Negligence Flashcards
Generally
- Duty
- Breach
- Actual causation/proximate cause
- damages
Preponderance of the Evidence
Duty
Duty to all foreseeable persons
Cardozo - within the zone of reasonable harm
Minority - everyone harmed, if D could foresee harm to anyone
are rescuers foreseeable plaintiffs?
yes
if D puts either rescuer or rescued in danger, then liable for rescuer’s injuries
UNLESS emergency personnel (firefighter’s rule)
NO DUTY TO ACT except
- assumption of duty - voluntarily aids/rescues then must act with reasonable care in the rescue
- put another in peril - exercise reasonable care to prevent further harm
- contract
- authority - parent/child, employer/employee
- relationship - carrier/passenger, innkeeper/guest
Things to take into account when evaluating standard of care
OBJECTIVE STANDARD
- special skill or knowledge - same skill, knowledge as another practitioner
- physical disabilities
- children - reasonable child of similar age, intelligence, experience
- custom in a community/industry (but not conclusive, everyone can be negligent)
- safety codes
Things that ARENT taken into account when evaluating standard of care
- mental abilities - disability not considered
2. intoxication (unless involuntary)
Doctors and informed consent
specific obligation to explain risks of medical procedure
DO NOT need to disclose:
- commonly known risk
- when patient is unconsious
- when patient waives/refuses
- patient is incompetent (but should try and get consent from the guardian)
- when disclosure would be detrimental to patient
Negligence per se
when standard of care is determined by statute
- Must be in class of people intended to be protected
- harm is type statute was intended to protect against
Defenses to negligence per se
compliance would have had a greater risk of harm
violation is reasonable in light of disability
exercised reasonable care in trying to comply
statute is vague
reasonable ignorance of the statute
duty of care owed to car passengers
ordinary care to guests and paying passengers
EXCEPT guest statute - only duty to refrain from gross misconduct for guests
Duty to undiscovered trespassers
refrain from willful, wanton, reckless or intentional misconduct
Duty to anticipated/known trespassers
duty to warn/protect from concealed, dangerous ARTIFICIAL conditions
Minority/third restatement approach to trespassers
reasonable care, except to flagrant trespassers
Duty to invitee (business)
reasonable care - inspect property, discover unreasonably dangerous conditions, protect invitee from them
NON-DELEGABLE - remain liable if contractor’s negligence injures an invitee
Duty to Licensee (social)
correct or warn of concealed dangers that are known or should be obvious to owner
RES IPSA factors
- accident was of a kind that ordinarily does not occur in the absence of negligence
- accident caused by something in the exclusive control of D
- Accident was not due to any action on part of the plaintiff
Actual Cause
Cause in fact
BUT FOR
or
SUBSTANTIAL FACTOR (if multiple tortfeasors or multiple causes)
Proximate Cause
Foreseeability of harm + no severing of the chain
Majority - reasonably foreseeable consequences
Minority - flow directly/direct cause (even if not foreseeable)
Does an intervening event break the chain?
depends on if it supersedes
If foreseeable, NO. If unforeseeable, then probably supersedes and breaks the chain
Do you need damages for NEID?
yep
What about economic loss and negligence?
usually can’t recover for economic loss alone. must be linked to personal injury or property damage, then can ask for it
defenses to negligence
contributory negligence
comparative fault
