Negligence Flashcards
Neligence basics
Negligence is analyzed under an objective standard by comparing D’s actions to a reasonable person under the same or similar circumstances
Negligence-Elements
1) Duty of care
-D has a duty to conform to a specific standard of care
-Reasonably prudent person: D’s duty is to behave like a reasonably prudent person under the circumstances presented
-Exception: in certain situations, an alternative standard of care applies
2) Breach of duty
3) Causation
-Actual cause and proximate cause
-Note: the MBE may refer to actual cause as “cause in fact” or “factual cause” and proximate cause as “legal cause”
4) Damages
Duty of care
D owes a duty of care to behave like a reasonably prudent person to all foreseeable plaintiffs in the zone of danger
Default standard of care
- Reasonable prudent person
- D’s duty is to behave like a reasonably prudent person under the circumstances
- RPP is considered to be someone with D’s physical characteristics, but with the knowledge and mental capacity of an ordinary person
Foreseeable victims
Those within the zone of danger
* Zone of danger = the area around D’s activities in which a P could foreseeably be injured
* Rescuer’s exception: if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable
-Does not apply to emergency personnel (e.g. firefighters or police) if their injury results from a risk inherent to the job
* Prenatal injury: a duty of care is owed to a viable fetus
Children
Held to the standard of care of a reasonable child of similar age, education, intelligence, and experience
* Generally, young children (i.e. under 5) lack capacity to be held negligent
* Adult activities exception: children engaged in adult activities must conform to an adult standard of care in that activity
Common carriers and innkeepers
Held to an “utmost care” standard
-Liable for even slight negligence to passengers or guests
Custom or usage in an industry
Can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty, nor does compliance with an industry custom automatically establish a lack of negligence
Statutory standards of care and negligence per se
An existing statute may establish a standard of care, in which case the statutory standard imposed by the statute will replace the general common law standard of reasonable care
Statutory standard of care-Requirements
Will apply if statute satisfies 3 criteria:
1) P must prove that harm suffered is the type the statute was meant to prevent
2) P is in class of victims statute was meant to protect; and
3) Statute applies a standard of conduct: says what to do or not to do
Statutory standard of care does not apply if
a) Compliance is more dangerous than non-compliance, or
b) Compliance is impossible under the circumstances
Negligence per se
Violation of the statute means P must only prove causation, not breach of duty
* Under majority rule, that violation of the statute establishes a conclusive presumption of duty and breach of duty
* Compliance does not automatically clear D of liability
Duty of care for owners and occupiers of land to trespassers
Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers
-Same standard of care applies for owners and occupiers
Unknown or undiscovered trespassers
No duty owed
Anticipated trespassers
Where owner has reason to believe of trespassers on her land
* Activities: owners has a duty of reasonable care in carrying out activities on her property
* Dangerous conditions: owner has duty to make safe or warn of any known, concealed, man made hazards
-Note: this is rare, look for spring guns traps, etc.
Attractive nuisance doctrine for child trespassers
Owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:
1) She is aware or should be aware of a dangerous condition on her property
2) She knows or should know children are in the vicinity
3) The condition is likely to cause injury given a child’s inability to appreciate the risk; and
4) The magnitude of the risk otweighs its utility or the expense of remedying it
Licensee
One who enters land with owner’s permission for his own purpose or business (i.e. not landowner’s benefit)
-E.g. relative, friends, social guests
Invitee
One who enters land held open to the public or who enters with owner’s permission to confer a commercial benefit
-E.g. store patron, concert goer
Licensee and invitee: Duty of care owed
- Activities carried out on property: reasonable care
- Known dangerous conditions: duty to warn or make safe
- Duty to inspect: n/a for licensees
-Invitees: owners have duty to conduct a reasonable inspection for non obvious dangers and make them safe - May be non-delegable: businesses that hold property open to the public have a non delegable duty to keep premises safe for customers
Licensee and invitee:Scope of duty
Limited by scope of the invitation/license
* Owner’s duty extends only to those areas where one is an invitee or licensee (e.g. store owner does not owe duty of care in employees-only area)
Note: police and firefighters are considered licensees, but cannot recover for injuries suffered in the line of duty if the injury results from a risk inherent in the job
Breach of duty
D breaches his duty when his conduct falls short of the standard of care owed under the circumstances
D breached the applicable standard of care
Includes:
* Reasonable person standard
* Negligence per se: violation of a relevant statute
* Specialized standard of care
* Custom or usage in an industry: not an automatic breach, but may be relevant
Res ipsa loquitur
The very occurrence of the accident causing P’s injuries suggests negligent conduct
* Arises if facts cannot establish breach of duty because circumstances surrounding the event are unknown to P
Res ipsa-Requirements
1) Inference of negligence: the harm would not normally occur absent negligence
2) Attributable to D: this type of harm normall results from negligence by one in D’s position
-Often satisfied by showing that the injury causing instrument was in D’s exclusive control
3) Injury was not attributable to P
Actual cause
Establishes a causal connection between the alleged breach of duty and the resulting injury
Note: MBE may refer to actual cause as factual cause or cause in fact
But for test
But for D’s alleged breach of duty, P’s injury would not have occurred
Substantial factor test
For multiple causes of P’s injury
* D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury
* Application: used if multiple causes bring about P’s injury and any one of them alone would have caused the injury
-E.g. fires start on D1’s land and D2’s land, each of which spreads to P’s land and destroys P’s house
Burden shifting test
For several possible causes of P’s injury
* Application: used if multiple Ds act (often simultaneously), only one causes P’s injury, but it’s unclea which D caused the injury
-E.g. P is hit by a stray bullet at a busy firing range and it’s unknown which shooter hit P
* Burden of proving actual cause shifts to Ds
-If no D can prove another D was responsible, all Ds are jointly and severally liable
Proximate cause
Establishes that it is fair under the law to hold D responsible for P’s injuries
* Foreseeability: measuring stick for proximate cause
-D is liable for the foreseeable outcome of his conduct
-Note: an outcome does not have to be likely to be foreseeable; unlikely things are often foreseeable on the MBE; if it’s reasonably possible, it’s probably foreseeable
Note: question of fact that is usually left to a jury or fact finder
Direct causes
if P’s injury is the direct consequence of D’s negligent conduct, D is liable unless the outcome is unusually bizarre or unpredictable
Indirect causes
Intervening forces that occur after D’s conduct to cause P’s injuries will not cut off D’s liability if they are foreseeable
* An intervening force is usually foreseeable if either:
a) It is a normal response or reaction to D’s negligent act, or
b) D’s negligence increased the risk that an intervening force would cause harm to P
* Injuries to rescuers are usually considered foreseaable
Eggshell plaintiff rule
D takes P as he finds him and is liable for the full extent of P’s injuries regardless of whether they are foreseeable
Damages
- P must prove damages, which are not presumed in negligence cases;
- Nominal damages are not available
Personal injury
D must compensate P for all damages
* Includes past, present, and prospective damages
* Economic and non economic damages are recoverable
Property damage
P can recover reasonable cost of repair
* If property is irreparable, damages = full market value at the time the accident occurred
Punitive damages
Only recoverable if D’s conduct is wanton and willful, reckless, or malicious
* Usually not available in negligence cases
* More common with intentional torts
Non-recoverable damages
P can never recover for:
* Interest from the date of damage in personal injury cases
* Attorney’s fees
Duty to mitigate
P must take reasonable steps to mitigate damages
Comparative negligence
D can establish that P’s injuries are at least partially the result of P’s own negligence
* Fact finder apportions fault between P and D by percentage and reduces P’s recoverable damages accordingly
Partial/modified comparative negligence
P can only recover damages if he was less than 50% at fault (or 50% can make claim inactionable)
Pure comparative negligence
P can recover damages even if he was more than 50% at fault
Contributory negligence
P is barred from recovery if D establishes that P’s negligence contributed to her injuries
Last clear chance defense
P can rebut D’s contributory negligence claim by proving D had the last clear chance to avoid the injury causing accident
Assumption of risk
- D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act
- Requirements: D must show
1) P knew of the risk (subjective standard; but knowledge can be inferred from facts); and
2) P voluntarily proceeded in the face of that risk
Express assumption
P can assume risk by agreement (e.g. exclupatory clause) less likely to be enforced if part of adhesion K
Negligent infliction of emotional distress
Elements:
1) D’s negligence results in a close risk of bodily harm to P
-P must be in “zone of danger” to recover
-I.e. D’s act must have nearly caused physical harm to P
2) D’s negligence results in P’s severe emotional distress
3) P exhibits some physical manifestation attributable to her emotional distress
-Symptoms can be instantaneous or appear days later
-Non physical symptoms: states are split on this element; many allow severe emotional distress alone
-Note: on essays, note the distinction; given the split, an MBE question is unlikely to turn on this element
NIED: Bystander claims
P bystanders outside the zone of danger may recover for emotional distress resulting from D’s negligence if :
1) P and the injured person are closely related
2) P was present at the scene of the injury; and
3) P personally observed or perceived the event
NIED: Special situations
If above elements are not met, P may still recover where D’s negligence creates a great likelihood of emotional distress
-E.g. erroneous report of relative’s death, mishandling of corpse
