Negligence Flashcards
1
Q
Negligence elements
A
- Duty
- Breach
- Causation
- Harm
2
Q
Learned hand formula
A
B < (P x L)
B = burden of precaution
P = possibility of risk
L = loss value
3
Q
When does duty exist in Learned Hand Formula?
A
When B < (P x L)
4
Q
What is typical standard of care?
A
Reasonable prudent person (objective)
5
Q
SOC for adult
A
Must act as a reasonable prudent person would in like circumstances (objective)
6
Q
Is SOC objective or subjective?
A
Objective
7
Q
What are the six additional factors for SOC?
A
- Customs
- Disability
- Child
- Professional
- Emergency situations
- Premises
8
Q
What is the acronym for SOC factors?
A
CDC
PEP
9
Q
When are customs not controlling on SOC?
A
When a reasonable person would not follow them
10
Q
Does following customs preclude a finding of negligence?
A
No
11
Q
Does not following customs preclude a finding of negligence
A
No
12
Q
Sudden Emergency Doctrine
A
SOC for person facing sudden emergency not of his making = must act as a reasonable prudent person would have in an emergency
13
Q
Old Age Rule
A
- Old age by itself does not count as disability
- Infirmities associated with old age may be considered by jury
- Examples: osteoporosis, bad hearing, arthritis
14
Q
Physical disability SOC
A
Must act as a reasonable prudent person with that physical disability would act
15
Q
Mental disability SOC
A
Must act as a reasonable prudent person would act,, regardless of capacity to comprehend actions
16
Q
Are mentally disabled persons liable for negligent torts?
A
Yes
17
Q
Can employed caretakers sue incapacitated patients for negligence?
A
No
18
Q
Sudden Mental Capacity - Majority View
A
No allowances, even in cases of sudden insanity or mental deficiency
19
Q
Sudden Mental Capacity - Minority View
A
Allowances only when
- Sudden and
- Unforeseeable
20
Q
SOC for Child
A
Child of like age, intelligence, and experience UNLESS
- engaged in adult activity
- engaged in dangerous activity
21
Q
What are the exceptions for a child SOC?
A
- Engaged in adult activity
2. Engaged in dangerous activity
22
Q
Is operating a motor vehicle considered an adult activity (re: Child SOC)?
A
Yes
23
Q
Is hunting considered engaging in dangerous activity (re: Child SOC)?
A
No
24
Q
What age is SOC applied for a child (majority view)?
A
Not applied = 3-
Applied = 7+
25
SOC for professional
Skill, training, and knowledge of ordinary reasonable member of profession (not average)
26
Is industry-wide standard probative of professional SOC?
Yes
27
How is evidence of industry-wide standard presented?
By expert testimony
28
TN's legal malpractice SOC
Statewide
29
Legal malpractice elements
1. Attorney's employment
2. Attorney's neglect of reasonable duty
3. Such negligence resulted in and was proximate cause of loss to client
30
SOC options for medical malpractice
1. Locality
2. National
3. Similar community
31
TN's medical malpractice SOC
Similar community
32
Informed consent doctrine
Physician required to inform patient about
1. Treatment protocol
2. Available alternatives
3. Collateral risk
4. Personal, economic, or research interests that may affect medical judgment
33
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
34
Informed consent doctrine - Minority
Subjective = what the patient would have reasonably decided if adequately informed of all significant perils at time of decisions
35
Informed consent doctrine - Other
Modified objective = what a reasonable prudent person in the patient's position would have decided
36
Exceptions to ICD
1. Common knowledge
2. Therapeutic privilege
3. Emergency
37
Trespasser
Unlawfully on premise
38
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
39
Licensee
Enters with permission for own purpose (social guest)
40
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
41
Invitee
Enters with permission in furtherance of LO's business/purpose (business visitor)
42
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
43
Is actual purchase required for visitor to be invitee?
No
44
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
45
Landlord's duty elements
1. Landlord's ability to exercise control
2. Landlord's advantageous position in exercising that control and minimizing risks and
3. Landlord's knowledge of risk for criminal behavior
46
RR Crossing Duty - Majority
Stop, look, listen is enough, no need to exit vehicle (TN view)
47
RR Crossing Duty - Minority
Unyielding duty to stop, look, listen, no matter how clear crossing it (PA rule)
48
RR Crossing Duty - TN
Stop, look, listen is enough, no need to exit vehicle (majority)
49
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)
50
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
51
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)
52
When can a non-tort statute be used to establish duty?
1. P is of a class of persons statute is designed to protect and
2. P's injury is of a class of injuries statute is designed to prevent and
3. Injury was proximately caused by D's violation of statute and
4. Civil liability is appropriate (proportionate to criminal liability)
53
Effects of proof of negligence
1. Negligence per se
2. Only evidence of negligence
3. Prima facie case of negligence with a rebuttable presumption of negligence based upon justified excuse
54
Effects of proof of negligence - Majority
Negligence per se = conclusive evidence of negligence
| - TN's view
55
Effects of proof of negligence - Minority
Only evidence of negligence
56
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
57
Excused violations for Michigan proof of negligence
1. Actor's incapacity
2. Neither knows nor should know of occasion for compliance
3. Unable after reasonable care to comply
4. Confronted by emergency not due to his own misconduct
5. Compliance would involve greater risk of harm to self or others
58
Examples of tort-specific statute establishing duty/breach
1. Good Samaritan Law
| 2. Dram Shop Laws
59
Good Samaritan Law (use)
Protects any person who provides emergency rescue from liability if they meet elements
60
Good Samaritan Law (elements)
1. D did not create P's dangerous condition
2. D acts in good faith
3. On a voluntary basis (no legal duty)
4. In a life-saving, emergency situation
5. Without committing gross negligence (deliberately acting to add serious harm)
61
Duty to Act - Majority
No affirmative duty to act (rescue) unless
1. D caused P's dangerous condition
2. D assumes responsibility to act, thereby increasing risk of harm or reliance by P to her detriment or
3. Special relationship between D and either
- Person whose conduct needs to be controlled or
- Foreseeable victim of that conduct
62
Duty to Act - Minority
Must act to save another from peril
63
States with Duty to Act laws
1. Minnesota
| 2. Vermont
64
Dram Shop Laws (use)
Govern civil liability of commercial establishments that serve alcohol
65
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
66
Breach
Non-conformity to SOC
67
Gross negligence
Failure to exercise even slight care or even care that a careless person would exercise
68
Causation
Requires BOTH
1. CIF
2. Legal/proximate cause
69
Causation-in-fact
1. Substantial factor in bringing about P's harm
| 2. More probable than not that harm was caused by D's tortious conduct
70
Sine qua non
without which (but-for test)
71
Substantial factor
P's evidence must show that it is more probable than not that the harm was caused by D's tortious conduct
72
CIF BOP
- P bears burden
| - Must prove causal link on CIF issue
73
Is possibility insufficient for CIF?
No, must be probable, not simply possible
74
Is the possibility that P's injury may have happened without D's negligence sufficient to break causal link for CIF?
No
75
What do courts consider in determining CIF?
Natural and ordinary course of events
76
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
77
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
78
Recoverable Examples of Lost Chance Doctrine
1. Misdiagnosis
2. Inappropriate treatment
3. Delayed treatment
79
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
80
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
81
Problems proving CIF
1. Concurrent causes
2. Alternative liability
3. Concert of action
4. Market share liability
5. Enterprise liability
82
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
83
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
84
When an event other than D's alleged negligence appears predominant, what happens to alleged negligence?
Not considered a substantial factor
85
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
86
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
87
In market share liability, what options do Ds have?
1. Opt-out if manufacturer can prove its product could not have caused P's injuries
2. Cross-complaint permitted against other possible Ds
88
Suicide in TN (proximate cause)
1. 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
2. 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
89
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
90
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
91
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
92
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
93
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
94
Proximate Cause - Majority
```
Foreseeability doctrine (risk principle/foreseeable risk rule)
- TN's view
```
95
Proximate Cause - Minority
Direct consequences rule
| - not TN's view
96
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
97
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
98
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
99
TN's Duty Determination Factors (8)
1. Foreseeability of harm
2. Magnitude of harm
3. Social value of D's activity
4. Usefulness of D's conduct
5. Feasibility of alternative conduct
6. Relative costs and burden
7. Usefulness of safer conduct
8. Relative safety of alternative conduct
100
Zone of danger
Negligence is legal/proximate cause if
1. Harm is general type that made conduct unreasonable in first place
2. P was within zone of danger
101
Harm (in negligence torts)
Actual loss
102
Proof of harm
1. Direct evidence
2. Circumstantial evidence
3. Res ipsa loquitur
103
Direct evidence
Evidence sought to be proved
104
Circumstantial evidence
Evidence from which fact sought to be proved may be inferred
105
Slip and Fall elements
1. Owner's actual or constructive knowledge of condition on premises
2. Condition posed unreasonable risk of harm
3. Owner did not exercise reasonable care to reduce or eliminate the risk and
4. Owner's failure to use such care proximately caused P's injuries
106
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
107
Actual or Constructive Notice in Slip and Fall
1. Store employee was present in immediate area or
2. 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
108
Res ipsa loquitur (meaning)
The thing speaks for itself
109
When should RIL be considered?
Whenever desperate P is having difficulty showing how injury happened/exact nature of D's negligence
110
Res ipsa loquitur (elements)
1. Accident is one that does not ordinarily occur without negligence
2. Accident was caused by instrumentality within D's exclusive control and
3. Accident was not due to an involuntary action of contribution by P
111
Res ipsa loquitur effect - Majority
Permissive inference of negligence
| - from which reasonable jury may conclude negligence but does not require finding of negligence
112
Res ipsa loquitur effect - Minority
Rebuttable presumption of negligence
| - entitles P to win if D does not rebut claim
113
Effects of RIL
1. Permissive inference of negligence (majority)
| 2. Rebuttable presumption of negligence (minority)
114
Wrongful death and survival statutes
Legislation to deal with death of either P or D regarding causes for personal injuries
115
Wrongful death
1. Brought by defined beneficiaries of deceased to recover for injuries caused by death
2. Damages go to beneficiaries
2. Not subject to creditors of deceased's estate
116
Defined beneficiaries for wrongful death
1. Spouses
2. Parents
3. Children
117
Survival
1. Brought by decedent's estate
2. Damages go to decedent's estate
3. Subject to creditors of decedent's estate
118
What duty does a LO owe children in Attractive Nuisance Doctrine?
LO owes children a duty of ordinary care
1. to avoid reasonably foreseeable
2. risk of harm to children
3. caused by artificial conditions
4. on his property
119
Attractive Nuisance Elements
1. Dangerous condition present on land of which owner is or should be aware
2. Owner knows or should know that young persons frequent the vicinity of this dangerous condition
3. Condition is likely to cause injury (dangerous) because of child's inability to appreciate risk
4. Expense of remedying the situation is slight compared to magnitude of risk
120
What are examples of Attractive Nuisance?
1. Abandoned automobiles
2. Lumber piles
3. Sand bins
4. Elevators
121
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)
122
Legal/proximate cause BOP
1. BOP is on P to prove all actors engaged in tortious conduct as factual cause of P's harm
2. Once P proves that, BOP shift to Ds to prove they were not cause/other D was cause
123
Intervening force
One which actively operates in producing harm to another after the actor's negligent act or omission has been committed
124
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
125
What must a superseding act be?
1. Extraordinary
2. Unforeseeable
3. Independent from D's conduct
4. Intentional or criminal acts (malicious or wanton)
126
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
127
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
128
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
129
NIED Physical Impact Rule
No recovery for pure mental injuries without physical impact unless
1. objective, definite physical injury results and
2. P's emotional reaction is within normal reactions
130
What are the exceptions to the Physical Impact Rule?
1. Death telegraphs
| 2. Mishandling corpses
131
NIED Thing Rule
No recovery unless P
1. Establishes close familial relationship with victim
2. Contemporaneous perception (aware that it is causing injury and present at scene) and
3. Serious emotional distress results
132
What are the three types of possible NIED claims in TN?
Claim arises when
1. Person suffers purely emotional injury as a result of the negligence of another
2. P witnesses injury-producing event
3. P does not witness injury-producing event
133
NIED elements when P witnesses injury-producing event
1. P's sensory observation of event (sufficiently near to allow it)
2. P's close relationship with injured/deceased
3. 3P's injury was (or reasonably perceived to be) serious or fatal and
4. Expert medical or scientific evidence that P has suffered a severe emotional injury
134
NIED elements when P does not witness injury-producing event
1. P's observation of actual or apparent death/serious injury at the scene of accident before scene has been materially altered
2. P's close relationship with injured/deceased
3. 3P's injury was (or reasonably perceived to be) serious or fatal and
4. Expert medical or scientific evidence that P has suffered a severe emotional injury
135
NIED elements when P suffers purely emotional injury
Evidence of
1. Physiological manifestations of emotional distress
2. Psychological manifestations of emotional distress
3. Seeking medical treatment, diagnosis of medical/psychiatric disorder, and/or prescription for medication
4. Duration and intensity of P's physiological symptoms, and medical treatment
5. Significant impairment in his or her daily functioning and
6. Extreme and outrageous character of D's conduct
136
What are examples of evidence of physiological manifestations of emotional distress?
1. Nausea
2. Vomiting
3. Headaches
4. Severe weight changes
137
What are examples of evidence of psychological manifestations of emotional distress?
1. Sleeplessness
2. Depression
3. Anxiety
4. Crying spells or emotional outbursts
5. Nightmares
6. Drug and/or alcohol abuse
7. Unpleasant mental reactions such as fright, horror, grief, shame, humiliations, embarrassment, anger, chagrin, disappointment, and worry
138
When is D's intentional invasion unreasonable?
1. Gravity of harm outweighs the utility of actor's conduct or
2. Harm caused by conduct is serious and financial burden of compensation would not make continuance unfeasible
139
Gravity of D's Harm Factors
1. Harm: Extent
2. Harm: Character
3. Use/enjoyment Invaded: Social value that law attaches to type of use or enjoyment invaded
4. Use/enjoyment Invaded: Suitability to character of locality
5. Victim: Burden on person harmed of avoiding harm
140
Utility of D's Conduct Factors
1. Conduct: Social value law attaches to its primary purpose
2. Conduct: Suitability of it to locality's character
3. Conduct: Maliciousness or indecency to community
4. Prevention: Impracticability of preventing or avoiding the invasion
141
TN's view on premises liability
TN is only liable to trespassers for willful or wanton behavior (minority view)
142
ICD duty/breach (majority)
Reasonable physician would disclose
143
ICD duty/breach (minority)
Reasonable patient would want to know
144
TN's view on RIL
Permissive inference of negligence (majority)
