Negligence Flashcards
Negligence - General
Definition - failure to exercise the care that a reasonably prudent person would in that situation would exercise and acting in a way that breaches a duty to prevent foreseeable risk of harm to others.
Note - breach of duty must be cause of plaintiff’s harm
Elements -
- Duty
- Breach
- Causation (cause in fact + proximate cause)
- Harm
Duty - Rule & Failure to Act
Rule - legal duty owed to all foreseeable persons who may be injured by the D’s failure to follow a reasonble standard of care
Failure to Act - no duty to act affirmatively (help others)
Duty - Foreseeability of Harm
Foreseeability of Harm - if acting affirmatively (helping others) then foreseeability of harm to tothers is enough to give rise to general duty of reasonable care.
Foreseeability of Harm to P - duty of care owed to P only if P is a member of the class of pesons who might be foreseeably harmed by the conduct
Duty - Affirmative Duty to Act
Rule - no duty to help others except in following cases:
- Assumption of Duty - person voluntarily aids or rescues another is liabile for injury caused by the failure to act with reasonable care.
- Placing Another in Danger - if you place the party in danger, then duty rises to assit with reasonble care. (e.g., accidently bumping someone into pool who then starts to drown)
- By Authority - person with the ability and authority to control another has a duty to exercise reasonble control
- By Relationship - defendant has special relationship with plaintiff jas duty to aid or assit her and prevent reasonbly foreseeable injuries (e.g., business patron or common carrier-passenger)
OHIO - if person gives emergency care outside a medical facility, that person will not be held liable for damages for administering emergency care unless he acts wiillfuly and wantonly.
Duty - Standard of Care
-
Resonably Prudent Person under the Circumstances - objective standard that views a number of factors
a. Mental & Emotional Characteristics - D presumed to have average mental abilities and knowledge
b. Physical Characteristics - particular phys. characteristics are taken into account (e.g., blind/deaf)
c. Intoxication - held to same standard as sober person unless intoxication was involuntary
d. Children - what would reasonably prudent child of that age do UNLESS child engaged in adult activity (e.g., driving a car)
Note - children under 5 cannot be held liable for negligence generally
OHIO - children under 7 cannot be held liable for negligence or intentional torts
- Cost-Benefit Analysis - courts examine reasonable/efficient/inexpnsive/sensible precaution that should have been taken vs. foreseeable likelihood of harm/severity/burden.
- Custom - relevant evidence but not a complete defense
- Professionals - expected to exhibit same skill and knowledge as another practitioner in the same field/community while experts held to higher standard
OHIO - professionals must use the same care and skill that is reasonble in light of their suprier learning and experience
- Physicians: Traditional rule - physician in same or similar locality; Modern - customary practice of national standard of care
Informed Consent - must explain risk of medical procedures UNLESS risks are commonly known, patient is unconscious, patient waives/refuses the information, patient is incompetent, patient would be harmed by disclosure (e.g., patient would have heart attack
Duty - Standard of Care - Neg. Per Se
Rule - if a statute imposes a duty on someone in order to protect others, and the D fails to perform that duty, the D’s violation of that statute means he is automatically negligent
Plaintiff - must be in the class of people intended to be protected
Harm - accident must be the type of harm that the statute was intended to protect against
Cause - harm was caused by a violation of that staute
Defenses - defendant shows compliance with the statute was impossible or emergency justified violation of the statute (must show obeying would have been more dangerous than violation)
Violation by Plaintiff - counts as comparative or contributory negligence
Duty - Standard of Care - Specific Situations
- Common Carriers - highest duty of care consisten with the practical operation of a business and held liable for slight negligence
Note - has duty to act affirmatively
- Innkeepr - liabile only for ordinary negligence
Note - has duty to act affirmatively
- Automobile Drivers - drivers liable to guests in a car only if they were wreckless, grossly negligent, wanton, or willful misconduct
Note - many jurisdictions only apply basic negligence standard (reasonable under circumstances)
- Bailor & Bailee
Modern Trend - duty of care depends on the circumstances in the light of which conduct is measured by the standard of reasonable care
CL - complicated rules
- Emergency Situation - standard of care is that of a reasonble person in the same siutaion
Duty - Standard of Care - Land Possessor
Two Approaches
Traditional - standard of care depends on whether person is invitee, license, or a trespasser
Other Half - due care owed to all invitees and licencees
Duty - Standard of Care - LP - Trespasser
Trespasser - on the land without consent or privilege
Traditional Approach - possessor is obligated to refrain from willful or wonton misconduct or reckless harm (e.g., no spring gun)
Discovered/Anticipated Trespasser - must warn or protect from hidden dangers but no duty to warn from natural conditions or artificial conditions that don’t cause the risk of death
Undiscovered Trespasser - no duty to warn
Attractive Nuisance Doctrine - possessor may be liable to children trespassing on land if:
- artifical condition exists in place where owner knows/has reason to know children are likely to trespass
- the land possessor knows/has reason to know the artificial condition poses an unreasonable risk of death or serious bodliy harm
- the children do not discover or appreicate the danger
- utility of maintaining the condition is slight compared tothe risk of injury
- the land possor fails to exercise reasonable care
OHIO - doctrine expanded to cover adult attempting to rescue child from the attractive nuisance
Duty - Standard of Care - LP - Licensee
Rule - person who enters the land with express or implied permission
Traditional Rule - land possessor has duty to correct or warn licensees of concealed dangers but no duty to warn of obvious dangers.
Duty - Standard of Care - LP - Invitees
Rule - someone who comes onto the land for your purpose, a mutual or joint purpose
Ex: customer in your business, NOT social guess
Traditional Rule - possessor owes a duty of reasonable care
Non-delegable - cannot avoid duty by assigning care of property to independent contractor
Note - many modern courts have abolished the distinction between invitees and licensees and require land possessor to exercise reasonable care
OHIO - if invitee exceeds scope of invitation, he become a trespasser
OHIO - social guests are their own category
Social Guest - someone who enters land under actual invitation but not for business purposes
Duty - landowner must exercise ordinary care not to cause injury and must warn guest of dangerous conditionat that host believes guest doesn’t know or won’t discover
Duty - Standard of Care - LP - Other Instances
-
Landlord & Tenant - landlord liable for
a. injuries in common areas,
b. injuries from hidden dangers about which the landlord did not warn the tenant,
c. injuries from premises that are leased for public use
d. injuries from a hazard the landlord has agreed to repair
Tenant - tenant liable for injuries arising from conditions within the tenant’s control
- Off Premises Victims - possessor generally not liable for injuries resulting from a natural condition UNLESS tress urban areas
Artificial Condition - must prevent unreasonable risk of harm to passerby’s
Activities - must exercise reasonble care in conducting activites on the land
- Sellers of Real Property - duty to disclose to buyers concealed and unreasonably dangerous conditions know to seller until buyer has a resaonble opportunity to discover and remedy the defect
Breach - General
Rule - P must establish by preponderance of the evidence that D departs from conduct expected of a resaonbly prudent person acting under similar circumstances
Burden of Proof - PoE applies to all elements of negligence
Causal Linkage - sometimes causal connection is too coincidental or remote to support liability, therefore proximate cause needed
Breach - Res Ipsa Loquitur
General Principle - there are some cases when you only have circumstancial evidence of negligence, which is sufficient
Rule Elements -
1) accident was of a kind that does not usually occur in the absence of negligence
2) and was caused by some agent or instrumentality that is within D’s exclusive control
3) and was not due to any fault of the plaintiff
Medical Malpractice Cases - all defendants are held jointly and severally liable unle-ss they can exonerate themselves.
Causation - General
Rule - plaintiff must show that the breach was the cause of his or her harm
Two Components:
- Cause in Fact
- Proximate Cause
Causation - Cause-in-fact - But-For
But-For Test - P must show the inujury would not have ocurred but for D’s negligence
Specific Situations
1. Concurrent Tortfeasors Contributing to an Individual Injury - if tortious acts of two or more D’s are cause of one harm, and both are factual cause of harm, then joint and several liability applied.
Note - P can sue either D and collect all of his damages
Ex: I hang up laundry on stop sign, driver1 speeds, person is hit, both cause the harm
2. Alternative Causation - if tortious act of two or more (usually two) D’s are cause of one harm and it cannot be determined which one caused the harm, then burden of proof is shifted to the D’s and are held joint and severally liable unless one can show other caused harm.
3. Concert of Action - if tortious acts of two or more D’s are cause of one harm, and D’s acted together, then held jointly and severally liable
Ex: drag race and someone hit; frat brothers throw piano off of frat house and cause injury
Causation - Cause-in-fact - Spec. Situations
Specific Situations
1. Concurrent Tortfeasors Contributing to an Individual Injury - if tortious acts of two or more D’s are cause of one harm, and both are factual cause of harm, then joint and several liability applied.
Note - P can sue either D and collect all of his damages
Ex: I hang up laundry on stop sign, driver1 speeds, person is hit, both cause the harm
2. Alternative Causation - if tortious act of two or more (usually two) D’s are cause of one harm and it cannot be determined which one caused the harm, then burden of proof is shifted to the D’s and are held joint and severally liable unless one can show other caused harm.
3. Concert of Action - if tortious acts of two or more D’s are cause of one harm, and D’s acted together, then held jointly and severally liable
Ex: drag race and someone hit; frat brothers throw piano off of frat house and cause injury
Causation - Cause-in-Fact - Loss of Chance of Recovery
Rule - if physician negligently reduces the P’s chance of survival, then plantiff can recover an amount…
…based on the percentage of damages that correspond to the likelihood that the defendant’s negligence caused the harm.
e.g., if 10% chance D caused damages, then recover 10% of damages
NOTE! - patient’s chance of recoery must be less than 50% prior to the negligent misdiagnosis
Causation - Proximate Cause - General
General Principle - D’s liability limited to those harms that result from risk that made the D’s conduct tortious.
Language - “scope of liability”
Questions - is this the kind of harm that made us decide that you are negligent?
Factors - 1) natural and XX between the cause and effect 2) was one a substantial factor 3) was there a direct connection without too many intervening causes 4) was the cause likely to produce the effect 5) could defendant have avoided the harm 6) was the cause too remote
TL;DR - was negligence a substantial factor in bringing aobut the harm
Extent of Damages - eggshell P does apply
Causation - Proximate Cause - Intervening + Superseding Cause
Intervening Cause - factual cause that contributes to the harm
Superseding Cause - an unforeseeable cause that breaks the chain of causation and severs the connection
3rd Party Intervening - if intervening conduct of a third party is unforeseeable the initial negligent actor relieves
Modern Trend - doesn’t focus on these two
Damages
Nominal Damages - cannot be recovered in negligence case; actual harm must be shown
- Actual Damages - must show actual harm;
Economic Loss Rule - if only harm is economic loss without personal injury or property damage, then no recovery is possible. If P can prove non-economic injury, then may recover economic damages
OHIO - if no catastrophic injury, damages capped at $250,000, or 350 per P, and 500 per occurence
Catastrophic Injury - permant physical deformity, loss os use of limb or organ, permanent physical functional injury
- Mitigation of Damages - P must take steps to mitigate damages
- Personal Injury: Categories of Damages - expected expenses , pain and suffering, lost income.
- Property Damage - plaintiff may recover the difference between the market value of the property before and after the injury
Harm to Personal Property - may recover the cost of repairs
Household Items - may recover replacement value
- Collateral-Source Rule
Traditional - payment to P from outside source (e.g., medical insurer) is not credited against liabilty of any tortfeasor and is inadmissible
Modern - payment to P by D’s insurer are credited against the D’s liability
- Punitive Damages - recoverable if P can show by clear and convincing evidence that D acted willfuly, reckless, or with malice
OHIO - P are only entitled to punitive damages if:
1) D actions/ommisions demonstrate malice or egregious fraud or
2) D acting as a principal agent authorized or ratified malice or egregious fraud
AND
1) trier of fact has returned a verdict of the total compensatory damages recoerable by the P
Punitive Cap - if employer of (500 or less manufacturing sector)(100 or less non-manufactoring sector) then cap is lesser of double compensatory damages, or 10% of the employer’s net worth, capped at $350000
if employer large employer, then cap is 2x compensatory damages
Special Liability - NIED
Rule - P anticipates they will suffer physical harm and as a result, suffers emotional distress (but typically must show a physical symptom)
OHIO - no requirement for physical injury so long as there is a severe and debilitating and a result of experience, witness, or percceiving a dangerous accident
Zone of Danger - P must be in a zone of danger that she feared for her safety.
Bystander Recovery - bystander can recover for distress if the person injured is:
- person injured is closely related to the bystander
- bystander is present at the scene
- bystander personally observed the accident
Exception to Physical Injury Req. - P can recover for NIED if physician misdiagnoses a disease or a funeral home mishandles a body
Parasitic Damages - P may sometimes add NIED after recovereding from physical harm or property damage
Special Liability - Wrongful Death or Survival Action
Wrongful Death - decedent’s spouse/next of kin/representative brings suit to recover losses suffered as a result of decedent’s death under a state statute
Damages - loss of support/income and loss of companionship and society
OHIO - suriving spouse, children, and parent are presumed to have suffered damage as a result of wrongful death and punitive damages are not avaiable
Survival Action - decedent’s representative brings suit on behalf of decendent’s estate
Damages - tort that caused the personal injury, property damage
Special Liability - Loss from Injury to Fam. Member
Death of:
Spouse - may recover for loss of consortium
Child - parent can recover for loss of services and loss of companionship
Parent - child may recover for loss of companionship
Special Liability - Wrongful Life/Birth
Wrongful Life - most states dont recognize; failure to perform a contraceptive procedure
Wrongful Birth - failure to diagnore a defect
Vicarious Liability - General
General - one person is held liable for another’s negligence
Respondeat Superior - employers are vicariously liable for the employee’s torts if they occurred within the scope of employment.
Ways an Employer is Liable for an Employee’s Torts:
- Direct Negligence Action - negligent hiring or failure to train
- Vicarious Liability / Respondeat Superior - Detour v. Frolic
Detour - employer is liable for actions of employee if on minor detour or risk within scope of employement
Frolic - employer is not liable (not within the scope of employment); abandons responsibility
Vicarious Liability - Independent Contractors
Rule - employer is not liable for torts commited by independent contractors (amazon not responsible for UPS delivery and negligence)
Employee vs. Independent Contractor - factors:
- Look to terms of agreement
Note - employer cannot shield liability for employee negligence by describing employee as an independnent contractor
- Sustentative Test - employee if employer retrains a right of control over the way that employee does the work
Still be Liable for Indep. Contractors - in the following instances:
- inherently dangerous activities
- non-delegable duties (e.g., licensees, invitees)
- duty of operator of premises to keep the premises safe for the public
- duty to comply with safety statutes
Vicarious Liability - Business Partners
Rule - both parties have a common purpose and mutual right of control, then liable for each other’s torts commited within the scope of the business purpose.
Vicarious Liability - Negligent Entrustment
Rule - person is directly liable for negligently entrusting a dangerous device to someone who is not in a position to properly care for it.
Ex: automobile, gun, etc.
Vicarious Liability - Parents + Children
Rule - parent’s are not vicariously liable for their minor children’s torts.
Exceptions:
- Agent - child commits a tort while acting as an agent for the parent
- Statute - statute provies for liability of parentfortheir children’s specific acts (e.g., school violence or vandalism)
- Approval of License - parent approves application for child to get license
Negligence of Parent - may be liable for their own negligence with respect to their children’s conduct which includes excercising a duty of reasonable preventing a minor child from harming a third party
OHIO - parent liable for children’s actions if:
Willfully damages property or commits theft; may recover up to 10,000 plus court costs
Willfuly and maliciously assaults another by means likely to produce great boldiy harm; may recover up to $10k plus court costs
Commits vandalism, desecration, or ethnic intimidation; may recover up to $15k plus court costs
Are jointly and severally liable
Vicarious Liability - Dram Shop
Rule - limit liability of bars and bartenders for injuries caused when people drink too much and injure third-parties
OHIO - if injury occurs on liquor permit holder premises or parking lot, then liable if proimxately caused by vendor’s negligence
if injury occured off the property of the seller of alcohol, then injured party must show:
permit holder knowingly sold to an underage person and intoxication proximately caused the injury
Immunities - General
General - most immunities eliminated however government entities, charties, and family members use to be immune
Immunities - Federal + State Gov.
Federal Tort Claims Act - federal government wavies immunity in tort actions except:
- Certain Ennumerated Torts - assault, battery, false imprisonment, false arrenst, malicious prosecution, abuse of process, libel, slander, misrepresentation, interference with contractual rights;
- Discretionary Function - planning or decision making
- Contractor - immunity may be invoked by contractor if contractor conformed to government specifications and government knew about the danger
- Traditional Gov. Activities - tax collection, military,etc.
State Government - most have waived immunity with some small exceptions
Government Officials - applyies if performing a discretionary function as long as those are done without malice or improper purpose; no immunity for administerial acts
Immunities - Intra-Family
Interspousal Immunity - any spouse may sue the other spoues
Parent-Child Immunity - modern trend to allow child to sue for injuries not from core parenting activites
Immunities - Charitable
General - most states have eliminated charitable immunity but most cap damages available against a chaity
Sharing Liabilty - Joint + Several Liabilty
General - two tortfeasors, both of whom are laible, can be liable for a single harm and P can collect all his damages from either D.
Applies When:
- when tortious acts of tw or more tortfeasors comine to produce one indivisible harm
- when two or more tortfeasors act in concert
- alternative liablity (e.g., small # of D where both neg but unable to determine source)
- res ipsa loquitour in mediacal malpractice cases
OHIO - following rules apply when using joing and several liability:
1. if more than 50% of injury is attributable to one D, that D is jointly and severally liable for all compensatory damages that represent economic loss
2. each D who is legall responsible for the injury and is 50% or less at fault is liable for that D’s proportionate share of the compenstaory damages that represent economic loss; and
3. Each D found to have commited an intentional tort who is 50% or less at fault is jointly and severally liable for all compensatory damages that represent economic loss.
Sharing Liabilty - Contribution
Rule - if two or more tortfeasors are subject to liablity to the same P and one oD has paid more than his fair share of damages, then that D can sue the other D for contribution.
Calculation - how far each tortfeasor deparated from the standard of care
OHIO - no right of contribution if an intentional tort has been established
Sharing Liabilty - Pure Several Liability
Rule - each tortfeasor only liable for his own share of the harm
Note - only available in some jurisdictions
Sharing Liabilty - Indemnification
Rule - shifts the entire loss from one party to the other when:
- there is a prior agreement between parties
- there is a substantial difference between the blameworthiness of the two parties
- there is significant additional harm caused by another tortfeasor
- under strict liability, each supplier has indemnficiation against previousd suppliers
Defenses - Contributory Neg.
Rule - plaintiff’s failure to exercise due care would eliminate any chance of recovery
Complete Bar? - yes
Note - most states no longer apply this
OHIO - does not recognize this
Last Clear Chance Doctrine - if D has the last clear chance to avoid the harm and failed to do so, then P may recover.
OHIO - does not recognize this
Helpless P - if P in peril due to his own contributory neg. from which he could not escape, then D is liable if 1) she knew or should have known of P’s peril and 2) could have avoided harm
Inattentive P - if P in peril due to her own inattention, then D liable only if had actual knowledge of th peril.
TL;DR - if D had opportunity to avoid accident, then they should do so
Defenses - Comparative Neg. - General
Generally - apportions damge between D and P based on their relative degrees of fault
Two Schemes -
- Pure Comparative
- Modificed Comparative
Defenses - Comparative Neg. - Pure
Rule - P’s contributory negligence is not a complete bar to recover but merely reduces the damages to the extent P contributed to the harm.
Defenses - Comparative Neg. - Modified
Note - majority of jurisdictions have adopted this
Rule -
- if P less at fault than D, P’s recovery is reduced by his percentage of fault
- if P more at fault than D, P is barred from recovery
- Most Juris - if P and D equally at fault, then P can recover half of damages (P = 50%)
- Minority - if P and D equally at fault, P barred from recovery (P = 49%)
OHIO - follows P can recover if he is blameworthy for up to 50%; 51% and barred
Multiple D’s - P’s degree of negligence is compared to the negligence of all of the defendant’s combine
Defenses - Comparative Neg - Imputed Contrib. Neg
Note - very unfavored
Rule - limits one person’s recovery because of another persons’s negligence
Ex: employee’s negligenct driving may prevent employer’s recover from a third party if the employer’s car is damaged
Does Not Apply When:
- married P whose spouse was contributorily negligent in causeing the harm, in a suit against a 3P
- child P whose parent negligence contributed
- automobile passenger suing 3P if driver of own car contributed
- automobile owner suing 3P when driver of car contributed
Defenses - Assumption of the Risk
Rule - when plaintiff has knowingly and willingly accepted a risk of harm, then he is barred from recovery.
Ex: driver wants to try prototype bike, I warn that steering not perfect and random, still wants to drive, does so, harmed, assumed the risk.
Exculpatory Clauses in Contracts - parties may contract to disclaim liability on negligence unless:
- disclaimer was for reckless, wanton, or gross negligence
- there is a gross disparity of bargaining power
- party seeking enforcement offers services of great importance to the public (e.g., medical services)
- provision is subject to contract defense (e.g, fraud, duress)
Who Can’t Disclaim Liability - common carriers, innkeepers, employers
Athletic Event - assume the risk of injuries and accidents inherent in teh game or activity; helps to post warning signs (includes watching athletic events).
Consent v. Assumption of Risk - assumption applies to negigence, consent applies to intentional torts
