Negligence

Question 1

Elements of negligence

Answer 1

1) A duty on the part of the defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;

2) A breach of that duty by defendant;

3) The breach is the actual and proximate cause of plaintiff’s injury;

4) Damage.

Question 2

Element 1: Duty of Care

Answer 2

A duty of care is owed to all foreseeable plaintiffs.

The extent of the duty owed is determined by the applicable standard of care.

Two questions in a negligence problem:
1) Was the plaintiff foreseeable?
2) If so, what is the applicable standard of care?

Question 3

Foreseeable Plaintiffs

Answer 3

A duty of care is owed to all foreseeable plaintiffs.

Know the majority/minority distinction.

“Zone of Danger” – Cardozo. Majority rule.

Everyone is foreseeable –Andrews. Minority rule.

TIP: Address both in your foreseeability analysis on an essay.

Question 4

Standard of Care – Reasonable Person

Answer 4

Default rule: Reasonable person standard.

The reasonable person standard is an objective standard.

That is, one’s conduct is measured against what the average person would do.

A defendant’s mental deficiencies and inexperience are not taken into account.

However, the “reasonable person” is considered to have the same physical characteristics as defendant.

Question 5

Special Standards of Care –Professionals

Answer 5

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities.

Specialists will be held to a still higher degree of care.

Question 6

Special Standards of Care - Children

Answer 6

Children are held to the standard of a child of like age, education, intelligence and experience.

This is a subjective test.

A child under four is usually without capacity to be negligent.

Children engaged in adult activities may be required to conform to an “adult” standard of care.

Question 7

Special Standards of Care- Common Carriers and Innkeepers

Answer 7

Common carriers and innkeepers are held to a very high degree of care; i.e., they are liable for slight negligence.

For the higher common carrier and innkeeper standards to apply, the plaintiff must be a passenger or a guest.

Question 8

Special Standards of Care – Owners and/or Occupiers of Land

Answer 8

The extent of the liability of owners and/or occupiers of land depends on where the injury occurred and on the status of the plaintiff.

The status of the plaintiff may be: undiscovered trespasser, discovered or anticipated trespasser, licensee or invitee.

Different duties are owed depending on whether it is artificial conditions, natural conditions or active operations on the land.

Question 9

Undiscovered Trespasser

Answer 9

Artificial conditions: No duty

Natural conditions: No duty

Active operations: No duty

Question 10

Discovered or Anticipated Trespasser

Answer 10

Artificial conditions: Duty to warn of or make safe known conditions if non-obvious and highly dangerous.

Natural conditions: No duty

Active operations: Duty of reasonable care.

Question 11

Licensee

Answer 11

A licensee is one who enters on the land with the possessor’s permission for her own purpose or business, rather than for the possessor’s benefit. Example: social guest.

Artificial conditions: Duty to warn of or make safe known conditions if nonobvious and dangerous.

Natural conditions: Duty to warn of or make safe known conditions if nonobvious and dangerous.

Active operations: Duty of reasonable care.

Question 12

Invitee

Answer 12

Invitees enter land in response to an invitation by the landowner.

They enter for a purpose connected with the business of the landowner or enter as members of the public for which the land is held open to the public. Example: member of the public, business visitor.

Artificial conditions: Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe.

Natural conditions: Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe.

Active operations: Duty of reasonable care.

Question 13

Infant Trespasser

Answer 13

Attractive nuisance doctrine (applies to artificial conditions only). Plaintiff must show: (i) a dangerous condition on the land that the owner is or should be aware of; (ii) the owner knows or should know children frequent the vicinity of the condition; (iii) the condition is likely to cause injury (ie., it is dangerous because of child’s inability to appreciate the risk); and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

Artificial conditions: Duty to warn of or make safe if foreseeable risk to child outweighs the expense of eliminating danger.

Natural conditions: No duty.

Active operations: No duty (unless child also qualifies as a discovered or anticipated trespasser).

Question 14

Duty of Possessor of Land to Those on the Premises

Answer 14

See Spreadsheet

Question 15

Statutory Standards of Care

Answer 15

A statute’s specific duty may replace the more general common law duty of due care if:
(i) the statute provides for a criminal penalty;
(ii) the statute clearly defines the standard of conduct;
(iii) plaintiff is within the protected class;
(iv) the statute was designed to prevent the type of harm suffered by the plaintiff.

Excuse for violation: violation of some statutes may be excused where compliance would cause more danger than violation or where compliance is beyond defendant’s control.

Question 16

Duty regarding negligent infliction of emotional distress

Answer 16

The duty to avoid causing emotional distress to another is breached when the defendant creates a foreseeable risk of injury to plaintiff, either by: (i) causing threat of physical impact that leads to emotional distress; or (ii) directly causing severe emotional distress that by itself is likely to result in physical symptoms.

Plaintiff can recover only if defendant’s conduct caused some physical injury. Two exceptions to physical injury requirement: (i) an erroneous report of a relative’s death; and (ii) a mishandling of a relative’s corpse.

Question 17

Compare IIED and NIED

Answer 17

Conduct required for IIED: extreme and outrageous conduct by the defendant.

Conduct required for NIED: Subjecting plaintiff to threat of physical impact or severe emotional distress likely to cause physical symptoms.

Fault required for IIED: Intent to cause severe emotional distress or recklessness as to the effect of conduct.

Fault required for NIED: Negligence in creating risk of physical injury to plaintiff.

Causation and Damages for IIED: Defendant’s conduct must cause severe emotional distress.

Causation and Damages for NIED: Defendant’s conduct generally must cause tangible physical injury.

Question 18

Affirmative Duties to Act

Answer 18

Generally, one does not have legal duty to act. Exceptions to this rule include:

 Assumption of duty by acting. One may assume a duty to act by acting. For example, once defendant undertakes to aid someone, he must do so with reasonable care.
 Peril due to defendant’s conduct. One has a duty to assist someone he has negligently or innocently placed in peril.
 Special relationship between the parties. A special relationship between the parties may create a duty to act. Similarly, common carriers, innkeepers, shopkeepers owe duties of reasonable care to aid or assist their patrons.

Question 19

Element 2: BREACH

Answer 19

Where defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty.

Custom and usage may be used to establish a standard of care, but does not control the question of whether certain conduct amounted to negligence.

There are three (3) ways to prove breach: res ipsa loquitor, Learned Hand calculus and negligence per se.

 Test tip: On an essay, only address one way to prove breach.

Question 20

Negligence Per Se

Answer 20

Violation of statute: Existence of a duty owed to plaintiff and breach thereof may be established as a matter of law by proof that defendant violated an applicable statute (“negligence per se.”)

Question 21

Res Ipsa Loquitor

Answer 21

Res ipsa loquitor: “The thing speaks for itself.” The very occurrence of an event may tend to establish a breach of duty.

Plaintiff must show: (i) the accident causing the injury is a type that would not normally occur unless someone was negligent; and (ii) the negligence is attributable to defendant. (This type of accident ordinarily happens because of negligence of someone in defendant’s position).

 This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.

Question 22

Learned Hand Calculus

Answer 22

An act is in breach of a duty of care if B < PL.
B = cost (burden) of taking precautions;
P = probability of loss
L = gravity of loss

Question 23

Element 3: Causation

Answer 23

Once negligent conduct is shown (a breach of the standard of care owed to a foreseeable plaintiff), plaintiff must show that the conduct was the cause of the injury.

For liability to attach, plaintiff must show both actual cause and proximate cause.

Question 24

Actual Cause (Causation in Fact)

Answer 24

Before defendant’s conduct can be considered a proximate cause of plaintiff’s injury, it must first be a cause in fact of the injury. Several tests exist:

 “But For” Test: Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause injury alone) combine to cause the injury.

  Joint Causes  - Substantial Factor Test: Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.

  Alternative Causes Approach. This test applies where there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants and each must show that his negligence was not the actual cause.

Question 25

Proximate Cause (Legal Causation)

Answer 25

Even though the conduct actually caused the plaintiff’s injury, it might not be deemed the proximate cause.

The doctrine of causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one’s acts.

General rule: A defendant generally is liable for all harmful results that are the normal incidence of and within the increased risk caused by his acts. This is a foreseeability test.

Question 26

Liability in Direct Cause Cases

Answer 26

In a direct cause case, where there is an uninterrupted chain of events from the negligent act to plaintiff’s injury, defendant is liable for all foreseeable harmful results, regardless of the unusual manner or timing.

Defendant is not liable for unforeseeable harmful results not within the risk created by defendant’s negligence.

Most harmful results will be deemed foreseeable in direct cause questions.

Question 27

Liability in Indirect Cause Cases

Answer 27

In an indirect cause case, an affirmative intervening force (act by third person, act of God) comes into motion after defendant’s negligence act and combines with it to cause plaintiff’s injury.

Defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm the plaintiff. Common dependent intervening forces:

 Subsequent medical malpractice;
 Negligence of rescuers
 Efforts to protect the person or property of oneself or another
 Injuries caused by another “reacting” to defendant’s actions
 Subsequent disease caused by a weakened condition
 Subsequent accident substantially caused by the original injury.

Question 28

Eggshell Skull Rule

Answer 28

In all cases, defendant takes his plaintiff as he finds him – defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.

Question 29

Element 4: Damages

Answer 29

Plaintiff must prove damages (injury).

Personal injury: Plaintiff must be compensated for all his damages (past, present and prospective), both special and general.

Property damage: the measure of damage is the cost of repair, or if nearly destroyed, the fair market value at the time of the accident.

Punitive damages: Plaintiff may recover if defendant’s conduct is “wanton and willful”, reckless or malicious.

Nonrecoverable items: Interest from the date of damage to a personal injury action and attorneys’ fees.

Duty to mitigate: Plaintiff has a duty to take reasonable steps to mitigate damages.

Collateral source rule: Damages are not reduced just because plaintiff received benefits from other sources (e.g., health insurance).

Question 30

Defenses to Negligence

Answer 30

On a negligence essay, you must address all the possible defenses to negligence and you must have a rule for each defense.

Contributory negligence
Last clear chance (Plaintiff’s rebuttal)

Assumption of the risk

Comparative negligence
Pure comparative negligence
Partial comparative negligence.

Question 31

Contributory Negligence

Answer 31

Contributory negligence is negligence on the part of the plaintiff that contributes to her negligence.

Contributory negligence bars plaintiff’s right to recovery.

Last Clear Chance
Last clear chance permits a plaintiff to recover despite her contributory negligence. Under this rule, the person with the last clear chance to avoid the accident who fails to do so is liable for negligence.
This is plaintiff’s rebuttal to the defense of contributory negligence. Only address it on an essay if it actually applies.

Question 32

Comparative Negligence

Answer 32

In comparative negligence states, plaintiff’s contributory negligence is not a complete bar to recovery. Rather, the trier of fact weights plaintiff’s fault and reduces damages accordingly.

For example, if plaintiff is 10% at fault, her damage award will be reduced by 10%.

Most states that follow comparative negligence allow a plaintiff to recover only if her negligence was less serious or no more serious than that of the defendant. This is called partial comparative negligence or modified comparative negligence.

Pure comparative negligence: states allow recovery no matter how great plaintiff’s negligence.