Negligence

Question 1

Negligence - prima facie case

Answer 1

1. duty on D to conform to a specific standard of conduct
2. breach of duty
3. **actual and proximate cause **
4. damage

for MBE, ask:

• D must fail to exercise such care as a reasonable person in his position would have exercised;
• his conduct must be a breach of duty to prevent the foreseeable risk of harm to anyone in P’s position;
• and this breach must cause P’s damages

Question 2

Duty of care

Answer 2

Duty of care is owed to all forseeable Ps. If D’s conduct creates an unreasonable risk of injury, the generald duty of care extend to D to P. Ask:

• was P forseeable?
• if so, what is the applicabel standard?

1. forseeable as a matter of law
   
   1. rescuers
   2. viable fetuses
2. Basic standard - reasonable person
   
   1. objective standard
   2. mental status not taken into account
   3. same physical characteristics as D
3. Special duty standards
   
   1. children - like age, education, intelligence, and experience. child engaged in adult activity - adult standard
   2. professionals - profession in good standing in similar communities. doctors - national standard of care

Question 3

Bailment duties

Answer 3

1. Duties owed by baliee
   
   1. sole benefit of baior - low standard of care
   2. sole benefit to bailee - high standard of care
   3. mutual benefit - ordinary standard of care
2. Duties owed by bailor
   
   1. sole benefit of bailee bailment - must inform bailee of known, dangerous defects in chattel. For bailment for hire - must inform chattel defect he is or should be aware

Question 4

Owners and Occupiers of Land

Answer 4

1. Duty to those off premises
2. no duty to protect from natural conditions; duty for unreasonable dangerous artificial conditions
3. Duty to those on premises
4. Trespassers
   
   1. unknown - no duty
   2. known - (man-made death trap) duty to warn of *concealed, artificial conditions involving risk of death or serious harm *
5. Attractive nuisance doctrine
   
   1. duty to avoid harm caused by artificial condition on his property
   2. P must show (i) dangerous condition, (ii) owner knows children frequent vicinity, (iii) likely injury, (iv) expense of remedy slight v. magnitude of risk.
6. Licensees
   
   1. licensee - own purpose or business
   2. duty to warn (i) unkown risk, (ii) exercise reasonable care
7. Invitiees
   
   1. invitee - held open to public
   2. (i)(ii) above plus (iii) reasonable inspections

Question 5

Negligence per se

Answer 5

Test: Class or person, Class of risk

Statute providing criminal penalties may replace CL duty of care if: (i) P is wi the protected class, and (ii) designed to prevent the type of harm suffered by P

Question 6

Negligent Infliction of Emotional Distress

Answer 6

1. GR: no duty
2. Except: Zone of danger rule:
   
   1. P in “zone of danger” and
   2. P must suffer physical symptoms from distress
3. Special situations
   
   1. bystander not in zone of danger can recover if (i) closely related, (ii) P was present at the scene of injury, and (iii) personally observed or perceived event

Question 7

Affirmative duty to act

Answer 7

1. GR: No duty to rescue
2. Exceptions:
   
   1. D put P in peril
   2. Special relationship - common carriers, inkeepers, shopkeepers, parent-child
   3. duty to control 3rd person - D must have actual ability and authority to control

Question 8

Breach of duty

Answer 8

Where D’s conduct falls short of level required by standard of care, he has breached duty. May be shown by:

1. Custom or usage
2. Violation of statute (neg per se)
3. Res Ipsa Loquitor
   
   1. accident causing injury would not normally occur unless negligent
   2. negligence attributable to D
   3. exclusive control of D

Question 9

Causation

Answer 9

P must show both actual and proximate cause

1. Actual cause

1. but-for test - injury would not have occurred by for the act
2. substantial factor test -several causes bring injury and any one alone sufficient to cause injury
3. alternative causes - two acts but only one of which cause injury. BOP shift to Ds.

2. Proximate cause - limitation of liabilty

1. GR: liable only for those harms that are wi the risk of his activity
2. Direct cause: if result of D’s negligent condust is foreseeable, D is liable
3. Indirect cause - always foreseeable
   
   1. subsequent medical malpractice
   2. negligent rescue
   3. reaction forces
   4. susequent disease or accidents
4. indirect causes - will not cut off liability if D can anticipate the intervening cause
   
   1. negligence of third party
   2. criminal conduct
   3. acts of God

• there can be more than one cause in fact
• intervening causes will supersede only if they were unforseeable

Question 10

Damages

Answer 10

1. P must prove damages as part of her prima facie negligence case
2. Eggshell skull plaintiff rule: D is liable for the full extent of the damages he causes, even if the extent was unforseeable

Question 11

Defense to negligence

Answer 11

1. Contributory negligence

1. P’s failure to use the relevant degree of care for his own safety. If P is contributorily negligent, total bar to recovery
2. last clear chance: person wil the last clear chance to avoid accident who fails to do so is liable for negligence

2. Assumption of risk

1. P denied recovery if she assumed the risk. P must have (i) known the risk and (ii) voluntarily proceeded in the face of the risk
2. absence of alternative and emergency destroys voluntariness
3. Comparative negligence
4. types
   
   1. pure comparative negligence - allow recovery no matter how great P’s negligence was
   2. modified comparative negligence - bars P’s recovery if his negligence was more serious than D’s