Negligence

Question 1

What is negligence?

Answer 1

Failure to exercise care a reasonable person would exercise; breach of the duty to prevent foreseeable risk of harm to anyone in P’s position; breach must be the cause of P’s injuries

Question 2

What are the elements to negligence?

Answer 2

Duty - obligation to protect another against unreasonable risk of injury

Breach - failure to meet obligation under duty

Causation - close causal connection between action and injury

Damages - harm suffered

Question 3

What does “duty” mean under negligence?

Answer 3

Duty owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care
-> foreseeability of harm to another sufficient to create general duty to act with reasonable care.

Question 4

Does the failure to act mean there is a general duty to act? Are there exceptions to this?

Answer 4

Generally no duty to act

Affirmative duty to act - exceptions to general rule that there is no duty to act
-> assumption of duty
-> placing another in peril
-> by contract
-> by authority
-> by relationship (e.g., employer-employee, parent-child, common carrier-passenger, physician-patient, etc…)
-> by statute imposing an obligation to act

Question 5

What are Good Samaritan laws?

Answer 5

Medical professionals are not liable for rending aid in an emergency situation.

Question 6

How does the foreseeability of harm to P work under the duty element of negligence?

Are there any special foreseeable Ps?

Answer 6

Cardozo - D only liable to Ps within the zone of foreseeable harm (Palsgraf majority rule)

Andrews - if D can foresee harm to anyone resulting from his negligence, D owed duty to everyone harmed (even if they were foreseeable or not) (minority rule)

Special foreseeable Ps

Rescuers - D liable for negligently putting rescuer/rescued party in danger
-> can apply comparative responsibility if rescuer’s efforts are unreasonable
-> emergency professionals barred from recovery if injury results from risk of the job (firefighter’s rule)

Fetuses - duty of care owed to fetuses viable at time of injury

Question 7

What is the standard of care?

What characteristics are considered in determining the standard of care?

What is the standard of care for an intoxicated person?

What standard of care is a child held to?

Answer 7

Reasonably prudent person - objective standard

Characteristics considered:
-> physical (not mental) characteristics are considered in determining reasonableness
-> defendant who possesses special skills or knowledge must exercise her superior competence with reasonable attention and care

Intoxicated person
-> involuntarily intoxicated person held to a standard of care reasonable to a person under the same conditions
-> voluntarily intoxicated person held to same standard as sober person

Child
-> reasonable child of similar age, intelligence, and experience
-> BUT if child engaged in high-risk adult activity THEN held to adult standard
-> children under age of five generally found incapable of negligent conduct

Question 8

What are the standards of care for specific classes of D’s?
-> common carriers
-> innkeepers
-> bailors
-> bailee
-> seller of real property

Answer 8

Common carriers (planes, trains, buses)
-> highest duty of care consistent with practical operation of the business (majority)

Innkeepers
-> ordinary negligence (majority)
-> “slight negligence” (common law)

Automobile drivers
-> “guest statute” (minority) refrain from wanton and willful misconduct)
-> ordinary care to guests as well as passengers (majority)

Bailor
-> gratuitous - duty to warn bailee of known dangerous defects
-> compensated - duty to warn bailee of defects that are known or should have been known by the bailor had the used reasonable diligence

Bailee
-> gratuitous - liable for only gross negligence
-> compensated - must exercise extraordinary care
-> mutual benefit - must take reasonable care

Sellers of real property
-> duty to disclose known, concealed, unreasonably dangerous conditions;
-> liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect

Question 9

What is the standard of care of possessors of land regarding trespassers?
-> general rule
-> discovered or anticipated trespassers
-> undiscovered trespassers

Answer 9

Trespassers (traditional/majority approach)

General rule:
-> refrain from willful, wanton, reckless or intentional misconduct toward trespassers;
-> no “spring-guns”

Discovered or anticipated trespassers
-> warn or protect against concealed, dangerous, artificial conditions

Undiscovered trespassers
-> generally no duty
-> no duty to inspect for trespassers as well

Question 10

What is the attractive nuisance doctrine?

Answer 10

Liable for injuries to trespassing children if
-> land possessor knows or has reason to know children are likely to trespass
-> artificial condition poses unreasonable risk of serious bodily injury,
-> children cannot appreciate the danger,
-> burden of eliminating danger slight compared to risk of harm,
AND
-> owner fails to exercise reasonable care to protect children

Question 11

What is an invitee?

What is the standard of care that possessors of land have regarding invitees?

Is it a delegable duty?

What is the limit on the duty with regards to the scope of the invitation?

Is there a different standard of care use for recreational land use?

Answer 11

Invitee is a person who is
-> invited to enter for purposes for which the land is held open or for business purposes

Standard of care
-> reasonable care to inspect, discover dangerous conditions, and protect invitee from them;

Non-Delegable duty
-> landowner must do it themselves

Duty does not extend beyond scope of the invitation

Recreational land use (some jurisdictions)
-> possessor who opens land to public for recreation generally not liable for injuries sustained by recreational land users UNLESS
-> charges a fee
OR
-> acts willfully, maliciously, or with gross negligence

Question 12

What is a licensee?

What standard of care does a possessor of land owe to licensee?

Answer 12

Licensee is a person who
-> enters land of another with permission or privilege
-> e.g. social guest, emergency personnel, independent contractor

Standard of care
-> warn of concealed dangers that are known or should be obvious (similar to anticipated trespassers under the traditional rule)
-> use reasonable care in conducting activities on the land
-> no duty to inspect for dangers (different compared to the invitee standard of care)

Question 13

What does the R3d state in terms of a standard of care a possessor of land has towards others?

Answer 13

Minority rule

Reasonable care under all circumstances (including trespassers)
-> no invitee/licensee distinction

Duty to flagrant trespassers (malicious trespassers)
-> duty not to act in intentional, willful, or wanton manner causing physical harm

Fact of trespass considered by jury in determining reasonable care

Question 14

What is the standard of care that landlord and tenants have in terms of being possessors of land?

Answer 14

Landlord liable for injuries occurring
-> in common areas resulting from hidden dangers about which landlord fails to warn,
-> on premises leased for public use, as a result of a hazard caused by negligent repair,
OR
-> involving a hazard landlord agreed to repair.

Tenant liable for
-> injuries to third parties due to conditions within tenant’s control

Question 15

What is the standard of care for possessors of land have towards off-premises victims?

Answer 15

Off-premises victims
-> no duty for harm by natural condition (except rotting trees in urban areas)
-> duty to prevent unreasonable risk of harm caused by artificial condition (e.g. building a really tall structure, need to make sure it won’t fall into another’s property or public property and injure someone)

Question 16

What is the standard of care for sellers of real property?

Answer 16

Duty to disclose any concealed and unreasonably dangerous conditions

Question 17

What is the burden of proof for breach or violation of duty of care?

What is the traditional approach?

What is the modern and restatement approach?

Answer 17

Burden of proof (preponderance of the evidence)
-> greater probability that not that D failed to meet standard of care (as shown by custom/usage, statutory violation, or res ipsa loquitur)
-> failure was proximate cause of injury and P suffered damages

Traditional approach
-> compare D’s conduct with what reasonably prudent person would do under the circumstances (objective)

Modern and restatement approach (cost-benefit analysis) consider
-> foreseeable likelihood that D’s conduct would cause harm,
-> foreseeable severity of resulting harm,
AND
-> D’s burden in avoiding the harm

Question 18

How does custom work in showing breach or violation of duty of care?

What are professionals expected to do with regards to their standard of care?

What is the impact of deviating or complying with customs?

What must an expert do with regards to the standard of care if they’re being used in a case?

Answer 18

Evidence of custom is generally admissible but not conclusive in establishing proper standard of care

Professionals
-> expected to show same skill, knowledge, and care as an ordinary practitioner in same community
-> specialists may be held to higher standard

For professionals, deviation or compliance with custom is dispositive of lack of breach
-> complying with customs is almost certain to prove that there was no breach

Expert
-> any expert must generally establish the standard of care unless negligence is so obvious that it would be apparent to a layperson (e.g. a surgeon amputating the wrong leg)

Question 19

What is the standard of care imposed on physicians?
-> majority
-> minority

Failure to comply with informed consent requirement is considered what?

When is a physician not required to get informed consent from the patient?

Answer 19

Physicians
-> majority rule - national standard (including specialists)
-> minority (traditional) rule -> same or similar locale standard

Failure to comply with informed consent requirement is medical negligence (malpractice) UNLESS
-> risk is commonly known,
-> patient is unconscious,
-> patient waives or is incompetent,
OR
-> disclosure too harmful

Question 20

How does negligence per se work under breach or violation of duty of care?
-> elements
-> causation
-> defenses

Answer 20

Elements:
-> criminal or regulatory state imposes a specific duty for protection of others
-> D neglects to perform the duty
-> D liable to anyone in the class of people intended to be protected by statute
-> for harms of the type the statute was intended to protect against

Causation - once the elements of negligence per se are established,
-> D is liable for injuries that were proximately caused by D’s violation

Defenses
-> compliance impossible or more dangerous that noncompliance
-> violation reasonable under the circumstances
-> statutory vagueness or ambiguity
-> compliance with federal regulation preempts common-law tort action

Question 21

How does res ipsa loquitur work under breach or violation of duty of care?

What is the rule?

What does it state with regard to P’s responsibility for their injuries?

How does the rule work if many medical professionals had access to P during surgery in malpractice claim?

Answer 21

-> Circumstantial evidence rule
-> doesn’t change standard of care
-> establishes an inference of negligence sufficient to avoid dismissal

Rule:
-> P’s harm would not have occurred if D used ordinary care (no injury would typically occur in absence of negligence)
-> BUT P need not conclusively exclude all other possible explanations

P not responsible for injury (loosely applied in most comparative-fault jurisdictions)

P’s injury under D’s exclusive control:
-> modern trend favors generous interpretation of exclusivity
-> many courts ignore exclusivity for product liability if manufacturer wrapped the package or it is clear that negligence took place during production
-> if many medical personnel had access to P during surgery in malpractice claim, some jurisdictions presume each D has breached a duty of care unless each D rebuts that presumption

Question 22

What is “cause in fact” and “actual cause” (they mean the same thing)?

What happens if it’s unclear which D caused the harm?

Answer 22

But for D’s conduct, injury wouldn’t have occurred;

Most courts require causal link;

Substantial-facot test for conduct of 2+ Ds or causes;

If unclear which D did what, burden shifts to multiple Ds to prove each did not cause P’s harm

Question 23

What is joint and several liability mean?

Answer 23

May apply if 2+ Ds are each a factual cause of indivisible injury or Ds acted with common plan or design
-> each can be sued and held liable for the entire damages reward

Question 24

What is loss of chance?

Answer 24

Applies in some jurisdictions if P’s chance of recovery was already <50% before D’s conduct due to lack of evidence (happens in medical malpractice cases),
-> so P can recover percentage of total damages equal to difference between chance of recovery before and after D’s negligence

Question 25

What limitations on liability are there in terms of causation?

What is the eggshell plaintiff rule?

Answer 25

Limitations on liability
-> foreseeability - D liable for reasonable foreseeable consequences of a foreseeable type (majority); D liable for all direct consequences (minority/Andrew test)

-> Ps who can recover - P can recover if P was a foreseeable victim of D’s conduct (majority) or P’s harm was within scope of liability of D’s conduct (minority)

-> Eggshell plaintiff rule - extent of damages need not be foreseeable as long as injury to P itself was foreseeable

Question 26

What are intervening and superseding causes?

Answer 26

Intervening and superseding causes

-> Direct cause - uninterrupted chain of events from D’s act to P’s injury – foreseeability of type of harm does not necessarily preclude liability (majority)

-> intervening cause - a cause of P’s harm that occurs after D’s tortious act (doesn’t break chain if foreseeable but if it’s unforeseeable then it becomes a superseding cause and breaks the chain)

-> superseding cause - breaks the chain of proximate causation; D not liable; unforeseeable intervening cause is a superseding cause (“Act of God,” criminal act; intentional tort of third party); negligent intervening acts are foreseeable (medical malpractice) and may lead to joint and several liability

Question 27

What is required in proving damages for negligence?

Answer 27

Actual physical harm
-> must prove actual injury (bodily harm or property damage), NOT JUST ECONOMIC LOSS;
-> nominal damages and attorneys’s fees NOT permitted in negligence actions

Parasitic damages -> if tort caused physical harm, may add emotional distress damages (e.g. NEID claims)

Compensatory damages are achievable as the goal is to make the victim whole.

Question 28

Is there a duty to mitigate in terms of damages for negligence?

Answer 28

Not a duty to D, but may reduce P’s recovery

Question 29

What categories are contained in personal injury damages?

Answer 29

-> Past/future pain and suffering,
-> medical expenses,
-> lost wages/reduced future earnings;
-> eggshell-plaintiff rule applies

Question 30

How is property damages calculated under negligence?

Answer 30

Generally,
-> difference between fair market value before injury and immediate after;
-> most courts allow cost of repair as alternative if cost of repair does not exceed value of property,
OR
-> cost of replacement for household items

Question 31

What is the collateral source rule in terms of damages under negligence?

Answer 31

Traditional rule -
-> benefits from outside sources (P’s insurance) not credited against D’s liability payment
BUT
-> D’s insurer are not from a collateral source and are credit against D’s liability.

Modern trend -> statutes have eliminated or substantially modified the rule.
-> trying to get rid of double recovery

Question 32

Can you recover punitive damages under negligence claims?

Answer 32

-> Clear/convincing evidence, malicious, willful & wanton, or reckless behavior;
-> can include torts that inherently involve this state of mind or behavior;
-> generally cannot exceed single-digit ratio to compensatory damages.

Question 33

What is NIED under the special rules of liability?
-> elements
-> proof

Answer 33

Negligent Infliction of Emotional Distress

Elements
-> P was within “zone of danger” (feared for safety);
-> threat of physical impact caused emotional distress

Proof:
-> Majority - emotional distress must be manifested by physical symptoms (e.g. nightmares, shock, ulcers);
-> Minority - allow recovery without a physical manifestation of harm

Question 34

How can a bystander recover from NIED?
-> elements
-> proof

Are there special relationship that provide NIED without meeting the requirements?
-> proof

Answer 34

Bystander recovery - person outside of zone of danger but must meet all three requirements
-> closely related to person injured by D;
-> present at the scene;
AND
-> personally observed or perceived the injury

Proof:
-> Majority - required physical symptoms do to severe emotional distress

Special relationship that provide NIED claim basis without meeting the traditional requirements:
-> most common examples are a mortician mishandling a corpse
OR
-> a common carrier mistakenly reporting the death of a relative

Proof under special relationship
-> no threat of physical impact or physical symptoms required

Question 35

How do the following special rules of liability work?
-> Pure economic loss
-> survival actions
-> loss arising from injury to family member

Answer 35

Pure economic loss (no)
-> only recoverable with related personal injury or property damage

Survival actions
-> survival statute may permit representative of decedent’s estate to pursue any claims decedent would have had at time of death; may include pain/suffering
-> if survival and wrongful death actions permitted, no double recovery allowed

Loss arising from injury to family member
-> loss of consortium and society for physical/emotional injury to spouse or child

Question 36

How do the following special rules of liability work?
-> Wrongful death
-> wrongful life
-> wrongful birth

Answer 36

Wrongful death
-> brought by spouse, next of kin or personal representative
-> recoverable damages include loss of support, companionship, society, and affection, but NO PAIN/SUFFERING of P;
-> recovery limited to what decedent could recover

Wrongful life
-> minority allows action by child for failure to perform contraceptive procedure or diagnose congenital defect; damage limited to those attributable to disability

Wrongful birth
-> if birth due to failed contraceptive procedure or diagnosis of defect, many states permit parents to recover medical expenses for caring for disabled child; some states allow mother to recover pain/suffering damages and medical expenses for labor

Question 37

How does the employer’s liability for employee’s torts work under vicarious liability?

Answer 37

Occurs when employer has a right to control the means and methods of employee (otherwise see, IC)

Tort within scope of employment (acts employee is employed to do or acts intended to profit or benefit employer);
-> not liable for intentional torts UNLESS (i) force inherent to job (e.g. bouncer), (ii) employee motivated to benefit employer, OR (iii) authorized to act/speak for employer and position provided opportunity for the tort (e.g. fraudulent contract as employer’s agent)

Employer may be liable for detour (minor deviation from scope of employment) but not frolic (unauthorizes and substantial deviation from scope of employment)

Direct liability of employer -> negligent hiring, training, supervision OR otherwise controlling an employee is employer’s negligence (NOT vicarious liability)

Question 38

How does independent contracts liability work under vicarious liability?

Answer 38

Employers generally not liable for IC’s torts, except for:
-> vicarious liability for retention of control
-> vicarious liability for abnormally/inherently dangerous activity or nondelegable duty
-> vicarious liability for IC acting under apparent agency
-> direct liability for negligent election of IC

Question 39

How does business partners; and joint enterprise participants liability work under vicarious liability?

Answer 39

Liable for tortious conduct of each other if committed within scope of business purpose.

Question 40

How does car owners liability work under vicarious liability?

Answer 40

Negligent entrustment of car or other object with potential for harm (if D knows/should know of driver’s or user’s negligent propensities then D is liable)

Family-purpose doctrine (D liable for family members driving with permission) versus owner liability statues (liable for anyone driving with permission, even more expansive)

Question 41

How are parents/children liable under the vicarious liability rule?

Answer 41

Vicarious liability only if child acted as parent’s agent, state statute applies, or if assumed liability on child’s driver’s license application for negligent driving

-> primarily negligent if fails to exercise reasonable care to prevent minor child from intentionally or negligently harming third party if parent (i) can control child and (ii) knows or should know the necessity and opportunity for exercising such control

Question 42

What is dram-shop liability under the vicarious liability rule?

Answer 42

Many states recognize cause of action against seller of intoxicating beverages when a third party is subsequently injured due to buyer’s intoxication.

Most states only allow liability if buyer was minor or intoxicated at time of sale; many states extend to social hosts for injuries to intoxicated guest and/or third parties.

Question 43

What are the government immunities from tort liability?

Answer 43

Federal - traditionally immune, but now immunity is limited by FTCA
-> sovereign immunity not waived for enumerated torts, discretionary functions, government contractor product liability (unless failed to warn or conform with government specifications), and most traditional government activities
-> immunity waived for intentional torts committed by law enforcement officers

State - most states have waived sovereign immunity, at least partially, but acts vary
-> Municipalities/local governments agencies - usually governed by state tort claims acts; immunity traditionally attached only to governmental functions
-> public-duty rule - no liability to any one citizen for municipality’s failure to fulfill a duty that owed to public at large, unless special relationship creates special duty

Question 44

How does government officials immunity work from tort liability?

Answer 44

Immunity applies if is performing discretionary functions entrusted by law unless acts with malice or improper purpose

-> No tort immunity for carrying out ministerial acts (acts that are carried out under a person’s job in which they don’t rely on their judgment or opinion to decide how to do it)

-> Absolute immunity from personal liability for legislators performing their legislative functions, judges performing their judicial functions, and prosecutors

Question 45

How does intra-family immunity work with regards to tort liability?

Answer 45

Interspousal immunity extinguished in most states; parent-child immunity generally limited to core parenting activities

Question 46

Are charities immune to tort liabilities?

Answer 46

Eliminated or capped in most states.

Question 47

What does joint and several liability mean?

Answer 47

Default for MBE

Each D found liable for single indivisible harm liable for the entire harm

Question 48

What does pure several liability mean?

Answer 48

Each D liable only for his proportionate share

Question 49

What does satisfaction and release mean?

Answer 49

No double recovery

Question 50

What’s a contribution and an indemnification?

Answer 50

Contribution
-> tortfeasor who paid more than fair share of common liability generally can recover excess of fair share from joint tortfeasor; can recover no more than the joint tortfeasor would be liable to P for; not generally available for intentional tortfeasors

Indemnification
-> shifting of loss from vicariously liable tortfeasor to primarily responsible party; may be based on agreement, equity, subsequent additional harm, or strict product liability

Question 51

How does contributory fault work as a defense to negligence?

Answer 51

P’s fault is complete bar to recovery (common law/traditional rule).

Not a defense to an intentional tort, gross negligence, or recklessness.

Last clear chance rule -> abolished in most jurisdictions and it states that P may mitigate legal effect of own fault if D had last clear chance to avoid injuring P.

D’s actual knowledge of P’s inattention required for liability for D to be held liable for an inattentive P.

D is liable to helpless P if knew or should have know of P’s helpless peril.

Question 52

How does comparative fault work as a defense to negligence?

Answer 52

Pure comparative fault -> not a complete bar to recovery; P’s damages reduced by proportion that P’s fault bears to total harm

Partial comparative fault
-> if P is less at fault than Ds combined, P’s recovery reduced by percentage of fault
-> if P is more at fault than Ds combined, P recovers nothing
-> if P and D are equally at fault, P recovers 50% of his total damages (in minority jurisdictions P recover nothing if equally at fault)

Comparative fault will not reduce P’s recovery for intentional torts

Question 53

How does assumption of the risk (A/R) equate to a defense to negligence?

Answer 53

Traditionally -> unreasonably proceeding in face of known, specific risk affects recovery

Contributory-negligence jurisdiction -> no recovery

Comparative-fault jurisdiction -> merely reduces recovery

Question 54

When are exculpatory clause unenforceable?

Answer 54

Exculpatory clauses in contracts -> unenforceable if
-> (i) disclaims liability for reckless or wanton misconduct or gross negligence;
-> (ii) gross disparity of bargaining power;
-> (iii) excused; pated party offers services of great important or practical necessity to public;
-> (iv) subject to typical contractual defenses;
OR
-> (v) against public policy