Negligence Flashcards
What are the theories of breach of duty?
1) Custom or usage
2) Violation of criminal statute (negligence per se)
3) Res Ipsa Loquitur
Custom or usage = if ∆ acts differently from the custom that everyone else follows (not dispositive; industry could be negligent as a whole)
Res Ipsa Loquitur = π can’t specifically explain what Δ did to cause the injury, but If π can proveother 3 elements (inference of negligence), it goes to jury (i.e. no summary judgment/directed verdict)
Factors for Res Ipsa Loquitur
- Accident is normally associated with negligence
- Δ’s position lends itself to negligence (control)
- π was not contributorily negl. in the injury (old req.)
What is theEggshell Skull Rule AND the Collateral Source Rule?
NOTE: NY Distinction
Eggshell Skull Rule = take π as you find him, pay 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 payments
What is the standard of care owed bypossessors of land (including to special classes of entrants)?
How can possessors of land satisfy the duty?
NOTE: NY Distinction
NY DISTINCTION: Care of reasonably prudent person under similar circumstance. Status of entrant is evidence of what the prudent person would do.
MBE: Depends on the type of entrant.
1) Unknown/undiscovered trespasser = NO DUTY
2) Known/discovered/anticipated trespasser = Protect from known, man-made, death-traps
- Artificial conditions;
- Highly dangerous;
- Concealed/hidden;
- Known in advance
3) Licensee (guests) = Protect from all known traps
- Concealed/hidden conditions;
- Known in advance
4) Invitee (patrons) = Protect from all reasonably known traps
- Concealed/hidden conditions
- Known or could have been discovered by reasonable inspection (consider custom; how long it has been there)
** An invitee becomes a trespasser if he exceeds the scope of his invitation
** Open and obvious conditions are actually hidden if the entrant will be distracted
Special Classes of Entrants:
1) Firefighters and Policemen = cannot recover at all for inherent risk of the job (NY DISTINCTION = allows recovery except from department or coworker)
2) Attractive Nuisance Doctrine = children are owed duty with respect to any artificial condition on the land if:
- Foreseeable attraction
- Children unlikely to appreciate the risk
- Compliance less expensive that risk imposed
Duty can be met by fixing the condition or giving a warning
When is there an affirmative duty to act (the failure todo so constituting breach)?
NOTE: NY Distinction
There is generally NO affirmative duty to act. Exceptions:
1) Preexisting legal relationships
2) Δ created the danger
** Need only do what is reasonable under the circumstances (duty to act, not necessarily rescue)
** If ∆ voluntarily rescues, he will be liable for negligence
NY DISTINCTION (Good Samaritan Law): Voluntary rescuers not liable for negligence; medical professionals only liable for gross negligence
General rule: To whom do we owe a duty of careAND what is the level of care?
1) Everyone owes a duty of care
2) To all foreseeable victims (w/in the zone of danger)
Level of care = Care of a reasonably prudent person acting under similar circumstances
** An objective/abstract standard
** Never goes down based on capability, but can go up for superior skill or knowledge, or change based on physical characteristics, where relevant
What are the elements of negligence per se?
NOTE: NY Distinction
1) Criminal statute clearly defines standard w/r/t
2) Class of person injured
3) Class of risk actualized
EXCEPTIONS - Statutory standard not applied if:
1) Compliance is more dangerous than violation
2. Compliance is impossible under the circumstances
NY DISTINCTION:Only state statutes will establish negligence per se. Local ordinances and regulations are just regular evidence.
What type of victims are presumed to be foreseeable, such that they are always owed a duty of care?
NOTE: NY distinction
1) Rescuers (“danger invites rescue”)
2) Fetuses
** Would-be parents have claim for wrongful death; babies born with defects and their parents have claims for wrongful birth
NY DISTINCTION: Parents CANNOT recover b/c “joy of new child outweighs marginal expenses”
What is the standard of care owed bychildren?
1) Children under 5 = NO DUTY
2) Children aged 5 to 18: owes duty of hypothetical child of similar age, experience, intelligence acting under similar circumstances
** A subject, pro-Δ standard
EXCEPTION: if child engages in adult activity»_space; child is held to adult standard (e.g. vehicle w/engine)
What is the standard of care owed byprofessionals?
Standard of care = Duty to exercise the skill and knowledge normally possessed by other members of the same profession in good standing (MBE = national; NY = same or similar locality)
** An empirical/discoverable standard, generally based on expert testimony
** Includes doctors, lawyers, accountants, engineers, architects, etc.
** More likely to hold specialists to national standard
How does π establishfactual (but-for) causation?
Generally = Sine qua non (but-for) test
Multiple Δs and mingled/merged causes = Substantial factor test. Each Δ whose breach was substantial causal factor is jointly liable
Multiple Δs and only one unascertainable cause = Δ must prove they are not responsible; otherwise jointly liable
What are the elements (of each type of) negligent infliction of emotional distress?
NOTE: NY Distinction
Three types of cases:
1) Near Miss (fright/fear)
- Negligent conduct
- Placed π in the zone of danger
- π suffered subsequent physical manifestations
(observable, measurable, physical) as a result
2) Bystander
- Negligent conduct
- Placed π in the zone of danger
- Harmed close family member (parent, spouse, child)
- π was physically present at scene of injury AND
- π is a contemporaneous witness
3) Business Relationship
- Highly foreseeable to carelessness will cause distress
What are the affirmative defensesto prima facie neglience (duty, breach, causation, damages)?
NOTE: NY Distinction
1) Contributory Negligence (complete bar)
2) Assumption of Risk (complete bar)
3) Comparative Negligence (partial bar)
NY DISTINCTION = only comparative negligence; “primary assumption of the risk” applies only to sporting events
Pure Comparative Negligence (NY) = π’s recovery is reduced by his proportional (%) fault (unless π’s conduct was illegal)
Modified/Partial Negligence = If π is ≥ 50% negligent, then recovery is barred
What is the prima facie case for negligence?
1) Duty owed to all foreseeable victims
2) Breach
3) Causation: factual and legal (but-for and proximate)
4) Damages
NOTE: if you are given a negligence question in an essay, you must discuss EVERY element
How does π establishlegal/proximate causation?
A fairness test, measured by foreseeability. Consider time, distance, and intervening events.
1) Direct causes = Injury must be an immediate foreseeable result of Δ’s breach
2) Indirect (intervening) causes = Original Δ IS STILL liable for…
- Intervening medical negligence
- Intervening negligent rescue
- Intervening reaction or protection of property/person
- Subsequent accident or disease
NOTE:NO liability for SUPERSEDING CAUSES (unforeseeableindependent intervening forceAND an intentional tort by 3d person)
What is the standard of care owed by medicalprofessionals?
In addition to heightened standard of care owed by all professionals, medical professionals must:
Explain the risks of a medical procedure to a patient before conducting the procedure
- Don’t have to explain commonly known risks
- Don’t have to make disclosures to incompetents
