Negligence Flashcards
Negligence Elements
- Duty of Care owed - P must show Duty of care owed by D
- Breach of Duty of Care Owed
- Actual Causation - But-for Test
- Proximate Causation - Foreseeability Test
- Actual Damages
Duty of Care
Duty of Care is owed to all foreseeable plaintiffs (no duty owed to unforeseeable plaintiffs). The extent of the duty is determined by the applicable standard of care.
Rescuers - A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a 3P in peril (danger invites rescue). D may be liable to rescuer, because it is foreseeable that someone may step in and help a victim. This is so even if rescuer does not start in zone of danger.
Firefighter Rule - Firefighters and police officers are barred by the firefighter’s rule from recovering for injuries caused by the inherent risks of their jobs.
Intended beneficiaries of economic transactions - a 3P for whose economic benefit a legal or business transaction was made (for example, a beneficiary of a will) may be a foreseeable plaintiff.
Standard of Care - Reasonably Prudent Person
All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims.
The reasonably prudent person standard is objective, measured against what the average person would do.
A defendant’s mental deficiencies and inexperience are not taken into account.
The RPP sets he baseline.There is no allowance for D’s shortcomings, but if D has advanced superior knowledge, D is expected to exercise/use that knowledge. RPP has same physical abilities as D if those physical abilities are relevant to the claim.
Reasonably Prudent Person Standard Exception
Exception for Superior Skill or Knowledge - becomes reasonably prudent person with same superior skill or knowledge.
Exception for physical characteristics where relevant - where relevant include D’s physical characteristics (i.e., blind, deaf, ect.). NOTE - physical characteristics are usually irrelevant.
Special negligence Duties Based on Type of Defendant - Children
Children are held to the standard of a child of like age, intelligence, and experience. This is a subjective test that is pro-defendant.
Children under 5: no standard; lack capacity
Children 5 - 18: Hypothetical child of similar age, experience, and intelligence in similar circumstances.
EXCEPTION: Children engaged in potentially dangerous adult activities may be required to conform to an “adult” standard of care. Typically driving is the adult activity (think car, boat, tractor, snowmobile, etc.)
Special negligence Duties Based on Type of Defendant - Professionals (malpractice)
Professional is required to possess knowledge/skill of an average member of the profession in good standing.
Usually doctor; but don’t get thrown by an odd job in medical field - same standard (I.e., chiropractor, pediatrist, etc.)
NOTE: Dr has a duty to disclose so patient can give informed consent.
This standard is a real world comparison to what other dr’s would do. We don’t assume how surgery would be done, we see what other dr’s do.
NOTE: it is a national standard of care for a dr. But must correlate specialties.
Special negligence Duties Based on Type of Defendant - Possessors of Land (Known/Unknown Trespasser)
Unknown Trespassers - no duty owed to an undiscovered trespasser.
Known Trespassers - Discovered or Anticipated trespassers, the land possessor must warn of or make safe any conditions that are: artificial, highly dangerous (involving risk of death or serious bodily harm), concealed, and known to the land possessor in advance.
Special negligence Duties Based on Type of Defendant - Licensee
Licensee - Enters land with permission (express or implied) but without financial benefit to possessor. Typically social guests (I.e., you have a friend over - permission, no financial gain).
Duty if:
1. Condition concealed from licensee, and
2. Known to the land possessor in advance.
NOTE: Protect licensees from all known traps on your property.
Special negligence Duties Based on Type of Defendant - Invitees
Invitees - Enter land with permission (express or implied) for financial benefit of possessor
Includes when open to public at large; invitee if you enter church when open - even if no financial contribution.
Duty to Invitees if:
1. hazard concealed from invitee, and
2. Known by possessor or could have discovered through reasonable inspection - think reasonable time lapse for inspection.
NOTE: Possessor must protect invitees from all reasonably knowable traps on land.
Special negligence Duties Based on Type of Defendant - Trespassing Children (Attractive Nuisance Doctrine)
Reasonably prudent care under the circumstances to protect from artificial hazards.
Something attracts the kids onto the land.
Plaintiff must show:
1. A dangerous condition on the land that the owner is or should be aware of;
- The owner knows or should know that children might trespass on the land;
- The condition is likely to cause injury (it is dangerous because of the child’s inability to appreciate the risk); and
- The expense of remedying the situation is slight compared with the magnitude of the risk (I.e., the remedy doesn’t outweigh the magnitude of the risk).
Special negligence Duties Based on Type of Defendant - Firefighters and Police
No duty of care owed for risks inherent to job known as firefighter rule
How to Satisfy Premises Liability Duty
Eliminate hazard condition - repair, replace, remove
Warn about hazard condition - warning must be sufficiently complete; keep danger present in mind.
Other Special Negligence Duties - Statutory Standards of Care
P borrows statute as alternative standard of care to reasonably prudent person. Violation of statue establishes duty and breach.
Criminal Statute may replace the more general common law duty of care if:
- The P is within the protected class; and
- The statute was designed to prevent the type of harm suffered by the P.
If statutory standard doesn’t apply, you go back to reasonably prudent person standard.
Exceptions to Statutory Standard of Care:
- Compliance would have been more dangerous.
- Compliance would have been impossible.
Other Special Negligence Duties - Affirmative Duties to Act
Generally, no duty to act affirmatively:
No duty to undertake an activity in the first place, but if you choose to act, must do so as reasonably prudent person under circumstances. No Duty to rescue
Exceptions to No Duty to Act:
- Pre-existing relationship between parties (innkeeper/guest, employer/employee, business owner/customer, family member/family member, common carrier/passenger).
- Defendant is cause of plaintiff’s peril (D owes duty to P because D caused the peril. Duty owed is not necessarily rescue, it is duty to act reasonably under circumstances - I.e., call 911).
Other Special Negligence Duties - Good Samaritan Laws
Good Samaritan Laws negate/insulate an individual from liability. Assume no good samaritan law unless stated otherwise.
If no good samaritan law and D acts, and does so in unreasonable and negligent manner, and causes harm, D is liable.
Good Samaritan laws exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.
