negligence Flashcards
negligence elements
duty, breach, causation, damages
negligence - duty
2 questions
- To whom is a duty owed
2. How much care must be exercised
negligence - duty
To whom is a duty owed?
- All people who are foreseeable victims of your failure to take precautions.
- As a matter of law, rescuers and viable fetuses are foreseeable plaintiffs.
negligence - duty
How much care must be exercised
- Amount of care that would be taken by a RPP under the same or similar circumstances.
D’s superior skill or expertise must be used for P’s benefit.
D’s physical disabilities are attributed to RPP.
RPP standard is a fixed constant in negligence law.
negligence - duty
special duty standards for children
majority rule: A child must exercise the degree of care of a reasonable child of like age, intelligence and experience.
minority rule (rule of 7s):
0-7 - incapable of negligence
7-13 - rebuttable presumption that child is incapable of negligence
14yo and older - rebuttable presumption that child is capable of negligence
Adult activities: A child engaged in an adult activity is held to the adult standard.
negligence - duty
special duty standards for professionals
A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.
negligence - duty
special duty standards for owners/occupiers of land
Variables - source of the injury and status of the P
Source of injury: conduct of activity or encounter w/static condition
Status of P: undiscovered trespasser, discovered trespasser, licensee (guest, friend), invitee
Undiscovered trespasser - no duty
conduct of activity - RPP unless undiscovered trespasser
discovered trespasser/static condition - artificial, highly dangerous, concealed condition known to the owner/occupier
licensee/static condition - concealed condition known to owner/occupier
invitee/static condition - concealed condition known to owner/occupier or learned about by reasonable inspection (duty to inspect)
negligence - duty
special duty standards for owners/occupiers of land
In a static condition, how can the owner/occupier satisfy the legal condition.
- Go to the condition and make it safe
2. Give a warning
negligence - duty
special duty standards for owners/occupiers of land
What is the standard and doctrine used for child trespassers?
- RPP standard
2. Attractive nuisance doctrine
negligence - duty
attractive nuisance
A possessor of land is liable if 4 conditions are met:
- An artificial dangerous condition exists
- Possessor knows or should know that children are likely to trespass
- Child herself, b/c of age or immaturity fails to realize the risk or appreciate the danger involved
- Utility to maintain the condition is slight compared to the risk involved
negligence - duty
special duty standards for owners/occupiers of land
What happens if the condition is open and obvious?
Entrant will almost always lose.
negligence - duty
negligence per se
An unexcused violation of a statute is presumptively an act of negligence IF
1) P is in the class of persons the statute was designed to protect AND
2) The harm is of the type the statute was designed to prevent (Class of persons, class of risk)
exceptions: Compliance w/statute is more dangerous than violating the statute or impossible under the circumstances.
negligence - duty
duty to act
- General rule: No duty to act
- Exceptions
a. If you put P in peril, you have a duty to prevent the peril.
b. For certain relationships (close family, common carrier and innkeepers, invitor/invitee)
c. Duty to control 3rd persons IF you have i) actual ability and ii) authority to control.
negligence - duty
Negligent infliction of emotional distress
- General Rule: no duty
- Exception: If you are exposed to physical risk by D’s negligence, and then you suffer physical manifestations from your physical distress, you have a NIED claim
a. Zone of Danger (near miss)
P wins only if he was in the Zone of Danger
b. Bystander recovery
P wins if P was at the scene of the accident AND if she had a close relationship w/person in the accident
negligence - breach
GR: P must point to specific conduct for breach of duty
negligence - breach
proving conduct
custom - Always admissible, never conclusive (reasonable based on custom)
res ipsa loquitur - 1) the event did not result from P’s voluntary act 2) the event is one that does not normally occur in the absence of negligence, and 3) the event was caused by something under D’s exclusive control.
negligence - breach
custom
custom - Always admissible, never conclusive (reasonable based on custom)
negligence - breach
res ipsa loquitur
res ipsa loquitur - 1) the event did not result from P’s voluntary act 2) the event is one that does not normally occur in the absence of negligence, and 3) the event was caused by something under D’s exclusive control.
negligence - causation
- Cause in fact
2. Proximate cause
negligence - causation - cause in fact
- But-for test (but for D’s conduct, the injury would not have occurred)
- Substantial factor (multiple D’s and a co-mingled cause)
- Burden shifting (multiple D’s and an unknown cause)
negligence - causation - proximate cause
legal responsibility
A person is liable for those harms within the risk of his activity.
negligence - causation - fact patterns
Direct cause fact patterns - If D’s negligent conduct is foreseeable, D is liable
Indirect cause fact patterns -
1. If the foreseeable intervening cause leads to a foreseeable outcome, D is liable (P wins)
2. If the unforeseeable intervening cause leads to a unforeseeable outcome, D is not liable (P loses)
3. Intervening causes where D will almost always be liable (always foreseeable) - subsequent medical malpractice, negligent rescue, reaction forces, subsequent accidents or diseases
4. Intervening causes where D will not cut off liability IF D can anticipate the intervening cause (if foreseeable) - 3rd party negligence, criminal conduct, acts of God
negligence - damages
and elements of personal injury award
Damages must be proven as part of the prima facie negligence case.
Elements of a typical personal injury award: 1) past & future medical expenses, 2) past & future lost income, and 3) P’s pain and suffering
negligence - damages
eggshell skull plaintiff
D is liable for the full extent of the damages he causes, even if the extent was unforeseeable.
(You take P as you found P.)
negligence - defenses
- Contributory negligence
- Assumption of risk
- Comparative negligence
negligence - defenses
contributory negligence
P’s failure to use the relevant degree of care for his own safety.
Consequence: P recovers nothing. Absolute bar to recovery UNLESS
Last clear chance: P can recover despite negligence if D had the last clear chance to avoid the accident.
negligence - defenses
assumption of risk
Express and Implied
Express (expressly stated): Absolute bar to recovery unless a public policy exception.
Implied (knowing and voluntary encounter with the risk): Usually a bar to recovery UNLESS
1. Absence of an alternative destroys voluntariness.
2. Emergency situations destroy voluntariness.
negligence - defenses
comparative negligence
Reduces recovery instead of absolute bar
Pure CN and Modified CN
Pure CN - P always recovers something (even if she is the majority negligent actor in the case)
Modified CN - P recovery is proportionally reduced to a threshold (49% or 50%), then it is a bar to recovery
Where it exists, comparative negligence supplants all other affirmative defenses except express AoR
