Negligence Flashcards
Negligence
To Prove NEGLIGENCE:
- Duty
- Breach
- Causation
- Harm
If plaintiff can’t pove by a preponderance of the evidence that each of these elements is present, then the judge must enter a directed verdict for the defendant and not let the case go to the jury.
Duty of Care
(FOUR Types)
- To Whom is a duty of care Owed?
- How much care is owed?
- When is a different standard of care owed?
(a) Claims against children, (b) Rescue, (c) Professional Malpractice, (d) Premise Liability (e) Negligence per se. - Duties to act affirmatively.
- DUTY OF CARE
(a) To Whom is a Duty of Care Owed?
Foreseeable plaintiffs
(Foreseeable plaintiffs include rescuers)
- DUTY OF CARE
(b) How Much Care is Owed
The amound of care that a ordinary, reasonable, prudent person acting under similar circumstances would use.
DO NOT take into account defendant’s particular characteristics when determining the standard of care.
Exceptions - Defendant’s superior knowledge, age if defendant is a child, and physical characteristics (e.g. if blind, missing an arm, etc).
- DUTY OF CARE
(c) When is a different standard of care owed?
i. Claims against Children
A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances.
Exception - If child is engaged in adult activity (driving, car, boat, shooting a gun, using a chainsaw) then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity.
MBE - Children under 4 cannot be negligent
MICHIGAN - Children under 7 cannot be negligent
- DUTY OF CARE
(c) When is a different standard of care owed?
ii. Rescue
Generally, the standard for rescuers is ordinary care.
MICHIGAN - MI has Good Samaritan law that immunizes a physician, physician’s assistant, registered professional nurse, or licensed practical nurse who, in good faith, renders emergency care without compensation at the scene of an emergency if there was no pre-existing physician (no nurse)-patient relationship, and the physician’s or nurse’s acts or omissions did not amount to gross negligence or willful and wanton misconduct.
- DUTY OF CARE
(c) When is a different standard of care owed?
iii. Professional Malpractice
- Applies to lawyers, doctors, accountants, etc
- Ask: What is the standard practice? that is the amount of care that an average member of the profession would use. Ask: Did the defendant follow the standard?
- Unless the breach is obvious (sponge in someone) usually an expert witness is necessary to testify as to the duty of care owed.
- In malpractice cases custom is conclusive whereas in non-malpractice cases custom is only evidence of negligence.
- A doctor who is going to perform a procedure must provide the patient with enough informatuon to give informed consent. If a reasonable person in the pltf’s position would have refused the treatement the Dr.’s duty is breached.
- DUTY OF CARE
(c) When is a different standard of care owed?
iii. Professional Malpractice
WRONGFUL…
FOUR KINDS!
- Wrongful Conception - if a women is told she cannot conceive and she has a child.
* Damages are costs associated wth the birth - Wrongful Birth - if a child is born because dr. failed to diagnose disease and parents assert they would have aborted the child.
* Damages are the extra expenses to raise a child w/the particular disability. - Wrongful Life - If a child sues for being born (usually because of birth defects)
Special damages are allowed but usually no recovery.
- Wrongful Death - can only recover for loss of the opportunity to survive if expert testimony establishes that the chance of survival absent the alleged would be greater than 50%.
- DUTY OF CARE
(c) When is a different standard of care owed?
iv. Premises Liability
UNDISCOVERED TRESPASSER
Definition - One who comes onto the land without permission or privilege who the landlord does not know about.
Standard of care: not owed any duty of care (however, a premises possessor cannot engage in intentional and wrongful misconduct. e.g. setting traps)
- DUTY OF CARE
(c) When is a different standard of care owed?
iv. Premises Liability
DISCOVERED TRESPASSER
Definition: Trespassor that the landowner knows or should know of.
Rule: The premises possessor must: (1) warn or make safe any, (2) unreasonably dangerous, (3) concealed, (4) artificial conditions, (5) that the land owner knows of.
Ask did landowner know of the danger?
- DUTY OF CARE
(c) When is a different standard of care owed?
iv. Premises Liability
DISCOVERED TRESPASSER
Attractive Nuisance
The land owner may be held liable if
- There is a dangerous condition on the land that the landowner knows or should know of (usually something “artifical” like an abandoned car, elevator - not usually ponds or lakes unless there is a special condition)
- Children frequent the land (and the landowner knows or should know of this)
- The child cannot appreciate the risk; and
- The possessor of the land fails to exercise reasonable care to eliminate the danger or protect the children.
* Look at whether the expense of remedying the situtation is slight compared with the risk of harm (burden/benefit analysis).
- DUTY OF CARE
(c) When is a different standard of care owed?
iv. Premises Liability
LICENSEE
(you like them)
Definition: Social guest who has permission to enter the land but doesn’t confer an economic benefit on the possessor of land.
RULE: The premises possessor must:
a. warn or make safe
b. all concealed dangers (artificial or not, unreasonably dangerous or not)
c. That the land owner knows of
The rug that bunches at the end, if Aunt Joy know about it she must warn. If she doesn’t know about it than no duty to warn. And NO duty to inspect the premises.
- DUTY OF CARE
(c) When is a different standard of care owed?
iv. Premises Liability
INVITEE
(we invite you to spend your money)
Definition: One that enters:
- to confer an economic benefit (e.g. customers or employees of store); or
- enters land that is open to the public at large (church, museum, etc)
MICHIGAN - one is only an invitee if they confer an economic benefit
RULE: A premises possessor must:
- warn or make safe
- all dangers
- that the landowner knows or should know of
- This requires the landowner to make reasonable inspections. If the landowner does not make reasonable inspections, he may be held liable.
MICHIGAN: A possessor does not have to warn of “open and obvious” dangers or remove them unless there are special aspects of the condition exist that create an unreasonable risk of severe harm - e.g. a 30ft deep pit in the middle of a parking lot. also, the difference between slipping on a fresh banana vs. a old banana peel (duty to inspect).
- DUTY OF CARE
(c) When is a different standard of care owed?
iv. Premises Liability
INVITEE EXCPETIONS
(Firefighters and Recreational Land)
Firefighter Rule: Firefighters and police officers are treated like licensees rather than invitees for policy reasons. Exposure to dangerous conditions that arise out of a landowner’s failure to inspect or repair their property is inherent in their job duties.
However, the may seek damages from an individual for negligence if (1) the defendant is ot the one whose conduct caused the police officer to be present, (2) the defendant is not the owner or lessee of the location where the injury occurs, and (3) the officer was hurt while engaged in conduct thaat did not substantially increase the risk of the type of injury that the officer suffered.
Recreational Land: if the owner allows the public to be on the land for recreational purposes and charges no fee, the landowner is only liable if he willfully and maliciously failed to guard against danger.
- DUTY OF CARE
(c) When is a different standard of care owed?
v. Negligence Per Se
Statutory Standards of Care
A plaintiff can sue under a theory of negligence per se when the plaintiff can show three things:
- Defendant violated a statute without excuse
- the right person was injured (that is, the plaintiff was in the class of people that the statute is trying to protect).
- the right injury was sustained (that is, the plaintiff received the injury that the statute was trying to prevent).
- DUTY OF CARE
(c) When is a different standard of care owed?
v. Negligence Per Se
Violation of a statute may be excused if the defendant has a good reason for the violation
A good reason might be:
- If compliance is more dangerous than violating the statute
- If compliance is impossible under the circumstances
- Defendant is incapacitated and unable to comply
- DUTY OF CARE
(c) When is a different standard of care owed?
v. Negligence Per Se
Why is it the easy button?
If a plaintiff can establish the factors, he has offered conclusive proof of duty and breach (he must still prove harm)
MICHIGAN - establishing negligence per se is only evidence of negligence
- DUTY OF CARE
(d) Duties to act affirmatively
There is no duty to act affirmatively (e.g. rescue) unless the following exist:
(1) A special relationship - Psychotherapist (death threats specifically known and designated by the patient), parent to child, spouse to spouse.
(2) A contract (e.g. nurse agrees to take care of a patient)
(3) A statute (e.g. to report child abuse)
(4) A tort - if the def caused the pltf’s peril, there is a duty to act reasonably under the circumstances (e.g. call 911, try to help) but the defendant is never obligated to put his own life at peril.
(5) Reliance (e.g., if neighbor agreed to watch baby for an hr while the mother ran to the store, neighbor cannot then leave the baby because the mother is relying on her).
- DUTY OF CARE
(d) Duties to act affirmatively
MICHIGAN RULE on Duties Owed in Sporting Contexts
The duty of Co-participants in Sports or Recreational Activity
STANDARD - The standard is reckless or intentional misconduct for co-participants in a sport or recreational activity.
- BREACH
two ways to establish
(a) Establish that the defendant failed to comply with the duty of care he owed.
(b) Res Ipsa Loquitor - allows a plaintiff to establish negligence even if he doesn’t know why something happened. It is basically like Saying, “I do not know what happened, but this probably would have happened if someone (probably defendant) wasn’t negligent.
BREACH
Res Ipsa Loquitor
(Two Elements)
- Probably negligence
the accident is something is normally caused by someone’s negligence
- Probably defendant
the accident is normally due to negilgence of someone in defendant’s position (for example, show that the defendant had exclusive control of whatever injuryed plaintff.
- Breach
If the plaintiff can establish a res ipsa loquitor claim
The plaintiff has made a case for breach and no directed verdict in favor of the defendant should be given. The defendant can offer its own proofs to show it was not negligent and the jury decides whether the defendant is liable.
- CAUSATION
Two Types
Acutal causaiton
- Actual Causation - (also called “factual” or “But for” Causation)
- Proximate Causation
- CAUSATION
Two Types
(1) Actual Casuation
What must be proven
Plaintiff
Plaintiff has to prove a connection between the breach and the injury suffered. The key question to ask is: If the breach did not happen, would the harm have occurred?
If yes, the result would have been the same then there is no actual cause.
- CAUSATION
Two Types
(1) Actual Casuation
Multiple Defendants
Use the Substantial factor test.
Ask: Was the breach a substantial factor in causing the harm?
Yes - if the breach was capable of causing the harm by itself.
ex - two people negligently light fires that merged together and burned down the pltf’s house. The pltf will be able to establish actual causation if she can show ea. fire alone would have caused the damage.
MBE - Joint and several liability - ea liable for the entire damage amount but can go after the other def for the amount owed.
- CAUSATION
Two Types
(1) Actual Casuation
Alternative Causes
Which def caused the harm?
- The Plaintiff must show the following.
a. All defendants are joined All potential defendants are joined in the lawsuit.
b. All defendants are negligent All defendants were negligent. - The burden will then shift to each individual defendant to show they were not the actual cause.
- CAUSATION
Two Types
(1) Proximate Causation
Liability must be fair
The harm must be foreseeable. The harm must be foreseeable (not necessarily the manner in which it occurred).
Ask the question: When I hear about what the defendant is doing to breach his duty, what am I worried will happend?
Examples where proximate cause is present because injuries are considered foreseeable
A disease or subsequent accident that occurs after an accident, medical malpractice that occurs after the accident, rescue efforts to protect life and property endangered by def’s negligence, and reactions.
Examples of where proximate cause is not present. Unforeseeable acts of God, chain of causation broken, and unforseeable criminal acts or torts to 3rd parties. Key word is unforeseeable.
- HARM
For personal injury actions, pltf is compensated for all of his damages including both damages (medical expenses, lost wages) and noneconomic damages (pain and suffering, etc).
- there must be actual injury, damages must be foreseeable (not speculative)
- no punitive damages for negligence (unlike intentional torts)
- pltf has duty to mitigate damages and cannot recover for harm that could have been avoided.
- HARM
Eggshell Skull Rule
Plaintiff recovers all damages even if they are larger than defendant would have anticipated. Foreseeability of extent of harm is not required; just that some is foreseeable.
Intentional Infliction of Emotional Distress
Look for when:
- Defendant is negligent; and
- Plaintiff has not sustained any actual physical trauma to his body
Pltf would not use this if someone committed a battery against him because he would sue for physical injuries and tack on emotional distress damages.
Intentional Infliction of Emotional Distress
three ways this will show
- Zone of Danger
- Zone of Danger
a. Defendant is negligent
b. Plaintiff is in zone of danger; and
c. Plaintiff suffers emotional distress that manifests itself in physical symptoms (heart attack, shock, miscarriage)
Intentional Infliction of Emotional Distress
three ways this will show
- Bystander Case
- Bystander Case
a. Plaintiff witnesses a negligent injury
b. Inflicted on a person that is closely related to pltf, and
c. Pltf suffers physical symptoms as a result of his emotional distress
MICHIGAN - Pltf does NOT have to be at the scene. It is enough that plaintiff suffers shock “fairly contemporaneously” with the injury.
Intentional Infliction of Emotional Distress
three ways this will show
- Special Cases
- Special Cases
Affirmative Defenses to
Negligence
(Three kinds)
- Contributory Negligence
- Assumption of the Risk
- Comparative Negligence
Affirmative Defenses to
Negligence
CONTRIBUTORY NEGLIGENCE
This is an old common law doctrine that completely bars plaintiff’s right to recover if he was negligent unless the defendant had the last clear chance to avoid injury.
(do not apply it on the MBE unless the question tells you to)
Affirmative Defenses to
Negligence
ASSUMPTION OF THE RISK
Defendant has to show that plaintiff both knew of the risk and voluntarily assumed.(however, in certain situations e.g where the plaintiff has no choice, when it is an emergency, of when public policy forbids it.) the “assumption of the risk doctrine” will not bar recovery.
Assumption of the risk is not a defense to intentional torts.
express waivers i.e. saying you won’t sue for negiligence are vaild (sports) unless they are against public policy (agreeing not to sue for medical malpractice).
Affirmative Defenses to
Negligence
COMPARATIVE NEGLIGENCE
(majority view)
- The trier of fact weighs plaintiff’s negligence against def.
- A jury will assign percentages of fault to all the parties involved.
a. Pure comparative negligence all plaintiff to recover no matter how negligent he is (default on MBE unless question says otherwise).
b. Partial comparative negligence if the plaintiff was more at fault than the defendant, pltf cannot recover.
thus a pltf who is less than 50% will recover but if more than 50% we wont recover (? will assign the percentage)
Affirmative Defenses to
Negligence
COMPARATIVE NEGLIGENCE
MICHIGAN
- For economic damages (e.g. medical, lost wages) MI uses a pure comparative negligence standard.
- For noneconomic damages (e.g. pain and suffering), MI uses a modified comparative negligence standard.
- If plaintiff is more than 50% at fault and due to intoxication from alcohol/drugs, plaintiff gets nothing!
- Failure to wear a seatbelt reduces a plaintiff’s recovery by 5%.
