Negligence Flashcards
What is negligence?
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
What are the elements to negligence?
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
What does “duty” mean under negligence?
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.
Does the failure to act mean there is a general duty to act? Are there exceptions to this?
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
How does the foreseeability of harm to P work under the duty element of negligence? Are there any special foreseeable Ps?
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
What is the standard of care?
Reasonably prudent person - objective standard
-> 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
-> voluntarily intoxicated person held to same standard as sober person
-> child - reasonable child of similar age, intelligence, and experience
—-> but child engaged in high-risk adult activity held to adult standard
—-> children under age of five generally found incapable of negligent conduct
What are the standards of care for specific classes of D’s?
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 - absent “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
What is the standard of care of possessors of land regarding trespassers?
Trespassers (traditional/majority approach) - 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 unless owner should reasonably know that trespassers are entering land, then same duty as owed to a licensee (majority)
-> attractive nuisance - liable for injuries to trespassing children if 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
What is the standard of care that possessors of land have regarding invitees?
Invitee (traditional approach/majority) – Invited to enter for purposes for which the land is held open or for business purposes
-> reasonable care to inspect, discover dangerous conditions, and protect invitee from them; nondelegable 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 (i) charges a fee or (ii) acts willfully, maliciously, or with gross negligence
What standard of care does a possessor of land owe to licensee?
Licensee (traditional approach/majority) - enters land of another with permission or privilege (social guest; emergency personnel)
-> warn of concealed dangers that are known or should be obvious
-> use reasonable care in conducting activities on the land
-> no duty to inspect for dangers
What does the R3d state in terms of a standard of care a possessor of land has towards others?
Minority rule
Reasonable care under all circumstances; no invitee/licensee distinction
Fact of trespass considered by jury in determining reasonable care
Duty not to act in intentional, willful, or wanton manner causing physical harm is only duty owed to flagrant trespasser (malicious trespasser)
What is the standard of care that landlord and tenants have in terms of being possessors of land?
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
What is the standard of care for possessors of land have towards off-premises victims?
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)
What is the standard of care for sellers of real property?
Duty to disclose any concealed and unreasonably dangerous conditions
What is the burden of proof for breach or violation of duty of care?
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 (i) foreseeable likelihood that D’s conduct would cause harm, (ii) foreseeable severity of resulting harm, and (iii) D’s burden in avoiding the harm
How does custom work in showing breach or violation of duty of care?
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)
-> 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)
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
How does negligence per se work under breach or violation of duty of care?
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
How does res ipsa loquitur work under breach or violation of duty of care?
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
What is “cause in fact” and “actual cause” (they mean the same thing)?
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
