Negligence Flashcards
Elements of Negligence
- D owes the P a duty
a. Does the duty exist
b. If so, duty to comply with applicable SOC - Breach
Did D act consistent with SOC - C/F
- Proximate Cause
- Actual Harm
Default SOC
How a RP would act under similar circumstances
Relevant Circumstances under RP SOC
External
- Dangerous instrumentality
- Emergency
D-Specific
- Superior skills/experience
- Physical Disability
Irrelevant Circumstances under RP SOC
D-Specific
- Unreasonably unintelligent
- Mental disability
Kid SOC
How a reasonable kid of the same age, experience, and intelligence would have acted under similar circumstances
Exceptions to Kid SOC
- inherently dangerous activity
- adult activity
reverts back to adult RP
Professional SOC
How a reasonable professional, exercising the level of skill and knowledge common to the profession, would have acted under similar circumstances
Doctor SOC
How a reasonable doctor |in same community|*, exercising that level of skill and knowledge common to the profession, would have acted under similar circumstances
*strict locality, modified locality, national
Breach of Duty
Did D act consistent with applicable SOC (like a RP)
Methods of Demonstrating Breach
RP SOC
- Learned Hand
- Negligence Per Se
- Custom
- Res Ipsa Loquitur
- Constructive Notice, Mode of Operation (slip and fall)
Prof SOC
- Accepted Practice
- Negligence Per Se
- Res Ipsa Loquitur
- Informed Consent (Drs)
Learned Hand Test
Breach = Burden of Precaution < (Probability of injury x Severity/gravity of injury)
Requirements for Negligence Per Se
- Law is specific regarding what is required/prohibited
- P is a member of the class statute designed to protect
- Accident/injury is the type of accident/injury the statute was designed to prevent
NPS Majority Test
- Unexcused violation of statute = D breached
- Jury must find breach
- Violation = conclusive on breach
NPS Minority Test
- Unexcused Violation of statute = jury may or may not find breach
- violation = evidence of breach
Evidentiary Effect of Compliance with Statute
Evidence of No Breach
Excuses for Violating Statute
- Actor’s incapacity
- Neither knows nor should have known of the occasion for compliance
- Confronted with an emergency not due to his own misconduct
- Compliance would involve greater risk of harm to the actor or others
- If there is evidence of any of ^ it is left up to the jury
Deviation from Custom under RP SOC
Evidence of Breach
Compliance with Custom under RP SOC
Evidence of No Breach
Elements of RIL
- D has exclusive control of the instrumentality
- Occurrence does not normally happen unless unreasonable conduce
Evidentiary Effect of RIL
permissive inference of breach (evidence; more likely than not)
Actual Notice
D actually knows
Constructive Notice
-The spill was there so long that it translates to unreasonable conduct
- Allows jury to infer breach
Mode of Operation
- Was there a continuous dangerous condition that has to do with their business
- Allows jury to infer breach
Deviation from Accepted Practice under Prof SOC
very strong evidence of breach
Compliance with Accepted Practice under Prof SOC
very strong evidence of no breach
How to determine accepted practice under Prof SOC
Need experts
Informed Consent
- Whether the doctor has provided enough information that the patient’s consent was informed
- Patient consented but question on whether it was informed
Informed Consent Majority Rule
- Traditional Prof SOC
- What risks to doctors customarily disclose
Informed Consent Minority Rule
- Materiality
- Dr. has to disclose the material risks; risks that a reasonable patient would want to know
Proximate Cause Minority Test
- Direct Consequences
- Satisfied if P’s injury directly resulted from D’s conduct
- Policy: tortfeasor should be liable for all consequences that directly result from D’s conduct
Proximate Cause Majority Test
- Foreseeability
- Satisfied if general type of accident/injury was reasonably foreseeable consequence of the D’s conduct
- Policy: negligent tortfeasors have to pay for foreseeable consequences of their negligent conduct
Eggshell Plaintiff
- Take P as they are
- D still has to pay all of P’s damages even if P had a preexisting condition that led to making the harm worse
Shabby Millionaire
D still has to pay for all lost wages even if P was super rich and you couldn’t tell
Intervening Acts
Anything that happens between D’s conduct and P’s injury (chronologically)
Effect of Intervening Acts on Direct Consequences
Negates proximate cause
Effect of Intervening Acts on Foreseeability
- If unforeseeable from D’s conduct, then superseding act and no proximate cause
- If foreseeable, still proximate cause
Can Medical Treatment be a Superseding Cause
No, even if negligent
Factors to Determine if Duty Exists
- Any relationship between P and D
- Whether P was foreseeably at risk
- Public policy
When to use factors to determine duty
If no special rule applies
Special Rules for Duty
- Premises Liability
- Duty to help
- Duty to protect
- Emotional distress
- Economic loss
- Wrongful pregnancy, birth, life
- Primary assumption of risk
Premises Liability Cases
When P is hurt by dangerous condition on D’s land
Status of P for Premises Liability
- Trespasser
- Invitee
- Licensee
Trespassers for Premises Liability
- D landowner does not owe a negligence based duty to a trespasser
- Landowner never liable in negligence to a trespasser
Kid Trespassers
- Attractive nuisance doctrine
- Landowner owes a duty if:
1. artificial condition
2. know or had reason to know that kids are likely to trespass
3. know or reason to know that the condition poses and unreasonable risk of death/serious bodily harm
4. Kid doesn’t know of danger (shouldn’t know)
Invitees
- Mutual Benefit
- Invited to do business (both want to be there) or public invited onto land and person there for that reason
Licensees
- Everyone who is not a trespasser or invitee
- Includes social guests
Duty to Trespasser
No duty unless attractive nuisnace for kid trespassers then warn or protect for condition known or should be known to landowner
Duty to Licensee
Act like RP (warn/protect) with respect to condition the landowner KNOWS about
Duty to Invitee
Act like RP (warn/protect) with respect to condition the landowner KNOWS about and conditions they SHOULD KNOW about
Premises Liability Majority Rules
- Is duty owed: trichotomy
- Except no duty if open/obvious (natural conditions)
Premises Liability Minority Rules
- Is duty owed (two rules)
Invitee duty to invitees and licensees, no duty to trespassers
Invitee duty to all land entrants - Duty still exists to licensee and invitee with open and obvious, but open/obvious relevant to breach
Is there a duty to help
no liability for failure to help/protect/aid/rescue a person because no duty exists to help
Exceptions to No Duty to Help
- Special relationship (ex: employer-employee)
- Voluntary assumed duty (if start helping, need to act reasonably in helping)
Good Samaritan Statute
D can’t be liable in tort as long as they act in good faith
- doesn’t apply if there is a preexisting duty
Rescue Doctrine
- Rescuer can sue the tortfeasor who created the need for the rescue
- Creates a duty between tortfeasor and rescuer
- Duty is RP
- Does not apply to firefighters or cops
Is there a duty to protect
No, no duty to control the conduct of a third party to protect another from harm
Duty to Protect can exist when
Special relationship between D and
- person who needs to be controlled or
- P (person who needs protection)
Duty to Protect Special Relationship Examples
- Employer-Employee
- Therapist who determined or should have determined that a patient is a threat to someone else (prof SOC), then the therapist owes a duty of reasonable care to warn the victim (RP SOC) (victim must be readily identifiable)
- Physicians have a duty to warn identifiable third persons of the patient’s family against foreseeable risks from the patient’s illness
- Business if there was a crime and the crime was foreseeable
Elements of NIED
- Duty
- Breach
- C/F
- Proximate Cause
- Actual Harm
NIED Duty Tests
- Impact Test (minority)
- Danger Zone (minority)
- Dillon Test (majority)
Impact Test
- P physically impacted (something touched them)
- [physical manifestation]
Danger Zone Test
- P in the immediate area of physical danger
- [physical manifestation]
Fear for own physical safety
Dillon Test
- Near scene of the accident
- Sensory and contemporaneous observance of the death/serious bodily harm
- Close relationship between P and victim (death/serious bodily harm)
Must be family or married - [physical manifestation]
Indirect IIED v. RIED v. NIED
- Intentional conduct = Indirect IIED
- RIED = they had some knowledge they were going to cause distress but less knowledge than intent
- NIED = unreasonable conduct, no consideration they were going to cause distress
Economic Loss Doctrine
- Economic loss = D did something that made them pay more money or close business causing lost profits
- If physical property is harmed, not economic loss
- Majority Rule: When P’s only injury is economic loss, there is no duty
There are exceptions
Wrongful Pregnancy Duty Rule
- Medmal in sterilization procedure
- Injury: birth of healthy baby
- Majority: yes duty, but damages limited to prenatal care
Wrongful Birth Duty Rule
- Medmal in failing to diagnose abnormalities in baby
- Injury: lost chance to have abortion (cost of raising disabled child)
- Majority: Yes duty
Wrongful Life Duty Rule
- Medmal in failure to diagnose abnormalities in baby
- Injury: being born (kid’s harm)
- Majority: No duty
C/F for Wrongful Pregnancy, Birth Life
But for the medmal would the baby still be born
Primary Assumption of Risk
No duty if
- risk can’t be eliminated or way too costly to be eliminated
- obvious, people know about them
Actual Harm
- Could be emotional/mental distress
- Can be intangible
- Lost relationship
- Economic loss - Injury to person or property
- If no harm, no negligence
Does the Duty exist
- 3 Factors or
- Relationship (not need to be special)
- Foreseeability
- Public Policy
- Don’t need all three met - Premises liability
- Duty to help
- Duty to protect
- Emotional distress
- Economic loss
- Wrongful pregnancy, birth, life
- Primary assumption of risk
If so, what duty is owed to P
- What SOC
- Mention the circumstance
- Emergency, superior skills, etc.
Breach (review)
- Factually, did D act like RP would have
- RP: LH, NPS, custom, RIL, notice
- If multiple arguments make all of them unless RIL
- Prof: accepted practice, NPS, RIL, Informed consent
Cause in Fact (review)
- But for
- Multiple sufficient causes (substantial and sufficiency tests, 2 fires)
- Alternative liability burden shift (2 shooters)
- Market share burden shift
- All or nothing and loss chance of recovery for medmal
- All or nothing and increased risk for future injuries
- Intentional Tort: but for, multiple sufficient causes, alternate liability
Proximate Cause (review)
- Direct consequences (minority)
- Foreseeability (majority)
- Effect of intervening acts
- Whether they are superseding for foreseeability
Actual Harm (review)
- not just physical
- can be intangible
