NEGLIGENCE Flashcards
What are the four elements of negligence cause of action?
1) Duty 2) Breach 3) Causation 4) Damage
To whom is a duty owed?
Foreseeable victims
How much care is required for duty of care?
As much as would have been exercised by hypothetical reasonably prudent person acting under similar circumstances
EXCEPTIONS:
(a) If D has relevant superior knowledge, imputed to standard
(b) Reasonably prudent person assumed to have physical attributes of actual D
The standard of care of children alters the general reasonable prudent person presumption for duty of care relating to them. What is the child standard of care?
1.
What is the professional standard of duty of care?
Owes patient/client care of average member of that profession practicing in similar community
What is the difference between a professional standard of care and a jo blogs one?
The jo blogs one is this reasonably prudent person, professional standard is that of an existing average person in the profession.
What is the informed consent doctrine for doctors?
Doctor must explain risks of recommended procedures to patient before decision, EXCEPT
(a) need not disclose commonly-known risks
(b) need not disclose if patient declines/incompetent
(c) need not disclose if would be harmful
Is there any duty of care owed to an undiscovered trespasser?
No care of duty at all because they are unforeseeable.
Is there any duty of care owed to a discovered trespasser?
default negligence standard
Conditions: protect from known, hidden, man-made death traps
What is the duty of care owed to the licensee, i.e. your friends etc?
(social guests)
Activities: default negligence standard
Conditions: protect from known, concealed conditions
What is the duty of care owed to the invitee?
(confer $ benefit or open to public)
Activities: default negligence standard
Conditions: protect from all reasonably knowable concealed conditions
Does NY have the rules around duty of care to various different entrants on property?
No, abolished the rules, use reasonably prudent person ‘under the circumstances’ test.
What are two exceptions to the rules around entrants to property?
For firefighters and cops and children.
So can Firefighters and police officers recover for injury when going on property?
May never recover from those risks inherent to their jobs even if traced to other’s negligence
What is the obligation with children who trespass?
You have an obligation to exercise reasonable prudence under the circumstances to protect trespassing children from artificial conditions on the land.
How on earth can i escape premises liability?
Fixing the problem
Giving a warning
When might we be able to borrow words of a criminal statute to use as a one time special standard of care?
- P is member of class of persons statute seeks to protect
- Accident in class of risks statute seeks to prevent
EXCEPT:
- If compliance with statute more dangerous than violation, statute does not set standard of care
- If compliance with statute impossible, statute does not set standard of care
What are examples of borrowing words of criminal statute to use as one time special standard of care?
Motorvehicles etc. But can’t borrow weed statute to get someone because she lit doobie and gas leak and apartment blew up yah
Whats an example of where compliance with a statute would be more dangerous than the violation?
If i swerve to stop hitting child and cross yellow lines.
Run red light cause having a heart attack.
Is there any affirmative duty to act?
NOOOO!!!
Is there a duty for rescuers to act?
Only if:
1. Preexisting relationship between D and person in peril; OR
2. D put person in peril
Then: default negligence standard
Is a good ol gratuitous rescuer liable?
Hardout they are liable for botched rescue
Are you liable as a good samaritan? NY good samaritan law insulates you from gratuitous negligence liability. BUT who does it protect?
Protects only:
- Nurses
- Doctors
- Veterinarians
Not against gross negligence
What are the two instances of negligent infliction of emotional distress?
1) Near miss cases.
2) Bystander cases.
What are the requirements for near miss infliction of emotional distress cases?
(a) Near-miss case: P in zone of physical danger produced by D’s negligence AND THEN suffered physical manifestations of distress
What are the requirements for bystander infliction of emotional distress cases?
Bystander case: P bystander observes D’s negligent injury of third party in real time at close proximity AND physical victim is close family member (NY: must be in zone of danger)
What do you do for breach?
Identify what D did wrong and explain why it is wrong.
What about where I know the defendant did something wrong but I lack information about what the D did wrong? i.e. I got injured by barrel but no idea why it fell.
Res ipsa loquitor is used in these circumstances.
Used by P when lacking information and therefore cannot identify what D did wrong
Two substitute facts:
- accident is type normally associated with negligence
- accident normally due to negligence of someone in D’s position (or D had control of instrumentality immediately before accident)
What is the factual causation test?
ALWAYS MENTION FIRST
Whether, but for breach, P would have escaped unharmed
If 2+ defendants:
- Merged causes (2 fires burn down house): ask whether each breach substantial factor; if any 1 breach could have caused injury alone, factual cause
- Unascertainable cause (2 shooters, 1 bullet): each D must come forward with prove to exonerate
How do you show proximate cause?
If foreseeable, proximate cause
- Direct cause: only unforeseeable if freakish or bizarre
- Indirect cause: if this injury is why this breach is problematic, proximate cause
What are the four types of cases that have been found by precedent to indicate that injury is foreseeable and fair?
1) Cases with intervening medical malpractice issues
2) Intervening negligent rescue
3) Intervening reaction or protection forces
4) Subsequent disease or accident.
What is the eggshell skull doctrine?
Once D committed all other elements, liable for all damages suffered by P even if surprisingly great in scope
NY: tort reduced by monies received elsewhere by P to compensate for same injury
