Negligence Flashcards
1
Q
Negligence, generally
A
Failure to exercise care a reasonable person would exercise; breach of the duty to prevent foreseeable risk of harm to anyone in the plaintiff’s position; breach must be the cause of the plaintiff’s injuries
Elements
- Duty (obligation to protect another against unreasonable risk of injury)
- Breach (failure to meet that obligation)
- Causation (close causal connection between action and injury)
- Damages (loss suffered)
2
Q
Duty: to whom?
A
Owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care; foreseeability of harm to another sufficient to create general duty to act with reasonable care
- Failure to act—Generally no duty to act
- Foreseeability of harm to the plaintiff
• Cardozo—D only liable to Ps w/in the zone of foreseeable harm (Palsgraf majority rule)
• Andrews—If D can foresee harm to anyone resulting from his negligence, D owed duty to everyone harmed (foreseeable or not) (minority rule) - Special foreseeable Ps
• Rescuers—D liable for negligently putting rescuer/rescued party in danger
o Can apply comparative responsibility if rescuer’s efforts are unreasonable
o Emergency professionals barred from recovery if injury results from risk of the job
(“firefighter’s rule”)
• Fetuses—duty of care owed to fetuses viable at time of injury - Affirmative duty to act—Exceptions to general rule that there is no duty to act
• Assumption of duty
• Placing another in peril
• By contract
• By authority
• By relationship (e.g., employer-employee, parent-child, common carrier-passenger)
3
Q
Duty: standard of care
A
- Reasonably prudent person—objective standard
• Physical (not mental) characteristics are considered in determining reasonableness
• Voluntarily intoxicated person held to same standard as sober person
• Child—reasonable child of similar age, intelligence, and experience
o But child engaged in high-risk adult activity held to adult standard
o Children under age of five generally found incapable of negligent conduct - Custom
• Evidence of custom is admissible but not conclusive in establishing proper standard of care
• Professionals—expected to show same skill, knowledge, and care as other practitioners in same community; specialists may be held to higher standard
o An expert must generally establish the standard of care unless negligence is so obvious that it would be apparent to a layperson (e.g., a surgeon amputating the wrong leg)
• Physicians
o Many jurisdictions have changed to national standard—average qualified practitioner
o Failure to comply with informed consent requirement is medical negligence (malpractice) unless risk is commonly known, patient is unconscious, patient waives or is incompetent, or disclosure too harmful - Negligence per se
• Criminal or regulatory statute imposes a specific duty for protection of others
• D neglects to perform the duty
• D liable to anyone in the class of people intended to be protected by statute
• For harms of the type the statute was intended to protect against
• That were proximately caused by D’s violation
• Defenses—
o Compliance impossible or more dangerous than noncompliance
o Violation reasonable under the circumstances
o Statutory vagueness or ambiguity - Standards of care for specific classes of defendants
• Common carriers (planes, trains, buses)—highest duty of care consistent with practical operation of the business (majority)
• Innkeepers—ordinary negligence (majority); “slight negligence” (common law)
• Automobile drivers—absent “guest statute” (minority—refrain from wanton & willful misconduct), ordinary care to guests as well as passengers (majority)
• Bailor—duty to warn all bailees of known dangerous defects; duty to warn bailee for hire of defects bailor should have known about with reasonable diligence
• Bailee—gratuitous bailee liable only for gross negligence; bailee for hire must exercise extraordinary care; bailee for mutual benefit must take reasonable care
• Sellers of real property—duty to disclose known, concealed, unreasonably dangerous conditions; liability to third parties continues until buyer has a reasonable opportunity to discover and remedy defect - Standard for possessors of land
• Trespassers (traditional/majority approach)—refrain from willful, wanton, reckless or intentional misconduct towards trespassers; no “spring-guns”
o Discovered—warn or protect against concealed, dangerous, artificial conditions
o Undiscovered—generally no duty unless owner should reasonably know that trespassers are entering land, then same duty owed a licensee (majority)
o Attractive nuisance—liable for injuries to trespassing children if artificial condition poses unreasonable risk of serious bodily injury, children cannot appreciate the danger, burden of eliminating danger slight compared to risk of harm, and owner fails to exercise reasonable care to protect children
• Invitee (traditional approach/majority)—Invited to enter for purposes for which
the land is held open or for business purposes
o Reasonable care to inspect, discover dangerous conditions, and protect invitee from them; non-delegable duty
o Duty does not extend beyond scope of the invitation
o Recreational land use (some juris.)—possessor who opens land to public for recreation generally not liable for injuries sustained by recreational land users unless (i) charges a fee or (ii) acts willfully, maliciously, or with gross negligence
• Licensee (traditional approach/majority)—enters land of another with permission or privilege (social guest; emergency personnel)
o Warn of concealed dangers that are known or should be obvious.
o Use reasonable care in conducting activities on the land
o No duty to inspect
• Modern and Third Restatement Approach (minority)
o Reasonable care under all circumstances; no invitee/licensee distinction
o Fact of trespass considered by jury in determining reasonable care
o Duty not to act in intentional, willful, or wanton manner causing physical harm is only duty owed to flagrant trespasser (Third Restatement)
• Landlords and tenants
o Landlord liable for injuries occurring in common areas resulting from hidden dangers about which landlord fails to warn, on premises leased for public use, as a result of a hazard caused by negligent repair, or involving a hazard landlord agreed to repair o Tenant liable for injuries to third parties due to conditions within tenant’s control
• Off-premises victims
o No duty for harm by natural condition (except rotting trees in urban areas)
o Duty to prevent unreasonable risk of harm caused by artificial condition
4
Q
Breach of duty
A
- Burden of proof (preponderance of the evidence)
• Greater probability than not that D failed to meet standard of care (as shown by custom/usage, statutory violation, or res ipsa loquitur)
• Failure was proximate cause of injury and P suffered damages - Traditional approach—compare D’s conduct with what reasonably prudent person would do under the circumstances (objective)
- Modern and Restatement approach (cost-benefit analysis)—consider (i) foreseeable likelihood that D’s conduct would cause harm, (ii) foreseeable severity of resulting harm, and (iii) D’s burden in avoiding the harm
- Res ipsa loquitur (circumstantial evidence; doesn’t change standard of care; establishes an inference of negligence sufficient to avoid dismissal)
• P’s harm wouldn’t have occurred if D used ordinary care (no injury would typically occur in absence of negligence)
• P not responsible for injury (loosely applied in most comparative fault jurisdictions)
• P’s injury under D’s exclusive control
o Modern trend favors generous interpretation of exclusivity
o Many courts ignore exclusivity for product liability if manufacturer wrapped the package or it is clear that negligence took place during production
o If many medical personnel had access to P during surgery in malpractice claim, some jurisdictions presume each D has breached a duty of care unless each D rebuts
5
Q
Causation
A
Cause in fact/actual cause—“but for” D’s act/omission, injury wouldn’t have occurred; most courts require causal link; substantial-factor test for multiple causes/Ds; if unclear, burden shifts to multiple Ds to prove each did not cause P’s harm
• Joint and several liability—may apply if 2+ Ds are each a factual cause of indivisible injury or Ds acted with common plan or design
• Loss of Chance—applies in some juris. if P’s chance of recovery was <50% before D’s conduct; can recover percentage of total damages equal to difference between chance of recovery before and after D’s negligence
Proximate cause/scope of liability
• Limitation on liability
o Foreseeability—D liable for reasonably foreseeable consequences of a foreseeable type (majority); D liable for all direct consequences (minority/Andrew’s test)
o Ps who can recover—P can recover if P was a foreseeable victim of D’s conduct (majority) or P’s harm was w/in scope of liability of D’s conduct (minority)
o Eggshell skull rule—Extent of damages need not be foreseeable
• Intervening and superseding causes
o Direct cause—uninterrupted chain of events from D’s act to P’s injury—foreseeability of type of harm does not necessarily preclude liability (majority)
o Intervening cause—a cause of P’s harm that occurs after D’s tortious act
o Superseding cause—breaks the chain of proximate causation; D not liable; unforeseeable intervening cause is a superseding cause (“Act of God;” criminal act; intentional tort of third party); negligent intervening acts are foreseeable (medical malpractice) and may lead to joint and several liability
6
Q
Damages
A
- Actual damages—must prove actual injury (personal injury or property damage), not just
economic loss; nominal damages and attorney’s fees not permitted in negligence actions
• Parasitic damage—if tort caused physical harm, may add emotional distress
damages (e.g., NIED claims) - Compensatory damages—make the victim whole
- Duty to mitigate—not a duty to D, but may reduce P’s recovery
- Personal injury—past/future pain and suffering, medical expenses, lost wages/reduced future earnings; “eggshell skull” rule applies (liable for full extent of P’s injuries; may be increased because of preexisting condition)
- Property damage—generally, difference between fair market value before injury and immediately after; most courts allow cost of repair as alternative if cost of repair does not exceed value of property, or cost of replacement for household items
- Collateral source rule—benefits from outside source not credited against liability (traditional); statutes have eliminated or substantially modified rule (modern trend); payments from D’s insurer not a collateral source and are credited against D’s liability
- Punitive damages—clear/convincing evidence, malicious, willful & wanton, or reckless behavior (can include torts that inherently involve this state of mind or behavior)
7
Q
Special rules of liability
A
- NIED—D’s negligence creates foreseeable risk of injury to P and D’s action causes a threat of physical impact that causes emotional distress
• Threat of physical impact directed at P or someone in immediate presence of P
o Negligent misdiagnosis causing physical symptoms, mishandling of corpses, and common carriers falsely reporting relative’s death may not require threat of impact
• Bystander must be within zone of danger; if not, may be allowed if close relationship to
injured person, present at scene, & personally observed injury
• Majority rule—physical symptoms generally required - Wrongful death—recoverable damages include loss of support, companionship, society, and affection, but not pain/suffering of P; recovery limited to what decedent could recover
- Survival actions—survival statute may permit representative of decedent’s estate to pursue any claims decedent would have had at time of death; may include pain/suffering
• If survival and wrongful death actions permitted, no double recovery allowed - Loss arising from injury to family member—loss of consortium for spouses; loss of services for injured child
- Wrongful life—minority allows action by child for failure to perform contraceptive procedure or diagnose congenital defect; damage limited to those attributable to disability
- Wrongful birth—if birth due to failed contraceptive procedure or diagnosis of defect, many states permit parents to recover medical expenses for caring for disabled child; some states allow mother to recover pain/suffering damages and medical expenses for labor
8
Q
Vicarious Liability
A
- Liability of employer for employee’s torts
• Generally only liable if within employer’s right to control (otherwise, see IC)
• Tort within scope of employment (acts employee is employed to do or acts intended to profit or benefit employer); not liable for intentional torts unless force inherent to job (i.e., bouncer), or authorized to act/speak for employer and position provided opportunity for the tort (i.e., fraudulent contract as employer’s agent);
• Employer may be liable for detour (minor deviation from scope) but not frolic (unauthorized and substantial deviation)
• Not vicarious liability—negligent hiring, supervision, entrustment, or retention of employee is primary negligence not vicarious liability - Independent contractors (IC)—employers not liable for IC’s torts except for:
• Negligent selection of independent contractor (primary negligence, not vicarious)
• Vicarious liability for non-delegable duty, or
• Vicarious liability for IC engaged in inherently dangerous activity - Partners with a common purpose and mutual right of control—liable for tortious conduct of each other if committed w/in scope of business purposes
- Car owners
• Negligent entrustment of car or other object with potential for harm (if D knows/should know of driver’s or user’s negligent propensities)
• Family-purpose doctrine (D liable for family members driving with permission) versus owner liability statutes (liable for anyone driving with permission) - Parent/child—vicarious liability only if child acted as parent’s agent, state statute applies, or if assumed liability on child’s driver’s license application for negligent driving
• Primarily negligent if fails to exercise reasonable care to prevent minor child from intentionally or negligently harming third party if parent (i) can control child and (ii) knows or should know the necessity and opportunity for exercising such control - Dram-Shop liability—many states recognize cause of action against seller of intoxicating beverages when a third party is subsequently injured due to buyer’s intoxication; most states only allow liability if buyer was minor or intoxicated at time of sale; many states extend to social hosts for injuries to intoxicated guest and/or third parties
9
Q
Defendant Immunity
A
- Government
• Federal—traditionally immune, but now immunity is limited by FTCA
o Sovereign immunity not waived for enumerated torts, discretionary functions, gov’t contractor product liability (unless failed to warn or conform with gov’t specifications), and most traditional gov’t activities
o Immunity waived for intentional torts committed by law-enforcement officers
• State—most states have waived sovereign immunity, at least partially, but acts vary
o Municipalities/local gov’t agencies—usually governed by state tort claims acts; immunity traditionally attached only to governmental functions
o Public-duty rule—no liability to any one citizen for municipality’s failure to fulfill a duty that owed to public at large, unless special relationship creates special duty - Government officials—immunity applies if is performing discretionary functions entrusted by law unless acts with malice or improper purpose; no tort immunity for carrying out ministerial acts
• Absolute immunity from personal liability—legislators performing their legislative functions, judges performing their judicial functions, prosecutors - Intra-family—interspousal immunity extinguished in most states; parent-child immunity generally limited to core parenting activities
- Charitable—eliminated or capped in most states
10
Q
Liability Among Multiple Defendants
A
- Joint & several liability—each D found liable for single indivisible harm liable for the entire harm
- Pure several liability—(majority rule) each D liable only for his proportionate share
- Satisfaction & release—no double recovery
- Contribution—tortfeasor who paid more than fair share of common liability can recover excess of fair share from joint tortfeasor; can recover no more than the joint tortfeasor would be liable to P for; not generally available for intentional tortfeasors
- Indemnification—shifting of loss from vicariously liable tortfeasor to primarily responsible party; may be based on agreement, equity, subsequent additional harm, or strict product liability
11
Q
Defenses to Negligence
A
- Contributory negligence
• P’s negligence is complete bar to recovery (common law/traditional rule)
• Not a defense to an intentional tort, gross negligence, or recklessness
• Last clear chance rule—abolished in most jurisdictions; P may mitigate legal effect of own fault if D had last clear chance to avoid injuring P; D’s actual knowledge of P’s inattention required for liability to inattentive P; D liable to helpless P if knew or should have known of P’s helpless peril - Comparative fault
• Pure—not a complete bar to recovery; P’s damages reduced by proportion that P’s fault bears to total harm
• Partial
o If P is less at fault than Ds combined, P’s recovery reduced by percentage of fault
o If P is more at fault than Ds combined, P recovers nothing
o If P and D are equally at fault, P recovers 50% of his total damages (in minority jurisdictions P recovers nothing if equally at fault)
• Comparative fault will not reduce P’s recovery for intentional torts - Assumption of the risk (A/R)
• Traditionally—unreasonably proceeding in face of known, specific risk bars recovery
• Contributory negligence jurisdiction—no recovery
• Comparative fault jurisdiction—merely reduces recovery
• Exculpatory clauses in contracts—unenforceable if (i) disclaims liability for reckless or wanton misconduct or gross negligence;(ii) gross disparity of bargaining power (iii) exculpated party offers services of great importance or practical necessity to public; (iv) subject to typical contractual defenses; or (v) against public policy o Generally, common carriers, innkeepers, and employers cannot disclaim liability for negligence.
