Negligence

Question 1

Elements of Negligence

Answer 1

1-Duty
2-Breach
3-Cause
4- Damages

Question 2

Reasonable Person Test

Answer 2

What would a reasonable person do under the same circumstances? (Stone. Bolton- Risk of harm was 1/5000. Reasonable person would do nothing)

A person has a legal duty to use the same level of ordinary care that would be exercised by a reasonable person. (Vaughn v. Menlove) Jury will determine what is a reasonable standard for that community.

Question 3

Duty

Answer 3

A duty is owed to everyone around us to not create situations of harm.

Question 4

Reasonable person test con’t

Answer 4

a person has a legal duty to use the same level of ordinary care that would be exercised by a reasonable person. (Roberts. v. Ring)

People with disabilities are held to the same standard as a person with the same disability. What would a reasonable person under the same circumstances do? (Fletcher v. City of Aberdeen

Question 5

Reasonable Person Standard-Age

Answer 5

Age is an exception to the reasonable person standard as long as ∆ is not engaged in an adult activity AND if ∆ is acting in a reasonable manner.

If engaged in a dangerous activity, age doesn’t matter. The public is entitled to a standard of care (Daniels v. Evans)

Question 6

Insanity Defense to RPS

Answer 6

Were delusions foreseeable? When mental incapacity can be reasonable foreseen a pe, a person who suffers mental incapacitation will be held liable if any damages or harm is caused by their incapacitation.

Insanity can be a defense but the person cannot be on notice of delusions.

This defense uses a sane person’s standard for a person who is mentally incapacitated, which imposes a double standard on the mentally ill. (Breunig v. American Family Insurance)

Question 7

Calculus of Risk/ Hand Formula/ Common Sense Standard

Answer 7

There is a duty of care to protect others from the harm when the burden (B) of taking adequate care is less than the product of the probability (P) of the resulting harm and the loss (L). If B

Question 8

Problems with Hand Formula?

Answer 8

• Contributory negligence- HF doesn’t account for contributory negligence
• Economic analysis falls short because it conflicts with our moral instincts.
• It works in cases like Carrol Towing because the economics are obvious, but when people’s lives are concerned it becomes more difficult to justify the loss of life on a number.
• Standard creates a cliff that fails to punish people just above standard line and punishes those below severely.
• Courts don’t always weigh evenly and may disproportionately punish when injury is severe but risk was very low…think about Bolton.

Question 9

Custom

Answer 9

What is the best measure for common sense? Economic, beliefs, custom?

Custom sets the standard within industry but is not always conclusive.

1-Custom can be used neither as sword or shield
2- Custom is not dispositive
3- Custom is only some evidence establishing duty
4- Custom is evidence that actor’s conduct is not negligent but does not preclude a finding of ngeligence

Question 10

Pros of Custom

Answer 10

1-Fairness rationale- courts should’t hold one responsible for following industry standard
2-If we dismissed custom, we are susceptible to hindsight bias
3- Certainty/Predictability-provides more certainty than Hand Formula or Reasonable Person
4- Administerability -easier to administer than other standards

Question 11

Cons of Custom

Answer 11

1-Industry may be lag behind safety standards-lag behind technological advances and this seen as too rigid/deters innovation
2-Not best balance of risk/benefits since employer has unequal bargaining power
3-Not always east to determine because custom may be controversial
4-Differences between local and national custom

Question 12

Custom cases

Answer 12

Titus v. Bradford- Where an employer is using business practices that constitute customary practice throughout the industry, he is not liable in negligence for any injury that may result from such practices

Mayhew v. Sullivan Mining Co.- Even when a custom is universal, it may still fail to meet the standard of ordinary care required by an employer

T.J. Hooper (critical point in development of custom and duty)- The standard of care in a negligence case changes with advances, knowledge and new devices of demonstrated worth.
-Hand RUle: Where a business practice known to exist can measurably increase the safety, or in this case seaworthiness, it should be adopted, irrespective whether it is yet customary. Courts in the end must say what the standard of care is and not rely on custom

Hand rejects relying on custom b/c some precautions are just so obvious.

Question 13

Medical Malpractice

Answer 13

Custom is different in medicine than in ordinary industry. Unlike mining companies and RR companies, who maximize profit for shareholders, the medical field is dominated by the bottom line.

Lama v. Barra- doctor is held liable for medical malpractice where the national standard in

Doctor has a specialized duty of care and physicals have a specialized expertise. The physical is in control of the situation and this is held to a standard similar to the common carrier- heightened duty.

Question 14

Problems with Custom in Medical Field

Answer 14

1- Causation is difficult in the medical field because patients are already unhealthy
2-It is difficult to decide on a particular custom-national v. local
3- Autonomy v. Custom- do we give patient more leeway in deciding her own proper treatment or is it better to follow established custom?

Question 15

Informed Consent in Medicine

Answer 15

Canterbury v. Spence- A doctor has a duty to volunteer information, such as risks of surgery, when it it material to a patient’s autonomous decision of whether to undergo a certain treatment or opt for alternatives.

Court holds that patient has an autonomous right to know the full effects of his decision

Not the majority view. See Bly v. Rhoads

Question 16

Pros of custom for medical malpractice

Answer 16

1- courts are not professions in the industry and therefore professionals not judge/juries should be deciding duty of care
2- We live in a world of under deterrence- massive amount of medical error
3- Medical malpractice is good at warding people who are injured but may not necessarily be result of negligence

Question 17

Cons of custom for medical malpractice

Answer 17

1-Custom may be lagging behind changes in technology
2-Over-deterrence-doctors with less incentive to practice
3-Most people don’t bring claims forward because of expense and difficulty in pinpointing blame
4- Information deficit- Doctors are worried about being sued so they withhold information

Question 18

Express Cause of Action

Answer 18

If a statute expressly says that a person has a private cause of action, then the case is an easy one because the statute was meant to prevent that class of individuals

Question 19

Three-part analysis for determining implied right of action

Answer 19

1. Class of victims: who is protected?
   - Ask, who is the statute designed to protect? (Osborne v. McMasters- if a If a statute imposes upon any person a specific duty for the protection or benefit of others, and a person neglects to perform that duty, he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute was designed to protect that proximately arise from that neglect.
2. What type of risks is the statute designed to protect?
   - Gorris v. Scott- Sheep owner could not recover because statute was not designed to protect against harm of falling overboard but only for contagious diseases.
3. What do you do when you have a statute and common law in conflict?
   - Tedlia v. Ellman- COurt must intrepret intention-ruled for common law pbased on policy grounds.
   - Uhr v. East Greenbush Cent. School

Question 20

Negligence Per Se

Answer 20

An actor is negligent if, without excuse, the actor violates a statute that is designed to to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. (Martin v. Herzog)

Question 21

Some Negligence

Answer 21

Evidence is not dispositive; you must also show evidence using reasonable person standard, custom, or hand formula

Question 22

Negligence Question

Answer 22

Did breach of duty cause the wrongdoing?
(Brown v. Shyne- unlicensed chiropractor operated on π. Ct ruled it was not his carelessness or negligence that caused injury, which had nothing to do with him being unlicensed.)

Question 23

Misfeasance

Answer 23

Misfeasance occurs when an act is legal but is performed illegally or in an improper manner. A ∆ is responsible for misfeasance when they willfully commit a wrong that causes harm to the plaintiff or breaches their duty of care by performing the legal act.

Examples of misfeasance in a professional context: a lawyer who is mistaken about a deadline and files an important legal document too late, an accountant who makes unintentional errors on a client’s tax return, or a doctor who writes a prescription and accidentally includes the wrong dosage (.

Question 24

Non-feasance

Answer 24

The failure to act when a duty to act existed

Question 25

Good Samaritan Rule

Answer 25

The doctrine that protects a volunteer who comes to the aid of an injured or ill stranger from being sued for contributory negligence, as long as the volunteer aid-giver (the Good Samaritan) acted with reasonable care.

Question 26

Exceptions to Good Samaritan RUle

Answer 26

1- Land
2- Special relationships- knowledge of risk creates a duty even if person with knowledge of risk didn’t create the risk
(Buch v. Amory Manufacturing

Question 27

Attractive Nuisance

Answer 27

A landowner may be liable for injuries to children who trespass on land if the injury results from a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition.

If an actor creates a danger, you have a duty to protect against injury. An attractive nuisance attracts children and therefore landowner has an obligation to protect.

Question 28

Non-feasance v. Omission

Answer 28

Non-feasance is the failure to act when a duty to act existed. An omission is a failure to act when conduct has given rise to a foreseeable risk

Question 29

Misfeasance cases

Answer 29

Actions gave rise to reasonably foreseeable risk.

Ice hill (need name)
Weirum v. RKO General

Question 30

Arguments for affirmative duty to act

Answer 30

1. Utilitarian theory-good samaritan rule

2. Epstein argues that we should protect people’s autonomy

Question 31

No duty to rescue or to warn

Answer 31

A landowner has no duty to warn a trespasser of the existence of a dangerous acivity condition or object even if the trespasser is a child. Duty to rescue is only a moral duty, not a legal duty. (Robert Addie & Sons v. Dumbreck
Bush v. Armory Manufacturing

Question 32

Contesting categories of duty

Answer 32

π’s status on the land (trespasser, licensed to be there, invited)
or
Attractive nuisance

Once a case was argued for the π’s status on the land, the case was over. If trespasser—> no duty breach of duty, no duty to warn or keep premises safe.

Question 33

Categories of Duties of Landowners

Answer 33

1. Invitee- Someone expressly invited onto a property for business purposes
   - Highest level of duty owed
2. Lincesee/Social Guest-Somone invited onto land as a friend who is not receiving a joint benefit as in a business setting
   - Moderate level of duty owed-duty to warn of concealed dangers but not to inspect fr dangers
3. Trespasser- Person who enters property without authorization (Rowland v. Christian_)
   - No duty owed except to refrain from engaging in willful conduct toward them or in the case of an attractive nuisance

Question 34

Prior to Rowland v. Christian, why was there no duty to trespassers or social guests?

Answer 34

If you ∆ didn’t create the danger there was no duty. Historically, a status argument…Servants/surfs has no rights. Rowland changed that by determining that everyone who enters on landowner or renter’s land has a duty to warn and protect. Makes status a dubious point.

Only exception is if one can prove a conflicting moral or policy issue.

*Only 27 states adopted Rowland decision. Most have moved toward duty to warn or make reasonably safe.

Question 35

Landlord/Tenant Special Relationship

Answer 35

The role of the landlord creates a duty to protect. Landlord has power that tenant relies on (the only one who can control security). (Massachusetts Avenue)

Reliance creates a special relationship and duty.

Affirmative Duty comes from exclusive power/control (nonfeasance)

Question 36

Special Duty Relationships

Answer 36

Where violence by the patient to someone else is reasonably foreseeable the doctor has a duty to protect against it (as an exception to the rule of doctor-patient confidentiality) (Tasaroff v. Regents)- Special duty starts where public peril begins.

Question 37

Standard View of Dr.-patient Confidentiality

Answer 37

If Dr. knows of risk and a competent therapist would have predicted violence, then doctor has a duty to warn and take reasonable precautions to protect.

Only liable if there is a real threat and there is a specifically identifiable person.

Question 38

Four standards of breach

Answer 38

Reasonable person
Cost/benefit
Custom
Statute

Question 39

Pure Comparative Negligence

Answer 39

Only a few number of states have adopted this rule. It means the if the plaintiff is even 1% at fault, then he will not be able to recover damages.

π may be able to overcome the rule if he can show a willful and wanton acts caused the injury. Can also show that ∆ had a last clear chance to avoid the injury and didn’t act on it.

Question 40

Pure Comparative Fault

Answer 40

Allows π to recover even if they are 99% at fault. Although the recovery is reduced by the percentage the π is at fault.

Question 41

Modified Comparative Negligence

Answer 41

50% bar rule. Damaged party cannot recover if it is 50 percent or more at fault, but if it is 49 percent or less at fault, it can recover, although its recovery is reduced by its degree of fault.