Negligence Flashcards
Negligence
State the prima facie case for negligence?
Negligence
- Prima Facie Case: D must owe a duty to P to conform to a specific standard of care to protect P against unreasonable risk of injury AND falling below that standard causes Breach of that duty AND that breach must be the actual and proximate cause injury to P, AND Damage to P’s person or property must result.
Negligence
What is the general duty of care?
And who is foreseeable?
Negligence
Duty of Care: Δ owes a duty not to subject any foreseeable Π to unreasonable risk of injury.
Who is foreseeable?
Under the Cardozo (majority) view, Δ has a duty of care to Πs in the foreseeable zone of danger. Under the Andrews view, Δ has a duty of care to everyone (everyone is foreseeable).
Duty of Care
Is there a duty to aid?
Duty of Care
Duty to Aid?: No duty to aid another, EXCEPT where affirmative duty is created by:
1) special relationship (parent-child, common carriers, innkeepers, shopkeepers),
2) Δ’s conduct creating the peril,
3) Δ’s undertaking the action for Π’s benefit (attempt to assist),
4) Δ’s creating reliance,
5) contract
Duty of Care
Rescuers as P’s: When are Rescuers foreseeable Π’s?
Duty of Care
Rescuers as P’s: Rescuers are foreseeable Π’s and rescued party (Δ) is liable for rescuer’s injuries caused by the rescue, HOWEVER, no recovery for wanton/reckless rescue. Compare with Firefighters rule.
What are the elements of Negligent Infliction of Emotional Distress?
Negligent Infliction of Emotional Distress (NIED): NIED allowed if 1) suffered physical symptoms from emotional distress, AND 2) P was within Zone of Danger.
NIED
What are the alternative paths to recover for NIED?
NIED
Alternative paths to recover for NIED if can show either:
- Two elements not needed if? D’s negligence creates great likelihood of emotional distress (mishandling corpse, erroneous report of death)
- If P & D have Special Relationship such that D’s negligence has _great potential to cause emotional distress_à P may recover NIED without threat of impact. Don’t need to prove 2 elements (e.g. doctor says you have terminal illness).
- Bystander NOT in Zone of Danger can recover if? 1) Closely related to Victim, 2) P present at scene but not in danger AND 3) Personally observed or perceived event.
Duty
What is the standard of care?
Duty-Standard of Care: (extent of duty): Δ owes a duty to act as a reasonably prudent person in same or similar situation (who has Δ’s relevant physical characteristics), absent negligence per se or a special relationship.
Duty
Is there a duty to rescue?
Duty
Is there a duty to rescue? No duty to rescue another UNLESS 1) special relationship, 2) puts another in peril, or 3) undertakes the rescue and P relies on the rescue attempt.
Duty-Standard of Care
What is Negligence per se?
And when is there excuse from statute?
Duty-Standard of Care
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Negligence per se (statutory): A statute defines the standard (including one that provides for criminal penalty) if: 1) Π is in the class the statute was designed to protect + 2) Π’s injury is the type the statute was designed to protect. An unexcused violation of statute constitutes negligence per se—a breach of duty.
- Excuse from Statute- Statute may be excused if it would be more dangerous to follow it or compliance is beyond Δ’s control (unforeseeable, incapable)
Duty-Standard of Care
What standard of care are children held to?
Duty-Standard of Care
Children: Held to standard of reasonable child of same age, experience, intelligence, unless adult activity (under 4 unlikely).
Standard of Care
Standard of Care
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Doctors: duty to act as RP average doctor in good standing (some jx use local geography also).\
- Note re: Medical Risks—Doctors must explain medical risks UNLESS commonly known, patient refuses/incapacitated/incompetent, or disclosure would harm/injure patient.
Standard of Care For Common Carriers and Inkeepers?
Common Carriers & Inkeepers: Must exercise very high standard of care owed to passengers and guests (i.e. liable for slight negligence).
What is the standard of care for automobile drivers toward their guests?
Automobile Driver to Guests: A driver owes his guest a duty of ordinary care, unless Guest Statutes where a lower care to avoid gross, wanton or willful misconduct.
Bailment Duties of Care?
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Bailment Duty [Bailor=owner] [Bailee=holder]
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Bailee’s duty
- Modern Trend: Bailee only owes duty of ordinary care under all circumstances (circ= value, custom, trade, type of bailment, etc.)
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Bailor duty
- Bailment for hire requires that the bailor inform the bailee of known defects.
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Bailee’s duty
Owners and Occupiers Notes on duty (read)
Delgating and Selling Property
Owner and Occupier Duties: Δ owes a different non-delegable duty to different types of entrants. Note: if property sold, presume that liability doesn’t transfer until defects are disclosed or there’s reasonable time for new owner to discover.
