Negligence

Question 1

Negligence - General

Answer 1

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 -

1. Duty
2. Breach
3. Causation (cause in fact + proximate cause)
4. Harm

Question 2

Duty - Rule & Failure to Act

Answer 2

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)

Question 3

Duty - Foreseeability of Harm

Answer 3

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

Question 4

Duty - Affirmative Duty to Act

Answer 4

Rule - no duty to help others except in following cases:

1. Assumption of Duty - person voluntarily aids or rescues another is liabile for injury caused by the failure to act with reasonable care.
2. 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)
3. By Authority - person with the ability and authority to control another has a duty to exercise reasonble control
4. 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.

Question 5

Duty - Standard of Care

Answer 5

1. 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

2. Cost-Benefit Analysis - courts examine reasonable/efficient/inexpnsive/sensible precaution that should have been taken vs. foreseeable likelihood of harm/severity/burden.
3. Custom - relevant evidence but not a complete defense
4. 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

5. 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

Question 6

Duty - Standard of Care - Neg. Per Se

Answer 6

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

Question 7

Duty - Standard of Care - Specific Situations

Answer 7

1. 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

2. Innkeepr - liabile only for ordinary negligence

Note - has duty to act affirmatively

3. 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)

4. 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

5. Emergency Situation - standard of care is that of a reasonble person in the same siutaion

Question 8

Duty - Standard of Care - Land Possessor

Answer 8

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

Question 9

Duty - Standard of Care - LP - Trespasser

Answer 9

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:

1. artifical condition exists in place where owner knows/has reason to know children are likely to trespass
2. the land possessor knows/has reason to know the artificial condition poses an unreasonable risk of death or serious bodliy harm
3. the children do not discover or appreicate the danger
4. utility of maintaining the condition is slight compared tothe risk of injury
5. the land possor fails to exercise reasonable care

OHIO - doctrine expanded to cover adult attempting to rescue child from the attractive nuisance

Question 10

Duty - Standard of Care - LP - Licensee

Answer 10

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.

Question 11

Duty - Standard of Care - LP - Invitees

Answer 11

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

Question 12

Duty - Standard of Care - LP - Other Instances

Answer 12

1. 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

2. 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

3. 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

Question 13

Breach - General

Answer 13

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

Question 14

Breach - Res Ipsa Loquitur

Answer 14

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.

Question 15

Causation - General

Answer 15

Rule - plaintiff must show that the breach was the cause of his or her harm

Two Components:

1. Cause in Fact
2. Proximate Cause

Question 16

Causation - Cause-in-fact - But-For

Answer 16

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

Question 17

Causation - Cause-in-fact - Spec. Situations

Answer 17

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

Question 18

Causation - Cause-in-Fact - Loss of Chance of Recovery

Answer 18

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

Question 19

Causation - Proximate Cause - General

Answer 19

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

Question 20

Causation - Proximate Cause - Intervening + Superseding Cause

Answer 20

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

Question 21

Damages

Answer 21

Nominal Damages - cannot be recovered in negligence case; actual harm must be shown

1. 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

2. Mitigation of Damages - P must take steps to mitigate damages
3. Personal Injury: Categories of Damages - expected expenses , pain and suffering, lost income.
4. 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

5. 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

6. 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

Question 22

Special Liability - NIED

Answer 22

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:

1. person injured is closely related to the bystander
2. bystander is present at the scene
3. 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

Question 23

Special Liability - Wrongful Death or Survival Action

Answer 23

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

Question 24

Special Liability - Loss from Injury to Fam. Member

Answer 24

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

Question 25

Special Liability - Wrongful Life/Birth

Answer 25

Wrongful Life - most states dont recognize; failure to perform a contraceptive procedure

Wrongful Birth - failure to diagnore a defect

Question 26

Vicarious Liability - General

Answer 26

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:

1. Direct Negligence Action - negligent hiring or failure to train
2. 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

Question 27

Vicarious Liability - Independent Contractors

Answer 27

Rule - employer is not liable for torts commited by independent contractors (amazon not responsible for UPS delivery and negligence)

Employee vs. Independent Contractor - factors:

1. Look to terms of agreement

Note - employer cannot shield liability for employee negligence by describing employee as an independnent contractor

2. 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:

1. inherently dangerous activities
2. non-delegable duties (e.g., licensees, invitees)
3. duty of operator of premises to keep the premises safe for the public
4. duty to comply with safety statutes

Question 28

Vicarious Liability - Business Partners

Answer 28

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.

Question 29

Vicarious Liability - Negligent Entrustment

Answer 29

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.

Question 30

Vicarious Liability - Parents + Children

Answer 30

Rule - parent’s are not vicariously liable for their minor children’s torts.

Exceptions:

1. Agent - child commits a tort while acting as an agent for the parent
2. Statute - statute provies for liability of parentfortheir children’s specific acts (e.g., school violence or vandalism)
3. 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

Question 31

Vicarious Liability - Dram Shop

Answer 31

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

Question 32

Immunities - General

Answer 32

General - most immunities eliminated however government entities, charties, and family members use to be immune

Question 33

Immunities - Federal + State Gov.

Answer 33

Federal Tort Claims Act - federal government wavies immunity in tort actions except:

1. Certain Ennumerated Torts - assault, battery, false imprisonment, false arrenst, malicious prosecution, abuse of process, libel, slander, misrepresentation, interference with contractual rights;
2. Discretionary Function - planning or decision making
3. Contractor - immunity may be invoked by contractor if contractor conformed to government specifications and government knew about the danger
4. 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

Question 34

Immunities - Intra-Family

Answer 34

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

Question 35

Immunities - Charitable

Answer 35

General - most states have eliminated charitable immunity but most cap damages available against a chaity

Question 36

Sharing Liabilty - Joint + Several Liabilty

Answer 36

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:

1. when tortious acts of tw or more tortfeasors comine to produce one indivisible harm
2. when two or more tortfeasors act in concert
3. alternative liablity (e.g., small # of D where both neg but unable to determine source)
4. 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.

Question 37

Sharing Liabilty - Contribution

Answer 37

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

Question 38

Sharing Liabilty - Pure Several Liability

Answer 38

Rule - each tortfeasor only liable for his own share of the harm

Note - only available in some jurisdictions

Question 39

Sharing Liabilty - Indemnification

Answer 39

Rule - shifts the entire loss from one party to the other when:

1. there is a prior agreement between parties
2. there is a substantial difference between the blameworthiness of the two parties
3. there is significant additional harm caused by another tortfeasor
4. under strict liability, each supplier has indemnficiation against previousd suppliers

Question 40

Defenses - Contributory Neg.

Answer 40

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

Question 41

Defenses - Comparative Neg. - General

Answer 41

Generally - apportions damge between D and P based on their relative degrees of fault

Two Schemes -

1. Pure Comparative
2. Modificed Comparative

Question 42

Defenses - Comparative Neg. - Pure

Answer 42

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.

Question 43

Defenses - Comparative Neg. - Modified

Answer 43

Note - majority of jurisdictions have adopted this

Rule -

1. if P less at fault than D, P’s recovery is reduced by his percentage of fault
2. if P more at fault than D, P is barred from recovery
3. Most Juris - if P and D equally at fault, then P can recover half of damages (P = 50%)
4. 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

Question 44

Defenses - Comparative Neg - Imputed Contrib. Neg

Answer 44

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:

1. married P whose spouse was contributorily negligent in causeing the harm, in a suit against a 3P
2. child P whose parent negligence contributed
3. automobile passenger suing 3P if driver of own car contributed
4. automobile owner suing 3P when driver of car contributed

Question 45

Defenses - Assumption of the Risk

Answer 45

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:

1. disclaimer was for reckless, wanton, or gross negligence
2. there is a gross disparity of bargaining power
3. party seeking enforcement offers services of great importance to the public (e.g., medical services)
4. 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