Negligence **********

Question 1

Four elements of the prima facie case

Answer 1

a. Duty
b. Breach
c. Causation- factual and proximate
d. Damage

Question 2

To whom do you owe a duty?

Answer 2

i. duty is owed to foreseeable victims –
2. unforeseeable victims always lose negligence bc not owed a duty. helen palsgraf at end of platform is not foreseeable, outside the zone of danger.

1. minority view—everyone is foreseeable

Question 3

Duty– exception for rescuers. rescuers are always foreseeable

Answer 3

rescuer, they ARE owed a duty of care.

ii. danger invites rescue, the initial misfortune pulls people in and you should expect it. so foreseeable.

Question 4

Duty - how much care is appropriate

Answer 4

i. as would be excersised by a reasonably prudent person under similar circumstances
2. no allowances for ∆s shortcomings, if dumb or developmentally disabled or novice
b. dumb person who lives in neighborhood for 10 years with bad intersection, should be EXTRA vigilant at that intersection.

1. But we do modify duty if the ∆ has superior skill or knowledge, the standard is a reasonably prudent person with that skill or knowledge.
2. can only move the reasonable person standard up to account for knowledge/skil
3. physical attributes are part of the reasonably prudent person that is relevant to problem at hand
   a. we ask what would a reasonable BLIND person have done

Question 5

6 special standards of care

Answer 5

• negligence against kids,
• professions
• premises liability
• negligence per se
• duties to act affirmative
• negligent infliction of emotional distress
• duty of bailor

Question 6

Negligence by children

Answer 6

i. Negligence claims against kids. the ∆ is a kid. kids under 5 owe the world no duty of care. kids under 5 cant ever be held liable under negligence.
1. Kids bw 5-18 owe the care of ppl of similar age, experience and intelligence acting under similar circumstances

b. child standard of care is a subjective standard. depends on the attributes of the kid.
i. if the kid is a novice at tricycling, or is 6 vs 8, or is stupider than usual, this all goes in the ∆’s favor

2. UNLESS the child is engaged in an adult activity, then we use the RPS standard → operating anything with a motor = adult activity

Question 7

Negligence by professionals (malpractice)

Answer 7

a. must excersise same care/skill/knowledge as average member of same profession
2. standard of care is the custom in the profession
a. in regular negligence, custom can be evidence of RPS, but it’s not conclusive.
b. in professional cases it IS conclusive
a. use a national standard of care

5. doctors have duty to disclose risks of treatment
   a. dr. will be liable if undisclosed risk was serious enough that a reasonable person would have withheld consent knowing of the risk.
   .

Question 8

Negligence per se

Answer 8

1. class of person + class of risk test: conclusively establishes duty and breach
2. compliance does not necessarily establish due care

a. usually crim statutes, civil statutes have their own remedy.
d. statutes that almost always satisfy this
i. motor vehicle code can be used to show someone fell under the standard of care

If negligence per se fails can still use RPS. Compliance

6. exceptions to using statute
   a. when statutory compliance would be more dangerous than a violation
   i. for ex ∆ violated a driving rule but only to protect a girl who ran in front of him, and ∆ cause the π to run off the road.
   b. when statutory compliance is impossible under the circumstances
   i. for ex someone cant comply w driving code because they were having a heart attack.
   c. but can still use the RPS test to evaluate if these exceptions apply

Question 9

Duty to act affirmatively

Answer 9

v. duties to act affirmatively
1. no duty to act affirmatively and come to aid of stranger in peril

3. two exceptions
   a. if preexisting relationship, then duty of care. must be formal legal relation, like common carrier + passanger, business and invitee, parent and child
   b. or if the ∆ put the π in peril, then duty of care
   i. even if ∆ did nothing wrong/negligent

c. in the exceptions, no duty to rescue, just a duty care. just to act as reasonable person.
i. no need to put own life in peril

4. gratuitous rescuers who make a situation worse CAN be held liable. that is, once you start to act, you assume the duty to act reasonably.
   a. if the rescuer is careless/ negligent.
   b. also, once you start a rescue, you have a duty to continue the rescuing

Question 10

Negligent infliction of emotional distress

Answer 10

1. if the ∆ causes trauma to the πs body, that π has a claim for BOTH their emotional trauma and bodily damage.

a. was the ∆ negligent?
b. did the ∆ inflict emotional distress? three types of cases
i. “near-miss case”—the ∆ doesn’t cause physical trauma to the π but he almost did - placed π in zone of physical danger
2. and as the result of the distress, the π suffered subsequent physical manifestations
a. for ex heart attack from the stress

ii. “bystander”—the ∆ causes major injury or death to x, and the π is very sad that X has been harmed or killed. two elements
1. must show π and X are close family members
2. π must see it as it happens. contemporaneous witness

iii. “relationship cases”—π and ∆ are in preexisting BUSINESS relationship and it is highly foreseeable that careless performance will cause emotional distress. exs:
1. med patient and med lab. lab negligently reports that the tissue reports bad cancer, but the tissue is benign. π suffers emotional distress bc of lab’s negligence.

Question 11

Breach

Answer 11

ways to identify breach: ID specific wrong conduct and explain why its wrong. for ex an act or ommission or cost-benefit analysis, or for ex, that it’s unreasonable to drink and drive b/c alcohol impairs reflexes.

also through negligence per se or res ipsa loquitor

Question 12

Res ipsa loquitor as breach

Answer 12

i. used when π can’t figure out what the ∆ did wrong. info vacuum. Establishes both duty and breach

iii. Requirements
(likely negligence + exclusive control)

a. accident is of a type normally associated with negligence
i. argument re probabilities. don’t have to offer evidence for the probability, just appeal to common sense.
2. AND ∆ had exclusive control of the instrument
a. Majority: if there are d ∆s in control of the instrument causing injury, most courts don’t allow RIL to establish breach.
b. minority: even if multiple ∆s, each ∆ must prove he wasn’t negligent. Ybarra—patient under anesthetic and should dislocated, everyone in the operating room has BOP to show they weren’t negligent.

Question 13

Directed verdict and RIL

Answer 13

1. if there is RIL, there can’t be a DV. it MUST go to a jury. π can still lose if jury finds no negligence despite RIL.

Question 14

2 kinds of causation

Answer 14

factual and proximate

Question 15

But for factual cause

Answer 15

connection bw the breach and the injury.
1. ∆s are not factual causes, the breach is the factual cause

ask if “but for” the breach, π would have escaped harm. was the breach an essential element of the harm? ∆ can counter-argue with an “Even if” argument. Even if I had been careful, π would have gotten hurt. 
1.	for ex: statutory negligence because no life preservers on the boat, class of π, class of risk. but ∆ can argue even if I had the life preservers, it would have made no differences.

Question 16

Concurrent causes– multiple causes combine to create the injury

Answer 16

1. SUBSTANTIAL FACTOR TEST– if each tortfeasors actions ALONE are sufficient to create the harm– each is liable for the harm of the total.
2. MULTIPLE NEGLIGENCE– if each tortfeasors actions alone are not sufficient to create the harm, each is liable for the injury the ∆actually caused
3. ALTERNATIVE CAUSES– if it cannot be determined which tortfeasor caused the injury- shift the burden. If none of the ∆s can disprove it, hold them both liable. Summers v. Tice quail hunting.

Question 17

Proximate cause

Answer 17

π must convince us that liability would be fair. An 11th hour sanity check re fairness. 2-3% of cases, fairness is debatable.

i. foreseeability = fairness. we think it’s fair to make people pay for the FORESEEABLE consequences of their careless acts.
ii. 4 examples of foreseeability
1. cases with intervening medical negligence– medical negligence IS foreseeable
2. cases with intervening negligent rescue– danger invites rescue. Negligent rescue IS foreseeable.
3. intervening protection or reaction forces– ∆ runs red light and hits only one πs leg. other pedestrians stampede and one steps on the πs leg. ∆ driver is liable for stepping on the leg. Reaction is foreseeable.
4. subsequent disease or accident—π falls after getting crutches because of his broken leg caused by ∆ driver. yes this is foreseeable, and you have to pay.

Question 18

Foreseeable/ unforeseeable results caused by foreseeable/ unforeseeable intervening forces

Answer 18

2. General rule: ∆ is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts

liable for foreseeable results caused by foreseeable intervening forces
not liable for unforeseeable results caused by unforeseeable intervening forces

foreseeable results caused by unforeseeable intervening forces– ∆ usually liable.

a. ∆ forgot to clean out oil barrage. lightning struck, ∆ is liable.
b. EXCEPTION: if the intervening force was a crime or intentional tort
i. ∆ forgot to clean oil, and arsonist lit a match. ∆ not liable. Your leaving oil on the ground doesn’t make it more likely an arsonist will come around.
c. Unless your action made that intervening force more likely, then than intervening cause is not a defense. Like valet leaving car running on crime-ridden street. Made the crime ore likely. Within the increased risk caused by acts.

unforeseeable results caused by foreseeable intervening forces
i.	So if ∆ forgot to clean oil, and it caused a fire, and someone saw that fire and has a heart attack→ not liable because not a foreseeable result. 
this is not the same as the eggshell skull doctrine, because eggshell skull is a question of proportion. 
with the fire, he didn't suffer an extreme level of burning. it's a different class of harm.

Question 19

Damages

Answer 19

a. eggshell skull doctrine.
i. π recovers for all harm suffered if other elements established.
ii. even if the harm is surprisingly great in scope

b. duty to mitigate—π has this duty

Question 20

Affirmative defenses

Answer 20

out of favor: contributory negligence and implied assumption of risk

contributory negligence
– can establish for ex. by showing π’s violation of statute
i. completely bars π’s recovery. most jdxns now opt for comparative negligence.
ii. last clear chance rule—exception to contributory negligence.
1. π rebuttal to the defense of contributory negligence. the person with the last clear chance to avoid an accident is liable

implied assumption of the risk

i. π must have known and voluntarily proceedied in the face of a risk
ii. doesn’t apply if there is no alternative to proceeding in the face of the risk, or if there is fraud, force or an emergency

express assumption of the risk is a complete defense

on the MBE: comparative negigence

Question 21

Comparative negligence

Answer 21

a. Evidence that the π failed to excersise proper care for his or her own safety.

b. if ∆ offers evidene of πs negligence, the jury must measure relative negligence, and assign a percentage of negligence to both π and ∆. and πs recovery is reduced by π’s degree of fault.
i. for ex driver driving drunk, π is jaywalking. jury decides ∆ is 80% at fault, π is 20% of fault. π forfeits 20% of proven damages.

c. two kinds of comparative negligence
i. the kind on the MBE is pure comparative fault—even if π is 90% at fault, can recover 10%

ii. the other kind is partial/modified comparative negligence.
1. π fault over 50% is an absolute bar on negligence.

d. assumption of risk is either a
i. limit on the duty owed
ii. or comparative negligence
iii. express assumption of risk is a complete defense

Question 22

Duty of Bailee

Answer 22

Duty of bailee – The one duty of the one borrowing

1. If bailment is for sole benefit of bailor: duty of slight care, cannot be grossly negligent
2. If bailment is for mutual benefit: duty of reasonable care, to not be ordinarily negligent
3. If bailment is for sole benefit of bailee: duty of great care, to not be even slightly negligent.
4. Bailee is liable to the owner for conversion if the bailee uses the chattel in a way that constitutes material breach of the bailment agreement

Question 23

Duty of bailor

Answer 23

vi. Duty of bailor (the one lending)
1. If for the sole benefit of the bailee (gratuitous bailment)—bailor has duty to inform bailee of known dangerous defects.
2. If non-gratuitous bailment or bailment for reward—bailor liable even for things he should have known about.

Question 24

Premises Liability – 4 kinds

Answer 24

– when someone enters a piece of real estate. 4 categories: unknown tresspasser, known or anticipated tresspasser, licensee, invitees.

7. footnotes
   a. if a guest of a tenant is injured, both landlord and tenant may be liable–> look to property law

a. firefighters and police officers—often get injured as part of their job. they can’t recover for getting burned bc assumption of the risk

Question 25

Premises Liability – Unknown trespasser

Answer 25

1. unknown trespasser—NO duty of care to these people. they always lose a negligence claim. they are unforeseeable.

Question 26

Premises Liability – Known or anticipated trespasser/ and when that known trespasser is a child

Answer 26

2. known or anticipated trespasser—for ex repeated trespassing, so you expect they’ll come. only duty to protect from a hazard that meets 4 factors (known + artificial + hidden danger + highly dangerous)

b. “Attractive nuisance doctrine”– trespassing children—treated more generously than trespassing adults.
must exercise ordinary care to avoid reasonably foreseeable risk of harm to children for :1) dangerous condition 2) of which owner knows or should know 3) foreseeable that young people will come (no duty to unknown children trespassers) 4) likely to cause injury 5) cost to remedy is slight compared to the magnitude of the risk
difference from adult trespassers: must also fix those dangers ∆should have known, may apply to natural dangers.

Question 27

Premises Liability – Licensee

Answer 27

3. licensee—they have permission (express or implied) but do not confer economic benefit on the possessor. for ex. social guests or solicitors 2 part test (concealed + known dangers)
   a. only a duty if the hazard is concealed
   b. one the possessor knew about in advance.

Question 28

Premises Liability - Invitee

Answer 28

4. invitees—have permission AND confer economic benefit on the possessor. OR alternatively the property is open to the public as a whole. for ex a free museum.
   must warn of anything known/ should have known