Negligence

Question 1

Negligence - Prima Facie Case - Elements

Answer 1

1. The existence of a DUTY on the part of the defendant TO CONFORM TO A SPECIFIC STANDARD OF CONDUCT for the protection of the plaintiff against an unreasonable risk of injury.
2. BREACH of that duty by the defendant.
3. That the breach of duty by the defendant was the ACTUAL AND PROXIMATE CAUSE of the plaintiff’s injury
4. DAMAGE to the plaintiff’s person or property.

Question 2

General Duty of Care

Answer 2

When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person.

Question 3

To Whom is the Duty of Care Owed - General Rule

Answer 3

A duty of care is owed only to foreseeable plaintiffs.

Question 4

The Unforeseeable Plaintiff Problem - 2 Views

Answer 4

1. Andrews View - Defendant owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone.
2. Cardozo View - the second plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances (that she was located in a foreseeable “zone of danger”)

Question 5

Duty of Care - Rescuers Foreseeable Plaintiff?

Answer 5

A rescuer is a foreseeable plaintiff as long as the rescue is not wanton.

Question 6

Prenatal Injuries - Duty of Care

Answer 6

Prenatal injuries are actionable if the fetus was viable at the time of injury.

Question 7

Wrongful Life Action - Recognized?

Answer 7

In most states, the failure to diagnose a congenital defect of the fetus or to properly perform a contraceptive procedure does not permit the unwanted child to recover damages for wrongful life, even if the cild is born handicapped.

Question 8

Basic Standard of Care - The Reasonable Person

Answer 8

1, Physical Characteristics - Same as Defendant’s

2. Average Mental Ability
3. Same Knowledge as Average Member of Community

Question 9

Particular Standard of Conduct - Professional

Answer 9

A person who is a professional or has special skills is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities.
For medical specialists, a national standard of care applies, and a modern trend applies a national standard to all physicians.

Question 10

Doctors - Duty to Disclose Risks of Treatments

Answer 10

A doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment. If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the doctor has breached this duty.

Question 11

Particular Standard of Conduct - Children

Answer 11

A majority of courts take the view that a child is required to conform to the standard of care of a child of like age, education, intelligence, and experience. Must be 5 or above to be considered.

Question 12

Particular Standard of Conduct - Children Engaged in Adult Activities

Answer 12

When a child engages in an activity that is normally one that only adults engage in, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity.

Question 13

Standard of Care Owed by Owners to Those Off the Premises

Answer 13

The general rule is that a landowner owes no duty to protect one outside the premises from natural conditions on the land.
2. As a general rule, there is also no duty owing for artificial conditions, save unreasonably dangerous conditions and duty to protect passerby.

Question 14

S of C - Owners Duty to an Undiscovered Trespasser

Answer 14

A landowner owes no duty to an undiscovered trespasser, and has no duty to inspect in order to ascertain whether persons are coming onto his property.

Question 15

S of C - Owners Duty to a Discovered Trespasser

Answer 15

Once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to WARN the trespasser of, or to MAKE SAFE, ARTIFICIAL CONDITIONS known to the landowner that involve a RISK OF DEATH OR SERIOUS BODILY HARM and that the trespasser is unlikely to discover. There is no duty owed for natural conditions and less dangerous artificial conditions.

Question 16

S of C - Owners Duty to an Anticipated Trespasser

Answer 16

The majority of states now treat anticipated trespassers on generally the same basis as discovered trespassers in terms of the duty owed them by the landowner.

Question 17

S of C - Owner’s Duty to a Licensee

Answer 17

The owner has a duty to warn the licensee of a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. The owner has no duty to inspect nor to repair known defects. (social guests are licensees)

Question 18

S of C - Owner’s Duty to an Invitee

Answer 18

The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees plus a duty to make reasonable inspections to discover dangerous conditions and then make them safe.

Question 19

Definition of Licensee

Answer 19

A licensee is one who enters on the land with the landowner’s permission, express or implied, for her own purpose or business rather than for the landowner’s benefit.

Question 20

Definition of Invitee

Answer 20

A person who enters onto the premises in response to an express or implied invitation of the landowner (open to the public, connected with the business)

Question 21

Res Ipsa Loquitur

Answer 21

Where the facts are such as to strongly indicate that plaintiff’s injuries resulted from defendant’s negligence, the trier of fact may be permitted to infer defendant’s liability.

Question 22

Res Ipsa Loquitur Requirements

Answer 22

1. Inference of Negligence: plaintiff must establish that the accident causing his injury is the type that would not normally occur unless someone was negligent.
2. Negligence Attributable to Defendant: plaintiff must establish evidence connecting defendant with the negligence in order to support a finding of liability (evidence that this type of accident ordinarily happens because of the negligence of someone in defendant’s position)

Question 23

Causation - But For Test

Answer 23

An act or omission to act is the cause of an injury when the injury would not have occurred but for the act.

Question 24

Causation - Joint Causes - Substantial Factor Test

Answer 24

Where several causes concur to bring about an injury - and any one alone would have been sufficient to cause the injury - it is sufficient if defendant’s conduct was a “substantial factor” in causing the injury

Question 25

Causation - Alternative Causes Approach

Answer 25

Plaintiff must prove that harm has been caused to him by one of the defendants (with uncertainty as to which one). The burden of proof then shifts to defendants, and each must show that his negligence is not the actual cause.

Question 26

Causation - Proximate Cause

Answer 26

The defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This test is based on foreseeability

Question 27

Proximate Cause - Direct Cause Cases - Foreseeable Harmful Results

Answer 27

If a particular harmful result was at all foreseeable from defendant’s negligent conduct, the unusual manner in which the injury occurred or the unusual timing of cause and effect is irrelevant to defendant’s liability (Defendant is Liable)

Question 28

Proximate Cause - Direct Cause Cases - Unforeseeable Harmful Results

Answer 28

Defendant Not Liable

Question 29

Proximate Cause - Indirect Cause Cases 0 Foreseeable Results Caused by Foreseeable Intervening Forces

Answer 29

Where defendant’s negligence caused a foreseeable harmful response or reaction from an intervening force or created a foreseeable risk that an intervening force would harm plaintiff, defendant is liable for the harm caused.

Question 30

PC - Indirect Cause Cases - Dependent Intervening Forces

Answer 30

normal responses or reactions to the situation created by defendant’s negligent act. Dependent intervening forces are almost always foreseeable

Question 31

PC - Indirect Cause Cases - Independent Intervening Forces

Answer 31

May be foreseeable where defendant’s negligence increased the risk that these forces would cause harm to the plaintiff.

Question 32

PC - Indirect Cause Cases - Foreseeable Results caused by Unforeseeable Intervening Forces

Answer 32

Most courts generally find liability here because they give greater weight to foreseeability of result than to foreseeability of the intervening force. (exception - when the intervening force is an unforeseen criminal or intentional tort of a third party - will be superseding and cut off defendant’s liability)

Question 33

PC - Indirect Cause Cases - Unforeseeable Results Caused by Foreseeable Intervening Forces

Answer 33

Defendant Not Liable

Question 34

PC - Indirect Cause Cases - Unforeseeable Results Caused by Unforeseeable Intervening Forces

Answer 34

Defendant Not Liable, intervening forces that produce unforeseeable results will be deemed to be unforeseeable and superseding.

Question 35

Superseding Force - Definition

Answer 35

One that serves to break the causal connection between defendant’s initial negligent act and the ultimate injury, and itself becomes a direct, immediate cause of the injury. Thus, defendant will be relieved of liability for the consequences of his antecedent conduct.

Question 36

PC - Unforeseeable Extent or Severity of Harm

Answer 36

In both direct and indirect cause cases, the fact that the extent or severity of the harm was not foreseeable does not relieve defendant of liability. (Eggshell plaintiff)

Question 37

Damages - Definition

Answer 37

Damage is an essential element of plaintiff’s prima facie case for negligence. This means actual harm or injury. Some proof of harm must be offered.