Negligence

Question 1

What are the elements of negligence?

Answer 1

(1) Duty
(2) Breach of Duty
(3) Causation and
(4) Damage

Question 2

What general duty is owed to foreseeable plaintiffs?

Answer 2

A duty to take risk reducing precautions for foreseeable victims of your carelessness.

Question 3

What general duty is owed to unforeseeable plaintiffs? Are there any exceptions?

Answer 3

There is no duty to unforeseeable victims. Unforeseeable victims always lose negligence claims (Note: Palsgraf fireworks case and the zone of danger).

Exception: Rescuers - even if outside the zone of danger because should expect rescuers to be drawn into the equation (Wagner v. Int’l Railway - Cardozo said danger invites rescue)

Question 4

What is the basic standard of care?

Answer 4

The standard of care is that of a reasonably prudent person under the circumstances, what the average person would do (objective standard).

Typically not customized, but rather a rigid and inflexible standard that makes no allowances for the persons mental deficiencies.

Question 5

What is the standard of care for professionals (doctors, lawyers, accountants, etc…)?

Answer 5

Reasonable prudent person with the added knowledge of the superior skill of that person’s profession. Thus, a professional must exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities (conformity and custom).

Question 6

Are physical characteristics considered into the basic standard of care?

Answer 6

Physical Characteristics will be incorporated into the reasonably prudent person standard if relevant (e.g. a blind person should act as a reasonably prudent person who is blind); but in most cases, not relevant.

Question 7

What is the standard of care for children? Are there any exceptions?

Answer 7

Children under the age of 5 owe no duty to anyone and cannot be liable.

Children from ages 5-18 owe the care of a child of similar age, experience, and intelligence acting under similar circumstances. It is a customized, flexible and lenient standard. Subjective standard and tilts in favor of the defendant.

Exception: Adult activities - then child is judged under the basic reasonable prudent person standard. (e.g. motorized vehicles)

Question 8

In a premise liablity case, who is an considered an undiscovered trespasser and what is the standard of care owed to an undiscovered trespasser?

Answer 8

a person who comes on the property without permission of possessor, possessor owes trespasser no duty of care. Undiscovered trespasser never wins. They are unforeseeable victims.

Question 9

In a premise liablity case, who is an considered an anticipated or discovered trespasser and what is the standard of care owed to an anticipated or discovered trespasser?

Answer 9

trespassers that the possessor knows or should know to be on the property. If people frequently take a short cut across your land, then expect anticipated trespassers. The property possessor must protect the trespasser only from conditions that meet a FOUR PART TEST:

• Artificial Condition: Duty arises only when the condition is artificial (built by human beings); never a duty to protect discovered trespassers from natural conditions that occur on your land.
• Highly Dangerous: The condition has to be highly dangerous (capable of killing or maiming); No duty for something that is moderately dangerous.
• Hidden or Concealed: The condition has to be hidden or concealed from the trespasser; No duty to protect for open and obvious dangers.
• Prior Knowledge: The condition must be one that the possessor of the property knew about in advance, prior knowledge.

Rule Summary: The possessor must protect trespassers from the known man-made death traps on the land.

Question 10

For a premise liability cause of action, who is a licensee? Examples? What is the standard of care owed to licensees?

Answer 10

Persons who enter land with permission but confer no economic benefit.

Examples: social guests, friends, family, girl scouts selling cookies, anyone who has implied consent to knock on your front door.

Standard of Care: Only owe a duty to protect for conditions that are (1) concealed from them and (2) known in advance by possessor.

Rule Summary: Possessor must protect licensees from all known traps on the land.

Question 11

In a premise liability cause of action, who is an invitee? Examples? What is the standard of care owed to invitees?

Answer 11

Persons who enter the land with permission and do confer economic benefit or alternatively the property is open to all.

Examples: customers of a business, house of worships, etc.

Rule: The possessor of the property must protect the invitee from conditions that (1) are concealed and (2) the possessor knew about or conditions that could have been discovered through a reasonable inspections (not a perfect inspection). Common examples are spills in aisles of grocery store.

Rule Summary: the property possessor must protect the invitee from all reasonably knowable traps on the land.

Question 12

What is the rule regarding the scope of an invitation to enter a person’s land?

Answer 12

A person will lose his status, if he exceeds the scope of the invitation – if he goes onto a portion of the property where his invitation cannot reasonably be said to extend.

Question 13

In terms of tort liablity, can a firefighter or police officer recover for injuries that happen on the job?

Answer 13

Firefighters and police officers can’t recover for an inherent risk of their jobs because of assumption of the risk.

Question 14

What is the attractive nuisance doctrine?

Answer 14

The attractive nuisance doctrine applies to trespassing children. A property possessor owes duty to protect trespassing child from artificial conditions through the exercise of ordinary reasonable care. If there is something on your land that acts to attract children, then as a reasonably prudent person then you should recognize that kids will come and remove any artificial conditions that are dangerous. Equivalent to inviting the child on your land

Question 15

In a premise liability case, how can a possessor of land always satisfy her duties?

Answer 15

A possessor can always (1) fix the problem or (2) give a warning to satisfy their duty.

Question 16

What are statutory standards of care (negligence per se)? What is the test for determining the standard of care to apply in a case? Are there any exceptions to this test?

Answer 16

Provides a conclusive presumption of duty and breach of duty. P wants to borrow a statute and argue it clearly defines that the standard of conduct the D owed the P (e.g. Motor Vehicle Codes). In order to show that there is a conclusive presumption of duty and breach of duty, the P must meet the Class of person-Class of Risk Test. The plaintiff must show that:

(a) He is a member of the class of persons that the statute seeks to protect and (Class of Person)

(b) The accident is in the class of risk that the statue is trying to convict. (Class of Risk).
_Note_:  If P doesn’t meet the two-part test then he can proceed under the basic standard of the reasonably prudent person. 

Exceptions:

• If compliance with the statute is more dangerous than violation even if the Class of person-Class of Risk Test is met, don’t use the statute. Use the reasonably prudent person standard.
• If compliance is impossible. (e.g. motorist has a heart attack and can’t stop the vehicle). Use the reasonably prudent person standard.

Question 17

What is the Class of person-Class of Risk Test? What are the exceptions?

Answer 17

In order to show that there is a conclusive presumption of duty and breach of duty (negligence per se), the P must meet the Class of person-Class of Risk Test. The plaintiff must show that:

1. He is a member of the class of persons that the statute seeks to protect and (Class of Person)
2. The accident is in the class of risk that the statue is trying to convict. (Class of Risk).

Note: If P doesn’t meet the two-part test then he can proceed under the basic standard of the reasonably prudent person.

Exceptions:

• If compliance with the statute is more dangerous than violation even if the Class of person-Class of Risk Test is met, don’t use the statute. Use the reasonably prudent person standard.
• If compliance is impossible. (e.g. motorist has a heart attack and can’t stop the vehicle). Use the reasonably prudent person standard.

Question 18

Is there a duty to act affirmatively? Are there any exceptions?

Answer 18

There are no duties to act affirmatively. Never under an obligation to take on an activity in the first instance. (e.g. no one makes you drive, but if you do you must act as a reasonably prudent person). No duty to rescue. You do not have to rescue a person in peril.

Exceptions: (1) If there is a preexisting relationship between D and the person in peril, there is a duty to act reasonably under the circumstances. (e.g. common carrier-passenger) OR (2) if the D’s acts (negligent or non-negligent) are the reason/cause the person is in peril, there is a duty to act reasonably under the circumstances. These are not a duty to rescue, but to act reasonably. A reasonably prudent person doesn’t put his life in danger to rescue another.

General Rescue Rule: A voluntary rescuer will be liable if he rescues in an unreasonable/reckless way.

Good Samaritan Laws: immunize voluntary rescuers from liable. Vary from state to state, some apply only to professional rescuers others apply to everyone. MBE doesn’t test this.

Question 19

What is negligent infliction of emotional distress? What are the three common scenarios?

Answer 19

Negligent D and P left bummed out (no physical injury). (1) D must be negligent (breach of duty of care) and (2) P must be within the zone of danger and (3) suffer physical symptoms from the distress.

Three common scenarios:

• Near Miss Scenario
• Bystandaer Scenario
• Relationship Case Scenario

Question 20

Under a negligent infliction of emotional distress cause of action, what is the near miss scenario? What is required under this scenario?

Answer 20

This scenario occurs when D doesn’t cause physical injury to the P but almost does; D’s careless act put P in a zone of danger, and P must suffer subsequent physical manifestations (e.g. heart attack, miscarriage, development of a rash or twitch).

Question 21

Under a negligent inflication of emotional distress claim, what is the bystander scenario? What is required under this scenario?

Answer 21

Negligent D hurts or kills X, and P is upset because X is hurt or killed. The negative emotion is grief, sadness, melancholy. P must show that he is a close family member (spouse, child, parent) of the direct victim (X) and that he saw the injury as it happened (close in time, close in space, close in relationship). “Ring side seat, as the love one gets creeped.”

NOTE: In most jurisdictions, a bystander who sees the defendant negligently injure another can recover damages as long as the plaintiff and the person injured by the defendant are closely related, the plaintiff was present at the scene of the injury, and the plaintiff personally observed or perceived the event. The bystander plaintiff can recover damages only if defendant’s conduct resulted in some physical injury from the distress; emotional distress alone is insufficient in the usual case.

Question 22

What is the relationship case scenario for negligent infliction of emotional distress claims? What is required under this scenario?

Answer 22

P an D have a preexisting business relationship and it is highly foreseeable that careless performance will produce distress. (e.g. Patient -Medical Laboratory relationship, lab messes up the results and reports wrong information such as you have HIV or Cancer)

Question 23

What is the breach of duty element of a negligence action?

Answer 23

Wrongful conduct by act or omission. P must identify wrongful conduct, and that D did it wrong.

Question 24

What is res ipsa loquitur? What is the test? What is the effect of this doctrine?

Answer 24

This doctrine is relevant when P lacks direct evidence that shows what D did wrong/conduct that was breach. P must prove that:

(1) the accident that occurred is normally associated with negligence,

AND

(2) the accident is the type normally due to the negligence of someone in the D’s position (control) (Byrne v. Boadle).

The effect of this is that it gets the case to the jury, P has made a prima facie case and no directed verdict may be given for D. P can still lose if the inference of negligence is rejected by the trier of fact.

Question 25

What is the causation element of a negligence claim?

Answer 25

P establishes a connection or linkage between breach and injury. P must show actual cause (causation in fact) and proximate cause (legal causation).

Question 26

When proving actual causation in a negligence action, what is the but for test?

Answer 26

Test: Was the breach crucial or essential for producing the harm; but for the breach the P would not have been harmed. Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act.

Question 27

How can P prove actual cause in a negligence action against D?

Answer 27

P can prove actual causation by meeting one of these three tests:

1. But-for test
2. Merged cause case & the substantial factor test
3. Alternative causes approach

Question 28

When trying to prove actual cause in a merged cause case, what is the substantial factor test? When does the test apply?

Answer 28

This test applies when two negligent D’s each breach their duty by releasing a constructive force (e.g. two fires caused by two different persons, P’s house burns down).

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 fact in causing the injury.

Question 29

When proving actual cause, what is the alternative causes approach? When does this test apply?

Answer 29

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause. Although both parties acted negligently, only one cause the harm. If can’t determine who is actually liable, then they will be held jointly liable. (Summers v. Tice)

Question 30

What is proximate cause? What is the test for proving proximate causation?

Answer 30

This element is about fairness; After P proves duty, breach, and actual causation, P must finally convince the court that liability would be fair.

A directed verdict may be appropriate where there is no evidence establishing the proximate cause element of P’s claim.

Foreseeability Test: A D generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. Case by case approach; Consider factors like passage of time and physical distance.

Question 31

Under the foreseeability test for proximate cause, what is a direct cause case? What is D’s liability in a direct cause case?

Answer 31

These cases are 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. D is not liable for unforeseeable harmful results not within the risk created by D’s negligence. Most harmful results will be deemed foreseeable in direct cause cases.

Question 32

Under the foreseeability test for proximate cause, what is an indirect cause case? What are the four indirect cause fact patterns? What is D’s liability in an indirect cause case?

Answer 32

D commits the breach, and then other things happen in the middle of the story after P has suffered the harm. An affirmative intervening force comes into motion after D’s negligent act and combines with it to cause P’s injury.

Four Indirect Case Fact Patterns:

• Intervening medical negligence: Ultimate injury is foreseeable, and liability rests with D; D is the proximate cause and doctor is liable, as well.
• Intervening negligent rescue: Almost always foreseeable; D’s negligent action attracted rescuers. D is liable.
• Intervening protection and reaction forces: injuries caused by another “reacting” to D’s actions; Almost always foreseeable. D is liable.
• Subsequent disease or accident: Almost always foreseeable. D is liable.

Question 33

Can a D be liable for subsequent disease or accidents after he breached his duty and caused harm to the P?

Answer 33

Yes. This is an intervening force that is almost always foreseeable as a result of D’s breach of duty.

Question 34

In a negligence action where D has breached his duty, can D be liable for injuries caused by the intervening medical negligence of a treating physician?

Answer 34

Yes. This is an intervening force that is almost always foreseeable as a result of D’s breach of duty. Ultimate injury is foreseeable, and liability rests with D; D is the proximate cause and doctor is liable, as well.

Question 35

In a negligence action, if D has breached his duty to P, can D be liable for injuries caused by an intervening negligent rescuer?

Answer 35

Yes. D committd the breach, and then other things happen in the middle of the story after P has suffered the harm. This is an affirmative intervening force that came into motion after D’s negligent act and combines with it to cause P’s injury. An intervening negligent rescuer is almost always foreseeable; D’s negligent action attracted rescuers.

Question 36

What is the egg-shell skull doctrine?

Answer 36

If P has already proved the other elements, then P gets all damages even if surprising in scope. Foreseeability of the extent of harm is generally irrelevant. **You take the plaintiff, as you find the plaintiff. **Applies to ALL torts!

Question 37

Can a P suffering physical injuy also recover damages for emotional distress?

Answer 37

A plaintiff suffering physical injury also may recover damages for any resulting emotional distress

Question 38

Are damages presumed in negligence cases?

Answer 38

Damages are not presumed in negligence cases; there must be actual harm or injury to the person or property.

Question 39

What is the measure of damages in cases involving property damage?

Answer 39

In cases involving property damage, the measure of damages is the reasonable cost of repair, or, if the property has been almost or completely destroyed, its fair market value at the time of the injury.

Question 40

Are punitive damages recoverable in negligence cases?

Answer 40

Yes. Punitive damages are recoverable only if the defendant’s conduct was reckless, malicious, or willful and wanton.

Question 41

What is contributory negligence?

Answer 41

A classic defense doctrine. It when negligence on the part of the P that contributes to P’s injuries. The standard of care for contributory negligence is the same as for ordinary negligence. (minority view)

Question 42

When does assumption of the risk apply? What effect does it have on P’s recovery?

Answer 42

It applies when P (1) knew of the risk and (2) voluntarily proceeded in the face of the risk. P may be denied recovery if she assumed the risk of any damage caused by D’s act.

Question 43

What is comparative negligence? How does it effect P’s recovery?

Answer 43

A modern doctrine that allows D to offer evidence that P failed to exercise care for his own safety. Jury assigns D and P a number that reflects the percentage of fault. The P’s recovery is reduced based on the percentage number.

No longer a need for the last clear chance doctrine or recklessness; it all gets boiled down into assignment of percentages.