Negligence

Question 1

Prima facie case of negligence

Answer 1

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

Question 2

General duty of care

Answer 2

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?

Question 3

Duty - foreseeable plaintiffs

Answer 3

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

Question 4

Duty owed to rescuer

Answer 4

A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril - danger invites rescue

Question 5

Intended beneficiaries of economic transactions - foreseeable

Answer 5

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

Question 5

Firefighter rule and licensee

Answer 5

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

Question 6

Basic standard of care

Answer 6

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

Question 7

Similar incidents and foreseeable plaintiffs

Answer 7

Similar incidents in the past can be evidence that there was a duty owed because it was foreseeable

Question 8

Defendant’s mental deficiencies and duty owed

Answer 8

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

Question 9

Reasonably prudent person and superior skill / knowledge

Answer 9

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

Question 10

Reasonably prudent person and physical characteristics

Answer 10

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

Question 11

Duty of care for children

Answer 11

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

Question 12

Standard of care - children and adult activities

Answer 12

Children engaged in potentially dangerous adult activities may be required to conform to an adult standard of care

Like operating a motorized vehicle

Question 13

Standard of care for professionals

Answer 13

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

Question 14

Measuring standard of care for doctors

Answer 14

National standard of care for most courts

But need same specialty, but can be anywhere geographically

Never say “reasonable doctor” - always average doctor

Question 15

Doctor duty to disclose and breach

Answer 15

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

Question 16

Duty for possessors of land generally

Answer 16

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

Question 17

Duty for possessors of land - condition vs activity

Answer 17

Establishes rules for duty to protect from dangerous conditions

Activities conducted on the land use ordinary reasonably prudent person standard of care

Question 18

Duty to unknown trespasser

Answer 18

No duty is owed to an undiscovered trespasser

Question 19

Duty to known trespassers

Answer 19

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

Question 20

Licensee

Answer 20

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

Question 21

Land possessor’s duty to licensee

Answer 21

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

Question 22

Licensee

Answer 22

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

Question 23

Invitee

Answer 23

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

Question 24

Land possessor duty to invitees

Answer 24

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

Question 25

Land possessor’s duty to trespassing children

Answer 25

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

Question 26

How to satisfy premises liability duty

Answer 26

Eliminate hazard condition
- repair
- replace
- remove

Warn about hazard condition

Question 27

Duty owed to users of recreational land

Answer 27

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

Question 28

Duty of possessor to those off premises

Answer 28

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

Question 29

Duties of lessor and lessee of realty

Answer 29

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

Question 30

Duties of vendor of realty

Answer 30

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

Question 31

Statutory standards of care / negligence per se

Answer 31

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

Question 32

Two broad steps to establishing negligence per se

Answer 32

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

Question 33

Excuse of violation for negligence per se

Answer 33

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

Question 34

Compliance with a statute and negligence per se

Answer 34

Even though the violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care

Question 35

Affirmative duties to act

Answer 35

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

Question 36

Duty to act and special relationship between parties

Answer 36

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

Question 37

Duty to act and created peril

Answer 37

One has a duty to assist someone they have negligently or innocently placed in peril

Question 38

Duty to act - assumption of duty

Answer 38

One may assume a duty by acting - once the defendant undertakes to aid someone, must do so with reasonable care

Good Samaritan statutes

Question 39

Good Samaritan statutes

Answer 39

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

Question 40

Duty to prevent harm from third persons

Answer 40

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

Question 41

Standard of care for common carriers and innkeepers

Answer 41

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

Question 42

Standard of care - automobile driver to guest

Answer 42

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

Question 43

Bailment relationship and title

Answer 43

In a bailment relationship, the bailor transfers to the bailee possession of the chattel, but not title

Question 44

Duties owed by bailee

Answer 44

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

Question 45

Duties owed by bailor

Answer 45

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

Question 46

Duty owed in emergency situations

Answer 46

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

Question 47

Negligent infliction of emotional distress vs tack on damages

Answer 47

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

Question 48

Near miss cases - NIED

Answer 48

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

Question 49

Bystander cases - NIED

Answer 49

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

Question 50

Special relationship between plaintiff and defendant - NIED

Answer 50

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

Question 51

Breach generally

Answer 51

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

Question 52

Res Ipsa Loquitur

Answer 52

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

Question 53

Effects of res ipsa loquitur

Answer 53

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

Question 54

Plaintiff’s motion for directed verdict

Answer 54

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

Question 55

Custom or usage - breach of duty

Answer 55

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

Question 56

Violation of statute - breach of duty

Answer 56

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

Question 57

Causation generally

Answer 57

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

Question 58

But for test

Answer 58

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

Question 59

Substantial factor test (causation)

Answer 59

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

Question 60

Unascertainable causes approach (factual causation)

Answer 60

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

Question 61

Proximate causation generally

Answer 61

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

Question 62

Proximate causation - scope of foreseeable risk

Answer 62

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)

Question 63

Intervening forces and causation

Answer 63

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

Question 64

Intervening forces that are not just a natural response or reaction

Answer 64

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

Question 65

Foreseeability guidelines (causation)

Answer 65

Passage of time

Geographic distance

Prior occurrence

Question 66

Superseding forces

Answer 66

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

Question 67

Damages generally

Answer 67

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

Question 68

Eggshell-skull doctrine

Answer 68

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

Question 69

Personal injury - damages

Answer 69

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

Question 70

Property damage - damages

Answer 70

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

Question 71

Punitive damages

Answer 71

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

Question 72

Nonrecoverable items - damages

Answer 72

Nonrecoverable items include
- interest from the date of damage in a personal injury action - pre-judgment interest, and
- attorneys’ fees

Question 73

Duty to Mitigate

Answer 73

In all cases, the plaintiff has a duty to take reasonable steps to mitigate damages

Question 74

Collateral source rule - damages

Answer 74

Damages are not reduced just because the plaintiff received benefits from other sources

Question 75

Contributory negligence

Answer 75

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

Question 76

Contributory negligence - dense to defendant’s violation of statute

Answer 76

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

Question 77

Contributory negligence and intentional torts

Answer 77

Contributory negligence is not a defense to wanton and willful misconduct or intentional torts conduct

Question 78

Last clear chance - contributory negligence

Answer 78

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

Question 79

Imputed contributory negligence

Answer 79

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

Question 80

Assumption of risk

Answer 80

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

Question 81

Implied assumption of risk

Answer 81

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

Question 82

Express assumption of risk

Answer 82

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

Question 83

Comparative negligence

Answer 83

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

Question 84

Partial comparative negligence

Answer 84

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

Question 85

Pure comparative negligence

Answer 85

Allow recovery no matter how great plaintiff’s negligence was

Assume this applies unless question states otherwise

Question 86

Last clear chance and comparative negligence

Answer 86

Last clear chance is not used in comparative negligence jurisdictions

Question 87

Assumption of risk and comparative negligence

Answer 87

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

Question 88

Wanton and willful conduct - comparative negligence

Answer 88

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

Question 89

Partial comparative negligence jurisdiction - single defendant with counterclaim

Answer 89

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

Question 90

Partial comparative negligence jurisdiction - multiple defendants

Answer 90

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

Question 91

Pure comparative negligence jurisdiction - calculating damages

Answer 91

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