Negligence Flashcards
Elements of negligence
A duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintive against an unreasonable risk of injury
A breach of duty by the defendant
The breach is the actual approximate cause of the plaintiff injury
Damages
Duty of care - generally
A duty of care is owed to all foreseeable plaintiffs. If the defendants 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. Therefore, when confronted with an negligence question, you always have to ask: to whom do you owe duty? And what is the applicable standard of care?
Duty of care - foreseeable plaintiffs
A duty of care is owed only to foreseeable plaintiffs: The class of persons who were foreseeably endangered by the defendants negligent conduct. 
Duty of care - foreseeable plaintiffs - rescuers
A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril because danger invites rescue. 
Duty of care - foreseeable plaintiffs - firefighter’s rule
Firefighters and police officers are barred by the firefighters rule from recovering for injuries caused by the inherent risk of their job. 
Duty of care - intended beneficiaries of economic transactions
A third-party for whose economic benefit illegal, or business transaction was made like a beneficiary of a will may be a foreseeable plaintiff.
Duty of care - basic standard of the reasonably prudent person
All persons owe a duty to behave with the same care as a hypothetically reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims. The reasonably prudent person standard is an objective standard, measured against what the average person would do. Defendants, mental deficiencies and inexperience are not taken into account. In other words, low intelligence is no excuse.
Duty of care - basic standard of the reasonably prudent person - exception for superior skill or knowledge
While the 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.
Duty of care - basic standard of the reasonably prudent person - exception for physical characteristics where relevant
The reasonably prudent person is considered to have the same physical characteristics as the defendant if this physical characteristics are relevant to the claim. But remember, one is expected to know one’s physical abilities and exercise the care of a person with such knowledge. For example, a blind person should act as a reasonably prudent person who cannot see and not attempt to for instance drive a car.
Duty of care - special standards based on the type of defendant - children
Children are held to the standard of a child of like age, intelligence, and experience. This is a subjective test. A child under five is usually without the capacity to be negligent. So this rule applies only for those 5 to 18. Children engaged in potentially dangerous adult activities may be required to conform to an adult standard of care. The classic example is operating a motor vehicle.
Duty of care - special standards based on the type of defendant - professionals
A professional is required to possess the knowledge and skill of an average member of the profession or occupation in good standing. For doctors, most courts apply a national standard of care to evaluate their conduct. They’re compared to real world colleagues not the fictional reasonable person.looking at what the custom is in the field, and if they conform to it. Not providing similar professional services, not reasonable.
Duty of care - special standards based on the type of defendant - professionals - duty to disclose risk of treatment
A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. The doctor breaches this duty 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 of care - special standards based on the type of defendant - possessors of land
Under the traditional rule followed in many states, the duty owed a plaintive on the premises for dangerous conditions on the land depends on the plaintiff status as an unknown trespasser, known trespasser, licensee, or invitee. 
Duty of care - special standards based on the type of defendant - possessors of land - unknown trespassers
No duty is owed to an undiscovered trespasser.
Duty of care - special standards based on the type of defendant - possessors of land - known trespassers
Asked to discovered or anticipated trespassers, the land processor must warn of or make safe any conditions that are: artificial, highly dangerous (meaning they involve risk of death or serious bodily harm), concealed, and known to the land possessor in advance. 
Duty of care - special standards based on the type of defendant - possessors of land - licensees
A licensee is one who enters onto the land with a possessors permission for their own purpose or business, rather than the possessors benefit. Social guest are considered licensees, although firefighters and police officers are typically licenses, although they often enter property within implied consent, on public policy grounds, They owed no duty of care regarding risks that are inherent in their job.
As to licenses, the land possessor has a duty to warm up or make safe hazardous conditions that are concealed and known to the land possessor in advance.
The land possessor must exercise reasonable care in the conduct of active operations on the property. The possessor has no duty to inspect or repair. Only duty to warn or make safe known traps.
Duty of care - special standards based on the type of defendant - possessors of land - invitees
Invite use, enter onto the land in response to an invitation by the possessor of the land, meaning the enter for 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. An invite will lose invite status if they exceeded the scope with the invitation. The landowner or occupier owes a duty to invitees regarding hazardous conditions that are concealed and known to the land possessor in advance or could have been discovered by a reasonable inspection. Inspection must be reasonable intervals and reasonably thorough.
Must repair, replace, remove, or warn
Duty of care - special standards based on the type of defendant - possessors of land - trespassing children - attractive nuisance doctrine
Most courts impose on a landowner of 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 the doctrines applicability, the plaintiff must show:
A dangerous condition on the land that the owner is or should be aware of
The owner knows or should know the children might trespass on the land (if it’s unlikely, the kids would trespass, they are not going to be liable)
The condition is likely to cause injury (is dangerous because of the child’s inability to appreciate the risk)
And
The remedy the situation is slight compared to the magnitude of the risk.
The child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability. 
Duty of care - special standards based on the type of defendant - possessors of land - duty owed to users of recreational land
The landowner who permits the general public to use their land for recreational purposes, without charging a fee is not liable for injuries suffered by a recreational user, unless the land owner willfully and maliciously failed to guard against worn of a dangerous condition or activity.
Duty of care - special standards based on the type of defendant - possessors of land - duty of possessor to those off premises
They’re generally is no duty to protect someone off the premises from natural conditions on the premises. However, there is a duty for unreasonably, dangerous, artificial conditions, or structures abutting adjacent land. Also, one must carry on activities on the premises, so as to avoid unreasonable risk of harm to others off the premises.
Duty of care - special standards based on the type of defendant - possessors of land - duties of lessor and lessee of realty
The lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which they are aware, or have reason to know, and which they know the Leasee is not likely to discover upon reasonable inspection. If the lessor covenants to repair, they are liable for unreasonably dangerous conditions. If the lesssor volunteers to repair and does so negligently, they are liable.
If the tenant is injured, the landlord may be liable as a lessor of the premises. However, remember that the tenant may also be liable to the guest because of the tenant status as the owner occupier of the premises.
Duty of care - special standards based on the type of defendant - possessors of land - 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 reasonable inspection. 
Duty of care - statutory standards of care - generally
He clearly stated specific duty, imposed by statute, providing for criminal penalties, including fines for a regulatory offenses and ordinances, such as speeding, may replace the more general common law duty of care if:
The plaintive is within the protected class
And
The statute was designed to prevent the type of harm suffered by the plaintiff
Duty of care - statutory standards of care - excuse for violation
Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendants control (impossible)
Duty of care - statutory standards of care - effect of violation or compliance
Under the majority view, an unexcused statutory violation is negligence per se. In other words, it establishes the first two requirements in the prima facia case: a conclusive presumption of duty and breach of duty. In contrast, even the violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.
Duty of care - affirmative duties to act - generally
Generally, one does not have a legal duty to act. There is no duty to rescue.
Compare: want to begin and act such as driving, you have a duty to complete that act reasonably, which means you do have a duty to hit the brakes while driving. 
Duty of care - affirmative duties to act - exception: special relationship
A special relationship between the parties, for example, parent child, may create a duty to act. Similarly, common carriers, in keepers, and shopkeepers, and others that gathered the public for profit, low duties of reasonable care to aid or assist their patrons. In addition, places of public accommodation have a duty to prevent injury to guest by third persons.
Duty of care - affirmative duties to act - exception: peril due to own conduct
One has a duty to assist someone they have negligently or innocently placed in peril.
This does not mean you have a duty to rescue. If you caused a child to be in the lake, but you can’t swim, you can call 911 or get someone else to help. Just a duty to act reasonably under the circumstances.
Duty of care - affirmative duties to act - assumption of duty by acting
When may assume a duty to act by acting, for example, once that defendant undertakes to aid someone, they must used to with reasonable care.
Exception: many states have acted good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross negligence. Assume no good Samaritan law unless told otherwise.
Duty of care - affirmative duties to act - duty to prevent harm from third persons
Generally, there is no duty to prevent a third person from injuring another. An affirmative duty may be imposed however, if one has the actual ability and authority to control a person’s actions, and nose, or should know the person is likely to commit act that would require exercise of this control.
Duty of care - common carriers and innkeepers
Common carriers and innkeepers are held to a very high degree of care, meaning they are liable for slight negligence. The plaintiff must be a passenger or guest. 
Duty of care - automobile driver to guest
A guest in an automobile is owed at duty of ordinary care. In a few guest statute states, when is liable to non-paying passengers only for reckless tortious conduct. 
Duty of care - bailment duties - generally
In bailment relationship, the Bailor, transfers to the Bailee possession of the chattel, but not title, for example, the Bailor loans their car to the Bailee
Duty of care - bailment duties - duties owed by bailee
The Bailee’s standard of care depends on who benefits from the bailment:
For a sole benefit of the Bailee bailment, there is low standard of care
For a sole benefit of the Bailee bailment, there is a high standard of care
For a mutual benefit, bailment typically bailment for higher, there is an ordinary care standard.
The modern train applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account. 
Negligent infliction of emotional distress - generally
Actions for intentional infliction of emotional distress are not the only means of recovering damages for emotional distress. If physical injury has been caused by commission of a torts, the plaintiff can attack 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.
Duty of care - emergency situations
Defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however if it is of the defendants own making.
Duty of care - bailment duties - duties owed by bailor
For a sole benefit of the Bailee bailment, the Bailor must inform the Bailee of a known, dangerous defect in the chattel. For a bailment for hirer, the Bailor must inform the Bailee of chattel defects of which they are or should be aware.
Negligent infliction of emotional distress - near miss cases - plaintiff must be within the zone of danger
The plaintiff will be considered to be within the zone of danger of the defendants negligent acts when the plaintiff is sufficiently close to the defendant, said that they are subject to a high risk of physical impact.
Negligent infliction of emotional distress - near miss cases
The duty to avoid negligent inflection of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintive usually must satisfy two requirements to prevail:
The plaintiff must be within the zone of danger
The plaintiff must suffer physical symptoms from the distress
These are obviously, in addition to showing the defendant is negligent.
Negligent infliction of emotional distress - near miss cases - plaintiff must suffer physical symptoms from the distress
In a near miss case, most courts required that the emotional distress caused by defendants conduct manifest itself and physical symptoms. Note that severe shock to the nervous system that causes physical symptoms will satisfy the requirement. A growing minority of states have dropped the requirement of physical symptoms. 
Negligent infliction of emotional distress - bystander cases
The bystander outside of the zone of danger of physical injury who sees the defendant negligently, injuring another, can recover damages for their own distress as long as:
The plaintiff and the person injured by the defendant are closely related (only spouse, parent and minor child)
And
The plaintiff was present at the scene of the injury and personally observed, or perceived the event
Most states drop the requirement of physical symptoms in the situation. 
Negligent infliction of emotional distress - special relationship between parties
The defendant may be liable for directly, causing the plaintiff, severe emotional distress when a duty arises from the relationship, typically, commercial and nature, between the plaintiff and the defendant, such that the defendants negligence has great potential to cause emotional distress. The following the most common: a doctors misdiagnosis that the patient has terminal illness or a mortuaries negligent, cremation of deceased, contrary of families instruction. Most states drop the requirement of physical symptoms in the situation as well.
Breach - generally
Where the defendant conduct fall shore of the level required by the applicable standard of care owed to the plaintiff, the defendant has breached their duty. Whether the duty of care is breached in an individual case is a question for the trier of fact.
Breach - custom or usage
When the standard of care is reasonable, prudence, evidence of the custom or usage of others may be used to establish how reasonable person should’ve behaved under the circumstance. However, this evidence is not conclusive on the question of whether certain conduct amount to negligence. For example, although certain behavior is in industry, court may find that the entire industry is acting negligently.
Breach - violation of statute
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. This is negligence per se. Causation and damages must still be established by the plaintiff.
Breach - res ipsa loquitur
In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine requires the plaintiff to show that:
The accident causing the injury is a type that would not normally occur unless someone was negligent
And
The negligence is probably attributable to the defendant. Meaning this type of accident, ordinarily happens because of the negligence of someone in the defendants position.
This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.
Breach - res ipsa loquitur - effect
Where the doctrine is established, the plaintiff has made a prima facia case, and no directed verdict may be given for the defendant. The plaintiff can still lose, however if the inference of negligence is rejected by the trier of fact 
Breach - res ipsa loquitur - directed verdicts
Deny the defendants motion for directed verdict if the plaintiff has established the doctrine or presented some other evidence of breach of duty
Grant the defendants motion, if the plaintiff has failed to establish the doctrine and failed to present some other evidence of breach of duty
Occasionally, the plaintiff may also move for directed verdict. The plaintiff motion should always be denied, except in the rare case where the plaintiff has established negligence per day through violation of an applicable statute, and there are no issues of proximate cause. 
Factual causation (but-for) - generally
Once negligent conduct is shown meaning a breach of the standard of care owed of foreseeable plaintiff, the plaintiff shows that the defendant was the cause of their injury. For liability to attach, the plaintiff must show both factual cause and approximate cause. Several test exist for determining if the defendants conduct is factual cause of the plaintiffs injury.
Factual causation (but-for) - merged causes - substantial factor test
Where several causes bring about injury, and anyone alone would have been sufficient to cause the injury, the defendant conduct is the cause and fact if it was a substantial factor and causing the injury. Some courts referred to the situation as one involving multiple sufficient causes. 
Factual causation (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. This test applies where several acts, each insufficient to cause the injury alone, combine to cause the injury. A defendant can refute this by showing that the plaintiff would have still been injured, even if the act or omission did not occur.
Factual causation (but-for) - unascertainable causes approach
This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to the defendants, and each must show that his negligence is not the actual cause.
Proximate causation - generally
In addition to being a cause, in fact, the defendant conduct must also be the approximate cause of the injury. Even though the conduct actually caused the plaintiff injury, it might not be deemed to be the approximate cause. Thus, the doctrine of approximate causation is a limitation of liability and deals with liability or non-liability for unforeseeable or unusual Consequences of one’s actions. 
Proximate causation - scope of foreseeable risk test
The defendant generally is liable for all harmful results that are the normal incidents of, and within the increased risk caused by their negligent acts. This is a foreseeability test.
Questions raising approximate cause issues will not require you to make a judgment call on foreseeability in a close case. Often the call of the question will be whether one or both of the parties are entitled to summary judgment, which should be denied if there is any issue foreseeability for the jury. And other cases, the fact in the question will be so clear cut that comment sense will tell you immediately what the harm that occurred was foreseeable.
Proximate causation - common foreseeable intervening forces
The defendant is liable when their negligence caused a foreseeable reaction from an intervening force or created a foreseeable risk that an intervening force would harm the plaintiff. The following intervening forces that are normal responses of reactions to the situation created by the defendant and negligent act are almost always receivable:
Medical malpractice
Negligence of rescuers
Protection or reaction forces to the defendants conduct, including efforts to protect person or property (negligently driving through crosswalk that causes a stampede)
Disease or accident substantially caused by the original injury (plaintiff was on crutches because of the accident and fall down the stairs)
Intervening forces that are not just a natural response or reaction to the situation created by the defendants conduct may be foreseeable if the defendants negligence increase the risk of harm from these forces. These intervening forces include negligent acts of third persons, crimes, and intentional towards of third person, and acts of God.
Proximate causation - common foreseeable intervening forces - compare superseding forces
Interviewing forces that produce unforeseeable result, results not within the increased risk created by the defendants negligence, or generally deemed unforeseeable and superseding.
Superseded forces the connection between the defendants initial negligent act, and the plaintiff, ultimate injury, best relieving the defendant of liability.
