Negligence Flashcards
Prima facie case of negligence
Duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury
A breach of that duty
The breach is the actual and proximate cause of the plaintiff’s injury
Damages
General duty of care
A duty of care is owed to all foreseeable plaintiffs
If conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff
Extent of duty is determined by the applicable standard of care
So always ask:
- to whom do you owe a duty?
- what is the applicable standard of care?
Duty - foreseeable plaintiffs
A duty of care is owed only to foreseeable plaintiffs - class of persons who were foreseeably endangered by the defendant’s negligent conduct
Zone of danger
Duty owed to rescuer
A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril - danger invites rescue
Intended beneficiaries of economic transactions - foreseeable
A third party for whose economic benefit a legal or business transaction was made, like a beneficiary of a will, may be a foreseeable plaintiff
Firefighter rule and licensee
Firefighters and police officers are barred by the firefighter’s rule from recovering for injuries caused by the inherent risks of their jobs
Firefighters and police officers are typically licensees because enter land with implied consent
- but owed no duty
Basic standard of care
Reasonably prudent person acting under similar circumstances
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
Objective standard - ultimate jury problem
Similar incidents and foreseeable plaintiffs
Similar incidents in the past can be evidence that there was a duty owed because it was foreseeable
Defendant’s mental deficiencies and duty owed
A defendant’s mental deficiencies and inexperience are not taken into account when determining whether satisfied the reasonably prudent person standard
But different for physical characteristics
Reasonably prudent person and superior skill / knowledge
Reasonably prudent person standard sets a minimum level of care
A defendant who has knowledge or experience superior to that of an average person is required to exercise that experience
Reasonably prudent person and physical characteristics
The reasonably prudent person is considered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim
But expected to act as a reasonably prudent person who is also blind would act - blind person would not drive
Duty of care for children
Held to the standard of a child of like age, intelligence, and experience acting under similar circumstances
Subjective test
Child under 5 does not have a standard - no capacity to be negligent
Standard of care - children and adult activities
Children engaged in potentially dangerous adult activities may be required to conform to an adult standard of care
Like operating a motorized vehicle
Standard of care for professionals
A professional is required to possess the knowledge and skill of an average member of the profession or occupation in good standing
- same care as average member of profession providing similar professional services
Empirical standard - fact based standard of care
Measuring standard of care for doctors
National standard of care for most courts
But need same specialty, but can be anywhere geographically
Never say “reasonable doctor” - always average doctor
Doctor duty to disclose and breach
A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent
Breaches if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk
Duty for possessors of land generally
Under the traditional rule followed in many states, the duty owed a plaintiff on the premises for dangerous conditions on the land depends on whether the plaintiff is
- unknown trespasser,
- known trespasser,
- licensee,
- invitee
Establishes rules for duty to protect from dangerous conditions and standard of care depends on status of entrant
Possessor is not always owner
Duty for possessors of land - condition vs activity
Establishes rules for duty to protect from dangerous conditions
Activities conducted on the land use ordinary reasonably prudent person standard of care
Duty to unknown trespasser
No duty is owed to an undiscovered trespasser
Duty to known trespassers
As to discovered or anticipated trespassers, land possessor must warn of or make safe any conditions that are
- artificial
- highly dangerous (involving risk of death or serious bodily harm)
- concealed
- known to the land possessor in advance
Licensee
A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business
- rather than for the possessor’s benefit
Social guest
Land possessor’s duty to licensee
The land possessor has a duty to warn of or make safe hazardous conditions that are
- concealed
- known to the land possessor in advance
Only the duty to exercise reasonable care in the conduct of active operations on the property
- no duty to inspect or repair
Licensee
One who enters onto the land with the possessor’s permission for their own purpose or business
- rather than for the possessor’s benefit
Social guests
Invitee
Invitees enter onto the land in response to an invitation by the possessor of the land
- enter for a purpose connected with the business of the land possessor, or
- enter as members of the public for a purpose for which the land is held open to the public
Will lose invitee status if they exceed the scope of the invitation
Land possessor duty to invitees
The landowner or occupier owes a duty to invitees regarding hazardous conditions that are
- concealed
- known to the land possessor in advance or could have been discovered by a reasonable inspection
Whether an inspection is reasonable depends on the circumstances
- how often inspections need to happen
- the dangerousness of the land
- what methods were used for the inspections
- etc
Land possessor’s duty to trespassing children
Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property
To establish this doctrine’s applicability, plaintiff must show
- 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
- likely to cause injury - dangerous because of the child’s inability to appreciate the risk
- expense of remedying the situation is slight compared with the magnitude of the risk
Child does not have to be attracted onto the land by the dangerous condition, nor is attraction alone enough for liability
How to satisfy premises liability duty
Eliminate hazard condition
- repair
- replace
- remove
Warn about hazard condition
Duty owed to users of recreational land
A landowner who permits the general public to use their land for recreational purposes without charging a fee is not liable for injuries
- unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity
Duty of possessor to those off premises
Generally no duty to protect someone off the premises from natural conditions
But there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land
And one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises
Duties of lessor and lessee of realty
Lessee has a general duty to maintain the premises
Lessor must warn of existing defects of which they are aware or have reason to know, and which they know the lessee is not likely to discover on reasonable inspection
If lessor covenants to repair, they are liable for unreasonably dangerous conditions
- if volunteers to repair and does so negligently, liable
Lessor and tenant may also be liable to the guest because of tenant’s status as occupier
Duties of vendor of realty
A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reaosnable inspection
Statutory standards of care / negligence per se
A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines for regulatory offenses and ordinances, such as speeding) may replace the more general common law duty of care if
- the plaintiff is within the protected class
- the statute was designed to prevent the type of harm suffered by the plaintiff
Plaintiff borrows statute as alternative standard of care to reasonably prudent person standard
- the violation of statute establishes a duty and breach
Two broad steps to establishing negligence per se
Legal - statute is legally appropriate
- plaintiff is within the protected class
- statute was designed to prevent the type of harm suffered by the plaintiff
Factual - defendant violated statutory command
When does these two steps, negligence per se
Excuse of violation for negligence per se
Violation of some statutes may be excused where compliance would cause more damage than violation or where compliance would be beyond the defendant’s control
Compliance with a statute and negligence per se
Even though the violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care
Affirmative duties to act
Generally, one does not have a legal duty to act
- but if choose to act, must do so as reasonably prudent person under circumstances
No duty to rescue
Exceptions
- a special relationship between the parties
- peril due to own conduct
- assumption of duty by acting
- duty to prevent harm
Duty to act and special relationship between parties
A special relationship between the parties (ex: parent-child) may create a duty to act
Common carriers, innkeepers, shopkeepers and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons
Places of public accommodation have a duty to prevent injury to guests by third persons
Duty to act and created peril
One has a duty to assist someone they have negligently or innocently placed in peril
Duty to act - assumption of duty
One may assume a duty by acting - once the defendant undertakes to aid someone, must do so with reasonable care
Good Samaritan statutes
Good Samaritan statutes
Many states have enacted these
- but only apply this if the question specifically states they have this law
Exempt doctors, nurses, etc, from liability for ordinary, but not gross, negligence
- insulate negligent rescuers from liability
Exception to when one assumes a duty to act by acting
Duty to prevent harm from third persons
Generally, there is no duty to prevent a third person from injuring another
But an affirmative duty may be imposed if
- one has the actual ability and authority to control a person’s actions, and
- knows or should know the person is likely to commit acts that would require exercise of this control
Standard of care for common carriers and innkeepers
Common carriers and innkeepers are held to a very high degree of care
Liable for slight negligence
For the higher standard to apply, the pl must be a passenger or guest
Standard of care - automobile driver to guest
A guest in an automobile is owed a duty of ordinary care
In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct
Bailment relationship and title
In a bailment relationship, the bailor transfers to the bailee possession of the chattel, but not title
Duties owed by bailee
The bailee’s standard of care depends on who benefits from the bailment
- for a sole benefit of the bailor bailment, there is a low standard of care
- for a sole benefit of the bailee bailment, there is a high standard of care, and
- for a mutual benefit bailment (typically one for hire), there is the ordinary care standard
Modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account
Duties owed by bailor
For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel
For a bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware
Duty owed in emergency situations
A defendant must act as a reasonably prudent person would under the same emergency conditions
The emergency is not to be considered if it is of the defendant’s own making
Negligent infliction of emotional distress vs tack on damages
If physical injury has been caused by commission of a tort, the plaintiff can tack on damages for emotional distress as a parasitic element of their physical injury damages, without the need to consider the elements of the emotional distress torts
Negligent infliction of emotional distress is when it is just for emotional damages
Near miss cases - NIED
Defendant creates a foreseeable risk of physical injury to the plaintiff
In addition to negligence, must show
- plaintiff was within the zone of danger - sufficiently close to the def such that they are subject to a high risk of a physical impact
- pl must suffer physical symptoms from the distress - manifest itself in physical symptoms
Bystander cases - NIED
A bystander outside the zone of danger of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as:
- plaintiff and person injured are closely related (construe narrowly),
- plaintiff was present at the scene and personally observed or perceived the event
Most states drop req of physical symptoms
Special relationship between plaintiff and defendant - NIED
May be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship (typically commercial in nature) between the plaintiff and a defendant such that defendant’s negligence has potential to cause emotional distress
Ex:
- patient / medical laboratory, doctor’s misdiagnosis that patient has terminal illness
- customer / funeral parlor, mortuary’s negligent cremation of deceased contrary to family’s instructions
- not customer / dry cleaner, shirt is destroyed or lost
Most states drop requirement of physical symptoms
Breach generally
Concrete, specific behavior by defendant that falls short of relevant standard of care
Highly factual consideration
Can use one of following theories to show proof of the breach
- custom or usage
- violation of statute
- res ipsa loquitur
Try to stay away from cost / benefit analysis
Res Ipsa Loquitur
Used by plaintiff without information about Defendant’s breach
The very occurrence of an event may tend to establish a breach of duty
Requires plaintiff to show that
- the accident causing the injury is a type that would not normally occur unless someone was negligent
- negligence is probably attributable to the defendant
Can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant
Effects of res ipsa loquitur
If established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant
The trier of fact can reject the inference of negligence
Alluding to common sense
Plaintiff’s motion for directed verdict
Plaintiff’s motion should always be denied except in the rare case where the pl has established negligence per se through violation of an applicable statute and there are no issues of proximate cause
Custom or usage - breach of duty
Standard of care is reasonable prudence - evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstances
Evidence is not conclusive - can find an entire industry is acting negligently
Violation of statute - breach of duty
Where the duty of care is set by a statute under the rules that govern using statutes in negligence litigation, proof of violation of the statute is conclusive evidence of breach of duty
Causation generally
Once negligent conduct is shown (a breach of the standard of care owed a foreseeable pl), the plaintiff must show that the conduct was the cause of their injury
Both factual cause and proximate cause
But for test
An act or omission is a factual cause of an injury when the injury would not have occurred but for the act or omission
Several acts, each insufficient to cause the injury alone, can combine to cause the injury and all be but for causes
- a but for cause, not the but for cause
- defendant can refute this by showing that the plaintiff would have still been injured even if the act or omission did not occur
Substantial factor test (causation)
Where several causes bring about injury and any one alone would have been sufficient to cause the injury
- both parties caused the harm
Defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury
If merged caused scenario where both breaches found to be a substantial factor, defendants held jointly and severally liable
Unascertainable causes approach (factual causation)
This test applies when there are two acts and only one of which causes the injury, but it is not known which one
- although both parties acted negligently, only one caused the harm
Burden then shifts to the defendants and each must show that his negligence is not the actual cause
Proximate causation generally
Don’t use this word on the exam
Proximate cause can be though of in terms of fairness - even though the conduct actually caused the plaintiff’s injury, might not be deemed to be proximate cause
- doctrine of proximate causation is a limitation of liability
- deals with liability or non liability for unforeseeable or unusual consequences of one’s act
Proximate causation - scope of foreseeable risk
A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts
Foreseeability test - was outcome foreseeable risk associated with breach?
If any issue of foreseeability for the jury, summary judgment denied (often test with this when testing proximate causation)
Intervening forces and causation
Liable when their negligent caused a foreseeable reaction from an intervening force or created a foreseeable risk that an intervening force would harm the plaintiff
Almost always foreseeable
- medical malpractice
- negligence of rescuers
- protection or reaction forces to the defendant’s conduct, including efforts to protect person or property
- disease or accident substantially caused by the original injury
Intervening forces that are not just a natural response or reaction
Intervening forces that are not just a natural response or reaction to the situation created by the defendant’s conduct may be foreseeable if the defendant’s negligence increased the risk of harm from these forces
These intervening forces include
- negligent acts of third persons,
- crimes and intentional torts of third persons, and
- acts of God
Foreseeability guidelines (causation)
Passage of time
Geographic distance
Prior occurrence
Superseding forces
Intervening forces that produce unforeseeable results (results not within the increased risk created by the defendant’s negligence) are generally deemed unforeseeable and superseding
Superseding forces break the causal connection
Defendant’s negligence did not increase the risk of its occurrence
Damages generally
Damage is an essential element of negligence
Damages will not be presumed and nominal damages are not available
Personal injury and property damage
Eggshell-skull
Eggshell-skull doctrine
The defendant takes the plaintiff as they find the plaintiff - liable for all damages, including aggravation of an existing condition
- even if the extent or severity of the damages was unforeseeable
Personal injury - damages
Plaintiff is to be compensated for all their damages - past, present, and prospective
- both economic and noneconomic damages
A plaintiff suffering physical injury may also recover damages for any resulting emotional distress
Property damage - damages
The measure of damage is the reasonable cost of repair, or if the property is totally or nearly destroyed, its fair market value at the time of accident
Emotional distress damages generally cannot be recovered for negligent harm to property
A person cannot recover for emotional distress if another party negligently kills or injures their pet
Punitive damages
Generally are not available in negligence cases
But a plaintiff may recover punitive damages if defendant’s conduct is wanton and willful, reckless, or malicious
Nonrecoverable items - damages
Nonrecoverable items include
- interest from the date of damage in a personal injury action - pre-judgment interest, and
- attorneys’ fees
Duty to Mitigate
In all cases, the plaintiff has a duty to take reasonable steps to mitigate damages
Collateral source rule - damages
Damages are not reduced just because the plaintiff received benefits from other sources
Contributory negligence
Negligence on the part of the plaintiff that contributes to the plaintiff’s injuries
- defendant shows that plaintiff failed to exercise proper care for own safety
Standard of care for contributory negligence is the same as for ordinary negligence
- like the plaintiff’s violation of an applicable statute may be used to establish their contributory negligence
Completely barred the pl’s right to recovery at common law - but now almost all jurisdictions favor a comparative negligence system
Contributory negligence - dense to defendant’s violation of statute
Contributory negligence is a defense to negligence proved by the defendant’s violation of an applicable statute
- unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment
Contributory negligence and intentional torts
Contributory negligence is not a defense to wanton and willful misconduct or intentional torts conduct
Last clear chance - contributory negligence
Last clear chance permits a pl to recover despite their contributory negligence
- person with the last clear chance to avoid an accident who fails to do so is liable for negligence
Helpless peril - plaintiff is in helpless peril, defendant will be liable if knew or should have known of the plaintiff’s predicament
Inattentive peril - situations where pl could have extricated themselves if attentive, the defendant must actually have known of the pl’s predicament
Prior negligence cases - in order for this doctrine to apply, the defendant must have been able, but failed, to avoid harming the pl at the time of the accident
- if the defendant’s only negligence occurred earlier, the doctrine will not apply
Imputed contributory negligence
As a general rule, the contributory negligence of a third party will be imputed to a plaintiff and bar their claim only when the relationship between the third party and the pl is such that a court could find the plaintiff vicariously liable for the third party’s negligence
Imputed in employer-employee, partner and joint venturer relationships
- not imputed between spouses, parent and child, automobile owner and driver
Assumption of risk
The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant’s act
Plaintiff must have
- known of the risk, and
- voluntarily proceeded in the face of the risk
Implied vs express assumption
Not a defense to intentional torts but defense to wanton and willful misconduct
Implied assumption of risk
Knowledge may be implied where the risk is one that an average person would clearly appreciate
May not be said to have assumed the risk where there is no available alternative to proceeding in the face of risk or in situations involving fraud, force, or an emergency
Express assumption of risk
May be assumed by an express agreement
Common carriers and public utilities may not limit their liability by disclaimer and members of a class protected by statute will not be deemed to have assumed any risk
Comparative negligence
Contributory negligence is not a complete bar to recover
- rather, trier of fact weighs the plaintiffs negligence and reduces damages accordingly
- jury assigns % of fault - discretion
Partial comparative negligence vs pure comparative negligence
Partial comparative negligence
A majority of states have adopted this
Still bars the plaintiff’s recovery if their negligence was more serious than the defendant’s negligence (or at least as serious in some states)
If more than one defendant has contributed to the plaintiff’s injury, the plaintiff’s negligence will be compared with the total negligence of all defendants combined
Pure comparative negligence
Allow recovery no matter how great plaintiff’s negligence was
Assume this applies unless question states otherwise
Last clear chance and comparative negligence
Last clear chance is not used in comparative negligence jurisdictions
Assumption of risk and comparative negligence
Express assumption of risk is a complete defense
Implied assumption of risk is analyzed as either
- a limitation on the duty owed to the plaintiff, so defendant does not owe a duty to protect the plaintiff against known risks, or
- more commonly, contributory negligence, so the pl unreasonably encountered a known risk and reduces or bars their damages
Wanton and willful conduct - comparative negligence
Pl’s negligence will be taken into account in most states even though the defendant’s conduct was wanton and willful or reckless
But plaintiff’s negligence is still no defense to intentional tortuous conduct by the defendant
Partial comparative negligence jurisdiction - single defendant with counterclaim
P is 30% negligent and D is 70% negligent and each suffers 100k in damages
P will recover 70% of the 100k because 100k minus 30%, so 70,000
D will recover nothing because D was more than 50% at fault
Partial comparative negligence jurisdiction - multiple defendants
P is 40% negligent and suffers 100k
D1 is 35% negligent and D2 is 35% negligent
P can recover 60k from either D1 or F2 under joint and several liability rules
And if D1 or D2 also suffered damages, each would have a claim against the other two negligent parties because each one’s negligence is less than the total negligence of the other two
Pure comparative negligence jurisdiction - calculating damages
P is 30% negligent and D is 70% negligent
Each party suffers 100k in damages
P has a right to recover 70k from D and D has a right to recover 30k from plaintiff
- so will be offset against P’s damages and P will have a recovery of 30k
