Negligence Flashcards
Negligence
Failure to exercise care a reasonable person would exercise; breach of the duty to prevent foreseeable risk of harm to anyone in the plaintiff’s position; breach must be the actual and proximate cause of the plaintiff’s injuries
A. Elements
1. Duty (obligation to protect another against unrsbl risk of injury)
2. Breach (failure to meet that obligation)
3. Causation (close causal connection between action & injury)
4. Damages (loss suffered)
Negligence - Duty
owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care
- Failure to act - Generally no duty to act
- Foreseeability of harm to another sufficient to create general duty to act with reasonable care
- Foreseeability of harm to the plaintiff
Duty to Special P’s
• Rescuers—D liable for negligently putting rescuer/rescued party in danger
o Can apply comparative responsibility if rescuer’s efforts are unreasonable
o Emergency professionals barred from recovery if injury results from risk of the job (“firefighter’s rule”)
• Fetuses—duty of care owed if viable at time of injury
Affirmative duty to act
Exceptions to general rule that there is no duty to act
• Assumption of duty
• Placing another in peril
• By contract
• By authority
• By relationship (e.g., employer-employee, parent-child, common carrier-passenger)
Standard of Care - Reasonably Prudent Person
Objective standard
• Physical (not mental) characteristics are considered in determining reasonableness
• Voluntarily intoxicated person held to same std as sober
• Child: rsbl child of similar age, intelligence, and experience
o But child engaged in adult activity held to adult standard
The Standard of Care-Negligence per se
Statue can establish standard of care. If the statue has been violated, that is sufficient to prove breach of duty. To Prevail P must prove:
(1) the harm was the type of harm the statue was designed to protect and
(2) P was in the class of persons the statue was intended to protect and
(3) violation was not excused. Proximate cause must be shown.
Excuses:
- Compliance w/ statute more dangerous than violating the statute
- Compliance is impossible under the circumstances
The Standard of Care-Special Cases
- Common carriers (planes, trains, buses) - highest duty of care consistent with practical operation of the business (majority)
- Innkeepers
Attractive Nuisance Doctrine
D liable for injuries to trespassing children if:
1) D knows or should have known artificial condition poses unreasonable risk of serious bodily injury,
2) children cannot appreciate danger,
3) burden of eliminating danger slight compared to risk of harm, and
4) owner fails to exercise reasonable care to protect children
The Standard of Care-Possessors of Land-Invitee
Invited to enter for purposes for which the land is held open or for business purposes
o Reasonable care to inspect, discover dangerous conditions, and protect invitee from them
o Duty does not extend beyond scope of the invitation
The Standard of Care-Possessors of Land-Licensee
Enters land of another with permission or privilege (social guest; emergency personnel)
- Owe duty of reasonable care
o Warn of concealed dangers that are known or should be obvious, “discovered conditions”. o
o No duty to inspect
Res Ipsa Loquitor Elements
(1) there must be no direct evidence of how the D behaved in connection with the event;
(2) the event must be of a kind which ordinarily does not occur except through the negligence (or other fault) of someone;
(3) the instrument that caused the injury must have been, at the relevant time, in the exclusive control of the D; and
4) the injury must not have been due to the P’s own action.
Vicarious Liability-Independent contractors (IC)
Employers not liable for IC’s torts except for:
• Negligent selection of independent contractor
• Vicarious liability for non-delegable duty, or
• Vicarious liability for IC engaged in inherently dangerous activity
Vicarious Liability-Liability of employer for employee’s torts
• Tort w/in scope of employment (acts employee is employed to do or acts intended to profit or benefit employer); not liable for intentional torts unless force authorized by job; employer may be liable for detour (minor deviation from scope) but not frolic (unauthorized and substantial deviation)
Vicarious Liability-Partners with a common purpose and mutual right of control
liable for tortious conduct of each other if committed w/in scope of business purposes
Vicarious Liability-Car owners
parents liable for children acting as parent’s agent or liable pursuant to state statute
