Negligence Flashcards
negligence Prima Facie Case
- duty of care
- breach of duty
- causation
-actual cause and proximate cause
note the mbe may refer to actual cause as cause in favt or factual cause and proximate cause as legal cause - damages
Negligence basics
negligence is analyzed under an objective standard by comparing the person being sued actions to a reasonable person under similar circumstances
ie negligence law asseses the person being sued behavior based on the common judgement of a collective people
-asses the person being shes behavior given the circumstances under which she acted.
duty of care
the person being sued owes a duty of care to all forseaable victins of his activies.
default duty of care-reasonably prudent person
the person being sued duty of care is to behave like a reasonably prudent person under the circumstances.
a reasonably prudent person is considered to be someone with the person being sued physical characteristics but with the knowledge and mental capacity of an ordinary person
forseeable victims-those within the zone of danger
zone of danger-the area around ther person being sued activities in which a p could forseeably be injured
rescuers exceptio- if the person being sued puts himself or another in danger and a third person attempts to rescue, the person being sued can be held liable for the rescuers injuries even if unforseeable
prenatal injury- a duty of care is owed to a viable fetus.
intended economic beneficiaries- a duty of care is owed to third party beneficiaries if their harm is forseeable.
Specialized standard of care
Children-held to the standard of care of a like child of similar age education, intelligence and experience (subjective test)
Generally, children under 7 lack capacity to be held negligenf
common carriers/inn keepers-held to an utmost care standard.liable for even slight neglicence to passengers or guests
custom or usage in an industry-can be used to establish a standard of care but failure to adhere does not automatically give rise to abreach of duty
professionals-expected to act with the care of an average member of the professionin good standing in similar communities.
specialists ie neurosurgeons are held to a national standard of care
Negulence Per se
an existing statute may establish a duty of care in which case that specific duty imposed by the statute will replace the general common law duty of care.
Neglice per se-violation of the statute means the person suing must only prove causation not breach of duty
conpliance does not automatically clear the person being sued of liability
requirements
- the statute provides a criminal liability
- standard of conduct is clearly defined in the statute
- the person suing is within the class of people the statute was designed to protect against the harm the person suing suffered
statutory standard of care does not apply if
- conpliance is more dangerous than non-compliance
- compliance is impossible under the circumstances.
duty of care for owners and occupiers of land to trespassers
owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers
- same standard of care applies for owners and occupiers
unknown or undiscovered tresspassers-no duty owed
anticipated trespassers-ehereoener has reason to believe of tresspassers on her lamd
——-activities-owner has duty of reasonable care in carrying out activitiea on her property .
——dangerous conditions -owner has duty to make safe or warn of any known ,concealed ,man made hazards
note-this is rare,look for spring guns, traps etc.
attractive buissance doctrine for child trespassers
-owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if
- she is aware or should be aware of a dangerous condition (natural or artificial on her property
- she knows or should know children are in the vicinity.
- the condition is likely to cause injury if encountered
- the magnitude of the roskoutweighsits utility or the expense remedying it.
duty of care for owners and occupiers of land to licensees and invitees
licensee-one who rnters land with owners permussion for his own purpose or business ie not for landowners benefit
e.g. relatives, friends, social guests
invitee-one who enters land held open to the pibkic or who enters with owners permision to confer a commercial benefit
e.g. store patron, concert goers doir to door sales person
duty of care owed-
activities carried out on property
Known dangerous conditions
duty to inspect-n/a for licensees
-invitees-owners have a duty to conduct reasonable inspection for non obvious dangers and make them safe
note- this is the only significant difference betweeb duties for licensees and invitees
scope of duty-limited by scope of the invitation/licensee
-owners duty extends only to those areas where one is an invitee or licensee .e.g. store owner does not owe duty of care in employees -only area
note-police and fire fighters are considered licensees ,but cannot recover for injuries suffered on the job.
breach of duty
person being sued reaches their duty when his conductvfalks short of the standard of care owed under the curcumstances.
to demonstrate a breach, a person suing can argue
a.the person being sued breached the applicable standard of care-includes
reasonable prudent person standard
negligence per se-violation of a relevant statute
specialized standard of care
custome or usage in an industry-not an automatic breach may be relevant
professional
b. res ipsa loquitur-the very occurence of othe accident causing ps injuries suggests negligent conduct
- arises if facts cannot establish breach of b/c circumstances surrounding event are unknown to person suing
requirements that the person suing must show
- interference of negligence_the harm would not occur absent negligence
- attributable to person being sued-this type of harm normally results from negligence by a person in the same position as the one being sued
- injury was not attributable to the person suing
actual cause
establishes a casual connection beteen the alled breach of fity and the resulting injury
“but for test”-but for the person being sued alleged breach of duty. the person suing injury would not have occured
substantial factor test
- for multiple causes of the person suings injury the person being sued breach is the actual cause if it was a substantial factor in bringing about thr person suing injury.
e. g. fire starts ln the first person being sued’s land and the second person being sueds land and then spreads to the person suing land and destits the person suing land
burden shifting test- for several possible causes of the person suing injury
-used is multiple people being sued because only one person calls the injury of the person suing but it is unclear which person being sued actually caused injury
for example the person suing is hit by a stray bullet a busy firing range is unknown which shooter hit the person that is suing
burden of proving actual cause shift to the person being sued
if no person being sued can prove another person being sued was responsible all people being sued or jointly and severally liable.
Note the MBE may refer to actual cause as cause in fact
Proximate cause
Proximate cause establishes that it is fair under the law to hold the person being sued responsible for the person suing injuries
foreseeability foreseeability is a measuring stick for proximate cause.
the person being sued is liable for the foreseeable outcome of his conduct
Direct causes if the person swimming’s injury is the direct cause consequence of the person is doing negligent conduct in the person suing is liable unless outcome is and usually bazaar or unpredictable
Indirect/intervening causes where contributing at the curb between the person suing conduct in the person suing his injury the person being sued is usually liable if injury could have possibly result it even without the intervening forces
approach – consider the type of harm being protected against by holding the person being sued negligent for his conduct
if the person suing resulting injury is the type of home being protected against then the person being so kind it is the foreseeable legal cause of the person suing’s injury
Eggshell plaintiff rule-
The person being sued text the person who is suing them as he finds him it is liable for the full extent of the person suing’sinjuries regardless of whether they are for seeable
damages
The person suing must prove damages which are not presumed in negligence cases nominal damages are not available
types of damages personal injury the person being sued must compensate the person selling for all damages this includes the past present and perspective images economic and noneconomic damages are recoverable
property damage if the person someone can recover reasonable cost of repair if property is era parable damage is equal the full market value at the time the accident occurred
punitive damages only recoverable the person being suits conduct is Menton and willful reckless or malicious
non-recoverable damages the person suing can never recover for the interest from the date of damage in personal injury cases or Attorneys fees
Duty to mitigate the person suing has e a duty to take reasonable steps to mitigate damages
Affirmative defenses comparative a contributory negligence assumption of the risk
Comparative negligence the person so when can I start wish that the person who is suing them their injuries or at least partially the result of the person suing own negligence
court apportions fault between the person selling and the person being sued and reduces the person selling is recoverable damages accordingly
partial or modified comparative negligence the person suing can only recover damages if they were less than 50 percent at fault
Here comparative negligence the person suing Kara to have a damages even if he was more than 50 percent at fault
Affirmative defenses comparative and contributory negligence assumption of risk
contributory negligence the person filling is barred from recovery if the person being sued establishes of the person suing his negligence contribute to her own injuries
Contributory negligence is the last clear chance Defence the person suing Khyrie but the person suing the person being sued contributory negligence claim by alleging that The person being sued had the last clear chance to avoid injury causing incident
I ferment of defense is compared of a contributory negligence assumption of risk
The person being sued can deny the person suing for me covering buy a stamp machine and the person suing assume the risk of damage caused by the person being suits that there are two requirements do you must show that the person suing knew or should have known the risk this is an objective standard number to the person suing voluntarily precedent in the face of that risk
Note defense is very by state and the question is usually know what defense supplies otherwise assume pure comparative negligence
Negligent infliction of emotional distress
The person suing mayb recover for emotional distress resulting from the person being sued negligence but only if the person suing emotional distress gives rise to some physical Manifestation
Elements there are three elements
1.person being seen for negligence result of a close rest of bodily harm to the person doing
the person so it must be in zone a danger to recover
the person being sued must have nearly caused physical harm to P by there at
- The person he is his negligence results in a person suing severe emotional distress
- The person silly exhibit some physical manifestation attributable to her emotional distress
such as a heart attack a miscarriage non-physical symptoms like depression or nightmares or insufficient
symptoms of physical manifestation can’t be instantaneous or appear days later
Bystander times bystanders may be able to recover from emotional distress resulting from The person being sued’s negligence
Res Ipsa Loquitor
the thing speaks for itself
