Negligence Flashcards
Five questions
Does d have a duty to the p
What standard of care must be shown (breach)
Did d factually cause p’s injuries (cause in fact)
Were p’s injuries foreseeable as a result of d’s conduct (proximate cause)
Did p sustain damages
Adams v Bullock
D has a duty to take all reasonable precautions to prevent injury
US v Carroll Towing
Burden of taking such precautions is less than the probality of injury multiplied by the gravity of any resulting injury B
Bethel v NY transit
Ordinary reasonable person standard
Wood v Groh
Heightened standard of care for firearms cases
Vicarious liability
Christensen v Swenson
Roessler v Novak
Christensen- was conduct what employee hires to perform: within ordinary bound of workplace and was motivated in part for the purpose of employment
Roessler
Apparent agency- representation, reliance and change
Vicarious Liability
Express
Implies
Apparent - representation, reliance and change
Intentional torts in employment
Pangan: act is not within employment if for purely personal motive or unprovoked, highly unusual or quite outrageous
Baker: May be within scope if from a job related stimulus
Custom
Trimarco
Many minds theory
Custom can be relevant if known, affordable, expectations practicable and an industry standard
Res Ipsa
McDougald
Ybarra
Negligence when direct evidence is lacking
McDougald - p must show lack of direct evidence, the instrument was at all times under d control and the type only happens with negligence.
Ybarra- d has a right to control the instrument, direct evidence available only to d, accident only occurs with negligence
Statute and existence of duty Martin Tedla Perry Uhr
Martin- violation of a statute is negligence
Tedla- statute does not always create a duty for purposes of tort
Perry- p must be in class designed to protect and then consider - statute is sole source of duty, statute clearly define prohibited conduct, create liability without fault, imposing statute create damages out of proportion to d fault and injury is a direct result of violation
Uhr- p is member of class designed to protect, recognition of private right of action would promote leg purpose and creation of right would be consistent with leg purpose
Breach- what standard of care
Shelley
Matthies
Huebner by Lane
Shelley- med malpractices. Using a one size fits all test, determine whether the D used the same degree of care expected of a reasonably competent practiconer in the same class.
Consent- Matthies - breach occurs when the d failed to disclose info that would be material to the reasonable patients decision
Huebner- child may be held to adult standard of care for engaging in adult activities
Existence of Duty
Harper
Farewell
Randi W.
Harper - a duty exists if there is a special relationship and that is when d is a common carrier or when d has deprived someone of normal opportunities
Farewell- if D attempts to aid and takes control of the situation then d has a duty to exercise reasonable care
Restatement 2: if D takes charge and p is helpless, d is liable if d also fails to exercise reasonable control while in control or leaves p in a worse position (p friendly )
3: if d fails to exercise reasonable cares in discontinuing aid and p is in imminent peril then d is label (narrower)
Randi: consider the foreseeability, moral blame, availability, insurance and public policy
No Duty
Strauss
Reynolds
Strauss- a court may find no duty to prevent excessive liability
Reynolds- a court may find no duty for social hosts whose guests committed torts after consuming alcohol at a social function
Premise Liability
Carter
Heins
Carter- d owes no duty to trespasser, if p is a licensee, d must guard against known dangers: if p is an invited d must guard against known dangers and those that would be revealed by reasonable inspection
Heins: d’s duty does not depend on the status of p on the land. Courts should consider the foreseeability of harm, purpose of entry, time, manner and circumstance, use of land, opportunity, burden, ease of protections
