Negligence

Question 1

Negligence Elements

Answer 1

Duty
Breach of duty
Cause-in-fact (actual cause)
Proximate (legal cause)
Damages

Question 2

Duty - Does the law impose obligations from D to P?

Answer 2

D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others.

Question 3

Who does D generally owe a duty of care to?

Answer 3

Foreseeable plaintiffs. Do owes this duty only to those persons inside the geographic zone of danger at the time of D’s negligence.

Question 4

Are rescuers foreseeable plaintiffs?

Answer 4

+ Rescuers are owed an independent duty.

+ Nonprofessional rescuers are foreseeable P’s as a matter of policy and can recover against a negligent party creating need.

Question 5

When is there a duty to rescue?

Answer 5

No duty to rescue or aid EXCEPT when:

+ D’s tortious conduct creates need to rescue

+ Undertaking to act - at common law, do not have to intervene BUT if you do, must act reasonably

+ Special relationship of dependence or mutual dependence (carrier/passenger, innkeeper/guest, captain/passengers, drinking buddies)

Question 6

Good Samaritan Statutes

Answer 6

Many states have enacted these. Rescuer is protected unless she is reckless or engages in intentional wrongdoing.

Question 7

When is there a duty to control Third Parties?

Answer 7

No day to control conduct of third party as to prevent harm to another.

EXCEPTION: When a special relationship between D and 3rd party that gives 3rd party right of protection or imposes a duty on D to control the 3rd party’s conduct.

Providers of alcohol may have a duty to control third parties through dram shop acts

Duty to control when it comes to negligent entrustment.

Question 8

Duty of providers of alcohol

Answer 8

Traditional rule - Purveyor not responsible for DUI injuries

DRAM SHOP ACTS - Impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a 3rd party.

Question 9

What is negligent entrustment?

Answer 9

When D gives something dangerous to someone D knows, or should know, is not competent to handle it. Can be negligent for third party actions.

Question 10

When is there a duty to protect?

Answer 10

Generally there is no duty to protect another person from 3rd party criminal conduct UNLESS:
+ Special relationship (LL/tenant, business/invitee)
+ Some jxs only find duty where there is a special relationship AND prior similar incidents, that make 3rd party criminal conduct particularly foreseeable

Question 11

If D is a government function, when is a duty to act owed?

Answer 11

Whether a duty is owed depends on function.

+ Proprietary function (acting in private area) – treated as any other D for duty analysis

+ Discretionary function (using judgment and allocating resources i.e. setting policy) – courts will NOT find a duty

+ Ministerial function – duty once gov. has undertaken to act (e.g. stop sign installed incorrectly leading to accident)

Question 12

What is the Public Duty Doctrine?

Answer 12

Courts find no duty when police officers/firefighters fail to provide an adequate response, EXCEPT when:
+ special relationship
OR
+ agency has increased the danger beyond what would otherwise exist

Question 13

When can a D be found liable for Negligent Infliction of Emotional Distress?

Answer 13

Courts are reluctant to find this.

D engages in negligent conduct and, as a result, P suffers emotional distress + some sort of PHYSICAL manifestation.

Most jxs require P to be in ZONE OF DANGER - at risk of physical harm.

Exceptions to these requirements:
+ D negligently shares information about death of a loved one
+ D negligently mishandles a corpse

Question 14

When can D be held liable for Negligent Infliction of Emotional Distress on a BYSTANDER?

Answer 14

Physical harm occurs to a close relative and P suffers emotional distress as a result of injury to close relative.

Requirements:
+ P was located near scene of incident
+ P suffered severe emotional distress
+ P had close relationship with V (immediate family member)

Question 15

What is an invitee and what duty does a land owner owe him?

Answer 15

Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities.

D has duty to exercise reasonable care to prevent injuries caused by activities conducted on D’s land.

Only classification of plaintiff that landowner has a duty to reasonably search out dangers on the property for.

Question 16

What is a licensee and what duty does a land owner owe him?

Answer 16

Enter’s D’s land with D’s express or implied permission and are not there for a purpose benefitting D or D’s activities, not is the land held open to the public (i.e. social guest).

D must warn of known concealed dangers (just warn, not cure).

Question 17

What is a trespasser and what duty does a land owner owe him?

Answer 17

Enters without express or implied consent of land possessor.

D has a duty to avoid infliction of willful or wanton harm (i.e. no booby traps).

If KNOWN or FREQUENT trespassers (must be obvious), D has a duty to warn of concealed dangerous artificial conditions.

Question 18

What duty does D owe to plaintiffs if D is engaged in an activity on the land?

Answer 18

Duty of reasonable care owed to all except trespassers.

Question 19

Attractive Nuisance Doctrine

Answer 19

A heightened standard of care may apply as to artificial conditions on D’s land in regards to child trespassers. Even though child is trespassing, if below prerequisites are met, child will be treated as an invitee.
+ too young to appreciate danger
+ D knows/has reason to know of trespass
+ D knows of dangerous condition
+ Condition is artificial
AND
+ risk of danger of artificial condition outweighs its utility and burden to fix it.

Question 20

What is a landowner’s duty to P’s not on his land but adjacent to it?

Answer 20

Artificial condition on land – duty of reasonable care

Natural condition from land – no duty EXCEPT trees in urban areas.

Question 21

When does a Landlord have a duty of reasonable care to a Tenant?

Answer 21

LL not liable UNLESS:
+ common area over which LL retains control
+ negligent repairs
+ at time of lease, LL knows of concealed dangerous condition
OR
+ LL knows that T is going to hold property open to public.

Question 22

How is a Reasonable Prudent Person standard assessed and what is taken into account?

Answer 22

OBJECTIVE standard of care - measured against expectation of conduct within community.

Law does not take into account mental ability, speed of reflexes, or mental health.

Law DOES take into account:
+ Physical conditions (blind, deaf, amputee) – D held to standard of a RPP with that condition
+ Emergencies not of D’s own making considered by jury (i.e. rushing to hospital because of child dying). Jury can consider emergency to determine whether D acted reasonably under the circumstances.

Question 23

What is the standard of care owed by children?

Answer 23

MAJORITY - Minor D’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence, as D, would have done.

EXCEPTION - children engaging in adult, inherently dangerous activities are held to an adult standard of care (i.e. driving)

Question 24

What is statutory negligence?

Answer 24

Statutes that provide civil liability supersede common law of torts (e.g. state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort).

Question 25

What is negligence per se?

Answer 25

Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes.

Question 26

When is negligence per se applicable?

Answer 26

Applicable if:
+ P is a member of a class the law is designed to protect;
AND
+ Injury caused by D’s conduct is the type of injury the statute sought to protect.

If statute applies – Majority rule is that an unexcused violation of the law establishes D breached duty to P. P still needs to prove proximate cause, damages, etc.

EXCEPTIONS:
+ Excused statutory violation, like an emergency not of D’s own making, or when it’s more dangerous to comply with the law.
+ Licensing statutes - not having a license does not create liability. Expired driver’s license is not negligence per se.

If statute does NOT apply - statute will not set standard of care, case proceeds under RPP, not under negligence per se.

Question 27

Standard of care for Medical Malpractice

Answer 27

Physicians required to possess and use the knowledge, skill, and training of other physicians in good standing in relevant geographic community.

Specialists = national standard
General practitioners = local standard

Question 28

Standard of care for Lawyers, Architects, Accountants

Answer 28

So long as action complies with professional custom, cannot be found to have breached duty - deviation from custom means breach of that duty.

Question 29

Effect of lack of informed consent on professional standard of care

Answer 29

Traditional (battery) - Physician is liable for battery if no informed consent about risks; consent is negated because of lack of disclosure. Still the case where there is GROSS DEVIATION from actual consent.

Traditional (negligence) - Physician must divulge risks that are customarily divulged.

New trend - STANDARD OF MATERIALITY:
Physician must divulge all MATERIAL risks, risks that.a reasonable patient would want to know in deciding whether to undergo procedure. Failure to divulge material risk is malpractice IF P can show would have refused procedure if risk was divulged.

Question 30

How may a breach of duty be proved?

Answer 30

Direct evidence (rare) - Eye witness or recording of accident while occurring.

Circumstantial - Evidence form which one can draw reasonable inference
+ Slip-and-fall cases
+ Res Ipsa Loquitur

Question 31

Proving a breach of duty in slip-and-fall cases

Answer 31

P must show that D was negligent for not discovering, and repairing, the dangerous condition. Dangerous condition was present long enough that D should have noticed it.

Question 32

Res Ipsa Loquitur

Answer 32

Allows jury to infer D’s breach based on nature of accident and D’s relationship to it.
+ Only used to show breach

P must show:
+This sort of thing doesn’t occur absent negligence;
+ D is probably responsible party because D had control over instrumentality of harm;
AND
+ P did not contribute to the injury.

Question 33

What satisfies cause-in-fact (actual cause)?

Answer 33

Connects D’s breach to P’s injury.

P shows that, more likely than not, but for D’s negligence, P would not have injured – other reasons don’t matter.

Preponderance matters as long as more than 50%, then D is liable for full extent of damages under “the but for” test.

Question 34

What is the Substantial Factor Test?

Answer 34

Used when 2 D’s cause harm, but each D alone would have been sufficient to cause the entire harm.
Each D is a cause-in-fact if D was a substantial factor in causing the harm.

Assume going and several liability - P can sue one or both D’s and collect entire amount form one D alone; D found liable can seek contribution from other D.

Question 35

What is the Loss of Chance test and when does it arise?

Answer 35

Typically arises in medical malpractice situations. Not a majority rule.

P must show that but for the medical malpractice, P would not have lost chance/died (if Doctor found the cancer, P would have had a 40% chance of survival - P would lose because there was a 60% chance P would have died)

Many jxs now recharacterize injury to loss of a chance and damages are reduced but not extinguished.

Question 36

What is the Alternative Liability Theory and when does it apply?

Answer 36

(Summer v. Tice - 2 hunters shoot at quail and hit P)

When to apply:
\+ All D's are tortious/negligent
\+ All D's are being sued together (can't use if one D is left out); 
AND
\+ Small number of D's.

Burden shifts to D’s to show that they were not the cause. If D cannot do so, they will be jointly/severally liable.

Question 37

What is Market Share Liability and when does it apply?

Answer 37

Generic Product - P cannot show which of a large group of negligent D’s was responsible. P can sue those who might have caused her harm and each D is responsible based on its share of the market.

Several liability - X has 10% of the relative market; X will pay 10% of P’s damages unless X can show it could not have made the product that harmed P.

Question 38

What effect is there on liability of P suffers an unforeseeable extent of harm?

Answer 38

Proximate cause issue.

It does not matter that P suffered more harm than one would foresee. D is responsible for the full extent of the harm, as long as the TYPE of harm is foreseeable.

Eggshell skull rule:
Take your victims as you find them - does not matter if P is susceptible to greater harm because of unique susceptibility.

Question 39

Proximate (legal) cause

Answer 39

Policy reasons to cut off liability.

Unforeseeable extent of harm?
No effect on liability.

Unforeseeable type of harm?
No liability if harm was not within the risk created by D’s negligent conduct.

Unforeseeable manner of harm?
If there’s a superseding cause, relieves original tortfeasor of liability for lack of proximate cause.

Question 40

What constitutes a superseding cause?

Answer 40

Unforeseeable, intervening cause that breaks chain of causation between initial wrongful act and ultimate injury. Relieves tortfeasor of liability for lack of proximate cause.

The more culpable the intervening force, the more likely it supersedes.

Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability.

EXAMPLES:
Unforeseeable criminal acts/torts of 3rd parties, highly extraordinary harm arising from D’s conduct, including gross negligence by 3rd parties, and acts of nature.

Question 41

How are damages recovered in a negligence action?

Answer 41

P must affirmatively prove damages (must be a cognizable injury).

Question 42

What damages are available in a negligence action?

Answer 42

Nominal damages NOT available.

Punitive damages are NOT available for just negligence.

Compensatory damages may be available.

Question 43

When are compensatory damages available in a negligence action?

Answer 43

Compensatory damages return P to pre-injury position.

Requires:
(1) Type must be foreseeable (not extent, but type of damage)
(2) Must be reasonably certain (not speculative);
AND
(3) Not avoidable

SPECIAL DAMAGES - pecuniary (medical costs), lost wages, and cost of repair.
+ can recover past, present, and future damages (future reduced to present value)
+ Collateral source rule - fact that P has insurance does not mean D does not have to pay. Also applies to gratuitous services.

GENERAL DAMAGES - Pain and suffering. More controversial because intangible and difficult to measure.

Question 44

When are punitive damages available in negligence actions?

Answer 44

NEVER recoverable JUST for negligent conduct - D’s acts must be more culpable than negligence *like willful, malicious, or reckless).

Wealth of D is highly relevant.

Due Process Clause limits amount - generally more than 10% ratio to compensatory damages is considered unconstitutional.

Question 45

What are the defenses to negligence?

Answer 45

Contributory negligence and comparative fault
+ D has burden of proof to show that P’s conduct was unreasonable and fell below RPP standard. Determination of legal effect depends on jx.

Assumption of the risk

Avoidable consequences - P must take reasonable steps after injury to not increase/exacerbate.

Question 46

Contributory negligence

Answer 46

ANY fault by P bars recover.

Question 47

Pure comparative fault

Answer 47

ASSUME where joint and several liability applies, unless told otherwise (DEFAULT).

P can recover no matter how much P is at fault. Recovery is the amount of damages minus the percentage that P is at fault.

Joint/several applies if multiple negligent D’s, and P also at fault. Subtract out P’s percentage of fault and P can sue one or more D’s to get full remaining amount. If P sues only one D, the D found to be at fault can seek contribution from other D’s.

Question 48

Modified Comparative Fault

Answer 48

P is barred from recovery if P as much at fault or more at fault than D (over 50% culpable)

Question 49

Last Clear Chance Doctrine

Answer 49

(Generally the wrong answer!)

Only applies in context of contributory negligence.

If D’s negligence occurs AFTER P’s, so D had last opportunity to avoid, P is entitled to full recovery.

Question 50

How does a P assume the risk?

Answer 50

P, orally or in writing, relieves D of responsibility to be non-negligent (not allowed for necessities).

P may impliedly assume the risk. Recovery will be barred, or reduced, if D establishes that P:
+ knew of/appreciated nature of risk
+ appreciated specific danger that inured him; AND
+ voluntarily chose to subject himself to that danger

Question 51

Firefighter rule

Answer 51

Where P is a professional rescuer, and is injured due to inherent risk of that job, P cannot recover in negligence against the person who created the need for rescue.

Question 52

What is primary assumption of the risk?

Answer 52

In certain contexts, there is NO DUTY to be non-negligent.

Often arises in the context of sporting events.