Negligence Flashcards
Negligence elements
- Duty
- Breach
- Causation
- Harm
Learned hand formula
B < (P x L)
B = burden of precaution
P = possibility of risk
L = loss value
When does duty exist in Learned Hand Formula?
When B < (P x L)
What is typical standard of care?
Reasonable prudent person (objective)
SOC for adult
Must act as a reasonable prudent person would in like circumstances (objective)
Is SOC objective or subjective?
Objective
What are the six additional factors for SOC?
- Customs
- Disability
- Child
- Professional
- Emergency situations
- Premises
What is the acronym for SOC factors?
CDC
PEP
When are customs not controlling on SOC?
When a reasonable person would not follow them
Does following customs preclude a finding of negligence?
No
Does not following customs preclude a finding of negligence
No
Sudden Emergency Doctrine
SOC for person facing sudden emergency not of his making = must act as a reasonable prudent person would have in an emergency
Old Age Rule
- Old age by itself does not count as disability
- Infirmities associated with old age may be considered by jury
- Examples: osteoporosis, bad hearing, arthritis
Physical disability SOC
Must act as a reasonable prudent person with that physical disability would act
Mental disability SOC
Must act as a reasonable prudent person would act,, regardless of capacity to comprehend actions
Are mentally disabled persons liable for negligent torts?
Yes
Can employed caretakers sue incapacitated patients for negligence?
No
Sudden Mental Capacity - Majority View
No allowances, even in cases of sudden insanity or mental deficiency
Sudden Mental Capacity - Minority View
Allowances only when
- Sudden and
- Unforeseeable
SOC for Child
Child of like age, intelligence, and experience UNLESS
- engaged in adult activity
- engaged in dangerous activity
What are the exceptions for a child SOC?
- Engaged in adult activity
2. Engaged in dangerous activity
Is operating a motor vehicle considered an adult activity (re: Child SOC)?
Yes
Is hunting considered engaging in dangerous activity (re: Child SOC)?
No
What age is SOC applied for a child (majority view)?
Not applied = 3-
Applied = 7+
SOC for professional
Skill, training, and knowledge of ordinary reasonable member of profession (not average)
Is industry-wide standard probative of professional SOC?
Yes
How is evidence of industry-wide standard presented?
By expert testimony
TN’s legal malpractice SOC
Statewide
Legal malpractice elements
- Attorney’s employment
- Attorney’s neglect of reasonable duty
- Such negligence resulted in and was proximate cause of loss to client
SOC options for medical malpractice
- Locality
- National
- Similar community
TN’s medical malpractice SOC
Similar community
Informed consent doctrine
Physician required to inform patient about
- Treatment protocol
- Available alternatives
- Collateral risk
- Personal, economic, or research interests that may affect medical judgment
Informed consent doctrine - Majority
Objective = what a reasonable prudent person in the patient’s position would have decided if adequately informed of all significant perils at time of decision
Informed consent doctrine - Minority
Subjective = what the patient would have reasonably decided if adequately informed of all significant perils at time of decisions
Informed consent doctrine - Other
Modified objective = what a reasonable prudent person in the patient’s position would have decided
Exceptions to ICD
- Common knowledge
- Therapeutic privilege
- Emergency
Trespasser
Unlawfully on premise
LO’s duty to trespasser
- No duty to an undiscovered T
- Limited duty to discovered T to exercise ordinary care
1. to warn T of or make safe
2. any dangerous condition
3. known to LO
4. that T is unlikely to discover
Licensee
Enters with permission for own purpose (social guest)
LO’s duty to licensee
- Duty to exercise ordinary care
2. to warn of or make safe
3. any dangerous condition
4. known to the LO
5. that creates risk of harm and
6. L is unlikely to discover - No duty to inspect for defects or repair known defects
Invitee
Enters with permission in furtherance of LO’s business/purpose (business visitor)
LO’s duty to invitee
- Duty to exercise ordinary care
1. to warn of or make safe
2. any dangerous condition
3. known to the LO
4. that creates risk of harm and
6. L is unlikely to discover - PLUS duty to make reasonable inspections to discover dangerous conditions and make them safe
Is actual purchase required for visitor to be invitee?
No
Fireman’s rule in TN
Precludes firefighters/police officers from recovering for injuries arising out of risk particular to their employment (job-related risks)
Exceptions: gross negligence
Landlord’s duty elements
- Landlord’s ability to exercise control
- Landlord’s advantageous position in exercising that control and minimizing risks and
- Landlord’s knowledge of risk for criminal behavior
RR Crossing Duty - Majority
Stop, look, listen is enough, no need to exit vehicle (TN view)
RR Crossing Duty - Minority
Unyielding duty to stop, look, listen, no matter how clear crossing it (PA rule)
RR Crossing Duty - TN
Stop, look, listen is enough, no need to exit vehicle (majority)
Establishing duty by rule of law - Majority
Need for caution in framing standard of behavior that amounts to rules of law, should be for juries to decide (TN’s view)
Establishing duty by rule of law - Minority
If standard is clear for all situations, court should lay it down and not leave it to jury
Establishing duty by rule of law - TN
Need for caution in framing standard of behavior that amounts to rule of law, should be for juries to decide (majority)
When can a non-tort statute be used to establish duty?
- P is of a class of persons statute is designed to protect and
- P’s injury is of a class of injuries statute is designed to prevent and
- Injury was proximately caused by D’s violation of statute and
- Civil liability is appropriate (proportionate to criminal liability)
Effects of proof of negligence
- Negligence per se
- Only evidence of negligence
- Prima facie case of negligence with a rebuttable presumption of negligence based upon justified excuse
Effects of proof of negligence - Majority
Negligence per se = conclusive evidence of negligence
- TN’s view
Effects of proof of negligence - Minority
Only evidence of negligence
Effects of proof of negligence - Other (Michigan)
Prima facie case of negligence with rebuttable presumption based upon justified excuse = proof of duty and breach as a matter of law that may be rebutted
Excused violations for Michigan proof of negligence
- Actor’s incapacity
- Neither knows nor should know of occasion for compliance
- Unable after reasonable care to comply
- Confronted by emergency not due to his own misconduct
- Compliance would involve greater risk of harm to self or others
Examples of tort-specific statute establishing duty/breach
- Good Samaritan Law
2. Dram Shop Laws
Good Samaritan Law (use)
Protects any person who provides emergency rescue from liability if they meet elements
Good Samaritan Law (elements)
- D did not create P’s dangerous condition
- D acts in good faith
- On a voluntary basis (no legal duty)
- In a life-saving, emergency situation
- Without committing gross negligence (deliberately acting to add serious harm)
Duty to Act - Majority
No affirmative duty to act (rescue) unless
- D caused P’s dangerous condition
- D assumes responsibility to act, thereby increasing risk of harm or reliance by P to her detriment or
- Special relationship between D and either
- Person whose conduct needs to be controlled or
- Foreseeable victim of that conduct
Duty to Act - Minority
Must act to save another from peril
States with Duty to Act laws
- Minnesota
2. Vermont
Dram Shop Laws (use)
Govern civil liability of commercial establishments that serve alcohol
TN’s Dram Shop Laws (elements)
- In general, sellers of alcohol have immunity to patrons who subsequently cause injuries to 3P
- Exceptions
1. Seller sold alcohol to either minor or visibly intoxicated person
2. And such person caused injury
3. As direct result of consumption of alcohol so sold
Breach
Non-conformity to SOC
Gross negligence
Failure to exercise even slight care or even care that a careless person would exercise
Causation
Requires BOTH
- CIF
- Legal/proximate cause
Causation-in-fact
- Substantial factor in bringing about P’s harm
2. More probable than not that harm was caused by D’s tortious conduct
Sine qua non
without which (but-for test)
Substantial factor
P’s evidence must show that it is more probable than not that the harm was caused by D’s tortious conduct
CIF BOP
- P bears burden
- Must prove causal link on CIF issue
Is possibility insufficient for CIF?
No, must be probable, not simply possible
Is the possibility that P’s injury may have happened without D’s negligence sufficient to break causal link for CIF?
No
What do courts consider in determining CIF?
Natural and ordinary course of events
Eggshell Skull Plaintiff Rule (CIF)
D takes victim as he finds him = D is responsible for all natural and probable consequences of his tortious conduct
Lost Chance Doctrine - Majority
- Accepts lost chance doctrine
- Where P claims that D’s conduct has not caused P’s injury itself but has created increased risk or hazard of compensable injury
- P can recover
Recoverable Examples of Lost Chance Doctrine
- Misdiagnosis
- Inappropriate treatment
- Delayed treatment
Lost Chance Doctrine - Minority
- Rejects lost chance doctrine
- Where P claims that D’s conduct has not caused P’s injury itself but has created increased risk or hazard of compensable injury
- P cannot recover
- TN’s view
Lost Chance Doctrine - TN
- Rejects lost chance doctrine
- Where P claims that D’s conduct has not caused P’s injury itself but has created increased risk or hazard of compensable injury
- P cannot recover unless shows that more probable than not (greater than 50% chance) that D’s negligence was proximate cause P did not recover or survive
- Minority view
Problems proving CIF
- Concurrent causes
- Alternative liability
- Concert of action
- Market share liability
- Enterprise liability
Concurrent causes (problem/solution)
Problem:
- Two independent, concurrent causes combine to cause damages
- Either alone would have caused damages (substantial factor)
Solution:
- Both Ds are liable
- When event other than negligence appears predominant, negligence is not considered substantial factor
Alternative liability (problem/solution)
Problem:
- P can establish that both D’s breached duty of care
- But negligence of only one could have caused injury
Solution
- BOP for causation shifts to Ds to absolve themselves
When an event other than D’s alleged negligence appears predominant, what happens to alleged negligence?
Not considered a substantial factor
Concert of action (problem/solution)
Problem:
- Ds working pursuant to agreed upon plan, encouraging one another, substantially assist one another
Solution:
- All Ds are CIF
Market share (problem/solution)
Problem:
- Several manufacturers produce identical product that injure P
- Impossible to know which manufacturer produced specific product that caused P’s injury
Solution:
- D’s liability is proportionate to their substantial share of overall market
In market share liability, what options do Ds have?
- Opt-out if manufacturer can prove its product could not have caused P’s injuries
- Cross-complaint permitted against other possible Ds
Suicide in TN (proximate cause)
- In general, suicide is
- not a superseding, intervening cause of death as a matter of law
- a question of fact to be resolved at trial - Crucial Q: whether D’s negligent conduct led to or made it reasonably foreseeable that deceased would commit suicide
- if yes, suicide is not independent intervening cause = does not break chain of legal causation
Social Host Liability in TN
- By statute
- No legal claim against person who furnished alcohol to person who subsequently caused injury to 3P
- Distinction between individuals who sells alcohol and individuals who furnish alcohol
- Exception to no liability for social host = minors
- Minor exception applies to both host who furnished alcohol and host who merely permits minor to drink at their home
In TN, if a person is injured by an intoxicated person, is there a legal claim against the person who furnished the alcohol?
No, unless intoxicated person is a minor
In TN, is there liability for a social host who furnishes or permits alcohol in their home? What is the exception?
No, unless social host either furnished alcohol to minor (who then injured 3P) or permitted minor to drink in home
Social Host Liability - Minority
Liability for social host who serves alcohol to adult social guest if
1. Knows guest was intoxicated and
2. Knows guest would be subsequently operating a motor vehicle
= social host is responsible to harm caused by guest to 3P
Public Policy of Proximate/Legal Cause
May be used to cut off D’s liability when court/jury decided it would be unjust under circumstances to hold D liable, even if D’s conduct was CIF of P’s injury
Proximate Cause - Majority
Foreseeability doctrine (risk principle/foreseeable risk rule) - TN's view
Proximate Cause - Minority
Direct consequences rule
- not TN’s view
Proximate Cause - TN
- Majority view
- Foreseeability doctrine
- Looks to foreseeability as integral part of duty determination
- Factors
1. P’s Harm - Foreseeability
2. P’s Harm - Magnitude
3. D’s Conduct - Social value
4. D’s Conduct - Usefulness
5. Alt. Conduct - Feasibility
6. Alt. Conduct - Usefulness
7. Alt.Conduct - Relative Safety
6. Alt. Conduct - Relative Cost/Burden
Direct consequences rule
- Minority view
- Not TN’s view
- If D’s negligence’s is direct cause of P’s injury = legal/proximate cause
- Foreseeable extent of damages is irrelevant
Foreseeability doctrine
- Majority view
- TN’s view
- Foresight of reasonable man determines responsibility
- Type of harm must be reasonably foreseeable
- D is not liable for unforeseeable consequences, even if direct
TN’s Duty Determination Factors (8)
- Foreseeability of harm
- Magnitude of harm
- Social value of D’s activity
- Usefulness of D’s conduct
- Feasibility of alternative conduct
- Relative costs and burden
- Usefulness of safer conduct
- Relative safety of alternative conduct
Zone of danger
Negligence is legal/proximate cause if
- Harm is general type that made conduct unreasonable in first place
- P was within zone of danger
Harm (in negligence torts)
Actual loss
Proof of harm
- Direct evidence
- Circumstantial evidence
- Res ipsa loquitur
Direct evidence
Evidence sought to be proved
Circumstantial evidence
Evidence from which fact sought to be proved may be inferred
Slip and Fall elements
- Owner’s actual or constructive knowledge of condition on premises
- Condition posed unreasonable risk of harm
- Owner did not exercise reasonable care to reduce or eliminate the risk and
- Owner’s failure to use such care proximately caused P’s injuries
Circumstantial evidence in Slip and Fall
Must establish it is more likely than not that dangerous condition existed long enough to give owner reasonable opportunity to discover condition
Actual or Constructive Notice in Slip and Fall
- Store employee was present in immediate area or
- Substance had been on floor for such a time that it would have been discovered and removed had proprietor exercised reasonable care in inspecting the premises
Res ipsa loquitur (meaning)
The thing speaks for itself
When should RIL be considered?
Whenever desperate P is having difficulty showing how injury happened/exact nature of D’s negligence
Res ipsa loquitur (elements)
- Accident is one that does not ordinarily occur without negligence
- Accident was caused by instrumentality within D’s exclusive control and
- Accident was not due to an involuntary action of contribution by P
Res ipsa loquitur effect - Majority
Permissive inference of negligence
- from which reasonable jury may conclude negligence but does not require finding of negligence
Res ipsa loquitur effect - Minority
Rebuttable presumption of negligence
- entitles P to win if D does not rebut claim
Effects of RIL
- Permissive inference of negligence (majority)
2. Rebuttable presumption of negligence (minority)
Wrongful death and survival statutes
Legislation to deal with death of either P or D regarding causes for personal injuries
Wrongful death
- Brought by defined beneficiaries of deceased to recover for injuries caused by death
- Damages go to beneficiaries
- Not subject to creditors of deceased’s estate
Defined beneficiaries for wrongful death
- Spouses
- Parents
- Children
Survival
- Brought by decedent’s estate
- Damages go to decedent’s estate
- Subject to creditors of decedent’s estate
What duty does a LO owe children in Attractive Nuisance Doctrine?
LO owes children a duty of ordinary care
- to avoid reasonably foreseeable
- risk of harm to children
- caused by artificial conditions
- on his property
Attractive Nuisance Elements
- Dangerous condition present on land of which owner is or should be aware
- Owner knows or should know that young persons frequent the vicinity of this dangerous condition
- Condition is likely to cause injury (dangerous) because of child’s inability to appreciate risk
- Expense of remedying the situation is slight compared to magnitude of risk
What are examples of Attractive Nuisance?
- Abandoned automobiles
- Lumber piles
- Sand bins
- Elevators
What is typically not an Attractive Nuisance?
Bodies of water, unless contains elements of unusual danger to children (sticks/logs, path of scum looks walkable)
Legal/proximate cause BOP
- BOP is on P to prove all actors engaged in tortious conduct as factual cause of P’s harm
- Once P proves that, BOP shift to Ds to prove they were not cause/other D was cause
Intervening force
One which actively operates in producing harm to another after the actor’s negligent act or omission has been committed
Superseding act
Act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about
What must a superseding act be?
- Extraordinary
- Unforeseeable
- Independent from D’s conduct
- Intentional or criminal acts (malicious or wanton)
Does an intervening act of a 3P severe the causal connection between D’s negligence and P’s injury?
No, only if it’s a superseding case
When does an intervening act of 3P severe the causal connection between D’s negligence and P’s injury?
When the intervening act is a superseding cause
When are intentional or criminal acts not superseding causes?
Where the risk of the intervening act occurring is the very same risk which renders the actor negligent
NIED Physical Impact Rule
No recovery for pure mental injuries without physical impact unless
- objective, definite physical injury results and
- P’s emotional reaction is within normal reactions
What are the exceptions to the Physical Impact Rule?
- Death telegraphs
2. Mishandling corpses
NIED Thing Rule
No recovery unless P
- Establishes close familial relationship with victim
- Contemporaneous perception (aware that it is causing injury and present at scene) and
- Serious emotional distress results
What are the three types of possible NIED claims in TN?
Claim arises when
- Person suffers purely emotional injury as a result of the negligence of another
- P witnesses injury-producing event
- P does not witness injury-producing event
NIED elements when P witnesses injury-producing event
- P’s sensory observation of event (sufficiently near to allow it)
- P’s close relationship with injured/deceased
- 3P’s injury was (or reasonably perceived to be) serious or fatal and
- Expert medical or scientific evidence that P has suffered a severe emotional injury
NIED elements when P does not witness injury-producing event
- P’s observation of actual or apparent death/serious injury at the scene of accident before scene has been materially altered
- P’s close relationship with injured/deceased
- 3P’s injury was (or reasonably perceived to be) serious or fatal and
- Expert medical or scientific evidence that P has suffered a severe emotional injury
NIED elements when P suffers purely emotional injury
Evidence of
- Physiological manifestations of emotional distress
- Psychological manifestations of emotional distress
- Seeking medical treatment, diagnosis of medical/psychiatric disorder, and/or prescription for medication
- Duration and intensity of P’s physiological symptoms, and medical treatment
- Significant impairment in his or her daily functioning and
- Extreme and outrageous character of D’s conduct
What are examples of evidence of physiological manifestations of emotional distress?
- Nausea
- Vomiting
- Headaches
- Severe weight changes
What are examples of evidence of psychological manifestations of emotional distress?
- Sleeplessness
- Depression
- Anxiety
- Crying spells or emotional outbursts
- Nightmares
- Drug and/or alcohol abuse
- Unpleasant mental reactions such as fright, horror, grief, shame, humiliations, embarrassment, anger, chagrin, disappointment, and worry
When is D’s intentional invasion unreasonable?
- Gravity of harm outweighs the utility of actor’s conduct or
- Harm caused by conduct is serious and financial burden of compensation would not make continuance unfeasible
Gravity of D’s Harm Factors
- Harm: Extent
- Harm: Character
- Use/enjoyment Invaded: Social value that law attaches to type of use or enjoyment invaded
- Use/enjoyment Invaded: Suitability to character of locality
- Victim: Burden on person harmed of avoiding harm
Utility of D’s Conduct Factors
- Conduct: Social value law attaches to its primary purpose
- Conduct: Suitability of it to locality’s character
- Conduct: Maliciousness or indecency to community
- Prevention: Impracticability of preventing or avoiding the invasion
TN’s view on premises liability
TN is only liable to trespassers for willful or wanton behavior (minority view)
ICD duty/breach (majority)
Reasonable physician would disclose
ICD duty/breach (minority)
Reasonable patient would want to know
TN’s view on RIL
Permissive inference of negligence (majority)
