Negligence Flashcards
Duty
A person owes a duty of reasonable care to avoid foreseeable, unreasonable risks of harm to others (foreseeable ’s), measured objectively by the reasonable person standard (RPP).
RPP
will take precautions against creating unreasonable risks of injury to others.
The Professional Standard of Care Rule – D must prove this
o 1) Possess/Competent knowledge, skill, and training.
o 2) Exercise reasonable care and due diligence in applying skill, learning, or knowledge
o 3) Exercise good faith best judgment (v. mere error in judgment) means going in the right direction a pro RPP would do
NIED Impact Rule
During Δ’s negligent conduct, Π is physically touched which causes emotional distress. A physical touching is required. Harm not needed just an impact.
NIED Zone of Danger
Π must be in the zone of danger of Δ’s negligence. There is some threat to Π, but no direct touching.** just missed by car**
NIED Bystander Recovery
observing Δ’s negligent conduct that causes injuries against another (no impact and not w/ in zone of danger) can recover by seeing events – MUST HAVE SIGNIFICANT DISERNABLE TRAUMA/INJURY.
NIED Bystander – Knowness
Π must be related to victim by blood or marriage familial, could argue long term relationships b/c the degree of emotional attachment - (cannot recover if do not even know the person, i.e. witnessing Kennedy’s death or Challenger explosion)
NIED Bystander – Nowness
Contemporaneous observation, witness event – “sensory perception” – FLA juris. You can see, or come to scene, or hear event to recover.
NIED Bystander – Nearness
Π must be at the scene, physical proximity.
Premises Liability
Trespassor 2 duties
o Duty - NONE: Undiscovered Trespasser – No duty
EXCEPTION: cannot intentionally or willfully harm trespasser – i.e. spring gun
o Duty - WARN: Discovered Trespasser (frequent or tolerated) – Duty to warn of hidden, known dangers known to owner – b/c owner should reasonably know of trespasser
EXCEPTION: No duty to warn of obvious dangers.
Trespasser Attractive Nuisance Exception
Allows trespassing children who have been injured by an artificial dangerous condition on the land to recover if:
- Possessor knows or has reason to know that children are likely to trespass on the property
- Possessor knows or has reason to know that the artificial condition involves an unreasonable risk of causing serious bodily injury or harm to the children
- Child b/c of their youth, age, or immaturity fails to appreciate the danger or realize the risk involved
- And the utility of maintaining the dangerous condition is slight compared to the risks involved i.e., MR is greater than the UR.
- And the possessor fails to exercise reasonable care to avoid risk to children
Licensee duty
P enters land of another with permission, but for own benefit (i.e. social guest) – setting matters for relationship status
Duty – WARN HIDDEN or KNOWN: To warn of hidden, known dangers to owner.
P takes the premises as she finds—means if they come in as a licensee with that licensee purposethey stay as a licensee regardless of new purpose.
Does not require D to take any precautions, just requires D to warn P of any known or hidden dangers
Invitee duty
P enters land for primary benefit to owner/invitee benefit (i.e. customer) who is expressly or impliedly invited– setting matters for relationship status
Duty – REASONABLE CARE: Use reasonable care (inspections, fixing)
Like Biz guests that can be:
Shoppers, Workers, Inspectors (plumbers, electrician), Public servants (tax collector). Social guest and also do things for the landowner (mixed motives but it’s the context that matters triggering you as a licensee).
Family members, who aren’t engaging in biz or shopping on premises but accompany the biz guest.
FL Premises Liability Merger
Invited Guest
(includes C/L categories of Invitee & Licensee) → DUTY: reasonable care; invitation can be expressed or implied
Uninvited licensee – Entry is not unauthorized there is an implicit permission but not an explicit invitation → DUTY: to warn of hidden or known
Breach
Failing to meet the necessary standard of care in avoiding unreasonable risks to foreseeable P.
Breach Customary Practice
Failure to follow customary practices in a particular endeavor, business or profession, may demonstrate unreasonable conduct (also defines breach)
Breach Custom Exception
Without expert testimony regarding what a RP(person, doc, lawyer, etc) would do when exercising reasonable care, the judge will typically not allow the jury to decide the breach question, unless the departure was so obvious as to be within common layperson knowledge.
Breach MR vs UR
whether the D’s risk taking conduct was socially justifiable and therefore reasonable.
D’s MR is determined by:
1) probability/forseeability of injury to P (i.e., how likely it will happen to P)
2) severity of harm (i.e., how serious the potential harm will be to P)
3) cost/harm D must take to prevent the harm (i.e., the $ or extra steps D must take)
4) the effect on the utility of the D’s activity (i.e., how useful is the UR of D’s activity)
Res Ispa Loquitour
Circumstancial Evidence
1) Δ is in exclusive control of “instrumentality” causing injury therefore can attribute negligence to Δ - to pinpoint the Δ
* Find the one here first who breached duty
2) Event that in the ordinary course of events, does not occur w/o negligence on the part of the one in control (i.e. breach of duty – “carelessness”)
cause in fact
But for test
But for the ’s conduct/breach, would the ’s injuries have happened?
But for ’s conduct, more likely than not, ’s injuries would not have occurred without the ’s conduct.
cause in fact
subtsantial factor test
in situations in which there are multiple acts of negligence and each is sufficient alone to have caused the P’s injuries, it it more likely than not that each of D’s conduct was materially the cause in fact to P’s injuries.
Proximate cause
Under proximate cause, D is typically only liable for those injuries that were reasonably foreseeable given the risks that he or she created.
PC foreseeability test
Whether RPP would foresee the consequences of the unreasonable risk of harm taken by the D?
here it is limited to only victims that are foreseeable zone of risk created by D.
PC Directed Sequence Test
Whether the harm is directly caused by the negligent conduct w/ out being cut off by intervening superseding causes (unbroken sequence of events)
Also here, it is irrelevant that D did not foresee the extent of his harm caused, thus even if D’s breach caused greater injury–>he will still be liable for his caused conduct.
PC Intervening Supeseding Cause
Even if there is an intervening cause, it alone does not break the causual connection b’w D’s harm and the resulting harm.
Act or event from 3rd party or nature after initial act of Δ’s negligence that breaks the causal link b/w Δ’s negligence and resulting harm to 3rd party.
PC Superseding Cause Triggered
- Is IS Superseding if: the RISK is extraordinary (unexpected or unforeseeable) or far removed.
- NOT Superseding if: if it is a foreseeable intervening RISK (normal and foreseeable consequence, i.e. H negligently fractured T’s leg and while she is on crutches she falls and breaks the other leg. H is liable for breaks to both legs).
Nominal Damages
Invasion of a legal right. But no finding of a compensatory injury.
Compensatory (eco) Damages
Eco damages–include any out-of-pocket expenses or losses: lost wages, future earning capacity, past and future medical expenses, and the repair or replacement of property
compensatory (non-eco) damages
include less objectively quantifiable harms: pain and suffering, loss of enjoyment of life or activity, loss of companionship, and physical disfigurement
are medical capped damages
Punitives damages
These are legally allowed & often pled but only rarely awarded in the run of the mill PI cases.
These damages are reserved typically for punishing the most heinous of intentional torts.
Traditional & Several Liability
- Requires that both D’s be individually liable for the entire amount of P’s damages.
- P may only recover once for damages awarded but here P may recover from either D or both.
1st–> D act in concert to create joint risk
2nd–>failure to perform common or shared duty
3rd–>independent acts of negligence combine to create indivisible injury (not capable of apportionment)
Satisfaction & Discharge Rule (Damages)
Covenant not to sue RULE
* Legal instrument avoided the rule that under the fiction that the was not surrendering his claims but rather simply promising not to sue in exchange for payment.
Collateral Sources
Where outside party pays for ’s injuries but still may have to pay the damages. Creates dilemma.
So in this case, gov’t benefit or insurance, this dilemma can be illusory, since any money paid typically recouped through subrogation.
Vicarious Liability
Respondeat Superior Elements
1) employee commits torts
2) tort must have taken place within the scope of employment
3) tortfeasor has status of employee, not an independent contractor
VL Criteria to determine Scope of Employment
- 1) acts in furtherance of job duties
- 2) work motivated within the time and space limits
- 3) acts where employer has the right to control
- 4) and employee’s actions are foreseeable actions to the employer/master
VL Coming & Going Rule
Presumes that conduct on the daily commute to and from work is generally outside the scope of employment.
VL Coming & Going Rule Exception
employees under the clock (like salesperson) going to and from work are under scope of employment–>thus employer may be vicariously liable.
VL Independent Contractor Rule
Only employer is vicariously liable for the torts of its employees not those of independent contractors bc Ind. Contractor is someone who is not under the control by the methods, means, or details of his work dictated by the employer.
VL Ind. contractor NON DELEGABLE RULE
Peculiarly dangerous activity, not dangerous enough for strict liability, but an unusual risk. If someone provides a dangerous instrumentality there is vicarious liability to employer!!
Strict liability– is limited to the kind of harm which makes the activity abnormally Dangerous
- A person will be held liable in damages for injury or loss even if he exercised all possible care to prevent it – the activity is so risky that you are held liable if something happens.
Strict Liability ADA Elements
can use any or all (most helpful or whichever!)
1) how dangerous is the activity (likelihood & gravity)?
2) is it appropriate, especially in the local area/location (including for commercial usage)?
3) is it possible to reduce the risks to acceptable levels through the use of reasonable care? (ties back to danger)
4) balance b/w value (of activity) vs. danger of it???
Strict Liability Other way to read Elements
If Dangerousness–> probability or risk & severity of possible harm is there? (gravity of harm)
Inability to prevent via due care
Abnormal-ness–>unroominess of use & inappropriate to location (ties back to danger)
Products Liability
PL is where courts hold that sellers of products may be held strictly liable, without regard to fault, for injuries caused by unreasonably dangerous defective products.
PL Warranty theory
Warranty theory here is that a promise or representation of quality of goods, in particular regarding safety
PL Express Warranty
- EWs are explicit promises regarding the qualities of the product.
- To trigger express warranty–>it must be written somewhere that it can do what the creator intended. If not–>express warranty breached.
- It’s about general quality not something specific.
PL Implied Warranty
are implied representations of quality & safety could be imposed by law. The implied promise can either be particular to some purpose that the buyer specifies or simply suitable for its general purpose.
PL Implied by Merchantability under Warranty
Seller implies that product is fit (safe) for general (ordinary) purposes for which it is sold: Merchantable in the sense that its safe for its ordinary purpose. – ex: you buy running shoes and the sole comes off, but so what K claim, but if causes injury = tort
PL Implied by Particular Purpose under Warranty
Fitness for a particular purpose—buyer relies on seller to select product and seller then selects it for buyer–>then it is implied that the product is fit for the buyer.
PL Strict Liability in torts
P has the burden to prove there was a defect and it caused his injuries.
. Pose strict liability on everyone who is engaged in the business of sale (manufacturer, wholesaler, retailer, distributor) if that product leaves the seller’s hands in a defective condition,
BUT do not impose strict liability on occasional seller of a product (i.e. lawyer who sells their car is not strictly liable for injuries caused by break failure).
402A :Special Liability of Seller of Product for Physical Harm to User or Consumer
Element 1
1) Commercial seller (stream of commerce-engaged in the business) identify appropriate defendants
EXCEPTION: doesn’t apply to occasional seller
402A Element 2
2) No substantial change of products’ condition (relates to causation- defect to product where the product changed is the manufacturer responsible)-defect attributable to the party who changed the product
Defect (not safe) when it leaves manufacturer will be liable even if he exercises due care
402A Element 3
triggers the design defect
3) Defect condition is unreasonably dangerous (do not care about conduct/why there is a defect) – identify type of defect b/c defects uses different types of tests
402A Element 4
4) Defect caused injury to Plaintiff (ANYONE you could foresee being affected by the product)- the defect has to have caused the injury to personal or property.
Design defect
Entire line of products is flawed and unreasonably dangerous, all designed same way and all are defective. Actually as intended to be but defective even though meets manufacturer’s specifications
Design Defect Risk Utility Analysis Test (6)
Factor 1
1) Utility of product (usefulness of product to society) MR > UR = defect.
Only looking at the usefulness of the product v. conduct of risk in a Negligence claim.
Design Defect Factor 2
2) How likely will it be that someone is hurt and how likely is it that they will be harmed – probability of an injury due to design
Design Defect Factor 3
3) Availability of reasonable alternative designs - reasonable in the sense that it exists, safer, cheaper, useful – P must be able to show this to
Design Defect Factor 4
4) Expensive involved in making the change
Design Defect Factor 5
5) Design is not defective if there is ordinary care used by P. Degree to use a lot of care to use it safely would make u think its defectively designed
Design Defect Factor 6
6) The ’s awareness of the product’s dangers bc of the common knowledge about that product
PL Defense
1) Comparative Fault & Assumption of Risk
Same as negligence cases
P should have discovered the defect himself. (affirmative defense)
PL Defense
2) Unforeseeable Misuse
- This type of defense not needed for analysis in an FL question.
- Here really it’s a forseeable misuse when people don’t use the products right.
- Here it must be an extraordinary misuse to implicate this defense.
PL Defense
3) States of the Art
- A factor more so than a defense. Basically the level of sci & tech info available at the time shows the product was safe or not.
Comparative Fault
Π’s conduct falls below standard of conduct (objective standard) to which they should conform for their own protection, which is a legally contributing cause. Π’s fault is compared to Δ’s fault and Δ’s damages are reduced by Π’s negligence.
Pure comparative fault
Pure: Π’s recovery is reduced by their own negligence can recover whatever percentage they are not at fault. If Π is 99% at fault and Δ is 1% is at fault, Π can recover that 1%.
Modified comparative fault
Modified: Π is barred from recovery when they are more or equally as negligent (≥ 50%) as the Δ(s)
Assumption of Risk
AofR is not present in FL
Π voluntarily agreed to a risk, w/ knowledge of the magnitude of the risk (analogous to consent in intentional torts). This is a complete defense that relieves the Δ of any liability even though they acted negligently.
Assumption of risk
Elements
D must show (his burden of proof & pleading)
- Π had knowledge of the risk and appreciate its magnitude
- Π voluntarily agreed/consented to the risk (risk cannot be assumed when there is no reasonable alternative)
Assumption of Risk
vs.
Contributory Negligence
Voluntary consent of the Π to encounter the risk
vs.
Π’s failure to exercise the care of a reasonable person for their own safety (carelessness)
PL Invitee
If there is an invitee in fact pattern–>
you have to talk about the breach question!!
Neg Per Se
Using a statutory violation to establish negligence. Statute dictates what reasonable care would require
P’s really like negligence per se bc its super-efficient to establish duty and breach.
Neg Per Se
Element 1
1) Statute ID’s/prohibits/req’s the specific duty (protection of others)
Neg Per Se
Element 2
2) Violated the statute (leads to proximate cause of injury) – must be a foreseeable violation
Neg per se
element 3
3) Legislative purpose outlines the prevented type of injury suffered by P in statute
(doesn’t have to be injury to a person – could be property)
Neg per se
element 4
4) Π is in class designed to be protected by statute – foreseeable P
(3 & 4 require examining purpose of the statute – PURPOSE can destroy a case if the statute or regulation’s purpose was not that of what P or D is trying to prove)
Neg per se
element 5
5) violation Proximately cause injury
Neg per se
elaboration on legislative intent
MUST DISCUSS THE LEGISLATIVE PURPOSE – i.e. statute’s purpose is to prevent injury to a protected class
Rescue Doctrine:
Allows injured rescuer to sue party that caused the danger requiring the rescue
Allows injured rescuer to sue party that caused the danger requiring the rescue.
Special circumstances do not allow a professional rescuer to recover in which Δ must anticipate rescuer.
Rescue Doctrine Exception
Since Rescuer are always foreseeable, P must prove D’s proximate cause by:
- Special relationship
- Created the risk.
- Commenced the rescue and either altered the victim’s risk profile or precluded others from helping the victim (begin to rescue someone and others detrimentally rely on this or cause other injuries rescuer is liable)
- Contract
- Statute (i.e. Good Samaritan Act)
