Negligence Flashcards
Elements of negligence
- The defendant had a duty to uphold a standard of ordinary, reasonable care to another;
- the duty was breached;
- actual harm occurred;
- the harm that occurred was factually caused by the negligence of the defendant; and
- the harm that resulted was within the scope of liability of the defendant’s negligence.
Proving breach (define)
A duty is breached if it is reasonably foreseeable that the actor’s conduct will cause harm to someone else and a reasonably prudent person would have taken action to avoid or mitigate the risks.
Proving breach (methods)
- B<PL
- Notice and opportunity to cure (employee caused, constructive knowledge, actual knowledge, mode of business operation)
- Deviance from industry standard
- Common sense weighing of plaintiff’s alternatives to defendant’s actions
- Negligence per se
Negligence per se
Statute must establish a standard of care.
Defendant violated the statute.
The defendant’s violation of the statute must have caused the harm.
The plaintiff must be a member of the class of persons the statute is intended to protect. The harm that occurred must be within the class of harms the statute is intended to prevent.
Harm requirement
Must have legally cognizable injury before a plaintiff can recover for non-physical harms (emotional/economic damages, pain and suffering)
Proving factual causation (methods)
- “But for”
- Duplicative/multiple sufficient causes
- Increased risk showing causation
- Substantial factor
- Alternative causes/Summers v. Tice
Proving scope of liability
Scope of the risk test: An actor’s liability is limited to those harms which made the actor’s conduct tortious in the first place. If an actor’s tortious conduct imperils another, the scope of liability extends to any harms that befall a rescuer that result from their attempts to aid or protect the imperiled person, so long as the harm arises from their efforts to aid the imperiled person.
Policy reasons behind scope of liability:
-Least cost avoider
-Other more culpable actor
-Encourage others to get appropriate insurance
-Encourage people to adopt risk-minimizing behaviors
“But for” causation
Replay the scenario, substituting D’s negligent conduct with non-negligent conduct. If the harm doesn’t occur, D’s negligence was the “but for” cause of the harm.
Increased risk showing causation
D’s failure to implement some safety precaution increased the risk of harm occurring. If not for D’s negligence, accident still might have happened, but D’s negligence increasing the risk can be used to show causation.
-Can be infinite causes of P’s harm (not all need be tortious)
Duplicative/multiple sufficient causes
If multiple causes simultaneously caused harm to P, and each would have been capable of causing the same/similar harm on their own, P can prove factual causation. The only reason each fails the “but for” test is because of the other(s).
-requires 2+ causes (not all need be tortious)
Substantial factor causation
Plaintiff would not have suffered injury but for the defendant’s conduct OR the defendant’s conduct was one of multiple causes sufficient to cause the alleged harm, even if another was also a substantial factor. Helpful when we have multiple negligent actors but it is not clear what contribution each had.
-Varies by jx
-Probably at least 2 causes of P’s harm (not all need be tortious)
Summers v. Tice causation
When there are multiple possible causes of P’s harm and we cannot prove which caused the harm, we can hold both liable. All potential sources of harm must be negligent. Not all can be the actual cause but one definitely is.
Preemptive causation
When another (non-)negligent cause causes harm before D’s actions could cause the harm, D is not liable (even if they were negligent).
Res ipsa loquitur
When a plaintiff cannot find evidence of the defendant’s negligence but the harm would not have ordinarily occurred without the defendant’s negligence, the jury can be instructed to presume negligence. Must show:
1. The thing that injured the plaintiff was under exclusive control of the defendant
(a) or within the control of the defendant at the time of probable negligence
(b) or that the defendant had the right, authority, or responsibility to control the thing at the time of probable negligence
2. The accident is not one that would normally occur without negligence on the part of the defendant
3. Circumstances show that the plaintiff’s own negligence did not contribute to their own injury
Intervening or subsequent CRIMINAL acts
Two modern approaches: Consider the defendant’s negligent act…
1. Was someone else’s criminal act within the scope of the defendant’s risk? A negligent defendant is not relieved from liability by the intervening acts of a third party if those acts were reasonably foreseeable by the defendant at the time of the negligent conduct.
2. Were the physical harms more generally within the defendant’s risk? A negligent defendant is not relieved from liability from the consequences of some criminal act if the harm that was caused is the same type of harm that made the act negligent.
Intervening or subsequent acts of NEGLIGENCE
Apply the scope of the risk test, along with the policies behind scope of liability.
Contributory negligence and comparative fault apportionment of fault schemes
Three apportionment of fault schemes
1. Contributory negligence
2. Pure comparative fault (CA)
3. Modified comparative fault
Defenses to negligence
- Contributory negligence
- Assumption of the risk
Contributory negligence approach to apportionment of fault
All or nothing–plaintiff was contributorily negligent=>no recovery (only 5 jx)
Pure comparative fault approach to apportionment of fault
Plaintiff can recover, minus portion of their own fault (CA approach)
Modified comparative fault
2 approaches:
1. Plaintiff can recover proportionally from defendant, so long as plaintiff’s fault is less than or equal to the defendant’s
2. Proportionate recovery if plaintiff is less than 50% at fault
Assumption of the risk
Affirmative defense to negligence that states a plaintiff cannot (fully) recover damages from a defendant if the plaintiff voluntarily accepted the risk of injury. There are two types: express (contractual) and implied.
Express assumption of the risk
Plaintiff signed a contract that purports to waive the defendant’s liability. Ask:
1. Can this defendant waive liability?
2. Can this act/state of mind of the defendant be waived?
Types of defendants that can NOT waive liability by contract
**Apply as balancing test
-Businesses subject to public regulation
-Essential services (providing practical necessity)
-Asymmetric bargaining strength (activity puts plaintiff functionally under the control of the defendant, with no ability to protect themself or avoid harm)
-Services generally offered to the public
-Standardized adhesion contract (take it or leave it)
-No option to negotiate for due care by paying more money
Can kids waive liability through contract?
In most states, waivers for children are prohibited and will be voided. In CA, they are enforceable.
Implied assumption of the risk
(No contract) Plaintiff encounters some risks created by the defendant or risks of some activity sponsored by the defendant, and the defendant contends that the plaintiff either negligently or knowingly encountered the risk.
Three approaches:
1. Traditional (very minority view)
2. Plaintiff’s responsibility as kind of a comparative fault
3. Modified implied assumption of the risk (CA)
Traditional implied A of R
Plaintiff’s assumption of a risk bars liability
Implied A or R approach: Plaintiff’s responsibility as kind of a comparative fault
If the plaintiff’s engagement in the activity was negligent, liability of the defendant is reduced
Modified implied A of R (CA)
- Primary: Risks that are inherent to an activity such that due care would significantly change the activity
- Secondary: Non-inherent risks exist in the activity that due care could eliminate. This folds into comparative fault.
Negligent Infliction of Emotional Distress elements
- D’s negligent acts put the P at immediate risk of personal injury at a very definite time and place
- P’s reaction to that risk was fright and shock
Types of NIED
Near misses
Bystanders
Special relationships/emotional undertakings
Test for NIED by near miss
An actor whose negligent conduct causes serious emotional harm to another is subject to liability if the conduct places the P in danger of immediate bodily harm and the emotional harm results from that danger.
CA considers a P who was in the “zone of danger” a direct victim.
Test for NIED for bystanders
CA rules come from Thing v. LaChusa
1. P suffers serious emotional distress from witnessing very serious physical injury to another
2. A close familial relationship exists between P and V
3. P was present at the scene of the accident and contemporaneously aware that in injured V
4. P suffered severe emotional distress beyond that of a disinterested person, but not an abnormal response
Policy reasons for strictness of NIED standards/reluctance to award damages absent physical injury
-Fear of fabricated/overblown claims
-Prevent runaway liability
-Might make things prohibitively expensive or uninsurable
-Pain and sadness are part of life
Strict liability
Substitutes for duty and breach elements of negligence claims but must still prove actual harm, factual cause, and scope of liability
3 types:
1. Abnormally dangerous activities
2. Abnormally dangerous animals
3. Defective products
SL for abnormally dangerous activities
- Run 3d Restatement test
-Activity poses a foreseeable, highly significant risk, even with reasonable care
-Activity is uncommon and the resulting harm is one that is of the type posed by the danger - Address if 2d Restatement test gives different result
-Activity poses a high degree of risk
-Likely to cause significant harm
-Reasonable care will not eliminate the risk
-Uncommon use
-Inappropriate in the area
-Value to community v. danger
Policy behind SL for abnormally dangerous activities
-Least cost avoider
-Allow injured persons to recover
-Non-reciprocal risks
-Deter risky activities
Types of product defects
Manufacturer defect
Design defect
Failure to warn
Manufacturer defect elements
P must prove (1) the product was unreasonably dangerous beyond consumer expectations OR that the product departed from its intended design, (2) the defect existed when it left the control of the D, and (3) the defect caused P’s injury.
Design defect elements
If the product is one about which a consumer can have reasonably expectations about (not industrial, prescription drug, or cotton picking machine), in CA they can choose to proceed on a consumer expectations theory OR a RU/RAD theory of design defect.
Consumer expectations: Product failed to perform as a reasonable consumer would expect it to with intended use or foreseeable misuse
RU/RAD: Weigh utility of current design v. proposed alternative, safety of alternative design, economic feasibility of producing alt. design, and mechanical feasibility of producing alt. design WITH likelihood of injury and gravity of risked injury with current design.
Failure to warn elements
A product is defective due to a failure to warn if:
-The foreseeable risks of harm posed by the product
-could have been reduced or avoided with the provision of reasonable, adequate instructions or warnings and
-the omission of the instructions or warnings renders the product not reasonably safe.
Who can be held liable for product defects?
Anyone in the chain of distribution who:
-can seek indemnity as a condition of selling the product
-can ensure the product is safe or exert pressure to that end
-can “spread the loss” among other in the chain of distribution
-may be the only D for the P to sue
Economic loss doctrine
If the only harm that occurs from a product defect is need for a new product or replacement part, no recovery. A P can only recover if the product defect caused harm to person or property.
Adequacy of warnings
A warning must be calculated to impress upon a reasonable user of a product the nature and extent of the hazard by its size, location, and intensity of language/symbols
Duty, generally
A duty generally arises when a person/entity is engaged in conduct that can be reasonably foreseen to create risks for another. This duty is contextualized for children, people with physical disabilities, and people with specialized knowledge.
Affirmative duties
Duty to rescue/summon aid
Duty to protect victim from crime by 3d party
Duty to protect/warn victim from an attack by 3d party
CA Landlord duties to tenants
Landowner Premises Liability
Duty to rescue/summon aid special relationships
Common carrier/passenger
Innkeeper/guest
Business/invitees
Employers/ees
School/students
Parent/child
LL/tenant
Custodian/custody
Doctors/patients
Creator of P’s peril, regardless of fault
Creating a continuous risk of harm, regardless of fault
Voluntary undertakings where P relies on D’s efforts
Duty to protect victim from crime by 3d party
Generally, no duty unless D has done something to increase P’s risk of harm and/or special relationship:
Common carrier/passenger
Innkeeper/guest
Employer/ees
School/student
Doctor/patient
Legal or voluntary custodians (parent/dependent, prison/ers)
Custodians with a superior ability to protect the victim (hospitals, nursing homes)
State tests for landowners
CA State test for landowner duty to protect victim from crime by 3d party
Balancing test: totality of the circumstances weighed against the burden of implementing protective measures
Policy:
Least cost avoider
Loss spreading
Insurance
Encourage crime fighting and duty to community
Duty to protect/warn victim from attack by 3d party
Generally, no duty UNLESS
Prison/prisoners (includes halfway houses but not probation officers and extends to all those who are directly and foreseeably at risk of bodily harm from D’s negligence)
Employers/ees (liable for acts committed within the scope of employment–not usually intentional acts unless they occur on employer’s premises or employment facilitates the harm)
Duty to control dangerous children ONLY if PSI
Therapists (duty to determine whether someone poses a serious danger to a foreseeable victim; once danger is determines, exercise reasonable care to protect that foreseeable victim from danger)
CA Landlord duties to tenants
Duty to adopt reasonable security measures, maintain those security measures, and warn about criminal activity. More active protection may be required if high degree of foreseeability exists. LL may be held liable for failure to protect tenant if they knew about a specific danger.
Landowner premises liability
A duty of RC is owed for the conditions of one’s land.
Traditional approach based on type of guest: invitee (business guests)–reasonable care, licensee (social guests)–cannot willfully or wantonly injure them, trespassers–there at their own risk.
Restatement 3d: When D creates a risk of physical harm to persons or property, they have a duty of reasonable care. No risk-creating conduct=no duty.
