Negligence Flashcards
Negligence
Defendant may be liable for negligence if the defendant owed the plaintiff a duty of care, breached that duty and the plaintiff suffered damages that were actually and proximately caused by the breach.
General Duty of Care
RPT test under same or similar circumstances.
PALSGRAF - To whom duty is owed
CARDOZO - Duty owed to all foreseeable plaintiffs in zone of danger.
ANDREWS - Duty owed to all foreseeable plaintiffs.
Adults with disability - RPT with physical disability taken into consideration. No allowance for Mental disability unless retardation.
Children:
Majority - Judged by age, intelligence and experience. If adult activity held liable as adult.
Minority - 0-7 conclusive presumption against negligence; 7-14 rebuttable presumption; 14 and over adult standard.
Common Carriers held to higher standard.
Special Duty of Care
VGOLD
Violation of Statute Guest Statute Omission to Act Landowner-Occupier Duties owed by Lessors of Land
Special Duty - Violation of Statute
1) Intent of legislation, 2) class of persons intended to be protected and 3) type of injury suffered.
Majority - Negligence Per Se
Minority - Inference of negligence
California - Presumption of negligence
Guest Statute
If plaintiff is a guest they must show gross negligence or recklessness on part of driver to recover for damages.
Omission to Act
No duty to aid another unless:
1) Injured by defendant
2) Special relationship
3) Statutory Duty to act
No duty to control 3rd person unless one had the actual ability and authority to do so.
No liability for nonfeasance, liability for misfeaseance.
Gratuitous undertaking - cannot leave in worse position.
Landowner-Occupier
Duty to person outside land - No duty as to natural conditions, except in urban areas. No duty as to artificial conditions unless abuts adjacent land, then duty to reasonably maintain in safe condition.
Duty to Persons on the Land - No Duty to Undiscovered Trespasser. Discovered or Anticipated must warn of known, latent artificial conditions likely to cause death or serious bodily harm. If frequent trespass is known, must post warnings of dangerous conditions.
Landowner-Occupier - Attractive Nuisance
1) Artificial condition creating unreasonable risk of harm.
2) Possessor of land knew or should have known children were likely to trespass.
3) Children unable to recognize danger because of age
4) Utility of maintaining condition vs. burden of eliminating risk.
Landowner-Occupier - Licensee
Those entering with permission, but not for the purpose for which the property is maintained. Social guests, salespersons, emergency response on emergency basis.
Duty to warn of known latent conditions likely to cause bodily harm.
Landowner-Occupier - Invitee
Those entering with permission for the purpose for which the land is maintained.
Public Invitee - Enters for purpose held open to public.
Business Invitee - Enters for business dealing with occupier. Customers, postman, emergency workers during business hours on non-emergency basis.
Duty of reasonable inspection for dangerous conditions and to warn of all known dangers or those which could have been discovered by reasonable inspection.
Duties owed by Lessors of Land
CL - Landlord owes no duty to person coming onto land with consent of lessee. Except:
1) latent defects the landlord knew or should have known
of
2) Conditions dangerous to persons outside premise
3) Same duty as invitees if land leased for public admission
4) Areas retained in lessor’s control
Breach of Duty
An act or omission which violated the duty owed and exposes others to an unreasonable risk of harm.
Res Ipsa Loquitur
1) Accident does not normally occur in the absence of negligence
2) Source of negligence is withing scope of duty owed
3) Plaintiff did not contribute to injury.
Effect:
Majority - Inference of negligence
Minority - Rebuttable presumption
Minority 2 - Disappearing presumption
Causation
Defendant is the actual and proximate cause of plaintiff’s injuries.
Actual Cause
“But for” the defendant’s actions the plaintiff would not have sustained the injury. Take away the defendants act if the injury still occurs they are not the actual cause.
Concurrent Cause - Separate negligence acts which would not have caused injury but for the concurrence. Both are liable.
Joint Tortfeasors - Several defendants engage in negligent conduct. All are liable even though only one inflicted actual injury.
Successive Tortfeasors - Defendants act independently but acts cause successive impacts to plaintiff resulting in indivisible injury. Tortfeasor must disprove responsibility.
