount P would recover, but will not be a complete bar to recovery (unlike in contributory-negligence jurisdictions)
If a state has traditional joint and several liability rules, allows contribution, and uses a pure comparative negligence system, how do you calculate damages?
Joint and several liability: you can try to get 100% from each of the D’s, however, comparative negligence means you have to reduce amount by whatever percentage each D was at fault.
Ex. For example, if there are 2 defendants with a judgment of 10,000 against them, the plaintiff could try to get 10,000 from each of them. However, if defendant 1 has 25% responsbility and defendant 2 has 75%, you can only collect $2,500 from D1 and $7,500 from D2.
Elements for negligent infliction of emotional distress (NIED)
1) D’s negligence created foreseeable risk of harm to P;
2) P was in the zone of danger; and
3) P suffered emotional distress as a result
What type of symptoms are necessary to prove emotional distress (but not always)?
Physical symptoms (e.g. heart attack) (not required in some jurisdictions)
Elements for bystander negligent infliction of emotional distress (NIED)
1) P is closely related to V;
2) P was present at the scene of the injury;
3) P witnessed or perceived the injury causing event; and
4) P suffered severe emotional distress as a result
Elements for emotional distress claim for the mishandling a dead body
1) There has been mishandling of a dead body;
2) Person affected had a special relationship to the deceased, and
3) Emotional distress was severe
Define
Negligent Entrustment
D is liable for negligent entrustment if:
1) P has a reputation or record that shows propensity to be dangerous when in possession of such instrumentality;
2)** D knew or should have known** P had this dangerous propensity;
3) D provided P with the dangerous instrumentality, and
4) P injures third party with dangerous instrumentality
What is the difference between express assumption of risk and implied assumption of risk?
Express assumption of risk is when plaintiff expressly agrees in advance of har that plaintiff won’t hold the defendant liable and Implied is when plaintiff assumes the risk by his conduct (voluntarily proceeds int he face of known risk)
