Negligence Flashcards
What are the elements of Negligence
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a. Duty – Does the law impose legal obligation between the π& ∆
b. Standard of Care: the measure of the duty owed
c. Breach of Duty: the failure to meet the standard of care
d. Cause in Fact – Connects the defendant’s breach to the π’s injury
e. Proximate Cause - Are there still policy reasons to cut off liability even with the other elements established?
f. Damages – Plaintiff must prove damages to recover for negligence
g. Defenses
What is the general rule for duty element of negligence?
When a defendant is engaged in affirmative, risk creating conduct causing personal injury or property damage –> a duty is owed to any foreseeable plaintiff
Duty is a significant issue where there is:
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(1) Unforeseeable plaintiff
(2) Nonfeasance or failure to act
(3) Harm other than personal injury or property damage
(4) Defendant is a land possessor, landlord, utility or governmental entity
Duty of ∆ when there is an unforeseeable plaintiff?
None — A duty is only owed to foreseeable plaintiffs
Foreseeable plaintiffs are those
Who you can foresee being injured based upon the nature of the ∆’s negligent acts
A duty is only owed to?
Foreseeable π’s based upon the nature of the ∆’s Negligent Acts
Duty to non-professional rescuers (even when not foreseeable)
They are found to be per se foreseeable plaintiffs and are thus owed a duty as a matter of policy
Nonfeasance is:
The failure to intervene to confer a benefit upon another
Misfeasance is:
Affirmative risk creating conduct; or,
A negligent omission
(e.g. failing to stop at a stopsign)
What is the obligation to intervene, rescue, or aid another?
There is no duty to rescue, aid, control, or protect.
When does the duty to rescue or aid occur?
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- When ∆’s tort creates need for rescue;
- If a person chooses to undertake the rescue, then they have a duty to do so reasonably or not leave them worse off;
- ∆ creates reliance
- There is a special relationship of dependence or mutual dependence
When ∆ creates a duty by undertaking a rescue act, ∆ is liable when
(2)
a) Some jurisdictions say you are only liable if you leave the defendant in a worse position.
b) Good Samaritan statutes – Those who rescue others will not be liable for their negligence in bring about rescue –> only liable if reckless or intentional
When does ∆ create a reliance to rescue or aid occur that gives rise to a duty?
When π reasonably relies on the assurances of ∆for rescue
When does ∆ have a special relationship to rescue or aid occur that gives rise to a duty?
- Parent and child
- Common carrier/passenger
- Innkeeper/guest.
- Captain/passenger or seaman.
- Shopkeeper-customer
What is the default duty to control/warn third parties?
There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another.
When is there a duty to control/warn third parties?
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When ∆ should know of the dangerousness of a third party and
{
1) [∆Controls Injuring Party] A special relationship exists between the actor and the third person that imposes a duty upon the actor to control the third party’s conduct
or
2) A special relationship exists between the actor and the injured person that gives the other person
}
What is the liability of a provider of alcohol?
Generally, provider of alcohol is not responsible for acts of recipient.
What is the exception to alcohol provider liability
Dram Shop Acts
What are Dram Shop Acts?
Impose liability on certain ∆’s such as commercial establishments for providing alcohol to a patron they
Know or should know is intoxicated.
When do dram shop acts apply?
When a statute specifically stipulates it applies
When does negligent entrustment arise?
A duty is owed to any foreseeable plaintiff
When ∆ gives something dangerous \+ to someone the ∆ knows or should know \+ Is incapable of handling
Default duty to protect
One generally does not have a duty to protect from third party criminal conduct.
When does the duty to protect arise?
Special relationship
(such as a landlord/tenant, business/invitee, common carriers).
+
Third Party conduct High level of foreseeability (a prior similar incident)
When ∆ is a governmental entity, ask what to examine duty owed?
(3)
Gov’t act is
- Discretionary?
- Proprietary?
- Ministerial
When is the government acting in a proprietary function?
What is the duty of government?
(1) Acting in an area traditionally occupied by private entities
(2) The government will be treated as any other defendant for the purposes of duty
When is the government acting in a discretionary function?
What is the duty of government?
Discretionary activity:
(1) Where the governmental entity is using
a. judgment,
b. discretion, or,
c. allocating resources
(2) The courts: will not find a duty
When is the government acting in a ministerial function?
What is the duty of government?
(1) There is no discretion in the act –> performance of decisions
(2)Courts will find a duty;
once the governmental entity has undertaken to act
+
allocated the resources
–> It must act non-negligently
What is the liability of an emergency department for inadequate response?
When a government agency (e.g., police, fire department) is sued for failing to provide an adequate response, courts will find no duty.
When will liability be imposed upon an emergency department for inadequate response?
(2)
1) There is a special relationship between the plaintiff and the agency that creates reliance in the plaintiff
2) The agency has increased the danger beyond what would otherwise exist.
When ∆ is a utility company, what is the duty?
The duty is that of parties who are in privity of contract
+
Are injured on the premises where the contract applies
If the plaintiff’s injury is not primarily personal injury or property damage, when do duty issues arise.
- Emotional Distress
2. Bystander Actions
what are the special rules for emotional distress?
Courts have traditionally been reluctant to allow liability for emotional distress because of the fear of fake claims and excessive liability; therefore special rules apply for emotional distress
When does emotional distress occur?
When emotional distress is the first injury suffered by the π.
When does direct emotional distress occur?
Defendant engages in negligent conduct and as a result, the \+ plaintiff suffers emotional distress \+ Leads to a physical manifestation
To recover for direct emotional distress the plaintiff must:
In most jurisdictions, to recover for emotional distress the plaintiff must:
1) have been in a “zone of danger”
+
2) have suffered some accompanying physical manifestation of the emotional distress
What is the zone of danger?
An area where the π was at risk of suffering physical harm {a near miss}
The π must be actually at risk
What are the exceptions to recovery for direct emotional distress?
a) If defendant negligently transmits a telegram announcing the death of a loved one; and
b) If defendant negligently mishandles a corpse.
They are owed a duty without being in the “zone of danger” or having to suffer an accompanying physical manifestation
When can Bystander Actions be brought?
Majority Rule
Majority: When the πwas in the zone of danger
What is at issue in a bystander action?
The physical harm occurs to a loved one (a close relative)
and the bystander is suing for witnessing the physical harm
When can Bystander Actions be brought?
Minority Rule Rule
(1) was located near the scene of an accident;
(2) suffered severe emotional distress; and
(3) had a close relationship with the victim.
Wrongful conception applies where the injury is?
Damages?
The birth of a healthy but unwanted child
(e.g. went to be sterilized but it did not take)
Damages = The birth related expenses + cost of another procedure
Wrongful birth applies when?
The birth of an unhealthy child
+
The physician’s failure to diagnose a disability in the fetus, which plaintiff claims would have led her to not give birth to the child.
Damages: Some courts will award the extraordinary costs of having a child with special needs, but the jury may offset this award by the benefit obtained from having the child.
When a child is born unhealthy based on doctors negligence?
The baby can recover against the doctor, no special rule.
Wrongful life is recoverable when?
It is not recoverable
Land possessor liability for plaintiffs on the land; categories?
- Invitees
- Licensees
- Trespassers
What is an invitee?
An invitee is a person who enters onto defendant’s land at
+
defendant’s express or implied invitation,
+
and who enters to:
1. {customers} potentially confer an economic benefit on the land possessor; or,
2. {public lands} the land is held open to the public at large
When someone comes onto a land and is injured by a condition on the land, their recovery depends upon?
Whether they are an invitee, licensee, or a trespasser
What is the duty owed by land possessors to an invitee?
The duty to exercise reasonable care to prevent injuries to invitees caused by conditions on his land.
What is an licensee?
A licensee is a person who enters onto defendant’s land
+
with defendant’s express or implied permission.
(e.g. friends at your house)
Not there to confer economic benefit nor is the land held open to the public at large
Social guests are . . . ?
Licensees
What is the duty owed by land possessors to a Licensee?
Land possessors must warn licensees of known concealed dangers on the property
(must know of condition + condition is non-obvious)
What is a trespasser?
A trespasser enters a land without the express or implied consent of the land possessor.
-Mistake does not matter
What is the duty owed by land possessors to a trespasser?
Avoid the infliction of willful or wanton harm
i.e. cannot willfully hurt them
To determine land possessor liability, consider
In the specific area where the injury occurred, what was the status of π –> can change within the same facility.
If a Land possessor is performing activities on their land, what duty is owed?
Then a duty of reasonable care is owed to any person on the land (except for unknown trespassers)
When does a land owner have a duty to search out dangers on the property?
When an invitee is present
If there are known or frequent trespassers the land possessor must,
Warn of known artificial conditions on the land
When does child trespasser doctrine/attractive nuisance apply?
All factors must be proven
1) The child is too young to appreciate the danger
2) It is foreseeable to the land owner that there are children entering the property
3) The ∆ know of the dangerous condition on the property
4) The condition is an artificial condition (man-made)
5) The risk is so great that it outweighs the utility and the burden that would be placed on the defendant
If doctrine of child trespasser applies, then what duty is owed
treated as an invitee and owed a duty of reasonable care
Duty of a land possessor to π on adjacent to land If an artificial condition exists on their land?
Then the duty of reasonable care is owed to π
Duty of a land possessor to π on adjacent to land If an natural condition exists on their land?
No duty; unless it is a tree in an urban area
When there is a duty found, what must next be proved
Breach + causation + injury
What is the duty owed to tenants and third parties for injuries on a leased property?
Generally no duty
When is a duty owed to tenants and third parties for injuries on a leased property?
- Condition is in a common area (area that landlord maintains control);
- Negligent Repairs;
- The landlord {knows} of + concealed conditions + at time of lease –> obligation to warn; or,
- The landlord knows that tenant is going to hold the property open to the public at large –> duty of reasonable care
What is the standard of care for a reasonably Prudent Person Under the Same or Similar Circumstances?
Objective standard of care that measures the ∆’s conduct against a reasonable person’s circumstances
Defendant must rise up to the level of the average person in the community
