Negligence Flashcards
Elements
- D owed duty of care
- D breached
- breache was the actual an dproximate cause of injury
- P suffers damages to person or property
standard of care
that of a reasonbale person
if you are a professional, must exercise knowledge and skill of a mmber of that profession (e.g. Dr., lawyer, etc.)
landowner’s standard of care to trespassers
- undiscovered trespassers - landowner owes no duty to undiscovered trespassers
- known trespassers - must only protect them / warn them of artificial highly dangerous traps that are concealed. you must also hav enowledge of these traps
- discoverd and anticipated trespassers - the landowner owes a duty to warn of or make safe known highly dangerous artificial conditions if not obvious to the trespasser
landowner’s standard of care to licensees
1) Licensees are those who come onto the land with express or implied permission but for their own purpose (includes social guests)
2) The landowner’s duty is the same as for discovered trespassers except that it applies to all dangerous artificial and natural conditions
landowner’s standard of care to invitees
1) Invitees are those entering as members of the public or for a purpose connected to the business of the landowner
2) The landowner’s duty is the same as for licensees but with the additional duty to reasonably inspect for dangerous conditions
3) have a duty for those which are concealed from invitee and is known or could be discovered through a reasonable inspection (reasonable person)
2) 4) protect from all reasonably knowable traps.
negligence per se
- A criminal statute may serve to establish a specific standard of care in place of the general standard of ordinary care if:
a. is the statute designed to protect a calss oof people meant to be protected? The plaintiff is within the class that the statute was intended to protect
b. The statute was designed to prevent the type of harm suffered. must be the injury that was trying to prevent
- A criminal statute may serve to establish a specific standard of care in place of the general standard of ordinary care if:
exceptions - statutory compliance is more dangerous than non compliance and (2) satutory obedience was impossible
duty to rescue
none
exception
1. prexisting duty - legal relationship like invitee, hotelkeeper and customer, arline and customer
2. D caused peril
duty to act reasonable in the circumstnaces
if you opt to rescue and perform negligently, then you have a duty to rescue
negligent infliction of emotional distress
violates a standard of care but no injury
1) near miss - must be in zone of physical danger, as a result you have to show subsequent physical manifestation (can be literlaly one second later, must be objective pain). this is anxiety or fear
2) bystander case - serious injury or death to someone not in the lawsuit. Emotionally sad because of death of another person
3) business relationship case - preexisting biz relationship where careless performance is highly likely to cause emotional distress.
Breach of Duty
Apply facts to show breac
Res Ipsa Loquitur - the fact that an injury occurred may create an inference that the defendant breached his duty.
Res ipsa Loquitur
a. The accident causing the injury is a type that would not have occurred absent negligence of a category of accident that is normally associated with negligence.
b. The negligence is attributable to the defendant (usually because the defendant is in exclusive control of the instrumentality causing the injury) normally due to negligence of someone in the D’s position. Show that the D had control of the D at the time (exclusive control)
c. The injury was not attributable to the plaintiff’s own conduct.
Causation - actual cause
a. Usually established by the “but for” test—an act is the actual cause of an injury when it would not have occurred but for the act
Causation - actual cause - other types of causes
b. Joint causes (merged cause scenarios)—when two acts bring about an injury and either one alone would have sufficed, either of the acts is an actual cause of the injury if it was a “substantial factor” in bringing it about
1) classic e.g. - two independent fires
b. 2) substantial factor test - ask whether each breach would have significant way. If it could cuase the damage all by itself, then buth are substantial factors and both are factual causes. Then you hold defendants jointly liable.
c. Alternative causes—when two acts were negligent but it is not clear which was the actual cause of the injury, the burden shifts to each of the negligent actors to show that his negligent act was not the actual cause
1) quail flushing case. both shooters and you have no idea who shot the guns. Shift burden to make D show that their act was not negligent (e.g. you assume that they are negligent and they have to provde they weren’t). Leads to jointly liable.
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causation - proximate cause
a. Limits liability for unforeseeable consequences of the defendant’s actions
b. The defendant is liable for all harmful results that are the normal incidents of and within the increased risk from the defendant’s actions
some foreseeability examples
- intervening medical malpractice - broken leg then amputataion because of med mal. This is foreseeable and only fair that you have to pay for it. Doctor is also liable.
- intervening negligent rescue - someone rescues and causes harm. rescuers are attracted and they could cause things to be worse, so you have to pay for it.
- intervening protection or reaction forces
- subsequent disease or accident
Damages
Must show actual harm
Can recover economic damages (med expenses) and non-economic damages (pain and suffering)
Defenses
contributory negligence - use reasonble person standard. rejected almost everywher ebecause bars recovery
comparative negligence - reduce damages by amount that P is at fault.
- pure comparative negligence - just deduct by amount of fault
- partial comparative negligence - if morethan 50% wrong than your claim is barred
assumption of risk - P is aware of the risk and voluntarily assumes it (express or implied)
