Negligence Flashcards
General duty
A general duty of care is imposed on all human activity. When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person. It is presumed that an ordinary, prudent, reasonable person will take precautions against creating unreasonable risks of injury to other people. However, the plaintiff must show that the defendant owed a legal duty to people in the same position as the plaintiff. If a defendant’s conduct creates an unreasonable risk of injury to someone in the position of a plaintiff, the general duty of care extends from the defendant to the plaintiff. No duty is imposed on a person, however, to take precautions against events that cannot reasonably be foreseen.
What is an invitee?
An invitee is a person who enters the premises in response to an express or implied invitation of the landowner. There are two classes of invitees: (i) those who enter as members of the public for a purpose for which the land is held open to the public (e.g., museums, churches, airports); and (ii) those who enter for a purpose connected with the business or other interests of the landowner or occupier (e.g., store customers and persons accompanying them, employees, delivery persons).
The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the invitee. This general duty includes the same duties owed to licensees, which includes a duty to: (i) warn of or make safe non-obvious, dangerous conditions known to the landowner and use ordinary care in active operations on the property; AND (ii) make reasonable inspections to discover dangerous conditions and, thereafter, make them safe.
Invitee Analysis
The mother’s claim will not prevail because the hospital did not breach its duty of care. A person who has entered premises open to the public, such as a hospital, is owed a duty of care based on her status as an “invitee.” A hospital has a duty to use ordinary care to keep the premises reasonably safe in its operations, including warning of any known dangerous conditions and inspect for unknown dangerous conditions and make them safe.
Here, the mother was an invitee of the hospital because of an implied invitation to receive medical care. The hospital thus had a duty to keep the premises safe during operations, which would have included warning her of any known dangers making safe any dangers discovered. There is no evidence that the hospital failed to carry out this duty. Hospitals contain a lot of equipment used for medical treatment, and the metal fixture protruding from the emergency room wall would have been obvious to the reasonable person in the room. It was not a hidden danger that could have been made safer. Absent any evidence that the hospital should have taken steps to warn or somehow make safe the conditions that caused the mother’s injury, it will not be held liable
Negligent infliction of emotional distress
A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. Usually, the plaintiff must satisfy two elements for such a claim, including that plaintiff: (i) was within the “zone of danger” (i.e., the plaintiff’s distress was caused by a threat of physical impact); and (ii) suffered physical symptoms from the distress (i.e., the defendant’s conduct caused distress to the plaintiff that manifested in the form of physical symptoms).
Normally, the fact that someone chooses to come to the aid of another neither insulates that person (the “Good Samaritan”) from liability for his or her own negligence nor provides that person with a cause of action for the pure emotional distress suffered as a consequence of providing the aid.
C is incorrect. The fact that the pedestrian was covered in the woman’s blood and developed physical symptoms as a result would not alone give rise to recoverable damages based on emotional suffering. Courts typically require that the plaintiff experience the danger himself, not simply perceive an upsetting event and develop physical symptoms as a result.
A defendant may be liable for negligent infliction of emotional distress when, as a result of his negligence, he causes the plaintiff intense mental suffering as a bystander, even without experiencing any physical injury. To recover damages in this situation, the plaintiff must prove that he: (i) is in a close relationship with the person injured by the defendant; (ii) was present at the scene of the injury; and (iii) personally observed or perceived the event. The majority of states do NOT require proof of physical symptoms where all three elements are satisfied.
Negligent infliction of emotional distress requires the plaintiff to establish that the defendant did, in fact, act negligently. Absent such a showing, the plaintiff will not recover.
The DF must know that the close person is present.
Some courts will require objective evidence like words, conduct or repetition.
Bruised egos and mere insults may not be enough because of the 1st amendment.
The DF comparative negligence may be considered as a reduction of damages.
Discuss loss for damages like pain and suffering, punitive damages, loss of employment.
Whether a defendant is liable for injuries that resulted after the PL is released from the hospital?
It depends on whether the accident is foreseeable. Look at all the facts and complete the negligence analysis.
Intentional Infliction of Emotional Distress
The elements of intentional infliction of emotional distress are: (i) defendant’s intentional (with purpose or knowledge to a substantial certainty) or reckless; (ii) extreme and outrageous conduct; that (iii) causes the plaintiff severe emotional distress. Severe emotional distress can be evidenced physically, but it is not required.
There is no apparent present immediate need for IIED ONLY 4 ASSAULT.
Physical harm is not required for intentional infliction of emotional distress but it can be used as supporting evidence.
The intent may be proving with substantial certainty, recklessness or by negligent infliction of emotional distress.
Must intend to cause the consequences.
There is no transfer of intent available here.
Extreme and outrageous means Beyond all bounds of decency
This is about question of facts
Victim issues: pregnant women, minors, or elders
Look for positions and abuse of power
Common carriers: bus drivers, autos, innkeepers
Analysis
The facts clearly indicate that the defendant’s threats were intentional, extreme and outrageous.
Merely broadcasting news coverage, including news coverage of opinion statements would not be extreme and outrageous conduct by the news station, because it was not published with actual malice.
Res Ispa loquitor
The circumstantial evidence doctrine of res ipsa loquitur (“the thing speaks for itself”) deals with situations where the mere fact that an injury occurred can establish or tend to establish a breach of duty. Where the facts strongly indicate that the plaintiff’s injuries resulted from the defendant’s negligence, the trier of fact may be permitted to infer that the defendant was probably negligent. Res ipsa loquitur requires the plaintiff to show: (i) an inference of negligence (i.e., that the accident causing the injury is the type that would not normally occur unless someone in the defendant’s position was negligent); (ii) negligence attributable to the defendant (i.e., evidence that this type of accident normally happens because of negligence, such as that the instrumentality that caused the injury was in the defendant’s exclusive control); and (iii) that the plaintiff is free from negligence, meaning the injury was not attributable to him.
Res ipsa loquitur does not change the burden of proof or create a presumption of negligence. A successful res ipsa showing by the plaintiff amounts to a prima facie case, which will preclude the defendant from being awarded a directed verdict. However, if the defendant rebuts the res ipsa showing with evidence that he did exercise due care, it has the same effect as in all other cases. In that scenario, the jury may either find that the defendant’s evidence overcomes the plaintiff’s res ipsa showing and decline to infer liability, or it may reject the defendant’s evidence and draw the permissible inference of negligence, finding for the plaintiff. Even if the defendant rests without offering evidence, the jury may still elect not to infer negligence.
The elements of duty, breach, and causation are inferred of the injury because the injury would not have occurred without negligence.
Here, there is no evidence that the defendants as a group had control of the chair. Thus, res ipsa does not provide an inference of negligence in this situation, and the plaintiff must provide evidence of the defendants’ negligence. Nor is there any evidence that the occupant-defendants were acting together. This is important because, under the doctrine of alternative liability, when the plaintiff’s harm was caused by one of multiple defendants, but the plaintiff does not know which of them caused it, the court can shift the burden of proof as to who caused the harm to the defendants. This rule requires that: (i) it was a small number of defendants, (ii) each defendant’s conduct was tortious, and (iii) the defendants are all before the court in the proceeding. There is no indication that the defendants all acted tortiously, and thus this rule is inapplicable.
Does Res ipsa loquitur have a burden of proof or allow for a directed verdict?
Res ipsa loquitur does not change the burden of proof or create a presumption of negligence. A successful res ipsa showing by the plaintiff amounts to a prima facie case, which will preclude the defendant from being awarded a directed verdict. However, if the defendant rebuts the res ipsa showing with evidence that he did exercise due care, it has the same effect as in all other cases.
What does exclusive control mean under res ispa loquitor?
Exclusive control is a concept connected to the doctrine of res ipsa loquitur, and allows plaintiffs to create a rebuttable presumption of negligence by proving that (i) the harm would not ordinarily have occurred without negligence; (ii) that the object that caused the harm was under the defendant’s control; and (iii) that there are no other plausible explanations.
Analysis
Here, the store did not have exclusive control over the bottle and any negligence would lie with the bottler, Therefore, liability would attach to the store under a strict liability theory, not under the doctrine of res ipsa loquitur.
A landlord does not have exclusive control over the tenants.
When is the rescuer not a foreseeable plaintiff?
When the rescue is done recklessly.
When will rescuee owe damages to a rescuer?
Only when the rescuee caused the danger because they invited the peril.
What are the two types of causation?
Actual and proximate causation.Actual refers to the but for causation and proximate causation refers to the foreseeability element.
What is negligence per se?
negligence per se requires a 1) criminal or statutory law that imposed a penalty for its breach 2) the DF violated the law 3) the harm caused was the type of harm that the law was intended to protect 4) the PL was in the class of individuals that the was intended to protect, 5) the violation of the law caused both actual and proximate causation.
