Negligence

Question 1

What are the elements of negligence?

Answer 1

(1) Duty
(2) Breach
(3) Actual and proximate cause
(4) Damages

Question 2

What is the general duty of care and to whom is it owed?

Answer 2

The general duty of care is to act as an ordinary, prudent, and reasonable person towards foreseeable plaintiffs [Palsgraf/Cardozo: only have a duty to those in the zone of danger]

Question 3

Are rescuers foreseeable plaintiffs?

Answer 3

Yes, defendants are liable to those who come to the aid of another person they put in peril (Cardozo - danger invites rescue)

Question 4

When and how are prenatal injuries actionable?

Answer 4

Fetuses may be owed a duty of care if they are viable at the time of injury. A child may not recover in a “wrongful life” action but their parents do have actions for “wrongful birth” and “wrongful pregnancy”

Question 5

What is the general standard of conduct for defendants?

Answer 5

The defendant’s conduct is measured against the conduct of an ordinary reasonably prudent person which the same physical characteristics as the defendant. The defendant is held to a standard of someone of average mental capability (no individuation for mental handicaps) and is deemed to have the same knowledge as the average member of their community.

Question 6

What is the particular standard of conduct for professionals?

Answer 6

A person with special skills/professional skills will be required to posses and exercise the knowledge and skill of a member of the profession or occupation in good standing.

Question 7

What is a doctor’s duty of disclosure?

Answer 7

A doctor is require to provide patients with enough information about the risks of an operation or proposed course of treatment for the patient to make informed consent. If the doctor withholds information which would have caused a reasonable person in the patient’s position to withhold consent, they have breached their duty.

Question 8

What standard of care applies to children?

Answer 8

It is unlikely that a court would view a child under five as capable of negligence (no clear cutoff though). For those children old enough to be capable of negligence, they are held to a standard of care of a child of like age, education, intelligence, and experience (subjective).

Exception: A child engaged in an adult activity (driving a car, e.g.) is held to the standard of care of an adult doing that activity.

Question 9

What standard of care applies to common carriers and innkeepers?

Answer 9

They have a high degree of care toward passengers and guests and will be liable for slight negligence.

Question 10

What duty does a bailee owe a bailor?

Answer 10

Modern rule: ordinary care under the circumstances
Old classifications:
- Where the bailment is for the sole benefit of the bailor, liability only for gross negligence.
- Where the bailment is for the sole benefit of the bailee, liable even for slight negligent.
- Where the bailment is mutually beneficial, ordinary due care.

Question 11

What duty does a bailor owe a bailee?

Answer 11

Where the benefit is for the sole benefit of the bailee, the bailor must inform them of known dangerous defects in the chattel.

Where the bailment is for hire, the duty is to warn of known defects or defects they should know through reasonable diligence.

Question 12

What is the standard of care in an emergency situation?

Answer 12

The care exercised by a reasonable person under the circumstances.

Question 13

What is the duty of a landowner to those off premises?

Answer 13

Natural conditions – general rule of no duty to protect outsiders (except decaying trees next to sidewalks in urban areas).

Artificial conditions – general rule of no duty EXCEPT against damage caused by unreasonably dangerous artificial conditions and due precautions to protect passersby from dangerous conditions

Question 14

What duty does a landowner owe to an undiscovered trespasser?

Answer 14

A landowner owes no duty to undiscovered trespassers and need not investigate to discover whether trespassers are coming onto land.

Question 15

What duty does a landowner owe a discovered or anticipated trespasser?

Answer 15

A discovered or anticipated (look for a previous pattern of trespass) trespasser is owed a duty to exercise ordinary care to warn/make safe any artificial conditions involving a risk of death or serious bodily harm that the trespasser is not likely to discover. [In brief – against known man-made death traps]

Question 16

What is the attractive nuisance doctrine?

Answer 16

Landowners have a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on the property.

General rule: this apples where (1) there is a dangerous condition of which the owner knows or should know, (2) the owner knows/should know that children frequent the area, (3) the condition is likely to cause injury because of a child’s inability to appreciate the risk, (4) remedying the situation is slight compared to the risk

The attractive nuisance (lured onto property by dangerous condition) is no longer a component of this

Question 17

What is a licensee?

Answer 17

Guest on the owner’s land with permission, not for the owner’s economic benefit. Includes social guests.

Question 18

What duty does a landowner owe to a licensee?

Answer 18

A licensee is owed a duty by the landowner to warn or make safe known dangerous conditions which the licensee is unlikely to discover. [In brief – known concealed traps]

No duty to inspect

Duty to exercise reasonable care in conducting active operations.

Question 19

What is an invitee?

Answer 19

An invitee is either (1) members of the public entering land for the purposes for which land is held open to the public, or (2) someone on the land with the owner’s permission for the economic benefit of the owner (customers, employees, etc). Invitee status is lost if they exceed the scope of invitation

Question 20

What duty does a landowner owe an invitee?

Answer 20

Landowners owe invitees a duty to warn or make safe nonobvious, dangerous conditions known to the landowner and to make reasonable inspections to discover dangerous conditions in order to make them safe [protect from all reasonably knowable traps]

Duty does not exist where the dangerous condition is so obvious that the invitee should have been aware

Question 21

What is the “firefighter’s rule”?

Answer 21

Police officers and firefighters cannot recover for a landowner’s failure to inspect or repair dangerous conditions where the risk is inherent in their job

Question 22

What is the general tort duty of a lessee?

Answer 22

Tort liability is an incident of occupation and control, and thus subjects lessees to liability. Any potential exception holding lessor liable for dangerous conditions does not relieve tenant of liabilities for injuries to invitees and licensees where the conditions are within their control

Question 23

What is the duty of a lessor to a lessee?

Answer 23

Obligated to warn of existing defects of which lessor is aware/should know and which the lesses is not likely to discover on reasonable inspection

Question 24

What is the effect on a lessor’s premises liability of a lessor’s covenant to repair?

Answer 24

If lessor covenanted to make repairs (right to reenter to make repairs reserved), then subject to liability for unreasonably dangerous conditions

Question 25

What is the effect of a lessor’s voluntary repairs?

Answer 25

If a lessor not obligated to make repairs does so voluntarily is liable if the repairs are negligent

Question 26

What is the effect of lessee’s admission of the public?

Answer 26

If a lessor knows the lessee intends to admit the public, liable for unreasonably dangerous conditions existing at the time he transfers possession where the nature of defect and lease indicate tenant will not repair.

Question 27

When is a statutory standard of care imported?

Answer 27

A statute providing for criminal penalties may be imported as a standard of care if

(1) the plaintiff can show they are in the class intended to be protected by the statute
(2) the harm that plaintiff suffered is the type of harm the statute was designed to prevent.

If the plaintiff makes this showing, proof of violation of the statute will establish negligence per se (conclusive presumption of both duty and breach). They will still need to show causation/

Question 28

When is a statutory violation excused?

Answer 28

Statutory violations may be excused

(1) where compliance would cause more danger
(2) where compliance would be beyond defendant’s control

Question 29

What is the effect of statutory compliance on negligence?

Answer 29

Compliance does not necessarily establish due care though may be evidence.

Question 30

What are the elements of negligent infliction of emotional distress?

Answer 30

A defendant may commit NIED when they create a foreseeable risk of physical injury to the plaintiff if plaintiff is (1) within the zone of danger and (2) suffers physical symptoms as a result of their distress.

Question 31

What are the special situations in which the elements of NIED are altered?

Answer 31

Where the plaintiff is the bystander witnessing the injury of another, the plaintiff may recover even if they are outside the zone of danger where (1) they are closely related to the injured person, (2) plaintiff was present at the scene and (3) personally observed the event.

Where there is a relationship between the defendant and plaintiff such that defendant’s negligence would have great potential to cause emotional distress. E.g., doctors giving false diagnoses or incorrect death notifications, or mortuary mishandling a family member’s body.

Question 32

Is there generally an affirmative duty to act?

Answer 32

There is no legal duty to affirmatively act for the benefit of others, subject to several exceptions.

Question 33

When does a defendant assume a duty to act?

Answer 33

A defendant assumes a duty to act for another benefit when:

(1) They gratuitously act for someone else’s benefit. This will trigger an obligation to act reasonably and to continue the assistance. If you undertake a rescue, you have an obligation to do so reasonably and not to negligently abandon the attempt.
(2) They are responsible for putting the defendant in peril
(3) They are a common carrier or innkeeper (must aid or assist passengers/guests reasonably)
(4) Obligations under contract must be performed with due care.
(5) An affirmative duty to prevent harm from third persons may be imposed where the defendant had the actual ability and authority to control the third person’s actions (parent-child, employer-employee, e.g.)

Question 34

What is the doctrine of res ipsa loquitur?

Answer 34

The circumstantial evidence doctrine of negligence. This applies to situations where the fact of a particular injury itself tends to point to the existence of negligence (unlikely to have occurred absent negligent conduct). For res ipsa to establish an inference of negligence the plaintiff must show:

(1) the accident is a type that would not normally occur unless someone was negligent
(2) the defendant’s position makes the negligence attributable to them (they had exclusive control of the injury-causing item). where multiple defendants control the instrumentality, res ipsa may not be used to establish an inference of negligence
(3) the plaintiff themself was not responsible

Question 35

What is the effect of res ipsa loquitur?

Answer 35

Where the plaintiff has established res ipsa, they have established a prima facie case of negligence and the defendant cannot obtain a directed verdict. The defendant may offer evidence of due care to overcome the inference raised by the res ipsa proof.

Question 36

What is actual causation and what is the primary test?

Answer 36

A defendant’s conduct must be cause in fact of the injury. The primary test is the “but for” test – an act or omission in cause in fact where the injury would not have occurred but for the act. This test is also applicable when several acts come together to cause an injury but none alone would be sufficient.

Question 37

What is the substantial factor test?

Answer 37

Where there are joint causes – several causes commingle and any one alone would have been sufficient to cause the injury – there is actual causation if the defendant’s conduct was a substantial factor in causing injury.

Question 38

What is the alternative causes approach?

Answer 38

Where two or more persons are negligent but is uncertain which one caused pain and injury (be careful - they must both have been negligent, this is about uncertainty as to responsibility rather than uncertainty as to who was negligent), the burden shifts to defendants to show they were not the actual cause. [related: enterprise liability for members of industry group unable to prove noninvolvement/DES]

Question 39

What is proximate cause?

Answer 39

Proximate cause limits liability to those harmful results which are foreseeable results of the defendant’s conduct (among those normal incidents/risks associated with the conduct).

Question 40

What is a “direct cause” case and when is a defendant liable in a direct cause case?

Answer 40

Direct cause cases are ones where the facts present an uninterrupted chain of events. In a direct cause case the defendant is liable for foreseeable harmful results.

Question 41

What is an indirect cause case?

Answer 41

Indirect cause cases are ones where after a defendant’s negligent act occurred, another intervening force was present which combined with the negligent act to cause injury to the plaintiff. The analysis rests on whether the intervening act was foreseeable (and thus defendant liable) or whether it was unforeseeable and cuts off liability.

Question 42

What are common foreseeable intervening forces?

Answer 42

Some intervening forces almost always qualify as foreseeable:

• subsequent medical malpractice
• negligence of rescuers
• effort to protect life, property or third persons threatened by defendant’s negligence
• reaction forces
• subsequent disease or accident caused in part by the weakened condition in which defendant has placed plaintiff

Question 43

What is an independent intervening force and when are they foreseeable?

Answer 43

Independent intervening forces are independent actions rather than natural responses or reactions to the situation created by the defendant. They may be foreseeable where the defendant’s negligence increased the risk that those forces would harm the plaintiff.

Examples: foreseeable negligence of a third person (negligently forcing P into the road where they are hit by a negligent driver/placing in harm’s way); foreseeable intentional torts or crimes by a third person (negligently leave keys in vehicle and plaintiff’s property stolen); foreseeable “acts of God” (leave a hammer on the roof and wind blows it off).

Defendant may also be liable where the intervening force was unforeseeable but the resulting harm was (greater weight given to foreseeability of result than of force). Exception: unforeseeable crimes/intentional torts.

Question 44

What is a superseding cause?

Answer 44

An intervening force producing unforeseeable results is unforeseeable and thus superseding, breaking the causal connection between the defendant’s negligence and harm.

Question 45

What if a foreseeable intervening force causes unforeseeable results?

Answer 45

Rare – most unforeseeable results make the intervening force unforeseeable. Defendant not liable.

Question 46

What if either the direct harm or the foreseeable intervening force causes a level of injury that is unforeseeable?

Answer 46

The extent or severity of the injury is irrelevant to defendant’s liability. The defendant takes the plaintiff as they find them (eggshell skull doctrine/no right to a healthy plaintiff).

Question 47

What damages may be recovered in negligence?

Answer 47

No nominal damages – plaintiff must prove harm.
No punitive damages
No interest
No attorneys’ fees

Can obtain:

• personal injury damages (remember foreseeability of the extent of harm irrelevant) including emotional distress if as a result of physical injury.
• property damages (cost of repair or - if destroyed - fair market value)

Question 48

What is the duty to mitigate damages?

Answer 48

Plaintiffs have a duty to take reasonable steps to mitigate damages (seek appropriate treatment, preserve property). Failure to mitigate precludes recovery for additional damages caused by that failure.

Question 49

What is the collateral source rule?

Answer 49

Damages are generally not reduced or mitigated by reason of benefits received by plaintiffs like health insurance or sick pay.

Question 50

What is comparative negligence?

Answer 50

Where plaintiff’s negligence is shown to have contributed to their injuries, the trier of fact will reduce plaintiff’s damages by their percent of fault. In a pure comparative fault jurisdiction (default on the bar), the plaintiff will recover regardless of their parent of fail. In a partial comparative negligence jurisdiction, the plaintiff will only recover if they were 50% or less at fault. If they are more than 50% at fault, they recover nothing.

Question 51

What did comparative negligence replace?

Answer 51

Contributory negligence (plaintiff’s contributory negligence completely barred their right to recovery); last clear chance doctrine (allowed contributorily negligent plaintiffs to recover If the defiant was the person with the last clear chance to avoid the accident); and assumption of the risk (deny recovery to plaintiffs who assume the risk of damage - either express or implied).