Negligence Flashcards
General Principle
reasonable care owed to another; person has duty to exercise ordinary care when his actions could injure another
3 main approaches
cardozo (majority); Andrews (minority); Law and Econ
Cardozo approach
presume we have no duty,
andrews
assume duty with island of no duty
L&E approach
Least Cost and Coase Theorem
Least Cost
which party can best prevent the harm (least cost + quality)
Coase Theorem
parties naturally gravitate toward most efficient and mutually beneficial outcome; high transactions costs= less likely to find most efficient solution
Factors to determine duty
foreseeability, knowledge, reliance, morality, contracts
Foreseeability
no foreseeable = no duty; need foreseeability for there to be duty; negligent if person would foresee risk of a certain act
Duty to children
parents not responsible for the torts of their children; exception attractive nuisance
Attractive nuisance
if hazardous condition alluring to children, and owner aware of presence
Artificial Conditions
liable to children for artificial condition; knows/reason to know children likely trespass; knows condition could cause harm; children dont realize the risk; cost of eliminating is slight compared to risk; owner fails to exercise reasonable care to eliminate danger; doesnt go past 15; MD does not have this
Public Path exception
well-worn path on property that appears to be public, not trespassing to use
Duty to a 3rd person
no duty to control the conduct of 3rd person; UNLESS: special relation exists (actor and 3rd person); special relation (actor and the other); duty to protect from crim attack by 3rd party
Duty to Therapists, Psychologists, and Social workers
reasonable care if know or have reason to know of a threat to a foreseeable victim;
Employer liabiltiy
respondiat superior (employer liable when it is in the scope of their employment)
Respon Superior
breaks: not responsible; minor deviation; major frolic
Minor deviation
violate direct order but foreseeable (one block for coffee); employer is liable
major frolic
going to NY instead of local courthouse, employer not liable,
3 types of liability for employers
negligent hiring, negligent supervision, negligent entrustment
Negligent Hiring
shouldnt hire someone with DWI to deliver pizza
Negligent supervison
did not supervise well
negligent entrustment
should not have entrusted them with the responsibility
When employer is responsible for intentional torts
foreseeable, employee is furthering business in misguided manner
Employees v Independent contractors
responsible for employees negligence not Indep Contractors; EXCEPT: negligently select an independent contractor you are liable
Independent contractos
what they are called, degree of control by the principal, relative knowledge of the issue, length of working relationship, how relationship is communicated to 3rd parties
Non-delegable duty doctrine
liable if delegate inherently dangerous activity to contractor
Duty to manufacturers
neglignet design, negligent manufacturing, and negligent warning; look to the intended use and what is reasonably foreseeable
Duty to prevent emotional harm
harm to the person; harm to economic interests; quasi tort (harm to constitutional right); dignitary tort
Dignitary tort
harm to someone’s dignity, feelings, emotions: negligent infliction of emotional distress, intentional infliction of emotional distress, assault
Defamation
has to be false; harm reputation; must be alive; communicated to 3rd party; without privilege and consent; intentional or negligent; Public figure it must be false or reckless disregard for truth; proof of actual damages must be shown
Insults
do not rise to a tort (47 states), if physical contact then rises to a tort; if a lie then it is a tort; power relationship will give rise to a tort (police and teacher)
3 approaches to negligent infliction of emotional distress
Mitchell “no touch, no duty”; McLoughlin “line drawing rule” (majority); MD; California Rule
Mitchell “no touch, no duty”
negligence must be direct, prox cause to claim damages; no remedy for emotional harm with no physical contact
McLoughlin “line drawing” majority
if D negligent then they care for the close family member; relationship to injured must be close; zone of danger/proximity to accident
How shock can be caused
cannot be by communication thru a 3rd party
4 reasons to draw boundaries
flood the court system with cases; unreasonable extension of duty unfair; extension of liability would increase difficulties and lengthen litigation; scope of litigation should be made by legislature
MD Rule
Line drawing; must have actual physical manifestation of emotional harm (heart attack); pro-defendant approach
California Rule
3 factors: 1. was plaint located near scene of accident; 2. was shock a direct result of emotional impact; were P and V closely related
Intentional infliction of emotional distress (w/o touching MD + majority)
intentional (reckless in some states) conduct; extreme and outrageous; causes emotional distress must be severe (MD: must cause physical injury); D knows of susceptibility and acts anyway
Owners and Occupiers of Land
trespass; trespass to person/chattel; private nuisance
Trespass
invasion of P interest in exclusive possession of land; someone walks on your property; intentional or negligent
trespass to person
usually negligent
trespass to chattel
touch someone’s property
Private nuisance
unreasonable interference with a person’s use or enjoyment of land (unreasonable amount of noise)
when people enter another’s property categories
Invitee; Licensee; trespasser
Invitee
by invitation with mutual econ benefit; express or implied; cant set trap;
Business invitee
mutually economic interest
Public invitee
church, hospital, university
Duty owed to Invitee
reasonably inspect + fix or inform, cant set tratp
Licensee
social guest (anyone who has permission to be on property, no business intersts
Duty owed Licensee
no duty to ensure property is safe; no traps or concealed dangers not apparent to visitor; fix or inform dont set a trap
Firemans’ rule
Firefighters and polci officers are owed same duty as licensee
Trespasser
w/o permission, invitation or licensee of occupier
Duty owed to Trespass
no duty to inspect, fix or war, cant set a trap, cannot intentionally try to kill someone who comes on your property
Examples of people on property
Visitor at a hospital: licensee
Furniture delivery guy: invitee
Traveling sales person: trespasser (most jurisdictions)
Shopper that doesnt buy anything: invitee
Bare Licensee
traveling salesman; treated as trespasser in most jurisdictions
Discovered trespasser rule
duty to common humanity makes them licensee; duty to common humanity
Trespasser ab initio
guest who overstays welcome, trespasser from beginning
public path doctrine
if well worn path, not trespassing to walk on it; path must cross public land at some point
Reasonable care standard
owner owes reasonable care in view of the probability of injury to others.
Duty of landlords to tenant: Common law
tenants seen as trespassers; only duty is to not set traps; buy at own risk; Most states recognize duty to maintain rental property in safe habitable condition
Implied warranty of habitability
landlord must exercise reasonable care not to subject others to unreasonable risk of harm
MD rules of owners and occupiers of land
pigeon hole system; no attractive nuisance; punitive damages for invitee and licensee; salesman is bare licensee; public park patron: business invitee (most states licensee); tenants in common areas: invitee; in own apartment: invitee with duty on landlord to make reasonable inspections, no SL; vicious watchdog is not a trap (liability to invitee and licensee not trespasser; landlord has duty for security measures
duty to rescue
no duty to rescue
exceptions to no duty to rescue: express K
express K: lifeguards, police and firefighters, nurse or doctor (only have duty while on duty)
Exceptions to no duty to rescue: implied K
parents and child; spouse and spouse; employer and employee; occupier of land and social guest or biz invitee; common carrier and lawful passenger; landlord and tenant but duty is complicated; captain to crewmember
rescuer Doctrine
imposes duty of care on person who creates the harm; does not create open-ended duty but expires after spontaneous excitement to rescue has passed
Good Samaritan doctrine
duty to not make things worse, no duty to complete rescue unless your effort prevents someone else from attempting rescue and you quit
good samaritan doctors
cant make things worse; requires gross negligence reckless conduct or willful wrong
Duty to warn special relationship
duty of reasonable care if they knew or should have known of the FORESEEABLE threat to V; most states including MD: just what you knew, NOT what you should have known
Wrongful Death Common law
only get damages from from when someone is injured until they die. Tort dies whent he party dies
Wrongful death statutes
specifically named people can sue after someone’s death, typically up to a maximum amount, can sue for income the person would have made (no cap but have to show what they would have made)
survival statutes
for direct victim of tort; allows others to sue on behalf of the deceased (brought by husband, wife, or child for damages); damages before the death and burial expenses, can get medical, lost wages, pain and suffering
Wrongful death v Survial
survival allows punitive damages wrongful death does not;
MD wrongful deaht
no punitive damages; yes for pain and suffering (parents, spouses, and children)
MD survival statute
yes for economic damages, punitive damages, and pain suffering, cap on non-economic damages
harm to unborn children Common law
no duty, considered part of the mother,
duty to unborn children modern approach
duty to fetus is VIABLE at the time or born alive; no preconception duty
wrongful birth
child born with medical problem/handicap caused by medmal; suit brought by parents of the child. Majority: can recover for med expenses, emotion distress, and therapy
Wrongful life
brought by the child born with the birth defects, recover for med bills, lost wages, pain and suffering until age of majority;
wrongful pregnancy
brought against physician for failure to prevent pregnancy; recover for pain and suff and med expenses not for costs of rearing the child
4 approaches to victim compensation
no recovery benefits of having child outweigh costs, all expenses recoverable for rearing child + emotional distress, damages for pregnancy related expenses and pain and suff NO rearing costs, benefit rule (all costs minus benefits of having child, least predictable)
MD wrongful birth
can recover if child is born alive or not as long as fetus is VIABLE at the time of injury
MD wrongful pregnanc
benefit rule: all costs minus benefits of having child are recoverable, least predictable (how courts determine benefit of healthy child in economic value)
MD wrongful life
no recovery
