Negligence Flashcards
Negligence - Elements (4)
- Legal Duty - foreseable P/Risk
- Breach of legal duty - Standard of care
- Causation (but for and proximate)
- Damages - special/gral and comparative fault
Negligence - Relation with IT
- In both No intent to cause harm
- If elements for IT not configured, then possible claim under N
Negligence - Legal Duty - General Duty Standard / foreseable risk-P
“Reasonable prudent person under similar circumstances”
N = failure to meet standard when there is a foreseable risk for a foreseable P
Negligence - Legal Duty - Jury Balance Test / factors, equation
To determine failure with reasonable prudent person Jury must weigh factors :
- Risks against any value created by D’s activity
- Judge Hand equation:
- D’s burden of precaution vs probability of harm times magnitude of harm if it occured
Negligence - Legal Duty - Jury Balance Test - Use of Expert Testimony / need, test
- Jury might need for assitance by expert tesitmony when activity requires scientific, techincal, special knowledge/skills/experience
- Test for need:
- Can ultimate understanding be helped with expert
- Does the expert have the rigth skill, knowledge education
- Are Daubert SRA reliance evidence requirements met? (sufficient facts, reliable pples, applied reasonably to facts)
Negligence - Legal Duty - Health Care Professional - Standard of Duty
Ordinary prudent medical professional or healthcare institution
- raised for board certified specialist - “prudent specialist”
Negligence - Legal Duty - Health Care Professional - Consent requirements/ types (2)
- Express: Requires for full disclosure of risks/dangers/benefits/alternatives
- lack of is considered N
- P must prove patient would not have consented if having fully appreciated
- Implied: imputed consent in case of life-threatening emergency where patient cant consent
- D must prove reasonable person woul have consented
Negligence - Legal Duty - Health Care Professional - Consent requirements/Scope of consent
BATTERY when doctor exceeds scope consent or conducts non emergency procudrye without consent
Negligence - Legal Duty - Legal Malpractice / gral rule, causation
- Gral rule: no local standard applicable
- For liaiblity, P must prove “but for causation”
Negligence - Legal Duty - Rescuer - Gral rule
NO CL DUTY TO ASSIST STRANGER
- if rescuer acts voluntarily, he risks being sued for N for increasing risk or harm, or worstening injury (unless good samaritan doctrine applied)
Negligence - Legal Duty - Rescuer - Tortfeasor Liability /2 types
- “Rescue Doctrine”: original tortfeasor liable for original injury and additional harm suffered because of rescue AND injuries suffered by rescuer
- Harm Creator: original tortfeasor duty to rescue/aid/summon/help for victim for risk created
[Tortfeasor not liable for “Professional Rescuer”]
Negligence - Legal Duty - Rescuer - Good Samaritan Doctrine
To avoid liability for N of volunteer/well intended rescuers (not for tortfeasor)
- Rescuer liable only for gross N or wanton misconduct
- Jusitifes liaiblity of tortfeasor towards rescuer because it is foreseable that someone would aid if risk created
Negligence - Legal Duty - Rescuer - Co-Venturers
If 2 or more people acting together in creating risk
- Duty to rescue each other
Negligence - Legal Duty - Rescuer - “Professional Rescuer Doctrine”
- Tortfeasor not liable for professional rescuer injuries
- Regular compensation is deemed as assumption of risk
Negligence - Legal Duty - Emergency situation / standard, exception
In case of emergency - lower bar for acting because of need for INMEDIATE action
- Lower standard: “reasonable person in similar emergency”
- UNLESS D’s N created the emergency or injury was foreseable from his actions
Negligence - Legal Duty - Agency Vicarious Liability / when, ppal rights
- Liability of ppal for agent’s actions under “respondeat superior” doctrine when:
- within course and scope of agency or furtherance of business
- activity inherently dangerous
- No vicarious liaiblity if “frolic of its own”
- Recovery right against agent if ppal had to pay
Negligence - Legal Duty - Agency Vicarious Liability - Independent Contractor Rules
- Torts by independent contractor usually not generate vicarious liaiblity UNLESS:
- Ppal with control in the means and objectives of the work
- Inherently dangerous activities
Negligence - Legal Duty - Agency Vicarious Liability - for Selection and Supervision
- In relation to selection of employees of negligent employees and/or person with violent/dangerous behaviour or history
- In relation to supervision or control of the specific acts
Negligence - Legal Duty - Agency Vicarious Liability - Joint Venture
- Vicarious liaiblity btwn members of joint venture WHEN torto witihin course and scope
Negligence - Legal Duty - Automobile Use Liability - Various possible cases (8)
- Right of way: to the car in the right of the rossway
- Rear-end collision
- Last clear chance exception
- Crosswalk yield for pedestrians
- Family Purpose Doctrine: parents liable for allowing child to drive
- N per-se -violation of statutes
- Owner liability / Negligent Entrustment
- Guest Statutes
Negligence - Legal Duty - Automobile Use Liability - Last Clear Chance Exception
Limits driver liability’s when D had the last chance to avoid the accident
Negligence - Legal Duty - Automobile Use Liability - Negligence Per se
For violation of statues
- i.e. driving while intoxicated
Negligence - Legal Duty - Automobile Use Liability - Owner Liability (3)
- Negligent Entrustment: not to allow known negligent, reckless, drunk to use vehicle
- Automobile theft: owner not liable UNLESS keys in the door or ignition
- Vehicle Defect: owner no liability unless knew of defect
Negligence - Legal Duty - Automobile Use Liability - Guest Statutes
Driver not liable to not paying passengers
UNLESS gross N, recklesness, intoxication
Negligence - Legal Duty - Common Carriers and Inkeepers
- Held to higuer standards
- Slight N is not enough (closer to SL)
- Hotel not liable for torts committed by guests
Negligence - Legal Duty - Land Owner/Possessor - Types of liabilities (5)
- Outside the premises
- Inside the premises:
- Adult tresspasser
- Licensee
- Invitee
- Attractive nuisance for child tresspasser
- Dangerous activities/conditions
- Landlord’s liability
- Land vendor
Negligence - Legal Duty - Land Owner/Possessor - Outside Premises / gral rule, exceptions (3)
Gral rule: NO LIABILITY
UNLESS:
- Dx from controllable items: i.e. artificial objects falling frm window
- Falling trees
- External pedestrian and natural accomodation if they create danger
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Gral Rule
Liability depends on the nature of the hazard AND status of intruder
- Artificial hazard demand higher duty standard than natural
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Adult Tresspasser / gral rule, exception
Gral Rule: Tresspass at own peril
- No duty to warn and not liable for dx from dangerous conditions
UNLESS
- Knowledge of constant tresspass over a limited area - it creates limited duty to warn or correct
- No wilfull N or excessive use of force
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Adult Tresspasser - Willfull Negligence and Excess Force
Liaiblity of owner for use of unreasonable or deadly force to defend property
- i.e. bear traps, spring guns, etc
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Adult Tresspasser - Rescuers
Owner liaiblity with rescuers injured
- based on rescue doctrine and creation of harm
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Licensee / i.e., liability, satisfaction of duty of care
Has express or implied permission to be in the premises for non-business purposes
- i.e. social guest, canvassing sales person, police, emergecny workers, children owner is aware are tresspassing
LIABLE for: visible or known dangerous conditions could be reasonable to anticipate wont be discovered by licensee - SATIFACTION with Warning
NOT LIABLE for unknow danger
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Invitee - Types (2)
With Express/implied authorization by owner for:
- Public Access
- Business services for the owner
i.e.: employees, customers, mail carriers, building inspectors
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Invitee - Inspection Duty + Liability
Standard: Reasonable Care
- duty to inspect
- Duty to warn and repair, make safe REASONABLE HARMS
- Unawareness nt a defense - if sufficient time passes then it is deemed constructive notice and made liaible for failure to fix
-
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Invitee - Exceeding Invitation Rules
- Exceeds area
- Duty to inspect/correct/fix/warn reduced
- similar to one to license or trespasser
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Attractive Nuisance / gral application, duty, type
- For child tresspassers
- Duty to avoid harm
- Depends on type of condition:
- Artificial
- Natural
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Attractive Nuisance - Artificial Condition / elements, laibility, satisfaction of duty, status of children
- Child attracted to dangerous condition “itself” AND his is not old enough to objectiviley appreacite danger
LIABILITY for condition left exposed in place it could reasonable to expect it could be found by children
- WARNING not enough
- Children status changes from tresspasser to invitee
Negligence - Legal Duty - Land Owner/Possessor - On the Premises - Attractive Nuisance - Natural Condition / gral rule, exception
- Gral Rule: No liability
- UNLESS:
- Danger easily discoverable under reasonable inspection (no liability if hidden) AND
- easily avoidable by taking simple precautions
Negligence - Legal Duty - Land Owner/Possessor - Landlord Liability / gral rule, exceptions (3)
Gral Rule: lessor not liable for hazard created after lessee took possession
UNLESS:
- lessor and not lessee knew about hazard
- Injury occured in common areas
- Lessor contracted or made negligent repairs
Negligence - Legal Duty - Land Owner/Possessor -Land Vendor
No general duty under CL
- some states require disclosure of latent hazards and dangerous conditions not discoverable under reasonable inspections
Negligence - Legal Duty - Animal Owners - Types (2)
- Wild animals: SL for personal injury and property dx
- Domestic
- Dogs: One free bite rule - liable if knew about vicious propensity - even if victim is trespasser
- Everything else: ordinary negligence liaiblity: liable if reasonable to know of dangerousnes and didnt take measures
Negligence - Legal Duty - Vendors of alcohol - Gral/types (3) and criterias
Liaiblity will depend on type, degree of harm and degree of foreseability
- Types:
- Commercial vendor
- Commerical host
- Social Host
Negligence - Legal Duty - Vendors of alcohol - Types and liabilities
- Commercial Vendor: not liable for later consumption and no duty to control adult patrons
- Commercial Host: no duty to protect from himself, but liable for 3rd party harm if it was foreseable it would injure 3rd parties.
- Social Hosts: Liability for assisting intoxicated person, i.e. lend him a car
Serving children usually Negligence per se, unless served and consumed by parents
Negligence - Legal Duty - Violation of Statute - Gral /what, causation, excuses
- Statute establishes unreasonable conduct that generates liaiblity
- For civil and criminal statute
- Violation is not enough, proof of CAUSATION is necessary
- Possible excuses:
- inability to comply after reasoanble diligence
- non-violation worse than violation
Negligence - Legal Duty - Violation of Statute - Criminal Statute
Per-se Negligence
- Not SL, bc it still requires proof of causation and dx
Negligence - Legal Duty - Violation of Statute - Civil Statute
- Most states only as E of negligence but no liaiblity
- 2 possible questions:
- Is P part of the protected class of the statute?
- What harm is tried to be prevented?
Negligence - Breach of Duty - Proof/ burden, type of E (3)
- P has to satisfy burden of proof of the breach by use of
-
Direct Evidence: direct proof action/omission that injured P.
- if no reasonable factual dispute, judge can direct verdict
- Indirect Evidence: “circumstantial” , not regularly used
- Res Ipsa Loquitor: even w/out evidence jury instructed to infer Negligence from DX
Negligence - Breach of Duty - “Res Ipsa Loquitur” / what, necessary showing (3), effect
- Even w/out evidence jury instructed to infer Negligence from DX - even w/out knowledge of D’s action
- As a rebuttable presumption of N
- Necessary to show (3)
- Injury wouldnt ordinarily happen w/out someone influence
- Operative instrumentality was under D’s exclusive control
- No competing plausible guest
i.e. patient wakes up from surgery with instrument inside
Negligence - Breach of Duty - “Res Ipsa Loquitur” / Effect
NOT CONCLUSIVE
- satisfies burden for prima facie case
- avoids directed verdict
- jury still needs to inquiry about causation and breach of duty
Negligence - Causation - Types (2)
To show connection between breach of duty with dx, need to show 2 types:
- Proximate Causation
- “But-for”/ Actual/In case Causation
Negligence - “But for causation”
- aka “actual”, “In case”
- Gral Rule: If not for D’s lack of care no dx would have result”
- Does not need it to be the only cause, it can also be susbtantial factor that contributed to harm - i.e. when mx tortfeasors
Negligence - “But for causation” - Alternate Cause Rule
When mx Ds act together but onyl 1 caused harm making it hard for P to prove individual cause
- SHIFT OF BURDEN - D has to show personal act didnt cause harm
Negligence - Proximate Cause - Test
FORESEABILITY of result of the action
- cause not too remote or improbable from D’s action/omission
- Causal relation not broken by unforeseable independent forces or actors (superseeding causes)
- “Reasonable” connection
Negligence - Proximate Cause - “Superseding Causes” Rule
Breaks proximate causation
- indicative when action is willful or wanton
- The more unexpected the act, the better to cause break on causation
- Tortfeasor might be relieved form liaiblity only in relation to portion of dx from intervening act
Negligence - Dx - Types
- Nominal: for BAFTD
- Actual: as material loss and dx
- include property dx, economic loss, pain, suffering
- future losses: have to be foreseable, adjusted to current market value and not too speculative
Negligence - Defenses - Types (3)
As related to P’s own fault for the tort
- Contributory N
- Comparative Fault
- Assumption of RIsk
Negligence - Defenses- Contributory N
- aka: doctrine of avoidable consequence. Used by very few jdx
- Unreasoanble conduct by P created total defense for D, as in “all or nothing”
- P and D subject to similar reasoanble person standard of care UNLESS:
- In relation to child, insane or deficient of physical attribute
Negligence - Defenses- Contributory N - Exceptions (2)
- Last clear chance rule: P’s N is not offsett if D has last chance to avoid harm by using ordinary care
- I_ntentional, willful, wanton or Reckless D:_ whose conduct goes beyond ordinary nelgigence
- courts usually think this is an issue to be decided by jury
Negligence - Defenses - Commparative Fault / gral rule, use
- Most commonly use (default for questions)
GRA RULE: Fault by P contributing to injury proportionally diminishes the $ awarded to him for dx - “Pure Comparative Fault System”
- applies to all torts based in fault and N, SL, PL
- Not in many jdx for IT
Negligence - Defenses - Commparative Fault - Exceptions to Realtive apportionment (3)
Where P might not recover anything from D (different systems):
- “Modified comparative fault”: When P’s fault corresponds to more than 50%
- Unnecesary Recklessness and more than 50% P’s fault
- Felony commission by P
Negligence - Defenses - Assumption of Risk / what, how, application
- Voluntary consent that exculpates D from negligence liability
- P must understand the potential future risk involved
- Consent can be:
- Express: in contract exculpatory claus,although many state disrgeard “blanket provision” for product liaiblity - need for separate negotaition
- Implied
- __Can also be applied for SL or PL
