Negligence

Question 1

Negligence:

Prima Facie Case

Answer 1

Elements:

1. Duty of care
2. Breach of duty
3. Causation​​
   
   • ​​Actual cause (cause in fact) and proximate case (legal cause)
4. Damages

​Negligence basics

• Negligence is analyzed under an objective standard by comparing D’s actions to a reasonable person under similar circumstances
  
  • IE negligence la assesses D’s behavior based on the common judgment of a collective people
• Assess D’s behavior at the time and given the circumstances under which he acted.

Question 2

Negligence:

Duty of Care

Answer 2

D owes a duty of care to all foreseeable victims of his activities

**Default duty of care **- reasonably purdent person (RPP)

• Unless a special circumstance applies, D’s duty is to behave like a RPP under the circumstances
  
  • The law accounts for D’s intelligence and physical characteristics (ie a D with superior knowledge can be held to a higher level of care (never lower))

Foreseeable victims - those within the zone of danger

• Zone of danger - the area around D’s activities in which a P could foreseeably be injured
• Rescuer’s exception - civilian rescuers can assert a valid negligence claim even if their presence or injuries are unforeseeable
  
  • If D puts himself or another in danger and a third person attempts to rescue, D can be held liable for any injuries sustained by the resuer
  • Does not apply to firefighters or police.

Question 3

Negligence:

Specialized Standards of Care

Answer 3

Children - held to the standard of care of a like child or similar age, education, intelligence, and experience (subjective test)

• Children under 4 lack capacity to be held negligent

Common carriers & innkeepers - held to an “utmost care” standard

• Liable for even slight negligence to passengers or guests

Custom or usage in an industry - can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty

Professionals - expected to act with the care of an average member of the profession in good standing in similar communities

• Specialist (ie neurosurgeons) are held to a national standard of care

Statutory standard of care

Owners/occupiers of land

Question 4

Negligence:

Statutory Standard of Care

Answer 4

An existing statute may establish a duty of care

Requirements:

1. The statute provides a criminal penalty
2. Standard of conduct is clearly defined in the statute
3. P is within the class of people the statute was designed to protect
4. The statute was designed to protect against the type of harm P suffered

Violation of statutory standard of care - negligence per se

• Violation of the statute is negligence per se, meaning P must only prove causation, not breach of duty
• Compliance does not automatically clear D of liability

Statutory standard of care does not apply if:

1. Compliance is more dangerous than non-compliance
2. Compliance is impossible under the circumstances

Question 5

Negligence:

Duty of Care for Owners & Occupiers of Land to Trespassers

Answer 5

Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers

• Note the same standard of care applies to occupiers, possessors, and owners of land

Unknown or undiscovered trespassers- no duty owed

Anticipated trespassers - where an owner has reason to believe of trespassers on her land.

• Activites - an owner has a duty of reasonable care in carring out activities on her property
• Dangerous conditions - an owner has a duty to warn or make safe any conditions the owner knows of that are man-made, concealed, and dangerous
  
  • Note - this is rare: look for spring guns, traps

Attractive nuisance doctrine for child trespassers

• An owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:

1. She is aware or should be aware of a dangerous condition (natural or artificial) on her property
2. She knows or should know children are in the vicinity
3. The condition is likely to cause injury if encountered
4. The magnitude of the risk outweighs its utility or the expenses of remedying it

Question 6

Negligence:

Duty of Care for Owners & Occupiers of Land to Licensees & Invitees

Answer 6

Licensee - one who enters land with the owner’s permission

• IE social guests, relatives, friends

Invitee - one who enters land with the owner’s permission to confer a commercial benefit, or enters property held open to the public

• IE store patron, concert-goer, door-to-door salesperson

Duty of care owed:

• **Activites carried out on property ** - reasonable care
• Known dangerous conditions - duty to warn or make safe
• Duty to inspect - n/a for licensees
  
  • Invitees - owners have a duty to conduct a reasonable inspection to discover non-obvious dangers and make them safe
  • Note - this is the only significant difference between the duties for licensees and invitees.

Scope of duty - limited by the scope of the invitation/license

• Owner’s duty extends only to those areas where one is an invitee or licensee (ie store owner does not owe a duty of care in an employees-only area)

Note - police and firefighters are considered licensees, but can not recover for injuries suffered on the job.

Question 7

Negligence:

Breach of Duty

Answer 7

D breaches his duty when his conduct falls short of the standard of care owed under the circumstances

To demonstrate a breach, P can argue:

• D breached the applicable standard of care - includes:
  
  • RPP standard
  • Negligence per se - violation of a relevant statute
  • Specialized standard of care
  • Custom or usage in an industry - not an automatic breach, but may be relevant
• Res ipsa loquitor - the very occurance of the accident causing P’s injuries suggests negligent conduct
  
  • Arises if facts cannot establish a breach of duty because circumstances surrounding the event are unknown to P
  • Requirements:
  1. ​The harm would not normally occur without negligence
  2. The type of harm is normaly caused from negligence by someone in D’s position
  3. The injury-causing instrument was a D’s exclusive control

Question 8

Negligence:

Actual cause

Answer 8

Establishes a causal connection between the alleged breach of duty and the resulting injury.

But-for test

• But for the alleged breach of duty, P’s injury would not have occured

**Substantial factor test **- for multiple causes of P’s injury

• Used if multiple causes bing about P’s injury and any one alone would have caused injury
  
  • IE fires start on D1’s land and D2’s land, both of which spread to P’s land and burn down P’s house
• D’s breach is the actual if it was a substantial factor in bring about P’s injury

Burden-shifting test - for several possible causes of P’s injury

• Used if multiple Ds act (often simultaneously), only one causes P’s injury, but unclear which D caused the injury
  
  • IE P is hit by a stray bullet at a bury firing range and it’s unknown which shooter hit P
• Burden of proving actual cause shifts to Ds
  
  • If no D can prove another D was responsible, all D’s are jointly and severally liable

Question 9

Negligence:

Proximate cause

Answer 9

Establishes that it is fair under the law to hold D responsible for P’s Injuries

Foreseeablity - the measuring stick for proximate cause

• D is liable for the foreseeable outcome of his conduct

Direct cause - If P’s injury is the direct consequence of D’s negligent conduct, D is liable unless the outcome is unusually bizarre or unpredictable.

Indirect/intervening causes - where contributing acts occur between D’s conduct and P’s injuries

• D is usually liable if the injury could have possibly resulted even without the intervening forces
• Approach - consider the type of harm being protected against by olding D negligent for his conduct
  
  • If P’s resulting injury is the type of harm being protected against, D’s conduct is the foreseeable legal cause of P’s injury

“Eggshell Plaintiff Rule” - D takes P as he finds him and is liable for the full extent of P’s injuries, regardless of whether they are foreseeable.

Question 10

Negligence:

Damages

Answer 10

P must prove damages, which are not presumed in negligence cases; nominal damages are not available

Specific types of damages:

• Personal Injury - D must compensate P for all damages
  
  • Includes past, present, and prosective damages
  • Specific and general damages are recoverable
• Property damage - Pcan recover the reasonable cost of repair
  
  • If property is irreparable, damages = full market value at the time the accident occured
• Punitive damages - only recoverable if D’s conduct is wanton and willful, reckless, or malicious

Non-recoverable damages - P can never recover for:

• Interest from the date of damage in personal injury cases
• Attorneys fees

Duty to mitigate - P has a duty to take reasonable steps to mitigate damages

Question 11

Negligence Affirmative Defenses:

Comparative & Contributory Negligence, Assumption of Risk

Answer 11

**Comparative negligence ** - D can establish that P’s injuries are at least partially the result of P’s own negligence

• Court apportions fault between P and D and reduces P’s recoverable damages accordingly
• **Partial/modified comparative negligence **- P can only recover damages if he was less than 50% at fault
• Pure comparative negligence - P can recover damages even if he was more than 50% at fault

Contributory negligence - P is completely barred from recovery if D establishes that P’s negligence contributed to her injuries

• Last clear cance defense - P can rebut D’s contributory negligence claim by alleging D had the last clear chance to avoid the injury - causing accident

​Assumption of risk - D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act

• Requirements - D must show:

1. P knew of should have known of the risk (Objective standard)
2. P voluntarily proceeded in the face of that risk
   3.

Question 12

Negligence:

Negligent Infliction of Emotional Distress

Answer 12

P may recover for emotional distress resulting from D’s negligence, but only if P’s emotional distress gives rise to some physical manifestation.

Elements:

1. D’s negligence results in a close risk of bodily harm to P
   
   • ​​P must be in the zone of danger to recover
   • IE D’s act must have nearly caused physical harm to P
2. D’s negligence results in P’s severe emotional distress
3. P exhibits some physical manifistation attributable to her emotional distress​​

• ​IE heart attack, miscarriage
  
  • Non-physical symptoms like depression or nightmares are insufficient
• Symptoms of the physical manifestation can be instantaneous or appear days later

Bystander claims - bystanders may be able to recover for emotional distress resulting from D’s negligence