Negligence

Question 1

About half of the MBE Torts questions will be on negligence. So in addition to memorizing the elements, also be sure to know that the D must:

Answer 1

1. Fail to exercise the care that a reasonable person in his position would exercise, and
2. Act in a way that breaches the duty to prevent the foreseeable risk of harm to anyone in the P’s position, and the breach must be the cause of the P’s injuries.

Question 2

what is the general definition of negligence?

Answer 2

Negligence is conduct (either acting or failing to act) without rightful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm.

Question 3

what is the traditional approach to the standard of care?

Answer 3

Most courts define the standard of care as what a reasonably prudent person would do or not do under the circumstances.

Question 4

What is the restatement (third) approach to the standard of care?

Answer 4

The modern trend is to define negligence as the failure to exercise reasonable care under all the circumstances, and then use an economic or cost-benefit analysis to determine whether reasonable care has been exercised.

Question 5

Under the Third Restatement’s view of standard of care, what are the factors the court weighs for determining whether a person has acted without unreasonable care?

Answer 5

1. The foreseeable likelihood that person’s conduct will result in harm;
2. The foreseeable severity of any harm that may result; and
3. The burden of precautions to eliminate or reduce the risk of harm.

Question 6

What are the elements of negligence?

Answer 6

A prima facie case of negligence consists of four elements:

1. Duty—the obligation to protect another against unreasonable risk of injury
2. Breach—the failure to meet that obligation
3. Causation—a close causal connection between the action and the injury
4. Damages—the loss suffered.

NOTE: Look for threshold opportunities; if there is no duty, then eliminate all choices that involve breach, causation or damages.

Question 7

What is the definition of duty for negligence?

Answer 7

In general, a duty of care is owed to all foreseeable persons who may be injured by the D’s failure to follow a reasonable standard of care. An actor has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.

Question 8

Is there a duty to act under negligence?

Answer 8

Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable. THOUGH THERE ARE EXCEPTIONS

Question 9

How is the foreseeability of harm determined in negligence?

Answer 9

Most courts hold that if a D is acting affirmatively, the the foreseeability of harm to another resulting from the D’s failure to use reasonable care is sufficient to create a general duty to act with reasonable care. This is a change from the 19th-century negligence law under which there had to be an autonomous source of duty, like a statute.

Question 10

What are the two approaches to foreseeability of harm?

Answer 10

Cardozo (Majority)

Andrews (Minority)

Question 11

What is the Cardozo view of foreseeability of harm to the P?

Answer 11

The Cardozo/Majority view is that a duty of care is owed to the P ONLY if she is a member of the class of persons who might be foreseeable harmed as a result of the D’s negligent conduct. This is also called foreseeable plaintiffs. This is the decision in Palsgraf, where Cardozo ruled that the D is liable only to P’s who are within the zone of foreseeable harm.

Question 12

What is the Andrews view on the Foreseeability of Harm to the P?

Answer 12

Also articulated in Palsgraf, in a minority opinion: if the D can foresee harm to anyone as a result of his negligence, then a duty is owned to everyone harmed, foreseeable or not.

However, a P may still not be able to recover because a particular P’s injury may not be closely enough connected to the D’s negligence for the court to conclude that it was proximately caused by the D’s negligence. In other words, Cardozo focuses on duty while Andrews focuses on proximate cause.

Question 13

What are the three classes of foreseeable plaintiffs?

Answer 13

1. Rescuers
2. Intended beneficiaries
3. Fetuses

Question 14

When is a rescuer a foreseeable plaintiff?

Answer 14

A person who comes to the aid of another person is a foreseeable plaintiff. If the D negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries.

Question 15

What are the limits to Rescuers as a foreseeable P?

Answer 15

To the extent that a rescuer’s efforts are unreasonable, comparative responsibility should be available to reduce, rather than to bar, recovery by a rescuer.

Also, an emergency professional, such a s a police officer or firefighter , is barred from recovery as long as the injury results from a risk inherent to the job.

Question 16

When are intended beneficiaries a foreseeable plaintiff?

Answer 16

A D is liable to a third-party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently, and the D could foresee the harm of completing the transaction.

Question 17

When are fetuses a foreseeable plaintiff?

Answer 17

Fetuses are owed a duty of care if they are are viable at the time that the injury occurred.

Question 18

Is there an affirmative duty to act?

Answer 18

In general, no.

Question 19

What are the exceptions to the general rule that there is no dirty to act?

Answer 19

1. Assumption of duty
2. Placing another in peril
3. By contract
4. By Authority
5. By Relationship

Question 20

When does the assumption of duty create an affirmative duty to act?

Answer 20

A person who voluntarily aids or rescues another is liable for injury cases by a failure to act with reasonable ordinary care in the performance of that aid or rescue.

Some states have enacted ‘Good Samaritan statutes that protect doctors and other medical personnel when they voluntarily render emergency care. They exempt these professionals from negligence, but not gross negligence.

Question 21

When does placing another in peril create and affirmative duty to act?

Answer 21

A person who places another in peril is under a duty to exercise reasonable care to prevent future harm by rendering care or aid.

Question 22

What is the affirmative duty to act under contract?

Answer 22

There is a duty to perform contractual obligations with due care.

Question 23

When does authority create an affirmative duty to act?

Answer 23

One with actual ability and authority to control another, such as a parent of a child and employer over employee, has an affirmative duty to exercise reasonable control. Generally, this duty is imposed upon the D when the D knows or should know that the third person is apt to commit the injuring act.

EX: a parent may be liable for failing to control the conduce of their child who uses a dangerous instrument to injure a P

Question 24

When does a relationship create an affirmative duty to act?

Answer 24

A D with a unique relationship to a P, such as a business proprietor-patron, common carrier-passenger, employer-employee, or parent-child, may have a duty to aid or assist the P and to prevent reasonably foreseeable injury to her from third parties.

Question 25

What it’s he general standard of care?

Answer 25

The general standard of care imposed is that of a reasonably prudent person under the circumstances.

Question 26

How is the general standard of care measured?

Answer 26

The reasonably prudent person is an objective standard; it asks what a reasonably prudent person would do, rather than whether a particular D is acting in good faith or using their best efforts.

A D is required to exercise the care that a reasonable person under the same circumstances (position, information, competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.

Question 27

In looking at the standard of care, how should a jury determine whether particular precautions are warranted?

Answer 27

In determining whether particular precautions were warranted, a jury should weigh the probability and gravity of the injury against the burden of taking such precautions.

Question 28

How do mental and emotional characteristics play into the standard of care?

Answer 28

Under the RPP standard, the D is presumed to have average mental abilities and the same knowledge as an average member of the community. The D’s ACTUAL mental or emotional disability is not considered UNLESS they are a child or have special skills or abilities.

So, a mentally disabled person is held to the same standard as one of average intelligence, but also, a person with special skills or knowledge they are expected to use them.

Question 29

How do D’s physical characteristics play into the RPP standard of care?

Answer 29

Physical characteristics ARE taken into account (like blindness). A D with a physical trait must act like a reasonably careful person with the same characteristic under the circumstances.

Question 30

How does intoxication play into the RPP standard of care?

Answer 30

An intoxicated individual is held to the same standard of care unless their intoxication was voluntary.

Question 31

How are children evaluated under the RPP standard of care?

Answer 31

The standard of care imposed on a child is that of a reasonable child of similar age, intelligence and experience. Unlike the objective standard applied to adult defendants, this standard is more subjective because children cannot appreciate risks like adults. ALSO: children under 5 generally cannot be held liable for negligence at all.

Question 32

What is the exception to children being held to a separate standard of care?

Answer 32

Children engaged in adult activities like driving a car will be held to the same standard as an adult.

Question 33

What is the cost-benefit analysis to standard of care?

Answer 33

The Third Restatement and many cases hold that that three factors for analyzing whether the D has acted negligently to be:

1. The foreseeable likelihood that the D’s conduct would cause harm
2. The foreseeable severity of any resulting harm; and
3. The D’s burdens (like cost) in avoiding the harm.

Question 34

Is custom within a community or industry admissible for establishing a standard of care?

Answer 34

Yes; Evidence of custom in a community or industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.

Question 35

Are safety codes admissible when establishing a standard of care?

Answer 35

Yes; safety codes promulgated by industries, associations and governmental bodies for the guidance of operations within their respective fields of interest are admissible to prove custom.

Question 36

How is the standard of care applied to professionals?

Answer 36

A professional person such as a doctor or a lawyer or electrician is expected to exhibit the same skill, knowledge and care as another practitioner in the same community. A specialist may be held to a higher standard than a general practitioner.

Question 37

How is the standard of care applied to physicians in particular?

Answer 37

Historically physicians were held to the ‘same or similar’ locale rule of custom: did the physician’s actions comport with those customarily employed by doctors locally or in similar locales? The modern approach is to apply a national standard, especially for specialists.

Question 38

How does informed consent for a medical procedure apply to the standard of care?

Answer 38

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure to comply with this informed consent doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice/negligence.

Question 39

When are doctors NOT under an obligation to disclose the risks of a medical procedure?

Answer 39

1. The risk is a commonly known risk
2. Patient is unconscious
3. Patient waives or refuses information
4. Patient is incompetent (though doc must make reasonable efforts to obtain consent from guardian)
5. Disclosure would be too harmful to the patient.

Question 40

What are the two approaches to the kinds of risks physicians must disclose?

Answer 40

Majority: required level of disclosure is measured by custom

Minority: all physicians must disclose any ‘material risk.’ A material risk is any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment.

Question 41

What is the basic rule of negligence per se?

Answer 41

Negligence as a matter of law, or at least a rebuttable presumption of negligence can be found:

1. When a criminal or regulatory statute imposes upon any person a specific duty for the protection or benefit of others,
2. If the D neglects to perform that duty
3. He is liable in negligence to anyone in the class of people intended to be protected by the statute,

4 for any accidents or harms of the type the statute was meant to prevent.

5 that were proximately caused by the D’s violation of the statute

Question 42

What about negligence per se when it’s a statute but not one that imposes a specific duty to protect?

Answer 42

The majority of courts hold that this can also count as negligence per se, while a minority hold that it is merely evidence of negligence.

Question 43

How is proof of compliance with a statute/reg affect a negligence per se case?

Answer 43

Generally speaking, compliance with a statute, regulation or ordinance does not prove the absence of negligence. However, sometimes, if the D’s conduct complies with certain types of regulatory statutes, such as that establishing comprehensive regulatory schemes, compliance with the federal requirements may preempt common-law tort actions.

Question 44

what are the defenses to negligence per se?

Answer 44

1. Compliance was impossible

2. Violation was reasonable under the circumstances

Question 45

When is impossibility of compliance a defense to negligence per se?

Answer 45

Even in those jurisdictions where negligence per se results in negligence as a matter of law, the D can avoid liability by proving either that compliance was impossible under the circumstances or that an emergency justified violation of the statute.

Question 46

When is violation of a negligence per se statute reasonable under the circumstances, and therefore count as a defense?

Answer 46

The D’s violation of a statute is excused and is not negligence if the violation is reasonable in light of:

1. D’s physical disability or incapacitation
2. If the D is a child, or
3. if the D exercises reasonable care in attempting to comply with the statute

OR

1. The statute imposes an obligation only under certain factual circumstances that are not usually present, and
2. The D is not aware that these circumstances are present, and
3. Proves his ignorance was reasonable

FINALLY: the statute is too vague or confusing

Question 47

What is contributory negligence per se?

Answer 47

The violation of a statute/reg etc by a P may constitute contributory negligence per se and the same requirements apply.

Question 48

What is the specific standard of care for common carriers and innkeepers under the common law?

Answer 48

Under common law, a majority of jurisdictions held common carriers (planes, trains, buses) and innkeepers to the highest duty of care consistent with the practical operation of the business. Under this approach, common carriers and innkeepers could be held liable even for ‘slight negligence.’

Today, common carriers are held to a higher standard, but still only liable for ordinary negligence.

Question 49

What is the specific standard of care for common carriers and innkeepers under the third restatement?

Answer 49

Common carriers and innkeepers must exercise reasonable care toward their passengers and guests. Although there is generally no affirmative duty to act, common carriers and innkeepers have a duty to act based on a special relationship, and must use reasonable care under the circumstances with regard to risks that arise out of the relationship with their passengers and guests.

Question 50

True or false: standard of care of common carriers only apply to customers or guests?

Answer 50

TRUE

Question 51

What is the applicable standard of care for drivers?

Answer 51

In most jurisdictions automobile drivers owe ordinary care toward their guests as well as paid passengers. However, a minority of jurisdictions distinguish between the two with ‘guest statutes’ which impose only a duty to refrain from gross or wonton and willful misconduct with a guest in the car. Proof of simple negligence by the driver will not result in recovery by the P-guest.

Question 52

What is the standard of care for bailors and bailees?

Answer 52

A bailment occurs when a person (the bailee) temporarily takes possessions of another’s (the bailor’s) personal property, such as when a driver leaves his car with a valet. The duty of care that must be exercised by a bailor or Bailee varies on the type of bailment.

Question 53

What is the bailer’s duty?

Answer 53

The bailer has a duty to inform the gratuitous Bailee only of known dangerous defects in personal property but must inform a bailee for hire of defects that are known or should have been known by the bailor had he used reasonable diligence.

Question 54

What is the Bailee’s duty?

Answer 54

When a bailor receives the sole benefit from the bailment, the Bailee has a lesser duty to care for the property and is liable only if he has been grossly negligent. But, when the bailee receives the sole benefit from the bailment, he must exercise extraordinary care for the bailor’s property. Slight negligence on the bailee’s part will result in liability for injuries to the property from failure to properly care for or use it. In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property.

Question 55

What is the modern trend on standards of care for specific populations?

Answer 55

To get away from distinctions on level of care and to regard the relationship between the parties as simply one of the circumstances in the light of which conduct is to be measured by standards of reasonable care.

Question 56

What are the applicable standards of care in emergency situations?

Answer 56

The applicable standard of care in an emergency is less than that of a reasonable person in the same situation. Less may be expected of the reasonable prudent person who is forced to act in an emergency, but only if the D’s conduct did not cause the emergency.

Question 57

what does the term possessor of land encompass for purposes of negligence?

Answer 57

Owners, tenants, those in adverse possession, and others in possession of land. Only land possessors are protected by the rules limiting liability to trespassers or licensees. Everyone else (like easement holders or those licensed to use the land) must exercise reasonable care to protect the trespasser or licensee.

Question 58

What are the general duties of the possessor of land?

Answer 58

In general, possessors of land owe a duty only to those within the boundaries of their land. The duty to entrants include:

1. Conduct by the land possessor that creates risk.
2. Artificial conditions on the land
3. Natural conditions on the land, and
4. Risks created when any of the affirmative duties when there is an affirmative duty to act

Question 59

What are the two approaches to the standards of care that possessors of land must show to entrants?

Answer 59

About half of all jdxs still use the transitional rule that the standard of care owed to entrants depending on whether the land entrant is an invitee, a licensee or a trespasser.

BUT: courts in the other half now hold that a reasonable standard of care is owed to all invitees and licensees, as does the Third Restatement. BUT: most of the jdx that follow this rule have a separate rule for trespassers.

Question 60

What is a trespasser?

Answer 60

A trespasser is one who enters or remains upon land of another without consent or privilege.

Question 61

Traditionally, what is a landowner’s obligation to trespassers?

Answer 61

traditionally, a landowner must refrain from willful, wanton, willful, reckless or intentional misconduct; don’t be a D!