Negligence Flashcards
Duty: To whom is duty owed?
To all foreseeable victims of my failure to take precautions. (bar assumes most are foreseeable)
ex. of unforeseeable - Palsgraf gets hit in head by falling scales, when 40 ft. away from throwing box onto train.
Rescuers (even if not called rescuer), and viable fetuses are ALWAYS foreseeable.
Duty: How much care must you exercise?
One must exercise the amount of care that would be taken by a reasonably prudent person under the same or similar circumstances.
AKA- The “poindexter” rule (act like biggest nerd, always drives speed limit, always locks doors, etc. )
- be harsh to D, don’t fall for sympathetic facts, doesn’t matter if dumb, or inexperienced.
REMEMBER - RPP is a fixed constant standard!! Motorist is not expected to use “extreme care” in a blizzard. Motorist only needs to act as RPP under circumstances.
Duty: When does RPP standard change, but it is not a “special duty”?
- Defendant is expected to use superior skill or expertise for P’s benefit
- D’s physical disabilities, deaf or blind, attributed to reasonable deaf or blind
Duty: Special Duty Standards: Children
no poindexter…
Maj - A child must exercise the degree of care that a reasonable child of like age, intelligence, and experience would exercise under like circumstances.
traditional, min - Rule of 7s.
- children under 7 - incapable, no neg.
- 7-13 - presume incapable, rebuttable
- 14+ - presume capable, rebuttable
EXCEPTION: A child engaged in an adult activity is held to the RPP, adult standard. (pointdexter)
Duty: Special Duty Standards: Professionals
A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.
notes: profession itself sets standard.
medical mal- informed consent doesn’t necessarily matter, apply same standard (did give informed consent like ordinary member… ?)
legal mal - P still must prove causation (hard to do, even if duty, P must show would have won suit)
Duty: Special Duty Standards: Owners and Occupiers of Land (source of injury + status = result)
Look for source of injury: activity vs. static condition
+
Status of P:
1. Undiscovered Trespasser
2. Discovered Trespasser
3. Licensee (people I “L”ike)
4. Invitee (open to public)
=
Results:
1. Undiscovered T = NO DUTY
2. Discovered T = Condition, Warn of man-made death traps (narrow)
3. Licensee = Condition, Warn of concealed conditions known to occupier/owner
4. Invitee = Condition, warn of concealed condition that you know, or could have discovered w/ inspection (duty to reasonably inspect)
2-4 = Activities - Reasonable Care (only liable if “careless”)
Duty: Special Duty Standards: Owners and Occupiers of Land; TIPS (static condition, child trespasser, etc)
If static condition, remember land possessor can satisfy obligation by either:
(1) going to condition and making safe or
(2) give adequate warning.
If child trespasser, throw away other rules, use RPP, common sense. (a.k.a. attractive nuisance, also expense of remedying must be slight compared with risk).
1. owner should be aware of dangerous condition
2. owner should know children frequent vicinity
3. condition likely to cause injury
and 4. expense of remedying slight compared to risk
If open and obvious condition, entrant almost always loses.
Duty: Special Situations (diff. duty analysis used): Negligence Per Se
(statute protects:) Class of person, class of risk!
Exceptions:
Compliance MORE dangerous than violation. (ex. swerve across double line to avoid kid)
Compliance IMPOSSIBLE under circumstances. (ex. D has heart attack, drives through red light, crash)
Duty: Special Situations (diff. duty analysis used): Affirmative Duty to Act
GR: No duty to act or rescue.
3 Exceptions:
- D put P in peril
- Strong relationships (i.e. close family, common carrier or innkeeper, invitor & invitee)
- When D has actual ability and authority to control third party from harming another. (ex. mom sees toddler run in store to punch, duty to stop).
Duty: Negligent Infliction of Emotional Distress
GR: No DUTY.
Exceptions:
Zone of Danger - when P has near miss, and suffers physical distress
Bystander Recovery (even if outside zone) - If at the scene, has close relationship, and physical manifestation of symptoms.
Breach of Duty: GR
P must point to D’s “specific conduct” that breached duty.
Breach of Duty: Proving Specific Conduct
Evid. of custom, always admissible, never conclusive
Res Ipsa - (used by desperate Ps, that dont know what happened) P must show:
(1) Does act normally happen in absence of neg?
(2) Was any negligence attributable to D (multi Ds dont use)?
note: P gets to jury, but not auto win, jury still decides.
Causation: Cause in Fact
GR: But For test
Alternative tests: (only if, but not always, multiple Ds)
Substantial factor test - multiple D’s and a co-mingled cause. both liable. (i.e pollution, fire)
Burden Shifting: use in cases with multiple D’s and unknown cause. Ds have burden, if can’t prove, both liable.
Causation: Proximate Cause: Generally
A limitation on D’s liability.
Look at D’s conduct, was harm within risk of his activity? **
Causation: Proximate Cause: Direct Cause and Indirect Cause
Direct Cause (close to D’s action) - ask, is result foreseeable?
Indirect Cause - ask is result foreseeable? and is intervening cause foreseeable?
- if yes to both, P wins
- if both unforeseeable, D wins
- if one or the other… squishy
