Negligence Flashcards
Standard of Care (RPP)
Default adult: duty to act like a reasonably prudent person (RPP) under the circumstances.
Child: duty to care like a reasonably prudent child of similar age, intellect, experience (but for high-risk activity, default RPP standard)
Mental/emotional disability: default RPP standard
Physical disability: duty to act like a RPP with the same disability under the circumstances.
Intoxication: default RPP standard, unless involuntary intoxication (then RPP who is intoxicated).
Standard of Care (Negligence per se)
D owes a duty of reasonable care to P. Statutory standard is used in determining whether the D’s conduct was reasonable.
Standard of Care (Landowner)
Traditional
1. Invitee (business purpose / public event)
* duty to inspect
* duty to discover unreasonably dangerous conditions
* duty to reasonably prevent harm to invitee
* cannot delegate duty to independent contractor
2. Licensee (social guests / presence tolerated / emergency personnel)
* no duty to inspect
* duty to make property reasonably safe
* duty to correct/warn about hideen dangers that Landowner knows/should know.
3. Discovered/anticipated Trespasser
* duty to warn/protect from hidden, dangerous, artificial conditions.
* duty to warn about natural/artificial conditions that risk death / serious bodily harm.
4. Flagrant (undiscovered/unanticipated) Trespasser
* no duty
5. Attractive nuisance
* artificial condition exists, children likely to trespass
* Landowner knows/should know unreasonable risk (death / serious bodily harm)
* burden of eliminating danger < risk of harm
* duty to exercise reasonable care
Minority/modern
1. Everyone: reasonable care
2. Flagtrant trespasser: lower standard (duty to not act intentionally/willfully/wantonly to cause physical harm)
Standard of Care (common carriers / innkeepers)
Special relationship with guests/customers, higher RPP standard.
Standard of Care (Drivers)
Default RPP (ordinary care) to guests (no pay for ride) / passengers (paid for ride).
Minority “guest statutes”: lower standard of care (i.e., refrain from gross/wanton/willful misconduct) with respect to guests (no pay for ride).
Standard of Care (Landlord-Tenant)
Landlord duty:
* duty to warn tenant of hidden dangers in common areas
* duty to repair with ordinary care
Tenant duty:
* duty to protect third parties against dangerous conditions within tenant’s control
Standard of Care (Professionals/physicians)
Professional (doctor, lawyer, electrician)
* duty to exhibit the same skill, knowledge, care as an ordinary practitioner in the same community.
* Deviation is breach, compliance is not breach (dispositive).
Physicians
* duty to act like an ordinary physician in the nation.
* duty to disclose risks to patient & obtain informed consent. Breach = malpractice.
* no duty to disclose if (i) commonly known risk; (ii) patient unconscious; (iii) patient waives/refuses info; (iv) pateint incompetent; (v) disclosure deterimental to patient.
P’s recovery
P must prove actual physical harm (bodily harm or property damage). P must take reasonable steps to mitigate damages after D’s tortious act. Court may reduce P’s recovery if damages were avoidable.
* NIED damages: can recover for physical manifestation of ED
* Purely economic damages NOT recoverable.
* Nominal damages NOT recoverable.
* Punitive damages ONLY IF P proves D acted willfully/wantonly/recklessly/with malice.
* Collateral-source: D’s liability is NOT reduced because P has insurance.
NEID (threat of phyiscal impact)
Duty: to avoid negligently inflicting ED.
Breach: D created a significant threat of physical impact upon P.
Causation: Actual (but-for / substantial factor) and Proximate (P was within zone of danger of the threatened physical impact).
Harm: P suffered ED because of the threat of physical impact.
Damages: P proves physical symptoms due to ED. P can recover compensatory.
Bystander outside the zone of danger may recover:
* P is closely related to injured party and
* P was present and witnessed the injury.
NEID (no threat of phyiscal impact)
D and P have a special relationship:
* D mishandles corpse
* D common carrier mistakenly reporting death of relative
* D is physician & misdiagnoses patient, patient shocked
Duty: to avoid negligently inflicting ED.
Breach: D negligently inflicts ED.
Causation: Actual (but-for / substantial factor) and Proximate (P’s ED was foreseeable).
Harm: P suffered ED because of D’s conduct/speech.
Damages: P proves physical symptoms due to ED. P can recover compensatory.
res ipsa loquitur
Allows jury to infer negligence without direct evidence of negligence. Requires:
* harm does not ordinarily occur in the absence of negligence
* thing causing harm was D’s under exclusive control (but today, medical malpractice/product strict liability - “exclusive” satisfied as long as in the room / supply chain.
Contributory negligence jurisdictions
If P contributed to harm by also acting negligently, P is barred from recovery. THIS DEFENSE IS NOT APPLICABLE TO STRICT LIABILITY.
But last-clear-chance exception applies. Allows a contributorily negligent plaintiff to recover if the defendant (1) had the last clear chance to avoid the plaintiff’s injury but (2) failed to use reasonable care to do so
Pure comparative fault (negligence) jurisdictions
Multiple defendants
P must prove Ds acted negligently.
Then burden shifts to Ds to prove their negligence did not cause harm.
Vicarious liability (respondeat superior)
Employer held vicariously liable for employee’s negligence can recover from employee, EVEN IF no indemnification agreement.
