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.
Negligent Infliction of Emotional Distress
Conduct Required - Subjecting Plaintiff to threat of physical impact or sever emotional distress likely to cause physical symptoms.
Fault Required - Negligence in creating risk of physical injury to plaintiff.
Causation and Damages - D’s conduct generally must cause physical symptoms from the distress.
Bystander Recover - Plaintiff bystander must (1) be closely related to the injured, (2) be present at the scene, and (3) observe or perceive the injury.
Breach of Duty in Negligence
Breach: Concrete, specific behavior by D that falls short of relevant standard of care. Breach can be affirmative act or omission.
Unreasonable because ‘x’ event could have reasonably been avoided by ‘y’ act –> typically stay away from cost-benefit analysis.
Custom or Usage - when the reasonable standard is prudence, evidence of the custom or usage may be used to establish how a reasonable person should have behaved under the circumstances - not full proof because whole industry could be negligent.
Violation of Statute - When duty of care is set by a statute under the rules that govern, proof of violation of the statue is conclusive evidence of breach of duty. This is known as negligence per se.
Breach of Duty of Care - Res Ipsa Loquitur
RIL used by P without info about D’s breach.
RIL requires:
1. Accident is type that would normally not occur unless someone was negligent, and
- The negligence is probably attributable to the Defendant.
RIL is a substitute for direct evidence of the accident.
Establishing RIL means no directed verdict: jury can find either way; RIL gets you as far as jury and then jury decides if P or D wins.
Actual (Factual) Causation - general
Actual causation = link between breach and harm.
But-for test: injury would not have occurred but for the breach.
Defendant can refute but-for by saying harm would have happened anyways - “even if”
Ask: is the breach essential?
Actual (Factual) Causation - Merged Causes (twin flames doctrine)
2 D’s acting independently each commit a breach combining into single indivisible harm.
Example: two individually set fires that eventually join together and cause the injury –> both fire starts are jointly and severally liable. P can sue either for full amount of damages.
Substantial Factor Test:
1. D liable if breach contributed in significant/substantial way to ultimate injury.
2. Kicked to jury - jury decides if breach is substantial contribution.
3. If breach could cause injury by itself, it is is substantial factor.
4. Multiple sufficient causes
Actual (Factual) Causation - Unascertainable causes approach (summers v. tice)
Two acts, only one of which causes injury, but unknown which one
Summers v. Tice - hunting accident; two shots, one accident - which shot caused the injury?
when we don’t know which caused the injury, the burden shifts to defendants and each defendant must show their negligence didn’t cause the breach/injury.
If neither can show - D’s are held jointly and severally liable.
Proximate Causation
General Rule - was outcome foreseeable risk associated with breach?
Foreseeability Guidelines -
1. passage of time - less time passing is more foreseeable
2. Geographic Distance - sometimes closer to accident is more foreseeable
3. Prior occurrence - has the outcome happened before
P can recover if jury finds this is a foreseeable risk.
Can not break the chain of events
Common Foreseeability Intervening Factors
P wins in all four cases (i.e., D is liable)
- Medical malpractice - poor care is always foreseeable
- Negligence of Rescuers - D is liable for good samaritan/rescuer’s negligence
- intervening protection or reaction forces
- Superseding Forces - if a superseding force breaks the causal connection (I.e., break in the chain), the D is relieved of liability.
Damages - Eggshell Plaintiff Rule
In all cases, the D takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent of severity of the damages was unforeseeable.
In other words, once P has established all other elements of negligence claim, P receives all damages suffered, even if surprisingly great in scope –> you take the P as they are –> eggshell skull not limited to negligence; applies to every aspect of tort law (I.e., think battery).
