Negligence Flashcards
What are the 3 theories of breach of duty?
1) Custom or usage to define standard of care: if ∆ acts differently from the custom that everyone else follows NOT controling as to whether as to whether conduct was negligence (as the entire industry/sector/etc may be negligent)
2) 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); If π can prove3 elements (inference of negligence), it goes to jury (i.e. no summary judgment)... Accident of type that doesn’t normally occur in the absence of negligence Negligence is usually committed by someone in Δ’s position (Δ had exclusive cntl of instrument of injury) π was not contributorily negl. in the injury
What is theEggshell Skull Rule AND the Collateral Source Rule? NOTE: NY Distinction
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
What is the std of care owed bypossessor of land? NOTE: NY Distinction
1) For undiscovered trespasser(on land w/o permission OR occupier’s knowledge)… NO duty of care for activity/condition (unforeseeable)
2) For discovered/obvious trespasser (occupier knows OR should know)… Posessor activities: RPP in similar circumstances
Land conditions:duty to warn/make safe from(1) man-made (ONLY) condition; (2) highly dangerous; (3) concealed; (4) known to occupier NOTE: 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 >>then duty to warn/make safe for man-made conditions (ONLY) 3) For licensees(friends or other entrants who enter w/ permission)... Posessor activities: RPP in similar circumstances Land conditions: duty to warn/make safe for conditions (natural AND man-made) (1) concealed and (2) known to occupier 4) For invitee (business or land open to public; benefit posessor)... NOTE: an invitee loses his status as an invitee if he exceeds the scope of his invitation (i.e. becomes a trespasser) Posessor activities:RPP in similar circumstances Land conditions:duty to warn/make safe for conditions(1) concealed; (2) known or should have discovered w/ reasonable inspection NY DISTINCTION: doesn't distinguish b/t type of entrant Std of care = reasonable care under the circumstance BUT entrant status is evidence of foreseeablity(foreseeability scale: customer>guest>trespasser)
When is there an affirmative duty to act (the failure todo so constituting breach)? NOTE: NY Distinction
General Rule: NO affirmative duty to act 3 Exceptions, which necessitatesdoing what’s reasonable under circumstances(no requirement of martyrdom) Preexisting relationship: family member; common carrier; innkeeper; business owner/invitee
Δ created the danger ∆ assumped responsibility (attempted to rescue) >> liable for negligent rescue NY Distinction: For medical professionals, an attemted rescue is only actionable if grossly negligent (Good Samaritan Law)
General rule: To whom do we owe a duty of careAND what’s the level of care?
1) everyone owes a duty of care to foreseeable victims of their potential negligence Foreseeable Victims: w/in Zone of Danger
2) level of care = that given by a reasonably prudent person (RPP) in similar circumstances (objective std) RPP: NO allowances for Δ’s shortcomings;EXCEPT: (i) ↑ std. for superior knowledge (e.g. NASCAR driver = higher driving std.); (ii) physical characteristics (e.g. reasonable blind Δ).
What are the 3 elements of negligence per se? NOTE: NY Distinction
To establish duty/breach, π needs to show… 1) the statute provides for criminal penalty that clearly defines std. of conduct 2) π is w/ in class of ppl that the statute is meant to protect 3) the statute was designed to prevent the type of harm suffered by π 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 (NOT local ordinance/reg.) will establish negligence per se (otherwise only some evidence of negl.)
Who are 2 victims’s who are presumptively foreseeable(so 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
If fetus born alive w/ defects: injury to baby is foreseeable >> (i)baby can recover; (ii) parents can recover for marginal costs given defects
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"
What is the std of care owed bychildren?
1) Children ≤ 4: incapable of negligence 2) Children b/t 5 and 18: owes duty of hypothetical child of similar age, experience, intelligence in similar circum. (NOTE: drastically different standard from RPP) EXCEPTION: if child engages in adult activity»_space; child is held to adult std. (e.g. vehicle w/engine)
What is the std of care owed byprofessionals?
Std of care = that is given by the average member of that profession (in good standing) in similar community Std. is empirical/discoverable
Liability still turns on whether it wasREASONABLY FORESEEABLEthat the professional's action/servicewouldCAUSEa HARM "Similar community" = rural vs. urban;EXCEPTION: specialists (e.g. brain surgeons) are held to a national standard
How does π establishbut-for/factual causation?
Test = “But for the breach, there would be no injury” 2 important scenarios 1) Multiple Δs & mingled/merged causes (e.g. 2 Forest Fires) “Substantial Factor” test: joint liability for each Δ whose breach was substantial causal factor (i.e. could individual cause the damage)in π’s injury.
2) Multiple Δs & unascertainablecause (e.g. Quail Hunting case) Burden Shift: shift burden to each Δ to prove by a preponderance that they are NOT the cause; if can't they are jointly liable
What are the 2 elements ofnegligent infliction of emotional distress? NOTE: NY Distinction
1) π is in zone of danger 2) serious subsequent physical manifestation EXCEPTION 1: if π is not in zone of danger, but witnesses injury to 3d party; this requires: (i) close relationship b/t π and 3d party; (ii) the presence of π at scene of injury AND 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)
EXCEPTION 2: if π is not in zone of danger, but is in a special relationship w/ ∆where it is very foreseeable that carelessness will cause distress (e.g. Dr. negligently telling patient he has AIDS when he doesn't)
What are the 3affirmative defensesto prima facie neglience (duty, breach, causation, damages)? NOTE: NY Distinction
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 negl.: 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... Pure (**default**): π's recovery is reduced by % of her fault Modified/partial: if π is ≥ 50% negligent, then she get's NO 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 is the prima facie case for negligence?
1) duty (owed to all foreseeable victims/πs) 2) breach (conduct falls short of duty) 3) causation: factual (but-for) & legal/proximate (blameworthiness) 4) damages (eggshell skull doctrine) NOTE: if you are given a negl. question in an essay, you 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.
2) For indirect causes: when there are intervening causes (increasing π’s injury),original Δ IS STILL liable for… intervening negligent medical treatment (e.g. malpractice)
intervening negligent rescue intervening reactions to protecting property/person subsequent accident/disease to π foreseeableindependent intervening forces if ∆ increased the riskof harm by that force(e.g. theft, acts of God, etc); NOTE:if it's an unforseeableindependent intervening forceAND an intentional tort by 3d person, then it's a superceding cause (no ∆ liability)
