NEGLIGENCE Flashcards
What elements must be proven in NEGLIGENCE
In order to find D liable for negligence, P must prove the elements of 1) Duty, 2) Breach, 3) Causation, and 4) Damages
Explain the [DUTY] Element of Negligence
The duty element requires 1) The plaintiff prove that he was a foreseeable plaintiff, and 2) Establish the applicable standard of care.
♦ Under the majority Cardozo approach, the plaintiff is foreseeable if the plaintiff was within the foreseeable zone of danger of D’s conduct.
♦ Under the minority Andrews approach, everyone is foreseeable, so D owes a duty to everyone.
What is the [ STANDARD OF CARE (SOC) ] under the Duty element of a Negligence argumen?
The SOC sets up the difficulty level for the plaintiff’s burden of proving breach. The higher the defendant’s SOC, the easier it is to prove breach. The lower the SOC, the more likely the defendant has met their SOC and didn’t breach.
The court can either apply:
1) The general reasonable person standard of care or
2) One of the substitute standards of care.
●STAY DISCIPLINED: It is very important that you avoid the urge to discuss breach during your SOC analysis. This portion of your analysis is focused on identifying the court’s option(s) for which standard to apply. Once you’ve identified all of the option(s), you will analyze breach of each strong option under your breach heading.
What is the [ REASONABLE PERSON STANDARD OF CARE ]
The defendant must act as a reasonable person would under the circumstances. The reasonable person standard of care takes into account physical disabilities but not mental disabilities.
Note: When phrasing the reasonable person standard of care on an essay, you must ask whether the defendant acted as a reasonable person would in those similar circumstances, but you can’t include the actual negligent behavior.
Proper = Did the defendant act as a reasonable person would when driving?
Improper = Did the defendant act as a reasonable person would when drinking and driving?
List all of the SOC Substitutes?
If one of the following special situations are present, then the reasonable person standard will be replaced with one of the special standards. For each substitute standard of care pay close attention to 1) The requirements for that substitute standard of care to replace the RP standard and 2) The special standard set out by that substitute.
- Children
- Professional
- Owner/Occupier
- Negligence Per Se
- Common carrier/Innkeeper
When is the [CHILD SOC ] Used on a negligence analysis?
The children standard of care is used when the defendant is a child.
Special standard: The child defendant must have acted as a child would of like age, education, experience, and intelligence.
Exception: A child defendant will not get the benefit of having the child standard of care if the defendant child was engaged in an adult activity. If so, the child must meet the general reasonable person standard of care.
Note: Adult activities are those normally performed by adults such as activities involving the use of an engine (driving a car/motorboat/jet ski etc).
Note: This SOC is easier to meet than the ordinary reasonable person SOC. So, it is typically argued by the defendant.
When is the [PROFESSIONAL SOC ] Used on a negligence analysis?
The professional standard of care is used when the defendant;
- Is a professional, and
- Harmed the plaintiff while acting in his professional capacity.
Sub-rule for professional: A professional is considered to be one who possesses special knowledge and skill for their occupation. If their occupation requires a license, that typically means the person is a professional.
Special standard: A professional defendant must have acted as an average member of that profession in a similar community, performing similar services.
Note: This SOC is harder to meet than the ordinary reasonable person SOC. So, it is typically argued by the plaintiff.
When is the [OWNERS AND OCCUPIERS OF LAND SOC ] Used on a negligence analysis?
The owner and occupier standards of care are used when the plaintiff was harmed while on the defendant’s property, and typically when harmed by the property.
Special standard: This section has multiple standards of care as possible substitutes for the reasonable person standard. The standard of care to apply depends on the classification of the plaintiff. The plaintiff classifications are:
- Trespasser,
- Anticipated trespasser,
- Attractive Nuisance Doctrine
- Licensee
- Invitee
What is the SOC for a
[ Trespasser ] ?
Definition: Plaintiff is considered a trespasser if he entered D’s property without permission or exceeded the scope of D’s permission.
Standard of Care: If the plaintiff is a trespasser, the defendant has no duty/standard of careto make his land safe or warn of dangerous conditions.
Note: This rule lowers the standard of care. So, it is typically argued by the defendant.
What is the SOC for a
[ Anticipated/Discovered Trespasser ] ?
Definition: Plaintiff is considered an anticipated trespasser if:
1) He meets the definition of a trespasser, and
2) The defendant knew the trespasser was going to trespass or discovered the trespasser on the property prior to the trespasser’s injury.
Standard of Care: If the trespassing plaintiff is an anticipated or discovered trespasser, then the defendant’s standard of care is to warn or make safe of known highly dangerous conditions that are artificial and non-obvious.
Note: In the context of extremely dangerous artificial conditions (ex: construction site), the landowner must use reasonable care in the exercise of active operations.
Note: This rule lowers the standard of care. So, it is typically argued by the defendant.
What is the SOC for a
[ A child attracted to the property – “Attractive Nuisance Doctrine ] ?
Definition: This standard of care is applicable when:
- There was a dangerous condition on the land that the defendant was or should have been aware of,
- That condition poses a serious risk of injury or death,
- The defendant knew or should have known that children would trespass his land, and
- The expense of remedying the situation is outweighed by the magnitude of the risk.
Standard of Care: The defendant must exercise reasonable care in protecting the children from reasonably foreseeable harm caused by artificial conditions.
Note: When analyzing, look for child’s ability to understand the risk (child’s age is a common fact).
What is the SOC for a
[ Licensee ] ?
Definition: Plaintiff is considered a licensee if the plaintiff enters with the defendant’s consent for social purposes.
Standard of Care: The defendant must warn a licensee or make safe all known dangerous conditions (artificial or natural) that are non-obvious.
Note: There is no duty to repair or inspect the premises for things to warn about.
What is the SOC for a
[ Invitee ] ?
Definition: Plaintiff is considered an invitee if:
1) The plaintiff enters with defendant’s consent for the purpose of doing business, or
2) The property is open to the public at large (such as entering a retail store).
Note: Despite the confusion in title, the typical situation where the defendant invites a person over to his home, makes that person a licensee. A house guest only rises to invitee status if they are on the property for some business purpose.
Standard of Care: The defendant must warn an invitee or make safe all known dangerous conditions (artificial or natural) that are non-obvious. The defendant also has responsibility for conditions that were discoverable by reasonable inspections of the property.
Note: The main difference between invitee and licensee is that only invitee status requires the defendant to make reasonable inspections.
When is the [ NEGLIGENCE PER SE SOC ] Used on a negligence analysis?
The negligence per se standard of care is used when there is an applicable statute that governs the defendant’s conduct.
Requirements for negligence per se standard to apply:
- The plaintiff suffered a harm sought to be prevented by the statute, and
- The plaintiff falls within the class of persons sought to be protected by the statute.
Special standard: If the requirements are met, then the statute serves as the defendant’s SOC. Compliance with the statute means D has not breached. Non-compliance with the statute means D has breached his duty, unless D has an excuse.
Exceptions: Even if D failed to comply, D will not be in breach if:
- Compliance with the statute presented a greater risk than violation of that statute, or
- The defendant was unable to conform to the law.
Note: NPS is typically argued by whichever party it favors. The defendant will argue NPS if there is a statute and he complied with it. The plaintiff will argue NPS if there is a statute and the defendant did not comply.
When is the [ COMMON CARRIER/INNKEEPER ] Used on a negligence analysis?
Requirements: The common carrier/innkeeper standard of care is used when the defendant is a common carrier/innkeeper (Ex: hotel/airline).
Special standard: If the defendant is a common carrier/innkeeper then the standard of care rises to an even higher degree of care. The defendant must have acted with as much care as reasonably possible.
MBE TIP: This has been seen to impose an affirmative duty to protect the guest.
Note: This rule heightens the SOC. Also keep in mind that this heightened duty is for the guest/customer of the common carrier/innkeeper, not others.
Define [ AFFIRMATIVE DUTY TO ACT ]
Trigger: The affirmative duty to act standard of care is used when the defendant’s failure to act caused or worsened P’s harm.
Requirements: The defendant has an affirmative duty to act when:
● D caused the plaintiff’s state of peril, or
● D and P have a pre-existing relationship requiring D’s action. (Ex: Caretaker, landlord –tenant, business owner-customer, parent-child, spouses).
Standards of Care:
● If one of the situations are triggered, then D’s standard of care is to assist the plaintiff and use reasonable care.
● If none of the situations are triggered, then D has no duty to assist the plaintiff.
● If none of the situations are triggered + D voluntarily decides to assist the plaintiff, then D must proceed with reasonable care.
How to prove [ BREACH ] on a negligence analysis?
The breach element requires the plaintiff to prove that the defendant did not meet the applicable standard of care and therefore breached his duty owed to the plaintiff. How you prove breach of the SOC depends on what particular SOC was triggered in your duty analysis.
To analyze The Reasonable Person SOC, P must prove that D’s conduct did not rise to a level of care that a reasonable person would have used under the circumstances. There are many methods for achieving that objective. The most popular methods that the plaintiff could use are:
1) Hand formula, 2) Government standards, 3) Societal or industry customs, 4) Prior similar acts, 5) Res Ipsa.
To analyze the Breach of the Substitute SOC: You simply argue the rule of that particular standard of care.
Example: If you are analyzing the child standard of care, simply lay out arguments for and against the child defendant acting as a child of similar age, education, experience, and intelligence.
Describe the [ Hand formula] when analyzing D’s breach
Under the hand formula, D breaches his duty when the burden of precaution is outweighed by the combination of the probability of an accident and the magnitude of the risk.
♦ Burden:
● Step 1: Figure out what the precaution would be (i.e.,building a taller fence).
● Step 2: Evaluate how burdensome (i.e.,cost and or steps necessary to achieve the precaution).
Describe the [ GOVERNMENT STANDARDS ] when analyzing D’s breach
If the defendant’s conduct does not meet government standards that govern his conduct, then that is an argument that he has breached his duty.
♦ Non-compliance of the govt. standard may be viewed as a conclusive argument of breach.
♦ Compliance with the govt. standard is not a conclusive argument in proving no breach.
Describe the [ CUSTOMS (SOCIETAL/INDUSTRY) ] when analyzing D’s breach.
Custom is a consistent practice or behavior performed by many people over a substantial period of time.
♦ Non-compliance with a custom is a factor but not conclusive on its own for proving breach
♦ Compliance with a custom is a factor but not conclusive on its own for proving no breach.
Describe the [ PRIOR SIMILAR ACTS ] when analyzing D’s breach.
If there are prior similar acts of D’s particular conduct leading to another’s harm, then that makes it more likely that D has breached his duty here.
Describe the [ RES IPSA–“INFERRING NEGLIGENCE” ] when analyzing D’s breach.
Trigger: Res Ipsa is only triggered when P can’t necessarily prove that it was the defendant who caused their harm, but based on the circumstances, all fingers point at this defendant causing the harm. Res ipsa creates a rebuttable presumption that the defendant was negligent. The defendant will now have the burden to rebut.
● Example: P is walking down the street and a hammer falls on her head. P looks up and sees D, a construction worker working on a building. (Also look out for slip-and-fall cases, doctor/physician malpractice, and defective goods.)
♦ Rule: In order for P to establish negligence through res ipsa, P must prove that:
● 1) This type of accident does not ordinarily occur unless a party is negligent,
● 2) This type of accident would occur due to the negligence of a person in the defendant’s position, and
- Note: Can be proven by showing that the defendant had exclusive control over the instrumentality during the relevant time period
- In other words: “It must have been caused by this defendant”
● 3) Plaintiff is not negligent or responsible for their injury.
♦ Effect: If the elements of res ipsa are met, then the plaintiff has satisfied their burden of production. This does not mean the element of breach is guaranteed to be met, or that the defendant will be liable.It means the defendant now must rebut the presumption that he was negligent.
♦ This can be tested in scenarios where the defendant files a motion for SMJ or a directed verdict.If the plaintiff satisfies res ipsa, that means the plaintiff has produced enough evidence and a defendant’s motion for directed verdict or summary judgment should be denied so the case can proceed to a jury verdict.
How to Prove the Causation Requirement?
The causation element requires the plaintiff to prove that the defendant was the actual and proximate cause of the plaintiff’s harm.
Explain [ ACTUAL CAUSATION ]
Actual causation is met if the defendant is the but-for cause of the plaintiff’s harm. However, under certain circumstances, actual causation may also be satisfied by the substantial factor test, or the burden of proof for causation may switch to the defendant.
