Negligence Flashcards
Elements of Negligence
- Duty
- Breach
- Causation
- Damages
- Defenses
Duty
Obligation to conform to a specific standard of conduct to protect P from unreasonable risk of injury
Who is owed a duty?
All foreseeable victims (unforeseeable = no duty); Cardoza majority view: “was P in zone of danger”; Andrews minority view- “duty to all”
What is the default standard of care?
“Reasonably prudent person, acting under similar circumstances” (Objective)
Strict application unless: 1. Def. has superior knowlege about a matter relevant to the case or 2. physical characteristics of Def. where they are relevant (blind, short, wheelchair)
What is standard of care for child?
under 4 incapable of negligence; “Child owes care of hypothetical child of similar age, intelligence, acting under similar circumstances.” (Subjective)
Ex. Child engaged in adult activity use RPP.
What is the standard of care for Professional?
“The care that would be given by an average member of that profession engaged in similar professional services.” National standard.
What is the duty owed to an undiscovered trespasser?
No duty regarding dangerous condition (unforeseeable)
What is the duty owed to a known/anticipated trespasser?
Possessor must protect only from conditions that meet 4 part test “all known manmade deathtraps on land”
What is licensee?
Person that comes on land w/permission of possessor, but do not confer economic benefit on possessor
What is the duty owed to a licensee?
Possessor owes licensee a duty to protect from conditions that are concealed from licensee and known in advance by possessor (i.e. “all known traps on land.”)
What is an invitee?
Person that comes on land w/permission and confers an economic benefit on possessor, OR entering property which is open to public at large
What is duty owed to invitee?
Possessor owes invitee duty to protect from conditions that are concealed from licensee and either known in advance or could have been discovered via reasonable inspection (i.e. “All reasonably known traps on land.”)
Negligence per se (statutory SOC)
replaces RPP standard by borrowing substantive commands from criminal statute. Allowed to borrow if P can satisfy “class of person/class of risk test”
- P is member of class of person that the statute is trying to protect; AND
- Type of injury is in class of risks the statute is trying to prevent
What are exceptions to Negligence per se?
If under the circumstances:
- obeying the statute would have been more dangerous;
- compliance was impossible (heart attack)
When is there a duty to act affirmatively?
No duty to “act/rescue” or do things you do not want to do;
Exceptions: Def. undertakes a duty; a pre-existing relations (K, fiduciary, ad hoc friends); if Def. caused the peril, must try to rescue in manner that is reasonable under the circumstances
Elements of Negligence Infliction of Emotional Distress
Requires Def. to behave negligently (does not touch P, but requires physical manifestations of injury (cf IID, which is damage)
When can Negligent Infliction of Emotional Distress Occur?
- Near miss: Def’s negligence places P in the “physical zone of danger” resulting in distress.
- Bystander: P witnesses negligent injury to close family member (must be near in time and space);
- Relationship: P and Def. are not strangers and carelessness is highly foreseeable (false biopsy diagnosis) (different than IIED: intent. v. carelessness)
Breach (Def.)
Fact (identity the wrongful conduct) + Reason why the Def’s conducy breached the standard of care
Res Ipsa Loquitar
Applies when P lacks information and can’t identity what Def. did wrong:
- Result normally associated with negligence of some kinds; AND
- Normally due to negligence of someone in Def.’s position (or Def. in exclusive possession)
Factual Causation
P establishes linkage between breach and injury suffered
“But For” Test
Test for factual causation when there is one cause; but for the breach, P would be uninjured today.”
Substantial Factor test
Test for factual causation when 2 actions merge- was Def’s breach capable of causing injury by itself? If so, joint and severable liablity applied.
Alternate Causes Approach
This test for factual causation applies when there are two acts, only one of which causes injury, but it is no known which one. The burden of proof shifts to defendants, and each must show his negligence is not the actual cause (Summers v. Tice)
Minority Affirmative Defenses to Negligence
- Contributory negligence
- Assumption of risk- voluntary assumption of known risk
- Last clear chance- if negligence amoung both parties and one had the “last clear chance” to avoid injury, they are liable.
Comparitive Negligence
Def. can show P failed to exercise proper care for his own safety (failed to act as RPP)
Pure: based strictly on %. If P is assessed with majority of fault (90%), they can still recover 10%
Modified/Partial: P’s fault up to 50% = reduction of recover. Fault over 50% is absolute bar.
Elements of Attractive Nuisance
- There is an artificial condition on the land,
- The land occupier knew or should have known that children were on the land.
- The burden on protecting children from the risk of harm outweighs the utility of maintaining the artificial condition,
and 4. it was unlikely that children would appreciate the risk posed by the artificial condition.
