Negligence Flashcards
BREACH OF DUTY
What are the 3 theories of breach of duty?
1) CUSTOM: Custom or usage to define standard of care: if ∆ acts differently from the custom that everyone else follows
NOT controlling as to whether as to whether conduct was negligent (as the entire industry/sector/etc may be negligent)
2) STATUTE: Violation of statute (Negligence per se): if the ∆ violates a duty as established by statute
3) RES IPSA LOQUITUR: π can’t specifically explain what Δ did to cause the injury (e.g. barrel mysteriously falls from warehouse);
→ Doctrine used by π who lack information
→ π injured but in information vacum
→ Substitution for direct evidence
→ If π can prove3 ELEMENTS (inference of negligence), it goes to jury (i.e. no summary judgment)…
(i) Accident of type that doesn’t normally occur in the absence of
negligence (based on probability, experts, appeal to common
logic);
(ii) Negligence is usually committed by someone in Δ’s position
(π must prove that Δ had exclusive cntl of instrument of injury);
(iii) π was not contributorily negl. in the injury
What is theEggshell Skull Rule?
What is theCollateral Source Rule?
NOTE: NY Distinction
Can Punitive Damages Be Recovered?
EGGSHELL SKULL RULE: the ∆ takes π as she finds him…if ∆ is negligent (i.e. duty, breach, causation), then Δ pays for ALL damages
COLLATERAL SOURCE RULE: damages are not reduced just b/c π received benefits from other sources
(i.e. health insurance)
NY DISTINCTION: NY has abolished the collateral source rule; π’s damages are REDUCED by collateral pmts
PUNITIVE DAMAGES are generally NOT available.
→ PUNITIVE DAMAGES ONLY available for INTENTIONAL torts or when π shows that ∆ engaged in RECKLESS conduct.
NEGLIGENCE CLAIMS ASSERTED AGAINST POSSESSOR OF LAND
SPECIALIZED DUTY OF CARE: POSSESSOR OF LAND (PREMISES LIABILITY)
What is the std of care owed byPOSSESSOR OF LAND?
NOTE: NY Distinction
DUTY OWED BASED ON 4 CATEGORIES OF ENTRANTS:
1) UNKNOWN/UNDISCOVERABLE TRESPASSER:on land w/o permission OR occupier’s knowledge…
→ NO duty of care for activity/condition (unforeseeable)
2) DISCOVERED/ANTICIPATED TRESPASSER:
Possessor knows OR should have anticipated…
→ DUTY = RPP in similar circumstances
→ DUTY TO PROTECT w.r.t. Land conditions = duty
to warn/make safe from:
(i) Artificial/man-made condition;
(ii) highly dangerous condition (no duty for
moderate conditions);
(iii) concealed condition (no duty for open and
obvious conditions);
(4) conditions known to occupier
** NO MAN MADE DEATH TRAPS
3) LICENSEE: Entrant has permission but does not confer any economic benefit on the Possessor → friends, Jehova witness, Girl Scout, other entrants w/permission…
→ DUTY = RPP in similar circumstances
→ DUTY TO PROTECT w.r.t. Land conditions = duty
to warn/make safe from:
(i) ALL KNOWN CONDITIONS (natural AND man-
made)
(ii) CANNOT BE CONCEALED FROM LICENSEE
4) INVITEE: Entrant has permission and confers an ECONOMIC BENEFIT ONTO POSSESSOR → business customer, church worshiper, museum visitor, land open to public
→ DUTY = RPP in similar circumstances
NOTE: an invitee loses his status as an invitee if he exceeds the scope of his invitation (i.e. becomes a trespasser)
→ DUTY TO PROTECT w.r.t. Land conditions = duty
to warn/make safe from:
(i) ALL CONDITIONS KNOWN OR DISCOVERABLE
by REASONABLE INSPECTION (reasonable
inspection is informed by custom)
(ii) CANNOT BE CONCEALED FROM LICENSEE
e.g. Clear cooking oil in grocery store aisle: Concealed? → Yes. Dicoverable? → Need to investigate how long it sat there
NY DISTINCTION: doesn’t distinguish b/t type of entrant
→ Std of care = care by RPP under similar circumstance BUT RPP exercises different standards based on entrant’s status and status is evidence of foreseeablity
→ FORESEEABLITY SCALE: customer>guest>trespasser
GENERALLY ADEQUATE WARNING SIGN SATISFIES THE DUTY IN POSSESSOR CASES
SPECIALIZED DUTY OF CARE: AFFIRMATIVE DUTY
When is there an AFFIRMATIVE DUTY to act (the failure todo so constituting breach)?
NOTE: NY Distinction
General Rule: NO affirmative duty to act
E.g. Michael Phelps w/NO DUTY to rescue drowning child in the pool
3 EXCEPTIONS:
(i) PREEXISTING RELATIONSHIP: family member; common
carrier; innkeeper; friend/friend (questionable); business owner/
invitee
(ii) When Δ CREATED the DANGER
(iii) When ∆ ASSUMED RESPONSIBILITY (attempted to rescue)
→ liable for negligent rescue
DUTY = std of care of RPP under circumstances(NO RQMT of MARTYRDOM):
NY Distinction: For medical professionals, an attempted rescue is only actionable if grossly negligent (Good Samaritan Law)
GENERAL RULES
1) WHAT IS THE DUTY?
2) To whom do we owe a duty of care?
3) What is the level of care?
1) DUTY = Obligation to incorporate RISK REDUCING ACTIVITIES as a person goes about their daily activities
→ e.g. Driving a car w/duty to take risk reducing measures (obey speed limit)
2) DUTY OWED TO…
(i) FORESEEABLE VICTIMS: everyone owes a duty of care to foreseeable victims of their potential negligence
NOTE: Foreseeable Victims: w/in Zone of Danger
NOTE: An UNFORESEEABLE victim ALWAYS LOSES on the bar exam → π will LOSE if he began FAR AWAY
NOTE: A RESCUER will ALWAYS be DEEMED FORESEEABLE even if rescuer enters the scene from very far away
→ Rescuer of mountain climber injured by broken rope who then falls down miles after picking up the victim → this rescuer will recover if other elements are met
3) LEVEL OF CARE = Must take same amount of care as a REASONABLY PRUDENT PERSON (RPP) in similar circumstances (objective std)
RPP: NO allowances for Δ’s shortcomings…OBJECTIVE STANDARD
Δ MUST live up to the standard EVEN IF INCAPABLE of doing so → e.g. STUPID, MENTALLY DISABLED, DEVELOPMENTALLY DISABLED, AMATEURS are still LIABLE even if DOING ALL that they CAN
EXCEPTIONS:
→ (i) ↑ std. for superior skill or knowledge (e.g. NASCAR driver = higher driving std.) → std = same std for a RPP with same superior skill or knowledge
→ (ii) adjustment is allowed for PHYSICAL characteristics (e.g. reasonable blind Δ) → Physical characteristic must have a role in the tort → NO ALLOWANCE for NON-PHYSICAL traits
E.g. Parent trained as a physician should not send child w/pink eye to school
E.g. Neighborhood resident living by busy intersection has knowledge to warrant extra precautions
RPP on bar exam tends to be OVERLY CAUTIOUS
ESSAY WORDING: “Because no special duties apply to the facts, the Δ owed the default care of a RPP acting under similar circumstances”
SPECIALIZED DUTY OF CARE: STATUTORY DUTY (NEGLIGENCE PER SE)
What are the 3 elements of STATUTORY DUTY (NEGLIGENCE PER SE)?
NOTE: NY Distinction
Negligence Per Se: * BREACH OF STATUTE = NEGLIGENCE
Note: Jury becomes FACT FINDERS and no longer has discretion in determining if there was a DUTY
To establish duty/breach, π needs to show…
1) There is a CRIMINAL STATUTE that provides for a criminal penalty that clearly defines the std. of conduct
2) The π is w/ in CLASS OF PEOPLE that the statute is meant to protect
3) the negligent action is in the CLASS OF RISKS that the statute was designed to prevent
EXCEPTIONS:
(i) compliance more dangerous than violation (e.g.
cross yellow lines to avoid hitting child); and
(ii) impossibility of compliance (e.g. heart attack
caused violation)
NY DISTINCTION:ONLY state statutes ONLY (NOT local ordinance/reg.) will establish negligence per se
→ otherwise violation of law is only some evidence of negl.)
Who are 2 victims’s who are presumptively foreseeableso are owed a duty whether or not actually foreseeable?
NOTE: NY distinction
1) RESCUERS: injuries to rescuers are ALWAYS (presumptively) foreseeable (“danger invites rescue”)
2) FETUSES: negligent Δ injures pregnant lady
→ If fetus is born dead: mother has a claim, but baby’s estate CAN’T bring claim
NOTE: If fetus born alive w/ defects: injury to baby is foreseeable:
(i) baby can recover AND
(ii) parents can recover for marginal costs given defects
NOTE: If there is a botched sterilization (“wrongful birth”): can get damages for child rearing expenses
NY DISTINCTION: parent’s CAN’T recover b/c “joy of new child outweighs marginal expenses”
NEGLIGENCE CLAIMS ASSERTED AGAINST CHILDREN
SPECIALIZED DUTY OF CARE: CHILDREN
What is the std of care owed byCHILDREN?
1) Children ≤ 4: are INCAPABLE of negligence
→ NO DUTY OF CARE
2) Children btwn 5 - 18 yrs: owe the same duty of a hypothetical child of similar (i) age; (ii) experience; and (iii) intelligence in similar circum.
E.g. → Stupid BILLY who is age 6 and riding his tricycle for the first time running over Susie’s fingers and not seen as owing higher duty of care
NOTE: drastically different standard from RPP
→ SUBJECTIVE STANDARD for CHILDREN
EXCEPTION: if child engages in adult activity
→ child is held to adult std. (e.g. vehicles w/engine
→ e.g. cars, farm equipment, watercraft, other recreational vehicles
NEGLIGENCE CLAIMS ASSERTED AGAINST PROFESSIONALS
SPECIALIZED DUTY OF CARE: PROFESSIONALS (MALPRACTICE)
What is the std of care owed byPROFESSIONALS?
1) Std of care = the same duty of care as the average member of that profession (in good standing) in similar community
→ NOTE: IN ESSAY DO NOT SAY “reasonable doctor”
2) “Similar community” =
(MBE) Look NATIONWIDE
(NY STATE EXAM) Look at specific locality in NY
EXCEPTION: specialists (e.g. brain surgeons) are
held to a national standard
3) Std. is empirical/discoverable:
(i) Fact-based std.
(ii) look at what colleagues do → Professionals
expected to CONFORM to behavior of colleagues
(iii) π often needs an expert witness to prove claim
4) Liability still turns on whether it was…
REASONABLY FORESEEABLEthat the professional’s
action / servicewouldCAUSEa HARM
5) Professionals are RQRD to OBTAIN INFORMED CONSENT
(i) DO NOT need to explain commonly known facts
(ii) NO DISCLOSURE OBLIGATION for MENTALLY
INCOMPETENT π
BUT-FOR CAUSATION
How does π establishBUT-FOR / FACTUAL CAUSATION?
π must establish LINKAGE btwn the BREACH AND INJURY
Test = “But for the breach, there would be no injury”
NOTE: Δ is NOT the factual cause the BREACH is the cause
e.g. → John is not the cause of the accident but his consumption of 8 Martinis is the cause
2 important scenarios:
1) Multiple Δs AND mingled/merged causes
→ e.g. 2 Forest Fires
USE → “SUBSTANTIAL FACTOR” test: joint liability for each Δ whose breach was a substantial causal factor (i.e. could individually have caused the damage)in π’s injury.
→ ASK THE QUESTION: Could each breach standing on its own have caused the damage?
2) Multiple Δs AND unascertainablecause (e.g. Quail Hunting case)
ALL Δs are brought into court
USE → BURDEN SHIFT: shift burden to each Δ to prove by a preponderance of doubt that they are NOT the cause; if can’t then they are jointly liable
NIED
What are the 3 elements ofnegligent infliction of emotional distress?
NOTE: NY Distinction
1) Δ acts NEGLIGENTLY
2) π was is in ZONE OF DANGER
3) π may not necesarilly suffer physical harm but there is a serious subsequent PHYSICAL MANIFESTATION (e.g. miscarriage, rash, heart attack
2 EXCEPTIONS:
BYSTANDER EXCEPTION:
if π is not in zone of danger, but witnesses injury to 3rd party; this requires:
(i) close relationship btwn π and 3rd party;
(ii) the presence of π at scene of injury; AND
(iii) π’s witnessing the injury
NY DISTINCTION: w/ this exception, π STILL has to be w/in ZONE OF DANGER AND have a immediate family relationship (nuclear family, not extended)→ NO RECOVERY for FATHER on the PORCH
NON-ZONE OF DANGER EXCEPTION:
if π is not in zone of danger, but
(i) there is in a special relationship w/ ∆and π AND
(ii) it is very foreseeable that ∆’s carelessness will cause distress to π (e.g. Dr. negligently telling patient he has AIDS when he doesn’t)
TWO TIERS OF ANALYSIS
1) ANALYZE IF NEGLIGENCE OCCURRED (Duty, Breach, Causation, Damages)
2) ANALYZE EMOTIONAL DISTRESS CLAIM
3 DEFENSES TO NEGLIGENCE
What are the 3affirmative defensesto prima facie neglience (duty, breach, causation, damages)?
NOTE: NY Distinctions
1) CONTRIBUTORY NEGLIGENCE: negl on part of π that contributes to her injury that COMPLETELY bars π’s recovery
→ Contributory negl. is a minority rule
→ Contributory negl. is NOT a defense to wanton/willfull misconduct or intentional tortious conduct
→ Last Clear Chance Exception: π is STILL able to recover n/w/s being contributorily negl. if ∆ had last chance to avoid the accident
2) ASSUMPTION OF RISK: π is denied recovery if she assumed the risk of any damage caused ∆’s act
→ NOTE: Most comparative negl. jx have ABOLISHED the separate defense of “implied assumption of risk”
→ would just analyse the π’s conduct under comparative negl. principles
→ Assumption of risk is NOT a defense to intentional tortious conduct (but it IS A DEFENSE to wanton/reckless misconduct)
NY DISTINCTION:assumption of the risk has been abolished, but cts still use label, “primary assumption of the risk”, which applies ONLY to participants or spectators in sporting/recreational activities
3) COMPARATIVE NEGLIGENCE: π’s negligence is not a complete bar to recovery, but her recovery is reduced to the extent (%) that she is negl. in causing the injury;
TWO TYPES…
(i) PURE / DEFAULT VERSION: π’s recovery is reduced by % of her fault
(ii) MODIFIED/PARTIAL : if π is ≥ 50% negligent, then she get’s NO recovery → ≥ 50% negligent = ABSOLUTE BAR to RECOVERY
NY DISTINCTION: the π may recover even if the π’s negligence % is greater than the ∆’s (BUT if π’s conduct was illegal, NO recovery)
What are the 4 ELEMENTS of a NEGLIGENCE TORT CLAIM?
What is the prima facie case for negligence?
1) DUTY: show ∆ owed duty of care to all foreseeable victims and specify what it is
2) BREACH: show ∆’s conduct fell short of his duty
3) CAUSATION: Factual or Proximate (Legal) Causation
4) DAMAGES → Recovery even for particularly fragile and the chain of events following negligent action (eggshell skull doctrine)
NOTE: if GIVEN a negl. question in an essay, MUST discuss EVERY element
How does π establishPROXIMATE / LEGAL CAUSATION?
1) For DIRECT CAUSES:established if π’s injury a immediate foreseeable result of Δ’s breach
→ ∆ is NOT LIABLE for unforeseeable harmful results not within risk created by ∆’s negl.
FORESEEABILITY GUIDLINES:
(i) PASSAGE OF TIME: longer lag btwn breach and damage is less likely to be foreseeable
(ii) PHYSICAL DISTANCE
(iii) NUMBER OF IMPORTANT INTERVENING EVENTS
2) For INDIRECT CAUSES: when there are intervening causes (increasing π’s injury),original Δ WILL STILL BE FOUND LIABLE FOR…4 WELL SETTLED FACT PATTERNS:
(i) injury caused intervening negligent medical treatment (e.g. malpractice)
(ii) injury caused by intervening negligent rescue
(iii) injury caused by intervening reactions from injury caused by protecting property/person
(iv) injury caused by subsequent accident/disease to π
foreseeableindependent intervening forces if ∆ increased the riskof harm by that force(e.g. theft, acts of God, etc);
BUT NOTE:if it’s an unforeseeableindependent intervening forceAND an INTENTIONAL tort by a 3rd person, then it’s a superseding cause (no ∆ liability)
NEGLIGENCE CLAIMS ASSERTED AGAINST POSSESSOR OF LAND
SPECIALIZED SITUATIONS:
FIREFIGHTERS & POLICE OFFICERS
NOTE: NY Distinction
CHILDREN
What is the std of care owed byPOSSESSOR OF LAND?
FIREFIGHTERS & POLICE OFFICER…
NO RECOVERY if harm resulted from an inherent danger of their job
→ THEORY = Risk is assumed and built into pay
NOTE: NY Distinction: NY allows for recovery but not against the department or colleagues
CHILDREN: under ATTRACTIVE NUISANCE DOCTRINE, LIABLE if child
(i)is foreseeably attracted to land (e.g. a pool);
(ii)CAN’T appreciate the risk of the condition; AND
(iii) compliance is less expensive than risk imposed DUTY = duty
to warn/make safe for man-made conditions (ONLY)
