Negligence

Question 1

Negligence

Answer 1

In order to prevail on a claim for negligence, the plaintiff must prove that 1) the defendant owed him a duty of care 2) the defendant breached that duty 3) the breach was both the actual and proximate cause of the plaintiff’s 4) damages.

Question 2

Duty

Answer 2

Each person has a duty to prevent foreseeable risks of harm to foreseeable plaintiffs. Under the broader Andrews view, the defendant owes a duty of care to anyone who suffers injuries as a result of his conduct. However, under the majority Cardozo view, the defendant owes a duty of care only to those who fall within the foreseeable zone of danger.

Question 3

Standard of Care

Answer 3

Generally, each person has a duty to act as a reasonably prudent person under the same or similar circumstances. This is an objective test.

Question 4

Negligence Per Se

Answer 4

Often times a criminal statute will be used in a negligence action to set the standard of care. In such cases, a violation of the statute will establish a breach of the duty of care.

1) To determine whether a statute should be adopted as the applicable standard of care, the court must find: 1) that the statute was designed to protect against the type of harm that the plaintiff suffered AND 2) that the plaintiff falls within the class of persons the statute was intended to protected.
2) The plaintiff does NOT automatically recover if the defendant violates the statute. The plaintiff must still establish the other elements of negligence i.e. actual cause, proximate cause, and damages.

Question 5

Standard of Care for Children

Answer 5

A child is required to act like a reasonably prudent child of like age, intelligence, and experience. It is a subjective standard. But if the child is engaged in adult activity (driving a car, flying a plane, or operating a speedboat) she will be held to the same standard as an adult.

Question 6

Standard of Care for Physicians

Answer 6

A physician must exercise the skill, knowledge, and care normally exercise by other members of the profession in the relevant medical community.
1) In medical cases, a physician has a duty to disclose all material information about the nature of any risks associated by using a prescription drug. Whether a risk is material depends upon its severity and its likelihood.

Question 7

Child Trespassers (The Attractive Nuisance Doctrine)

Answer 7

Most jurisdictions have established a special rule for child trespassers. A landowner owes a child trespasser a duty of care if 1) the owner knows are has reason to know that children are likely to trespass 2) the condition involves an unreasonable risk of death or serious bodily harm 3) the child, because of his age, is unable to appreciate the risk involved AND 4) the cost of eliminating the harm is slight compared to the risks involved.
1) It is not necessary that the child be attracted onto the land for the doctrine to apply. The rationale for imposing a duty of care on a landowner of child trespasser is that children are almost always a more vulnerable to harm because they fail to understand the dangers involved.

Question 8

Standard of Care for Landowners

Answer 8

At common law, the standard of care owed by a landowner depended on the status of the person entering the land. A trespasser is one who enter the land without the owner’s permission. Licensees are those on the land with the owner’s permission but who are there for their own purposes and not for any potential economic benefit to the landowner e.g. social guest or visiting relatives. Invitees are those who enter the land for potential financial benefit of the landowner.

Question 9

Standard of Care for Landowners - Invitee

Answer 9

The duty owned to an invitee is the duty to use reasonable care in maintaining the premises, to take active steps to make the property safe and protect the invitee, and to discover any potential dangers on the property i.e. make reasonable inspections.
1) Some states, such as California, have abolishes the categories of trespasser, licensee, and invitee and have substitute the general reasonable standard of care to any entrant upon the land.

Question 10

Breach

Answer 10

The defendant commits a breach when his conduct falls below the applicable standard of care. The plaintiff must prove that the defendant’s conduct created an unreasonable risk of harm. In other words, the defendant breaches his duty of care when he fails to act like a reasonably prudent person under the circumstances.

Question 11

Actual Cause

Answer 11

The test for actual cause is the but for test. This means, the plaintiff must prove that but for the defendant’s conduct, the plaintiff would NOT have been injured.

Question 12

Proximate Cause

Answer 12

Proximate cause is found if the injury to the plaintiff was the foreseeable result of the defendant’s conduct. If the actual consequences of the defendant’s conduct were so bizarre or out of the ordinary, then the defendant is NOT liable for the resulting harm. Thus, proximate cause is concerned with limiting or cutting off the defendant’s liability.
1) Similarly, the criminal acts of a third party will only cut off the defendant’s liability if such acts were unforeseeable.

Question 13

Eggshell Skull Rule

Answer 13

Under the eggshell skull rule, the defendant is liable for all harms caused by his negligent conduct even though the extent of harm is unforeseeable. The rational is that the defendant takes the victim as he finds him. Therefore, the defendant is liable for all the injuries that he actually caused, although they may be greater than those suffered by a normal person.

Question 14

Damages

Answer 14

Damages are an essential element of a negligence claim. As such, the plaintiff must allege personal injury or property damage.

Question 15

Pure Economic Loss

Answer 15

The type of damages generally recoverable in a strict liability or negligence action is limited to personal injury and property damage. Pure economic loss is NOT recoverable. Economic damages refer to lost wages or the loss of a business opportunity. The rationale for the rule is the concern about liability being out of proportion to fault.

Question 16

Parasitic Damages for Emotional Harm

Answer 16

When the P suffers physical harm, he may recover damages for emotional distress as part of the action for personal injury. Essentially, the P may tack on damages for emotional distress as a parasitic element for that injury.

Question 17

Compensatory Damages

Answer 17

The goal of torts is to compensate the victim for the harms he suffered. Thus, the P is entitled to recover all expenses that he incurred as a result of the injury e.g. pain and suffering and medical expenses.

1) When the defendant has physically damaged the P’s property, the P may recover the cost of repair or replacement.
2) A tort of property may NOT only harm the property itself but may cause consequential losses because the property cannot be used during the repair period. Consequential damages such as lost profits or other forms of lost use are recoverable but must be proven with reasonable certainty.

Question 18

Negligent Infliction of Emotional Distress

Answer 18

There are two type of allowable recoveries for claims of negligent infliction of emotional distress – the zone of danger rule and bystander cases.

Question 19

Negligent Infliction of Emotional Distress - Zone of Danger (Near Miss)

Answer 19

Under the zone of danger test, a P can recover damages for emotional distress if he narrowly escaped harm and physical symptoms result. Physical symptoms include nervousness, shock, and fright. This test is also referred to as the near miss rule.

Question 20

Bystander Recover

Answer 20

Most states, including California, permit a P to recover damages for emotional harm if 1) the P was present at the scene 2) witnessed a serious injury to a close family member AND 3) suffered physical symptoms as a result.

Question 21

Survival Actions

Answer 21

Survival statutes provide for a cause of action for any damages suffered by the decedent between the time of injury and death. Such damages usually include pain and suffering, loss of wages, and medical expenses. A survival action is brought by the decedent’s estate and damages are often quite limited.

Question 22

Wrongful Death

Answer 22

Wrongful death statutes create a cause of action in favor of certain beneficiaries who suffer harm as a result of another’s death. The beneficiaries are generally limited to spouses, children or parents. Damages recovered under wrongful death claims are payable to the beneficiaries and generally include loss of financial support and loss of consortium.

Question 23

Loss of Consortium

Answer 23

Loss of Consortium permits a spouse to recover damages for injuries to her husband that deprive her of the benefits of the spousal relationship such as the loss of companionship, affection, advice, comfort, society, guidance, and sexual services.

Question 24

Loss of Future Earnings

Answer 24

The victim may recover damages for the loss of any future earnings he would have made had he NOT been injured. In the event that the victim dies, the court will consider the P’s health, age, experience, and amount of years he was expected to work.
1) However, any damages awarded for lost future earnings will be reduced to present value. This means, the P will receive an amount that, if prudently invested, would produce the income that reflects the amount of the judgment.

Question 25

Vicarious Liability

Answer 25

Vicarious liability is liability for the tort of another. Under the doctrine of respondeat superior, an employer is vicariously liable for any tortious acts committed by his employees within the scope of employment. Generally, intentional torts committed by an employee are outside the scope of employment UNLESS the tort is committed to further the employer’s interest.

Question 26

Independent Contract v. Employee

Answer 26

Employers are NOT vicariously liable for the tort of independent contractors. Independent contractors are usually persons who are perceived to be operating their own business and NOT subject to the employer’s right of control over the manner, means, and details of the work.

1) In order to determine whether an individual is an employee or independent contractor courts consider several factors such as 1) whether payment is by the hour or by the job 2) the length of time the person is employed 3) whether the employee supplies the tools for the person doing the work AND 4) the extent of control the employer exercises over the individual.
2) The worker’s special skills; the fact that he works for others or is perceived to be in business of his own; supplies his own tools or instrumentalities tend to show that the worker is an independent contractor.

Question 27

Non-Delegable Duties

Answer 27

In spite of the general rule that employers are NOT vicariously liable for the torts of independent contractors, some duties cannot be shifted to independent contractors. Employers cannot escape responsibility simply by hiring an independent contractor when the work involves a non-delegable duty.
1) Non-delegable duties include 1) where the employer engages in inherently dangerous activities OR 2) where the employer owes a duty which, for public reasons, cannot be delegated.

Question 28

Frolic and Detour

Answer 28

The doctrine of respondeat superior does not apply to torts committed by the employee that are outside the scope of employment. Thus, an employer will NOT be held liable for the negligence of its employer when the employee substantially deviated from his authorized route. However, if the deviation was minor, the employer will still be considered to be acting within the scope of employment.

Question 29

Negligent Hiring

Answer 29

An employer may be held liable to an injured P because of the employer’s own fault. Employers must exercise reasonable care in hiring, supervising, or retaining employees whose job puts them in a position to harm others. Thus, an employer might be liable for his own negligence in choosing an incompetent and dangerous contractor or in failing to exercise appropriate supervision and control over an individual. Such liability is not vicarious.

Question 30

Attorney Malpractice

Answer 30

In order to prevail on a claim for malpractice the client must show that 1) the attorney’s conduct fell below the applicable standard of care AND 2) the client must prove causation in that had the attorney properly carried out his role, the client would have won his original case. This is commonly known as the care within the case.

Question 31

Defenses

Answer 31

The 3 most common defenses to negligence and strict liability are: 1) contributory negligence 2) comparative negligence AND 3) assumption of the risk.

Question 32

Contributory Negligence

Answer 32

The traditional common law rule was that any negligence by the P was a complete bar to recovery. This harsh rule has been abolished in all but a few states.

Question 33

Comparative Negligence

Answer 33

Comparative negligence reduces the P’s recovery by the percentage of fault attributable to him. Thus, damages are allocated in proportion to fault. California adheres to “pure” comparative negligence which means the P can recover no matter how negligent he was. Comparative negligence can be raised as an affirmative defense to strict liability.

Question 34

Assumption of Risk

Answer 34

A plaintiff assumes the risk of injury when he knows of a particular risk and voluntarily assumes it. Assumption of the risk is a complete defense to both negligence and strict liability.

Question 35

The Firefighter’s Rule (Assumption of the Risk)

Answer 35

When firefighters or police officers are injured by risks inherent in their job, they have no claim against the person who created the danger. For example, a homeowner would not be liable for negligently starting a fire that injured a firefighter. Similarly, a police officer injured in a high speed chase will be denied money against the driver.
1) The rationale is that firefighters and police officers are employed for the very purpose of confronting such risks.