Negligence Flashcards
Introduction:
To prove negligence, four things are needed: (1) duty, (2) breach, (3) cause (actual and proximate), and (4) harm. If the plaintiff cannot prove by a preponderance of the evidence that each of these elements is present, then the judge must enter a directed verdict for the defendant and not let the case go to the jury.
1) Duty of care
a) To whom is the duty of care owed?
A duty of care is owed to foreseeable plaintiffs.
1) Duty of care
b) How much care is owed?
i) The amount of care that a hypothetical ordinary, reasonable, prudent person acting under the same or similar circumstances would use.
(1) Do not take into account the defendant’s particular characteristics when determining the standard of care (even if defendant is naturally very clumsy, has a low IQ, is mentally ill, or is an amateur at the activity he is engaging in).
(a) Exceptions:
(i) Take into account defendant’s superior knowledge (e.g., a lawyer, carpenter, etc., discussed below).
(ii) Take into account defendant’s age if defendant is a child (discussed below).
(iii) Take into account defendant’s physical characteristics (e.g., if defendant is blind, missing an arm, etc.).
1) Duty of care
c) When is a different standard of care owed?
i) Claims against children
(1) A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances.
Note that for a physically disabled child their conduct must conform to that of a reasonably careful child with the same physical disability.
(a) Ex.: A child with a visual impairment would owe the same duty of care that a hypothetical child of the same age, intelligence, and experience with a visual impairment would owe under similar circumstances. A child that receives instructions from their parent can be found negligent for failing to follow those instructions. Further, a child with a visual impairment, in a crowded environment who received instructions from their parent and disobeyed those instructions could be found negligent.
(b) Exception: If a child is engaged in adult activity (driving a car, driving a boat, shooting a gun, using a chainsaw) then the child will be held to the same
standard of care as a reasonably prudent adult engaged in such activity. Thus, do not take the child’s age into account in those circumstances and use the
“reasonably prudent person” standard instead.
(2) Some states say that children under a specific age (e.g., seven or four) cannot be negligent.
1) Duty of care
c) When is a different standard of care owed?
ii) Professional malpractice
(1) This applies to lawyers, doctors, accountants, and other professionals.
(2) In professional malpractice cases, custom is = conclusive as to the standard of care (so if a professional did not follow custom they are deemed to have breached their duty). In non-malpractice cases, custom is evidence of the appropriate standard of care (but showing that a defendant did not follow custom is not conclusive proof of negligence).
(a) Ask: “What is the standard practice?” and, “Did the defendant follow it?”
(i) Unless the breach of duty is obvious (e.g., a surgeon leaving a sponge in a patient after surgery) an expert witness usually is necessary to testify as to
the duty of care owed.
(b) Note that a doctor who is going to perform a procedure must provide the patient with enough information to give informed consent. If a reasonable person in the plaintiff’s position would have refused the procedure or treatment, the doctor
has breached his duty.
Bar Exam Tip: the patient still must show the doctor’s
failure to provide the patient with informed consent caused him harm in order to successfully win a malpractice case.
(c) Some tort actions brought against doctors are “wrongful conception,” “wrongful birth,” “wrongful life,” and “wrongful death.”
(i) Wrongful conception: if a woman is told she cannot conceive and she later has a child, the damages are the costs associated with the birth.
(ii) Wrongful birth: if a child is born because doctor failed to diagnose a disease and the parents assert that they would have aborted the child, damages are
the extra expenses to raise a child with that particular disability.
(iii) Wrongful life: if a child sues for being born (usually because of severe birth defects), damages are allowed but usually there is no recovery.
(iv) Wrongful death: If the plaintiff’s estate is alleging wrongful death, the plaintiff can only recover in a medical malpractice case if expert testimony
establishes that the chance of survival absent the alleged negligence would have been greater than 50% unless the statute recognizes a remedy for “loss of chance of survival.” Loss of chance of survival jurisdictions allow recovery for any loss of chance of survival.
1) Duty of care
c) When is a different standard of care owed?
iii) Premises liability
(1) The standard of care depends on the legal status of the plaintiff.
(a) Undiscovered trespasser
(i) Definition: one who comes onto the land without permission or privilege who the premises possessor does not know about.
(ii) Undiscovered trespassers are not owed any duty of care (however, a premises possessor cannot engage in intentional and willful misconduct—
e.g., by setting traps).
(b) Discovered trespasser
(i) Definition: a trespasser that the landowner knows or should know of.
(ii) Rule: The premises possessor must:
1. warn of or make safe any
2. unreasonably dangerous
3. concealed
4. artificial (man-made) conditions
5. that the premises possessor knows of.
1) Duty of care
c) When is a different standard of care owed?
Attractive nuisance: The premises possessor may be held liable if:
- there is a dangerous condition on the land that the premises possessor knows or should know of (usually something “artificial” like an abandoned car or tires—not usually ponds or lakes unless there is a special condition),
- children frequent the land (and the premises possessor knows or should know of this),
- the child cannot appreciate the risk, and
- the possessor of the land fails to exercise reasonable care to eliminate the danger or protect the children. (Look at whether the expense of remedying the situation is slight compared with the risk of harm—i.e., a burden/benefit analysis.)
a. Bar Exam Tip: An older child can appreciate risks such as swimming in an unattended pool whereas a younger child might not. Pay attention to specific facts when evaluating an attractive nuisance claim!
1) Duty of care
c) When is a different standard of care owed?
(c) Licensee
(i) Definition: a social guest who has permission to enter the land but does not confer an economic benefit on the possessor of land (e.g., friends or family members).
(ii) Rule: The premises possessor must:
1. warn of or make safe
2. all concealed dangers (artificial or not, unreasonably dangerous or not)
3. that the premises possessor knows of.
Bar Exam Tip: MEE essay answers add “or should know of” (but there is no duty to inspect).
a. Ex.: The rug leading into Carla’s kitchen poses a tripping hazard because it “bunches up” at one end. Carla has a duty to warn her friends or social guests of this danger or make it safe. If Carla was unaware of the danger, she would not have a duty to warn of the danger or make it safe.
1) Duty of care
c) When is a different standard of care owed?
(d) Invitee
(i) Definition of an invitee:
1. one that enters land to confer an economic benefit
(e.g., customers or employees of a store), or
2. one that enters land that is open to the public at
large (church, museum, etc.).
(ii) Rule: A premises possessor must:
1. warn of or make safe
2. all dangers
3. that the premises possessor knows or should know
of.
- Bar Exam Tip: This requires the premises possessor to make reasonable inspections. If the premises possessor does not make reasonable inspections, he may be held liable. However, if there are no facts to indicate that the premises possessor was unreasonable, the premises possessor will receive a directed verdict in its favor.
- Note: Open and obvious conditions may create an argument for defendants that they did not have an obligation to remove such a danger or that it was outside of their duty of care. However, in a commercial business courts have held that it is foreseeable that customers may not be paying attention to open and obvious conditions and suffer an injury, thus making it a poor defense.
- Note: The duty owed to an invitee includes the duty to act reasonably to prevent further harm when harm is already ongoing (e.g., to call 911 if an invitee is injured).
(iii) Exceptions
1. Firefighters rule: Firefighters and police officers are treated like licensees rather than invitees for policy reasons. Exposure to dangerous conditions
that arise out of a landowner’s failure to inspect or repair their property is inherent in their job duties.
- Recreational land: if the owner allows the public to be on land for recreational purposes and charges no fee, the landowner is only liable if he willfully and maliciously failed to guard against a danger.
1) Duty of care
c) When is a different standard of care owed?
iv) Negligence per se—statutory standards of care
(1) A plaintiff can sue under a theory of negligence per se when the plaintiff can show that:
(a) the defendant violated a statute without excuse, and
(b) the right person was injured (that is, the plaintiff was in the class of people that
the statute was trying to protect), and
(c) the right injury was sustained (that is, the plaintiff received the injury that the statute was trying to prevent).
(2) If a plaintiff can establish the above factors, he has offered conclusive proof of duty and breach. (He must still prove cause and harm.)
(3) Violation of a statute may be excused if the defendant has a good reason for the violation.
(a) A good reason might be:
(i) Compliance is more dangerous than violating the statute.
1. Ex.: Defendant drives above the speed limit for a moment to avoid an accident.
(ii) Compliance is impossible under the circumstances.
(iii) Defendant is incapacitated and unable to comply.
(4) Note: adherence to a statutory standard does not insulate a defendant from liability.
1) Duty of care
c) When is a different standard of care owed?
v) A note on rescuers
(1) Rescuers are considered foreseeable plaintiffs. However, rescuers must act with ordinary care in conducting their rescue. A rescuer can be liable if they negligently worsen the victim’s condition.
1) Duty of care
d) Duties to act affirmatively
i) There is no duty to act affirmatively (e.g., rescue another) unless one of the following exists:
(1) A special relationship
(a) Psychotherapist-patient: There is a duty for a psychotherapist to warn a victim of death threats if the victim is “specifically known and designated” by the patient.Tarasoff v. Regents of University of California, 17 Cal 3d 425 (Cal 1976). (July 2012)
(b) Parent to child
(c) Spouse to spouse
(2) A contract (e.g., a nurse contractually agrees to take care of his patient)
(3) A statute (e.g., a statute may require a person to report child abuse)
(4) A tort
(a) If a defendant caused the plaintiff’s peril, there is a duty to act reasonably under the circumstances (e.g., call 911, try to help) but the defendant is never obligated to put his own life at peril.
(5) Reliance
(a) Ex.: A woman asks her neighbor to watch the woman’s child for a half hour while the woman
runs an errand. The neighbor agrees. The neighbor has a duty to watch the woman’s child because the woman is relying on her.
2) Breach
a) The plaintiff must establish that the defendant failed to comply with the duty of care owed.
Bar Exam Tip: Breach of duty is an essential element. Sometimes MBE fact patterns will have a very sympathetically situated plaintiff (e.g., a child or elderly person will get badly injured) and you may feel as though the plaintiff should recover something.
However, if the defendant did not act unreasonably, the plaintiff will not be able to recover under a negligence theory. Always look for the breach of duty.
b) Res ipsa loquitur
i) Res ipsa loquitur allows a plaintiff to establish negligence when the circumstances surrounding the injury are unclear. It is equivalent to saying, “I do not know what happened, but this probably wouldn’t have happened if someone (probably defendant)
wasn’t negligent.”
Bar Exam Tip: You only need this when the circumstances surrounding the injury are unclear. You do not need this if you have direct evidence of what happened!
(1) Ex.: A pair of scissors is left in a patient after a surgical procedure. The patient could use this
evidence against the surgeon who operated on her. But she may not be able to use res ipsa loquitur
if she had several surgeries by different surgeons at the location where the scissors were left.
ii) Res ipsa loquitur has two elements:
(1) Probably negligence
(a) The accident is something that is normally caused by someone’s negligence.
(2) Probably defendant
(a) The accident is normally due to negligence of someone in the defendant’s position (e.g., the plaintiff must show that the defendant had control over whatever injured the plaintiff).
iii) If the plaintiff can establish a res ipsa loquitur claim, the plaintiff has made a case for breach and no directed verdict in favor of the defendant should be given. The defendant can offer its own proofs to show it was not negligent and the jury decides whether the defendant is liable.
3) Causation—two kinds:
a) Actual causation
a) Actual causation (also called “factual” or “but for” causation)
i) Plaintiff has to prove a connection between the breach and the injury suffered. The key question to ask is: Would the same harm have occurred even if the breach did not occur? (If the answer is “yes, the harm would have occurred no matter what” then there is no actual cause present!) Bar Exam Tip: remember there can be more than one cause-in-fact.
ii) Toxic substance exposure
(1) To prove that exposure to a toxic substance was the actual cause of a plaintiff’s harm, the plaintiff must show both general causation (that the substance is capable of causing this kind of harm) and specific causation (that the substance must have
caused the plaintiff’s harm).
iii) Multiple defendants—when two or more people acting in concert cause the harm.
(1) Use the substantial factor test. Ask: Was the breach a substantial factor in causing the harm? If it was, the defendants will be liable.
(a) Ex.: Two people negligently light fires that merged together and burn down the plaintiff’s house. The plaintiff will be able to establish actual causation if she can show that each fire alone would have caused the damage or that each was a “substantial factor” in causing the damage.
(b) Defendants are jointly and severally liable on the MBE—that is, each defendant is liable for the entire amount of damages but can sue the other defendants for the proportional amount owed. This is discussed further below.
(2) Alternative causes
(a) The plaintiff must show the following:
(i) all defendants are joined in the lawsuit, and
(ii) all defendants are negligent.
(b) The burden will then shift to each individual defendant to show that their breach
of duty was not an actual cause of the harm.
(i) Ex.: A group of friends are hunting. Two of them negligently shoot their guns in the direction of the plaintiff and the plaintiff is struck by a stray bullet but cannot prove which defendant caused his harm. Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948)
3) Causation—two kinds:
b) Proximate causation
i) Liability must be fair.
(1) The harm must be foreseeable (not necessarily the manner in which it occurred). If the case is really weird, foreseeability is less likely.
Bar Exam Tip: Ask the question:
“When I hear about what the defendant is doing to breach his duty, what am I worried will happen?” If the kind of harm that happens is the kind of harm you were worried would happen, proximate cause is likely present.
(a) Ex.: Defendant drives over the speed limit, loses control of his car and causes damage to another vehicle. Is proximate cause present? Yes. The kind of harm that the defendant caused is foreseeable and the defendant’s breach of duty (speeding) is a
proximate cause of the damage (damaged car).
(b) Ex.: Defendant drives over the speed limit. Without warning, a nearby tree falls over, lands on
defendant’s vehicle, and injures the passenger. While the defendant may have breached his duty of care, the harm that occurred was not a foreseeable result of the defendant’s breach of duty.
(2) Examples where proximate cause is present because the harm is considered foreseeable:
(a) A disease or subsequent accident that occurs after an accident.
(i) Ex.: Defendant negligently drives his vehicle and causes a car accident. Plaintiff has a deep cut on her leg that later gets infected. The initial harm (the cut) as well as the later harm (the infection) are foreseeable and defendant is liable for all of the harm.
(ii) Ex.: Defendant #1 negligently drives his vehicle and causes a car accident that injures plaintiff’s ankle. Plaintiff later walks across Defendant #2’s very slippery floor and, in part because her ankle is weak, falls and breaks her nose. Defendant #1 is liable for all of the harm. Defendant #2 is jointly and severally liable (with Defendant #1) for the broken nose.
(b) Medical malpractice that occurs after accident.
(i) Ex.: Defendant negligently drives his vehicle and causes a car accident that injures plaintiff. Plaintiff needs an operation. The surgeon who operates on plaintiff is negligent and makes plaintiff’s injuries worse. The surgeon’s malpractice is foreseeable and defendant is liable for all of the damages. The surgeon is also liable for the harm caused by his negligent conduct.
(c) Rescue efforts to protect life and property endangered by defendant’s negligence.
(i) Rescue is foreseeable and someone getting hurt when they rescue is
foreseeable.
1. Ex.: Defendant negligently drives his vehicle and causes a car accident that traps plaintiff in her car. A rescuer saves plaintiff but gets hurt in the process. Defendant’s breach of duty is the proximate cause of the rescuer’s harm and defendant is liable for the harm suffered by the plaintiff and the rescuer.
(d) “Reactions”
1. Ex.: Defendant negligently drives his vehicle and causes a car accident that ignites a woman’s car in flames. The woman, who was in the process of transporting her pet peacock to the veterinarian, gets out of her vehicle and begins running away. The
peacock also escapes and begins running away from the flames. All near passersby also begin to run away from the flames. One person who is running away trips and falls over the peacock. Defendant’s breach of duty is a proximate cause of the harm that the plaintiff sustained in the fall. The harm (tripping over something while running) was foreseeable even if the manner in which it happened was not.
(3) Examples where proximate cause is not present:
(a) Unforeseeable acts of God (e.g., the example above where the tree fell on the vehicle)
(b) Circumstances where the chain of causation is broken
(c) Unforeseeable criminal acts or torts of third parties
