Negligence

Question 1

Elements of negligence

Answer 1

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

Question 2

Duty of care - generally

Answer 2

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?

Question 3

Duty of care - foreseeable plaintiffs

Answer 3

A duty of care is owed only to foreseeable plaintiffs: The class of persons who were foreseeably endangered by the defendants negligent conduct. 

Question 4

Duty of care - foreseeable plaintiffs - rescuers

Answer 4

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

Question 5

Duty of care - foreseeable plaintiffs - firefighter’s rule

Answer 5

Firefighters and police officers are barred by the firefighters rule from recovering for injuries caused by the inherent risk of their job. 

Question 6

Duty of care - intended beneficiaries of economic transactions

Answer 6

A third-party for whose economic benefit illegal, or business transaction was made like a beneficiary of a will may be a foreseeable plaintiff.

Question 7

Duty of care - basic standard of the reasonably prudent person

Answer 7

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.

Question 8

Duty of care - basic standard of the reasonably prudent person - exception for superior skill or knowledge

Answer 8

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.

Question 9

Duty of care - basic standard of the reasonably prudent person - exception for physical characteristics where relevant

Answer 9

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.

Question 10

Duty of care - special standards based on the type of defendant - children

Answer 10

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.

Question 11

Duty of care - special standards based on the type of defendant - professionals

Answer 11

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.

Question 12

Duty of care - special standards based on the type of defendant - professionals - duty to disclose risk of treatment

Answer 12

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.

Question 13

Duty of care - special standards based on the type of defendant - possessors of land

Answer 13

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. 

Question 14

Duty of care - special standards based on the type of defendant - possessors of land - unknown trespassers

Answer 14

No duty is owed to an undiscovered trespasser.

Question 15

Duty of care - special standards based on the type of defendant - possessors of land - known trespassers

Answer 15

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. 

Question 16

Duty of care - special standards based on the type of defendant - possessors of land - licensees

Answer 16

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.

Question 17

Duty of care - special standards based on the type of defendant - possessors of land - invitees

Answer 17

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

Question 18

Duty of care - special standards based on the type of defendant - possessors of land - trespassing children - attractive nuisance doctrine

Answer 18

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. 

Question 19

Duty of care - special standards based on the type of defendant - possessors of land - duty owed to users of recreational land

Answer 19

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.

Question 20

Duty of care - special standards based on the type of defendant - possessors of land - duty of possessor to those off premises

Answer 20

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.

Question 21

Duty of care - special standards based on the type of defendant - possessors of land - duties of lessor and lessee of realty

Answer 21

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.

Question 22

Duty of care - special standards based on the type of defendant - possessors of land - duties of vendor of realty

Answer 22

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. 

Question 23

Duty of care - statutory standards of care - generally

Answer 23

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

Question 24

Duty of care - statutory standards of care - excuse for violation

Answer 24

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)

Question 25

Duty of care - statutory standards of care - effect of violation or compliance

Answer 25

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.

Question 26

Duty of care - affirmative duties to act - generally

Answer 26

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. 

Question 27

Duty of care - affirmative duties to act - exception: special relationship

Answer 27

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.

Question 28

Duty of care - affirmative duties to act - exception: peril due to own conduct

Answer 28

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.

Question 29

Duty of care - affirmative duties to act - assumption of duty by acting

Answer 29

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.

Question 30

Duty of care - affirmative duties to act - duty to prevent harm from third persons

Answer 30

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.

Question 31

Duty of care - common carriers and innkeepers

Answer 31

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. 

Question 32

Duty of care - automobile driver to guest

Answer 32

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. 

Question 33

Duty of care - bailment duties - generally

Answer 33

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

Question 34

Duty of care - bailment duties - duties owed by bailee

Answer 34

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. 

Question 35

Negligent infliction of emotional distress - generally

Answer 35

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.

Question 35

Duty of care - emergency situations

Answer 35

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.

Question 36

Duty of care - bailment duties - duties owed by bailor

Answer 36

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.

Question 36

Negligent infliction of emotional distress - near miss cases - plaintiff must be within the zone of danger

Answer 36

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.

Question 37

Negligent infliction of emotional distress - near miss cases

Answer 37

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.

Question 38

Negligent infliction of emotional distress - near miss cases - plaintiff must suffer physical symptoms from the distress

Answer 38

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. 

Question 39

Negligent infliction of emotional distress - bystander cases

Answer 39

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. 

Question 40

Negligent infliction of emotional distress - special relationship between parties

Answer 40

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.

Question 41

Breach - generally

Answer 41

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.

Question 42

Breach - custom or usage

Answer 42

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.

Question 43

Breach - violation of statute

Answer 43

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.

Question 44

Breach - res ipsa loquitur

Answer 44

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.

Question 45

Breach - res ipsa loquitur - effect

Answer 45

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 

Question 46

Breach - res ipsa loquitur - directed verdicts

Answer 46

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. 

Question 47

Factual causation (but-for) - generally

Answer 47

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.

Question 48

Factual causation (but-for) - merged causes - substantial factor test

Answer 48

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. 

Question 48

Factual causation (but-for) - test

Answer 48

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.

Question 49

Factual causation (but-for) - unascertainable causes approach

Answer 49

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.

Question 50

Proximate causation - generally

Answer 50

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. 

Question 51

Proximate causation - scope of foreseeable risk test

Answer 51

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.

Question 52

Proximate causation - common foreseeable intervening forces

Answer 52

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.

Question 53

Proximate causation - common foreseeable intervening forces - compare superseding forces

Answer 53

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.