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Torts > NEGLIGENCE > Flashcards

NEGLIGENCE Flashcards

1
Q

NEGLIGENCE: PRIMA FACIE CASE

A

(1) Duty
- On the part of D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury
(2) Breach
(3) Breach is actual and proximate cause of P’s injury
(4) Damage

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2
Q

TO WHOM IS A DUTY OF CARE OWED?

A

All FORESEEABLE plaintiffs

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3
Q

WHO IS A FORESEEABLE PLAINTIFF?

A

“Zone of danger”

  • Can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances
  • Otherwise - no duty
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4
Q

DUTY TO RESCUERS?

A

A rescuer IS a foreseeable plaintiff where D negligent put himself or a third person in peril
-Firefighters/police officers may be barred

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5
Q

IF D NEGLIGENT CAUSES IMPACT TO THE BODY OF A PREGNANT WOMAN

A

NYS

  • If that child is born with injuries can establish that the injuries were caused by the impact
    • The CHILD has a cause of action for his injuries
    • If miscarriage/still birth, the mother only will have a claim
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6
Q

IF DOCTOR MISDIAGNOSES A BORTH DEFECT

A

NYS
“Wrongful Birth”
-Parents can recover costs of child care in excess of ordinary child-rearing expenses
-No recovery for emotional distress in NYS
-Child may not recover for “wrongful life”

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7
Q

IF DOCTOR FAILS TO PROPERLY PERFORM A CONTRACEPTIVE PROCEDURE

A

“Wrongful Pregnancy”

  • NYS denies recovery
  • MBE can recover for additional medical expenses, pain/suffering from labor
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8
Q

BASIC STANDARD OF CARE

A
  • Objective, reasonable person standard
  • Must exercise the amount of care as would be exercised by a reasonably prudent person acting under similar circumstances
  • D’s physical characteristics are taken into account
  • Mental deficiencies and inexperience are NOT
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9
Q

2 EXCEPTIONS TO BASIC STANDARD OF CARE

A
  • D has superior skill or knowledge

- Physical characteristics of the D (if relevant)

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10
Q

STANDARD OF CARE FOR CHILDREN

A
  • Held to the standard of a child of like age, education, intelligence, and experience
  • SUBJECTIVE test
  • Children under 4/5 usually incapable of negligence
  • -Children engaged in adult activities may be required to conform to an adult standard of care
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11
Q

STANDARD OF CARE FOR PROFESSIONALS

A
  • Required to exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities
  • Medical specialists/physicians will be held to a national standard of care
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12
Q

COMMON CARRIERS AND INNKEEPERS

A

Held to a very high degree of care to P’s who are passengers or guests

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13
Q

BAILEE STANDARD OF CARE

A
  • If for the sole benefit of the BAILOR: low standard of care
  • If for the sole benefit of the BAILEE: high standard of care
  • For mutual benefit - ordinary care standard
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14
Q

BAILOR STANDARD OF CARE

A

For sole benefit of the BAILEE bailment - bailor must inform bailee of known, dangerous defects in the chattel

Bailment for hire - bailor must inform the bailee of defects of which he is or should be aware

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15
Q

DUTY TO UNDISCOVERED TRESPASSERS

A

NO duty of care to undiscovered trespassers

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16
Q

DUTY TO ANTICIPATED OR DISCOVERED TRESPASSERS

A

(1) Duty regarding ARTIFICIAL conditions
(2) Conditions are highly dangerous (death or serious bodily harm)
(3) Concealed condition
(4) Prior knowledge of the condition/danger

“Known, manmade death traps”

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17
Q

DUTY TO LICENSEES

A

Duty to:

(1) Warn of dangerous conditions (natural or artificial)
(2) Concealed condition
(3) Known to create an unreasonable risk of harm

“All known traps”

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18
Q

LICENSEES

A

People who enter property with the possessor’s permission but do not confer an economic benefit on the possessor (e.g. social guest, anyone who rings your doorbell)

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19
Q

INVITEES

A

People who enter land with permission and either

(1) Confer an economic benefit on the possessor OR
(2) Property is open to the general public

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20
Q

DUTY TO INVITEES

A

Duty to:
Warn of dangerous, concealed conditions that are known OR that could have been discovered through reasonable inspection

“All reasonably know-able traps on the land”

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21
Q

NY DISTINCTION FOR PREMISES LIABILITY

A

No longer categorizes entrants

  • Uses a reasonably prudent person standard for all people
  • Kind of entrant is part of the analysis, generally bears on breach
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22
Q

ATTRACTIVE NUISANCE DOCTRINE

A

Duty on a landowner to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property

(1) Dangerous condition on the land that the owner is or should be aware of
(2) Owner knows or should know children frequent the vicinity of the condition
(3) Condition is likely to cause injury (i.e. dangerous because of child’s inability to appreciate the risk)
(4) Expense of remedying the situation is slight compared with the magnitude of the risk

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23
Q

NEGLIGENCE PER SE

A

Statutory standards of care may replace the general common law duty if:

(1) Statute provides for a criminal penalty
(2) Statute clearly defines the standard of conduct
(3) P is within the protected class
(4) Statute was designed to prevent the type of harm suffered

Establishes a conclusive presumption of breach and duty

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24
Q

EXCUSES FOR NEGLIGENCE PER SE VIOLATIONS

A

Violation of some statutes may be excused where compliance would cause more danger than violation, or where compliance would be beyond D’s control/impossible

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25
Q

3EXCEPTIONS TO GENERAL RULE OF NO DUTY TO ACT AFFIRMATIVELY

A

(1) Pre-existing relationship
- Formal legal (hotel-patron, employer-employee, common carrier-passenger, etc.)
- Trend toward including informal relationships (i.e. friends at dinner)

(2) D was the cause of P’s peril
- Regardless of whether caused by negligence/carelessness

(3) D chooses to undertake rescue
- Must act as RPP and liable if they mess up during rescue

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26
Q

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS - 3 SCENARIOS

A

(1) Near Miss
(2) Bystander
(3) Special Relationship

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27
Q

NIED - NEAR-MISS CASE

A
  • Where D’s negligence put P in the zone of physical danger

- P MUST prove subsequent physical manifestations

28
Q

NIED - BYSTANDER CASE

+ NY RULE

A

Negligent D seriously injures or kills a (1) close family member of P AND P was physically present when the direct victim got hurt

NY DISTINCTION: Bystander must have also been in the zone of physical danger

29
Q

NIED - SPECIAL RELATIONSHIP CASES

A

P and D are in a pre-existing business relationship where it is highly foreseeable that negligence by D will distress P

 - Medical lab/patient
 - Funeral parlor/customer
30
Q

(3) WAYS OF PROVING BREACH

A

(1) Custom or usage
(2) Violation of statute (negligence per se)
(3) Res ipsa loquitur

31
Q

ELEMENTS OF RES IPSA LOQUITUR

A

(1) Accident is of a type that would not normally occur unless someone was negligent
- Common sense appeal to what is probable
(2) AND Negligence is attributable to D
- Accident of this type is normally due to negligence of someone in D’s position
- Usually shown by evidence that the instrumentality was in the exclusive control of D

32
Q

EFFECT OF ESTABLISHING RES IPSA

A

P avoids a directed verdict - has made a prima facie case only
Establishing res ipsa does NOT definitely establish breach or negligence

33
Q

ACTUAL CAUSE/CAUSATION IN FACT - GENERAL TEST

A

“BUT FOR” Test

-P must demonstrate that BUT FOR D’s breach, P would be healthy/uninjured today

34
Q

ACTUAL CAUSE - TEST FOR JOINT/MERGED CAUSES

A

SUBSTANTIAL FACTOR Test
-Where several causes bring about injury, and ANY ONE ALONE would have been sufficient to cause the injury, D’s conduct is the cause in fact if it was a SUBSTANTIAL FACTOR in causing the injury

-Ask: Was EACH BREACH a substantial factor in bringing about the harm?

35
Q

ACTUAL CAUSE - ALTERNATIVE/UNASCERTAINABLE CAUSES

A
  • Where 2 acts occur, only one of which causes injury, but it is not known/not possible to know which one
  • Burden of proof shifts to D to each show that his negligence is NOT the actual cause
    • Held jointly liable otherwise
36
Q

PROXIMATE CAUSE

A

Limitation of liability, dealing with liability or non-liability for unforeseeable or unusual consequences of one’s acts

GENERAL RULE:

  • A defendant generally is liable for all harmul results that are the normal incidents of and within the increased risk caused by his acts
  • Test of foreseeability
37
Q

LIABILITY IN DIRECT CAUSE CASES

A

Where there is an uninterrupted chain of events from the negligent act to P’s injury, D is liable for all foreseeable harmful results
-REGARDLESS of the unusual manner in which they arose or the unusual timing of cause and effect

38
Q

LIABILITY IN INDIRECT CAUSE CASES: 4 WELL SETTLED SITUATIONS

A

(1) Intervening medical negligence/malpractice
(2) Intervening negligent rescue
(3) Injuries caused by “reacting” to D’s actions
- car hits P in a crowded street, causing a stampede of pedestrians that tramples P’s face –> D liable for everything including face
(4) Subsequent disease (caused by a weakened condition) or subsequent injury (substantially caused by the original injury)

39
Q

EGGSHELL SKULL RULE

A

Once P has established a cause of action, P recovers for ALL damages suffered, even if they are surprisingly large in scope
-Even if extent/severity was unforeseeable

40
Q

COLLATERAL SOURCE RULE

GENERAL RULE + NY DISTINCTION

A

General Rule:
-Damages are not reduced just because P received benefits from other sources (i.e. insurance)

NY Rule:
-Recovery is normally reduced by any amounts received from other sources

41
Q

ASSUMPTION OF THE RISK

A

P may be denied recovery if she assumed the risk of any damage caused by D’s act

P must have

(1) Known of the risk AND
(2) Voluntarily proceeded in the face of the risk

42
Q

PURE COMPARATIVE NEGLIGENCE

A

Allows P to recover no matter how great her % fault is

43
Q

PARTIAL/MODIFIED COMPARATIVE NEGLIGENCE

A

Bars P’s recovery if negligence was more serious than the D’s negligence

  • If P’s fault is under 50% - recovery is reduced by that %
  • If P’s fault is over 50% - absolute bar to recovery
44
Q

PRIMA FACIE CASE OF STRICT LIABILITY

A

(1) Nature of the D’s activity imposes an absolute duty to make safe
(2) Dangerous aspect of the activity was the actual and proximate cause of the P’s injury
(3) P suffered damage to person or property

45
Q

WILD ANIMALS

A

An owner is strictly liable to licensees and invitees for injuries caused by wild animals

-Safety precautions irrelevant

46
Q

DOMESTIC ANIMALS

A

An owner is NOT strictly liable for injuries caused by domestic animals, UNLESS he has knowledge of that particular animal’s dangerous propensities that are not

47
Q

TRESPASSERS AND STRICT LIABILITY

A

Strict liability will generally NOT be imposed in favor of trespassers in the absence of owner’s negligence

48
Q

ABNORMALLY DANGEROUS ACTIVITIES

A

Strictly liable for harms resulting from dangerous activity if:

(1) Activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors, AND
(2) Activity is not a matter of common usage in the community

49
Q

PRODUCTS LIABILITY BASED ON STRICT TORT LIABILITY

A

(1) A strict duty owed by a COMMERCIAL SUPPLIER of a product
- Retailers may be held liable even if they have no opportunity to inspect the product
(2) Production or sale of a defective product
(3) Actual and proximate cause
(4) Damages

  • Product must reach P without substantial alteration
  • Defect must make the product dangerous beyond the expectation of the ordinary consumer
  • For actual cause, P must show that the defect existed when the product left D’s control
50
Q

COMMON ELEMENTS UNDER ANY PRODUCTS LIABILITY THEORY

A

P must show:

(1) A defect
- Manufacturing defect
- Design defect
- Inadequate Warnings
(2) Existence of the defect when the product left D’s control
- Inferred if the product moved through normal channels of distribution

51
Q

MANUFACTURING DEFECTS

A

If a product emerges from manufacturing different and more dangerous than the products that were made properly

52
Q

DESIGN DEFECTS

A

P usually must show that D could have made the product safer, without serious impact on the product price or utility

53
Q

HYPOTHETICAL ALTERNATIVE DESIGN TEST - DESIGN DEFECT

A

(1) Must be safer than the marketed version
(2) Hypothetically safer design must be cost effective
(3) Practical design that would not interfere with operation/utility of product

54
Q

IMPACT OF GOVERNMENTAL REGULATION ON DESIGN DEFECT ANALYSIS

A
  • FAILURE to conform to a government regulation is CONCLUSIVE PROOF of a defective design
  • Compliance functions as evidence of non-defective design but is NOT dispositive
55
Q

INADEQUATE WARNINGS/INFORMATION DEFECT

A

Product has residual risks that cannot be designed away AND
That consumers will not be aware of AND
It does not bear adequate warnings

NOTE: if product has a design defect, merchant will not escape liability by slapping a warning on it

56
Q

COMMERCIAL SUPPLIERS

A

Manufacturers, wholesalers, retailers, lessors
–> every party in the chain of distribution

NOT casual sellers or service providers

57
Q

ELEMENTS OF PRODUCTS LIABILITY BASED ON NEGLIGENCE

A

(1) Duty
- To any foreseeable P, including users, consumers, bystanders
(2) Breach
- Negligent conduct of D leading to the supplying of a defective product
(3) Causation
- An intermediary (i.e. wholesaler)’s negligent failure to discover a defect does NOT supersede the original manufacturer’s negligence
- Unless intermediary’s conduct exceeds ordinary foreseeable negligence
(4) Damages
- Physical injury or property damage must be shown
- Cannot be solely economic loss

58
Q

NUISANCE

A

A substantial, unreasonable interference with another’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession

Interest balancing test
-Severity of the inflicted injury must outweigh the utility of D’s conduct

59
Q

VICARIOUS LIABILITY: GENERAL RULE FOR RESPONDEAT SUPERIOR

A

An employer will be held vicariously liable for tortious acts committed by her employee if the tortious acts occur within the SCOPE of the employment relationship

 - An employee on a "frolic" (a minor deviation form his employer's business for his own purposes) is still acting within the scope of his employment
 - Substantial deviation in time or geography is a detour = no employer liability
60
Q

RESPONDEAT SUPERIOR AND INTENTIONAL TORTS

A

GENERAL RULE: Intentional tortious conduct by employees is NOT within the scope of employment

3 Exceptions

(1) Force is authorized in the employment (bouncer)
(2) Friction is generated by the employment (debt collector)
(3) Employee is [misguidedly] furthering the business of the employer

61
Q

VICARIOUS LIABILITY: INDEPENDENT CONTRACTORS

A

A principal will NOT be vicariously liable for tortious acts of her agent if the agent is an independent contractor

2 EXCEPTIONS:

(1) Engaged in inherently dangerous activities
(2) Duty is non-delegable (i.e. if invitees get hurt)
- Ex/ business owners owe a non-delegable duty to keep premises and instrumentalities safe for customers
- Ex/ common carriers owe a non-delegable duty to keep vehicles in safe and working order (cab company)

62
Q

VICARIOUS LIABILITY: AUTOMOBILE OWNER AND DRIVER

A

GENERAL RULE: Owner is NOT liable for torts committed by drivers, unless the owner-driver relationship is also a principal-agent relationship

63
Q

PERMISSIVE USE STATUTE

A

Vicarious liability is imposed on the owner for torts committed by anyone driving the car with permission

64
Q

VICARIOUS LIABILITY: PARENT AND CHILD

A

GENERAL RULE: Parents are not liable for the torts of their children

-Most states, by statute, make parents liable for the willful and intentional torts of their children up to a certain dollar amount

65
Q

JOINT AND SEVERAL LIABILITY

A

Where 2 or more negligent acts combine to proximately cause an indivisible injury, each negligent actor can be held liable to the plaintiff for the entire damage incurred

66
Q

CONTRIBUTION

A

Allows a D who pays more than his share of damages under joint & several liability to have a claim against other jointly liable parties for the excess
-Apportions responsibility among those at fault

-Not applicable to intentional torts

67
Q

INDEMNIFICATION

A

Involves shifting the entire loss between or among tortfeasors

-Ex/ if D has been held vicariously liable, D can be indemnified by the active tortfeasor
Ex/ in products cases, a non-manufacturer can get full indemnity from the manufacturer

Torts (3 decks)

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