Negligence Flashcards
foreseeable plaintiffs
Defendants owe a duty to foreseeable plaintiffs
including rescuers who are per se foreseeable plaintiffs
duty
obligation
requiring conformity
to a standard of conduct protecting others
against unreasonable risk
where D engages in affirmative risk creating conduct there is a duty owed to a foreseeable plaintiff.
duty to aid
no affirmative duty to aid
except
conduct responsible for placing plaintiff in peril
or special relationship exists
or created reliance on promise to aid
Once Aid is Rendered
Once aid is undertaken, a duty to exercise due care arises as to subsequent conduct.
negligent omission
failure to do something a reasonable person would have done
stop at a stop sign.
A duty to act where conduct caused plaintiff to be in peril
Good Samaritan statutes
limits liability of rescuers providing aid
absent reckless or intentional wrongdoing
nonfeasance
gratuitous promise to render aid
A gratuitous promises to render aid
no duty to actually take the promised action
even if plaintiff relied on the promise to his detriment.
If D does attempt to render promised aid he is obliged to exercise reasonable care in doing so.
minority view D is liable for the complete failure to perform a gratuitous promise if P relied on the promise to his detriment (foregoing other aid)
duty to take affirmative action where a ‘special relationship’ exists
D has a duty to take affirmative action to benefit P where a special relationship exists from which D derives or occupies a position of power over the plaintiff
6 types of Special Relationships that trigger duty to care for P
- employer-employee during scope of employment
- common carrier and innkeeper-customer
- school-pupil
- parent-child
- business-patron
- jailer-prisoner
duty to control 3rd parties
no duty to control the conduct of third parties unless:
- a special relationship between D and the 3rd party giving rise to duty to control
- a special relationship exists between D and the 3rd party that gives the 3rd party a right of protection
parents duty to control a minor child
duty to exercise reasonable care to control a child to prevent intentional harm or create an unreasonable risk of harm if the parent:
1. knows he has the ability to control the child
and
2. knows of the necessity and opportunity for exercising control.
masters duty to control servant acting outside the scope of employment
A master has a duty to exercise reasonable care to control his servant to prevent the servant from intentionally harming others or creating an unreasonable risk of harm IF:
- The servant is upon the masters premises or on the premises the servant is privileged to enter or
- is using a chattel of the master AND
- the Master knows or has reason to know that he has the ability to control the servant AND
- knows or should know of the necessity and opportunity for exercising such control
employers duty of care in hiring
D employer has a duty to P to exercise reasonable care in hiring employees such that D may be liable if an employee subsequently injures P. As distinguished from vicarious liability for an employee’s torts, negligent hiring the employer is liable for his own negligence in hiring the employee and not vicariously liable for the wrongful conduct of the employee.
duty to warn of 3rd parties intent to do harm
where D has a special relationship with a 3rd party and becomes aware of the 3rd parties intent to do specific harm to an identified plaintiff, he has a duty to warn the plaintiff of the harm.
psychotherapist-patient
custodian-prisoner
list functions of government giving rise to duty to plaintiff
Proprietary
Discretionary
Ministerial
Proprietary Function of a Government Entity
government acting in an area traditionally occupied by private entities, the government is treated as any other defendant for purposes of determining a duty
Discretionary Activity of Government Entity
Government using judgement in allocating resources
NO duty
Ministerial Function of Government Activity
once government entity has undertaken an act,
it must do so non-negligently
Public Utility Doctrine
When a government agency fails provide an adequate response,
NO duty unless:
1. reliance on the response of the agency
2. special relationship between the plaintiff and the agency or
3. the agency has increased the danger
Special Rules of Courts:
Negligent Infliction of Emotional Distress
Where injury is neither personal injury or property damage,
duty issues arise.
Courts are reluctant to allow liability for emotional distress and apply special rules for pure emotional distress claims.
*pain and suffering are not subject to the limitations placed on claims for pure emotional distress.
NIED - Direct Claims Requirements
to recover for NIED P must
- Be in Zone of Danger - area at risk of injury
AND - have a physical manifestation of the emotional distress*
*most jurisdictions
NIED
Zone of Danger and Physical Manifestation Requirement
EXCEPTIONS (2)
- transmitting a telegram announcing the death of a loved one
- mishandling of a corpse
Bystander NIED recovery factors (3)
- In the Zone of Danger
- suffered severe emotional distress resulting from observance of the accident and
- had a close relationship with the victim
derivative nature of bystander NIED claims
Recovery may be reduced proportionally if the injured party is found to be comparatively negligent
3 Examples of wrongful acts
- Wrongful Conception
- Wrongful Birth
- Wrongful Life
*Usually the WRONG answer on MBE
Wrongful Conception
Injury is Birth of a healthy child
a negligently performed vasectomy or other form of birth control.
Damages involve the cost of birth and to rectify the ineffective birth control
Courts are reluctant to award costs of raising child
Wrongful Birth
birth of Unhealthy child
failure to diagnose a disability in the fetus
would not have given birth to child
Courts sometimes award costs of having a special needs child
offset award by the benefit of having a child
Wrongful Life
Childs Action for being born Unhealthy
Most courts - no damages. Court cannot return plaintiff to position prior to injury…thats pre life?!
some awarded damages for costs of child’s special needs after the age of majority
categories giving rise to liability of land possessors
- Activities - derived from conduct of persons
- Artificial Conditions - circumstances created by persons on the land.
- Natural Conditions - circumstances existing not created by persons
7 types of Plaintiffs on Land
- Invitees
- Licensee
- Trespasser
- Privileged Entrants
- Plaintiffs not on land
- Landlord and Tenant
- Sellers of land
Invitee Defined
Person enters land at D’s express or implied invitation.
There to confer an economic benefit.
Enters for a purpose relating to D’s interests or activities.
Classified as either Business or Public
Land Possessor must act reasonably - duty of reasonable care owed
business invitee
enters land with purpose related to business activities or interests
Public invitee
enters the property for a purpose the land is held open to the public for
minority view of public and business invitees
do not distinguish between public and business invitees
find a business purpose for persons who are otherwise public invitees
duty of care to invitees
- reasonable care to prevent injuries caused by activities
- reasonable care to discover dangerous natural and artificial conditions invitee would not be aware of
- warn, make safe, or provide other precautions of such conditions. applies to natural conditions as well.
invitee vs licensee vs trespasser
an invitee may be a licensee or trespasser if
invitee enters areas his invitation does not extend or
stays in a permitted area longer than was contemplated.
licensee defined
person enters land with express or implied permission
does NOT enter for a purpose of conferring benefit.
Contrast invitee.
duty to licensees
Duty to warn of known concealed dangers
exercise reasonable care in discovering licensees of whom he is unaware
Trespasser defined
enters land of another without permission or privilege.
Duty is to avoid willful or wanton harm to trespassers.
sub-categories of Trespassers - list
Unknown
Known
Frequent
Children
Duty to Unknown Trespasser
there is NO duty of care as to a trespasser who is unknown to D
There is no duty to attempt to discover unknown trespassers
duty to Known Trespassers
Duty will vary according to the category of danger
Activities - Exercise reasonable care to protect from injuries deriving from activities
Warn of hidden dangers defendant is aware
no duty to protect from injuries derived from natural conditions
frequent trespasser duty
duty is higher than normally applicable
owe the same duty of care as known trespassers if
D should know that trespassers frequently enter upon a portion of his land even if unaware of a particular trespasser
Duty to Children who Trespass
heightened standard of care applies to artificial conditions
exercise reasonable care to protect children from dangerous artificial conditions
Factors considered when a child trespasser will be considered an invitee
- Is the child too young to appreciate the danger?
- Is it foreseeable trespassing children.
- no duty to search for trespassing children*
- Is D aware of the dangerous condition?
- Is this an artificial condition?
- Is the risk great enough to outweigh the utility of what D is doing and the burden imposed to avoid harm?
plaintiffs not on land but adjacent to it
Duty of care to parties adjacent to the land for
ARTIFICIAL CONDITIONS on the land.
No Duty for natural conditions unless it is a tree in an urban area.
Majority View of Dangers posed by
natural conditions on the land
to persons not on the land
no duty to protect P not on D’s land from danger derived from natural conditions of the land.
Minority view sees a duty to exercise reasonable care to prevent injury from dangers deriving from natural conditions
standard of care applies to person in possession of the land including owner, tenant, purchaser, or adverse possessor
landlord and tenant
standard of care
applies when tenant is in possession of leased premises.
landlord possess common areas and is responsible for them.
Landlord may be liable to the tenant or 3rd parties under certain circumstances for areas he has surrendered possession to the tenant
Patent Defects - defined
dangerous conditions that are or should be apparent to the tenant
Landlord is under no duty to warn or repair obvious conditions
latent defects defined
dangerous natural or artificial conditions to which the tenant is UNAWARE and are not reasonably apparent. Landlord HAS a duty to warn the tenant of such dangers and repair them. Landlord has no duty to inspect the premises for latent dangers.
duty of landlord after possession has been transferred
there is no duty to as to dangerous conditions arising after possession is transferred unless
the landlord undertakes to repair or covenants to repair them.
landlord duties to 3rd parties
no duty to 3rd parties from from dangerous conditions or activities on the leased premises.
Unless the landlord knew tenant intended to open the leased premises to the public.
then landlord has a duty to prevent injury to the public and
exercise reasonable care to discover and repair any dangerous natural or artificial conditions existing at the time of the transfer of possession.
duties of sellers of land
After transfer of possession and ownership no further duty arises except:
- known hidden dangerous natural or artificial conditions the seller reasonably could anticipate the purchaser will not discover. Duty continues until purchaser has a reasonable time to discover and remedy the dangers
- Active concealment of a dangerous condition will maintain a duty
until the purchaser ACTUALLY discovers and remedies the condition
Reasonable Person Exceptions (3)
Similar physical characteristics
Mental defect or intoxication
emergency situations
Cognitive Deficient Reasonable person
abilities diminished due to mental illness or intoxication
are assessed as a reasonable person WITHOUT diminished abilities.
*individuals with greater than average knowledge or expertise the will be compared to reasonable persons who also possesses this knowledge or expertise
Reasonable person standard in an emergency situation
reasonable person would behave in the emergency situation,
unless negligent conduct caused the emergency situation.
learned hand formula
If the burden of taking precautions is
outweighs the probability being injured,
considering the severity of the injury,
and considering the social utility of the activity
then defendant failed to act as a reasonable person.
If B of D taking P + SU < Pr I x S I
the greater the benefit to society, D is less likely to have breached a duty to P
Reasonable Children Standard
Standard takes into consideration the age of a defendant minor.
Majority view -
reasonable child of same age, experience, education and intelligence.
Minority View
below 6 years - presumed incapable of negligence
7-13 years - rebuttably presumed not negligent
14+ years - rebuttably presumed capable of negligence
Standard of Care for Children engaged in Adult Activities
expected to conform to an adult standard of care.
Statutory Provision Establishing Standard of Care
conduct violating a statute that does not provide for civil liability
the statute may establish the standard of conduct for breach of duty purposes.
Majority position: unexcused violation of the statute conclusively establishes breach of duty.
Minority View: violation creates a rebuttable presumption D has burden to overcome.
Statutory Per Se conditions
- Injury was the type the statute intended to prevent
- plaintiff was a member of the class the statute intended to protect
- violation was not excused
Standard of Care - Common Carriers
must exercise of the highest degree of vigilance, care and precaution
excuse for violating statute
- would have resulted in greater harm than the harm produced by the violation or
- would have been impossible
Professional Standard of Care
The customary practice of professionals in good standing.
deviation demonstrates breach of duty,
compliance is evidence he has not.
Standard - failure to conduct oneself as a competent member of the profession with minimally adequate knowledge and expertise.
Res Ipsa Loquitur prerequisites
- injury does not ordinarily occur in the absence of negligence
- It is more likely than not D’s was responsible for the injury
- P was not responsible for the event that caused injury.
cause in fact
ties the defendants breach of duty to plaintiffs injury.
P must satisfy by a preponderance of the evidence or lose
That D’s negligence was more likely than not was the cause
But For Test
conduct was the cause-in-fact of an event if it would have been more likely than not the injury would not have occurred but for D’s conduct.
Substantial Factor Test
Where there are Multiple Causes
conduct was the cause-in-fact if it was a substantial factor in bringing about the injury.
where either Defendants conduct, taken alone, would be sufficient to cause injury. Application of but-for test here would permit D’s escape liability because but-for causation does not exist.
Joint and Several liability
P may recover against each of D’s who contribute to P’s harm.
D’s may sue each other for contribution.
Alternative Liability Theory
Summers v Tice
conduct of 2 or more independently acting D’s,
only one of whom can be responsible, and
P cannot establish which D is in fact responsible,
each D’s conduct is regarded as the cause-in-fact of the injury
unless a D can prove he did not cause P’s injury.
Shifts BoP to D
slip and fall - P’s burden
condition of the item was there long enough
was unreasonable to not discover and remedy the condition
Proximate cause
conduct must be the proximate, or legal, cause of the injury.
D owes a duty to foreseeable P’s - individuals at risk because of D’s conduct
majority view = individuals within the zone of danger.
minority view = allows recovery to any person harmed by D’s breach
Chain of Causation will be broken by Superseding causes
Unforeseeable Extent of Harm
D is liable for the full extent of P’s harm.
P’s particular susceptibility is not relevant.
Superseding Cause
an unforeseeable, intervening cause that breaks the chain of causation relieving the original tortfeasor of any further liability.
- naturally occurring phenomena
- criminal acts of 3rd persons
- intentional torts of 3rd persons
- extraordinary forms of negligent conduct
Intervening force
actively operates producing harm to another
after actor has committed a negligent act
D is liable for harm caused by foreseeable intervening forces
Rescuers are foreseeable,
original tortfeasor will be held liable for negligence of a rescuer.
factors determining whether intervening force is a superseding cause of harm
- harm of a different kind than resulted from D’s negligence
- Its operation or the consequences appear extraordinary and unforeseeable after the event
- Intervening force is independent of situation created by D
Duty to Rescuers
D owes a duty to rescuers, even if done negligently.
D is liable for personal injury and property damage, whether rescuer injures himself, the person rescued, or a stranger
damages in negligence
plaintiff must prove actual damages for negligence claim
nominal damages are not allowed in negligence and
punitive damages are generally not allowed.
personal injury, property damages, general and special damages, past and future pain and suffering, medical expenses, lost wages, and loss of consortium
not attorneys fees.
Payments made or benefits conferred from other sources are not deducted from Ds liability
collateral source rule
collateral benefits are NOT subtracted from plaintiffs recovery. ie.
insurance policies employment benefits gratuities social legislative benefits Payments made by a tortfeasor or person acting for him to the injured plaintiff are credited
Punitive damages
intended to punish or deter D from egregious conduct.
available where there has been willful, wanton, or malicious conduct.
Generally not available in negligence or contract actions
Awards are at jury’s discretion
Considerations for Punitive Damages
Degree or reprehensibility
intentional, malicious, reckless disregard;
was conduct isolated or repeated;
harm economic or non-economic.
ratio of compensatory damages to punitive damages should not exceed 10x CD award
Punitive damages may be limited by state law.
Defenses to Negligence - LIST
- Contributory Negligence
- Comparative Negligence
- Assumption of Risk
contributory negligence
P’s conduct falls below the standard he should conform for his own protection and
is a legally contributing cause in bringing about P’s harm.
D must prove by a preponderance of the E that conduct fell below the relevant standard of care and this was the cause in fact and proximate cause of P’s injuries
Limits on Contributory Negligence Defense
Intentional Torts,
Recklessness
Strict Liability
Risks in an Emergency and Contributory Negligence
Acts that might otherwise be regarded as CN are viewed as reasonable in an emergency or if P is attempting to rescue someone
CN of a child plaintiff
Reasonable Child standard applies in majority of jurisdictions
child of the same age, education, intelligence, and experience would have acted as plaintiff did
Minority View:
6 and under - CN precluded as a matter of law
7-13 - rebuttably presumed incapable of CN
14+ - rebuttably presumed capable of CN
CN of a 3rd person imputed to P - 2 situations
- sufficient relationship to be vicariously liable and
2. claims are completely derivative of the 3rd person who was CN
Last Clear Chance Doctrine
Provides basis for recovery where P is CN
If injury could be avoided through subsequent exercise of due care by D,
then D had the last clear chance to avoid harm.
P’s fault will not bar claim.
D must be aware breach placed P in ‘helpless peril’ rather than ‘inattentive peril’
helpless peril
P’s negligence placed him in a position that he cannot extricate himself
inattentive peril
P’s CN placed him in a position of danger that he could escape if observant enough to recognize his peril.
comparative negligence
the total damages are apportioned based on the relative fault of the parties
Pure Comparative Negligence Scheme
Apportionment of damages tracks apportionment of fault
Partial Comparative Negligence
D’s responsibility must exceed P’s responsibility.
P will be denied if his responsibility exceeds 50%
Comparative Negligence systems where there are multiple D’s who are not jointly liable - list
Aggregate system - % of responsibility of all D’s are combined and apportioned only if this total exceeds P’s % of responsibility.
Individual Equality System - P does not recover anything if his individual responsibility exceeds that of any single defendant.
Assumption of Risk Defense
P assumes the risk of injury from D’s negligence if P expressly or impliedly consents to undergo the risk created by D’s conduct
Express waiver of D’s negligence
P will be barred from recovery for D’s negligence if he has expressly relieved D’s obligation to act non-negligently toward P.
Waiver is valid so long as not void as against public policy and the language is clear. will be enforced by most courts
Implied Assumption of Risk
- P had knowledge of and appreciated the nature of the danger involved
- P appreciated the specific danger that injured him and
- P voluntarily chose to subject himself to that danger
limitation on assumption of risk defense
May not assert defense where P is a member of a class intended to be protected by statute, and D’s conduct violates the statute and threatens the risk the statute was designed to prevent.
Elements of Negligence
Duty Standard Of Care Breach of Duty Cause in Fact Proximate Cause Damages
General Duty Rule
D is engaged in affirmative risk creating conduct
Causing personal injury or property damage
A duty is owed to a foreseeable plaintiff
Situations where a Significant Duty Issue Will Arise (4)
- Unforeseeable Plaintiffs
- Nonfeasance
- Harm other than Personal Injury or Property Damage
- Where D is a land possessor, landlord, or government entity
Nonfeasance
The failure to act or to provide a benifit
Misfeasance
Affirmative risk creating conduct or
Negligent omission - failure to do something creating an affirmative risk of harm (failure to stop at a stop sign)
Nonfeasance creating a condition requiring rescue
Where D created a condition requiring the rescue of P, D will have a duty to render aid.
Duty to Control 3rd Parties - exceptions
Special Relationship - taking charge of another
Providers of Alcohol - Dram Shop acts
Negligent Entrustment
Duty to Protect - only where there is a HIGH LEVEL of foreseeability
Duty to Protect
Generally no duty to take affirmative steps to protect 3rd parties from Criminal Actions of others
Except
Existence of a special relationship and there is a high level of foreseeability. P may need to show prior similar incidents to show that a duty exists
Negligent Entrustment
Where D entrusts a dangerous object to a person they know or should know is incapable of handling the object.
Exceptions to the Zone of Danger Test for NIED Claims
- Receipt of a telegram wrongly informing of the passing of a loved one.
- Mishandling a corpse of a loved one.
In General a Landlords are not liable EXCEPT:
- Common Areas
- Negligent Repairs
- Known hidden dangerous defects - until such time as T should have discovered such conditions.
- Where L knows property is to be held open to the public, L has a duty to discover and repair dangerous conditions.
Rules for Compensatory Damages
- Must be foreseeable - type of damages, not the extent
- Reasonably certain, not speculative
- Not unavoidable
Two Categories of Compensatory Damages
- Special Damages - tangible - medical expenses, lost wages. Includes past, present and future (future damages will be reduced to present value)
- General Damages - Pain and suffering
Avoidable Consequences Rule
Plaintiff has a duty to mitigate damages
Proximate Cause - 3 Types of Harm
- Unforeseeable Extent of Harm - D is responsible for the full extent of harm caused. Take your plaintiff as you find him.
- Unforeseeable Type of Harm - Is the harm within the risk created by D’s conduct?
- Unforeseeable Manner of Harm - is the harm so far removed from D’s conduct? Culpability of other parties? Passage of time, un foreseeability, and culpability will be considerations.
Cause in Fact - Summers v Tice Test
Where there are a small number of D’s
Each is negligent
All are before the court
Burden will be shifted to D to show that they are not liable. All D’s will be jointly and severally liable
market Share Liability
Where there are a large number of D’s
P may sue all D’s who may have been liable
D’s will be liable according to their market share
Not heavily tested
Cause in Fact - Theories
But For - D is more likely than not the cause
Substantial Factor - Multiple D’s
Loss of Chance
Summers v Tice
Market Share Theory
Plaintiff Showing for Res Ipsa Loquitur
- Injury is typically the result of Negligence
- D is in control of the harm causing instrumentality
- P did not contribute to his injury
Showing will get the case to jury.
RiL in Medical Malpractice
Common knowledge Exception - no need for expert testimony that harm was but for the result of negligence - sewing instruments into P
Multiple defendants - where all D’s act as a group, all are jointly and severally liable unless they can show they are not liable.
Landlords are not liable to Tennants UNLESS
- Common Areas
- Negligent Repairs
- Known Hidden Dangerous Defect
- Where Landlord knows property is held open to the public he has a duty to exercise reasonable care to discover and repair dangerous conditions.
how to frame a negligence question
Duty Standard of care Breach of duty Cause in fact proximate cause damages defenses
Essay - use headings and separate elements
nonfeasance contrast with misfeasance
the failure to bestow a benefit or do something. - nonfeasance - no duty
Misfeasance - failure to do something a reasonable person would do - stop at a stop sign
Negligent entrustment
Version of misfeasance.
Where D gives a dangerous object to someone he knows is not capable of handling it.
4 standards of care
Reasonably prudent person
negligence per se
child standard of care
Professional standard of care
Informed Consent - Doctors Standard of Care
Professional Rule vs Patient Rule
Doctors are required to divulge those risks that are customarily divulged.
Trend is moving toward one of materiality.
Doctor must divulge material risks - those a reasonable patient would want to know.
Plaintiffs burden in a legal malpractice claim
P must prove that they would have prevailed in the underlying action and that but for the lawyers malpractice they would have prevailed.
plaintiffs burden in a negligence case
Plaintiff has the burden of showing the elements of the prima facie case by a preponderance of the evidence.
how to frame a negligence question
Duty Standard of care Breach of duty Cause in fact proximate cause damages defenses
Essay - use headings and separate elements
nonfeasance contrast with misfeasance
the failure to bestow a benefit or do something. - nonfeasance - no duty
Misfeasance - failure to do something a reasonable person would do - stop at a stop sign
Negligent entrustment
Version of misfeasance.
Where D gives a dangerous object to someone he knows is not capable of handling it.
4 areas where Cause in Fact Issues Arise
- Multiple D’s
- Summers v Tice - Alternative liability theory
- Loss of Chance
- Market Share Liability
Loss of Chance
Where timely diagnosis of illness would have been a 40% chance of survival but failure to do so results in terminal condition.
Injury is the loss of chance rather than the cure.
Unforeseeable Type of Harm
Proximate Cause Problem
Foreseeability of Risk Rule
Is the injury suffered the type that is within the risk created by D’s negligence?
Unforeseeable Manner of Harm
Proximate Cause Problem
Where the manner of harm is from an intervening cause becomes a superseding cause and cuts off liability from D.
Compensatory Damages
Attempt to return Plaintiff to original position - at least in theory.
Money used to compensate in negligence.
Compensatory Damages Rules 3
Must be foreseeable - the type of damage, not extent
Reasonably Certain - not speculative
Not unavoidable.
2 categories of compensatory Damages
- Special Damages - tangible and pecuniary, repairs, medical expenses, lost wages, etc. Can be past, present and future. Future damages reduced to present value. Collateral Source Rule applies*
- General Damages - pain and suffering. Intangible.
