Negligence

Question 1

What are the elements of negligence?

Answer 1

1. Duty
2. Breach
3. Causation [actual and proximate]
4. Damage

Question 2

To whom do you owe a duty of care?

Answer 2

Foreseeable victims.

Unforeseeable victims always lose negligence cases [they cannot establish the duty element].

Cardozo labeled the foreseeable victims as being within the zone of danger - the size of the zone of danger depends on the activity D is doing.

Really just all about foreseeability.

Test Tip: If hypo has P starting really far away, P will be unforeseeable and P will lose.

Exceptions:

1) Rescuers are foreseeable! Even though they start far away. Rescuers don’t have to be professionals.

2) Fetuses: If a D injures pregnant mother and fetus, fetus will have a COA for the injury it sustained when born.

Note: If miscarriage bc of injury, only mother can sue.

Question 3

Does a D owe a duty to rescuers?

Answer 3

Yes! Whether or not they are professional rescuers.

Ex: John likes mountain climbing. Goes to mountain climbing store. Buys tons of stuff. The rope he bought was negligently made. He fell off mountain because of rope. Broke leg. An hour later Pete, another mountain climber, sees him lying there. Pete goes to get him. But this is hard. Pete falls and dies. Pete’s widow sues company for making the bad rope. Pete was a rescuer, and Pete’s widow wins.

Question 4

What happens when a doctor misdiagnoses a birth defect and child is born with birth defect?

Answer 4

Parents can recover additional cost of care, but not emotional distress.

Question 5

What happens when a doctor messes up a sterilization?

Answer 5

MBE: There is recovery if another child is born.

NEW YORK: No recovery, NY thinks there are joys of having that extra child that outweigh everything else.

Question 6

What is the default duty of care?

Answer 6

The amount of care of a reasonably prudent person acting under similar circumstances.

Question 7

Do we look at specific characteristics of the D in determining whether he breached the reasonable duty of care?

Exceptions?

Answer 7

We do NOT look at his personal attributes [we don’t care if mentally disabled!!], it is an objective test, with the exception of:

1. Physical characteristics [standard is actor with the SAME physical characteristics - reasonably prudent blind person, reasonably prudent tall person, etc.]
2. Superior Skill or Knowledge [standard is a reasonably prudent person with that skill or knowledge].

          (a) Body of Knowledge: A racecar driver is held to a higher driving standard - that of a reasonably prudent racecar driver.
          (b) Isolated Knowledge: If D knows about one thing, like the shrubs in the intersection in his hometown, he needs to drive as a reasonably prudent person who knows of that lack of visibility.

Question 8

What is the special standard of care for children?

Companion exception?

Answer 8

1) Children Under the Age of 5: Owe ZERO duty of care to the rest of the world. They are legally incapable of committing negligence.
2) Children between 5-18: Owe the care of a hypothetical child of their experience, age, and intelligence.

This is very flexible. Every child has a different standard of care.

COMPANION EXCEPTION: When a child is engaging in an adult activity, (defined as operating a vehicle with an engine) forget the child standard of care and use the default reasonable person standard of care.

Question 9

What is the standard of care for professionals?

Companion Exception?

Answer 9

Professionals are doctors, lawyers, accountants.

Standard of care: The skill and knowledge normally possessed by other members of that profession in good standing in similar communities.

Distilled: Care of average members of that professional in similar communities.

SPLIT on Similar Communities:

_NEW YORK: _We look at similar communities for primary physicians. Compare rural with rural and urban with urban. [law unclear elsewhere]

**For specialists it is a national standard of care, everywhere.**

Question 10

What is the duty of care to an undiscovered trespasser?

Answer 10

An undiscovered trespasser : Someone who comes on the land without permission, and the possessor does not know or anticipate the trespasser being there.

DUTY OF CARE = ZERO.

They always lose, because they are UNFORESEEABLE.

Question 11

What is the duty of care to a discovered/anticipated trespasser?

Answer 11

Duty of Care = Possessor must protect discovered/anticipated trespasser from a condition that meets this 4 part test:

1) Artificial Condition [manmade - no duty to protect against natural conditions!]
2) Highly Dangerous [deathtrap. something that would kill or badly hurt someone. i.e. not a loose carpet].
3) The condition must be concealed. [No duty to protect a trespasser from an open and obvious danger]
4) Defendant must have prior knowledge of the condition.

Compressed: Possessor of a duty to known trespassers to protect only from known, manmade, concealed, deathtraps on the land.

Question 12

What is the duty of care to a licensee?

Answer 12

Licensee: People who enter the property with permission, but who do not confer an economic benefit on the possessor.

Examples: Social guests, solicitors to your door, “L for Like”

Duty of Care: Possessor must protect licensees from:

1) Concealed conditions
2) Defendant must have prior knowledge of condition

Compressed: All known traps on the property (whether manmade or natural, and whether highly dangerous or not)

Example: Have to warn friend staying over of sliding rug if you know about it.

Question 13

What is the duty of care to an invitee?

Answer 13

Invitee: People who enter land with permission, and either confer an economic benefit on the possessor, or the land is open to the public generally.

Duty: Possessor must protect invitees from:

1) Concealed conditions [always a condition!]
2) Possessor knew about or could have discovered through reasonable inspection.

The reasonable inspection part is only difference from licensee.

Compressed: Possessor must protect invitee from all reasonably knowable traps on the land.

Question 14

How does NY deal with premesis liability?

Answer 14

None of the 4 categories!

New York uses a generic reasonably prudent person approach, with the caveat that it is a reasonably prudent person under the circumstances, (depending on the entrant)

So talk about the TYPE of entrant in this analysis!

Question 15

Can firefighters and police officers recover on a theory of premesis liability?

Answer 15

MBE: They cannot recover if they are injured due to an inherent risk of the job.

NEW YORK: This rule is basically abolished in NY, (unless they are suing a fellow officer/FF or their employer).

Question 16

What is the duty of care to child trespassers?

Answer 16

Trumps regular premises liability rules.

Standard: A child is entitled to a regular reasonably prudent person standard of care with regard to artificial conditions on the property.

Analysis: The more likely it is that there are trespassers, the more precautions a person should take. If you live in middle of nowhere, likelihood is zero. BUT if house is across street from middleschool, should exercise more effort to keep land safe.

Attractive Nuisance: They don’t call it this anymore. It goes into the reasonableness analysis. If you have a pool, swing set, pile of tires, etc., you need to take greater efforts to protect.

It doesn’t matter if the attractive nuisance hurt the kid or not.

Question 17

How can a possessor of property solve a premises liability problem?

Answer 17

1) Make the danger more safe [not likely tested]
2) Give a warning [a warning satisfies the duty because it converts the concealed danger into an open danger].

Question 18

What element must be present through all 4 premises liability categories?

Answer 18

That the danger is CONCEALED.

Thus, a warning solves the problem every time.

Question 19

What is negligence per se?

When will it occur?

Exceptions?

Answer 19

When the court borrows the statutory standard to provide for the standard of care.

Court will do this when plaintiff shows:

1) The plaintiff is a member of the class of persons the statute is trying to protect.
2) The Plaintiff must show the accident is in the class of risks the statute is trying to prevent.

If adopted, the statute is the DUTY, and the violation is the BREACH.

Exceptions:

1) If compliance with the statute would be more dangerous than not complying. [Driver swerves over line to avoid hitting child].
2) If compliance was impossible. [Driver had heart attack and crossed line. Use the reasonable person standard of care].

Question 20

When does tort law impose an affirmative duty to act?

Answer 20

When these duties apply, D just needs to act reasonably, no heroics necessary.

1. Pre-existing relationship between P+D [Traditional employer/employee, innkeeper/guest, possessor/invitee, common carrier/passenger, hotel/hotel guest. MODERN trend is friends, but rarely on bar].
2. If D was one who put the P in peril. [doesn’t have to be a negligent act]
3. A gratuitous rescuer that rescues carelessly. [NY has good samaritan statute that insulates rescuer from ordinary negligence].

Question 21

What do good samaritan statutes do?

Does NY have one?

Answer 21

Makes a gratuitous rescuer not liable for ordinary negligence in the rescue.

Question 22

What is negligent infliction of emotional distress?

Answer 22

1) Negligent Offender
2) D suffers emotional distress.

3 varieties:

1. Near-Miss Cases [Fright]
2. Bystander Cases [Grief]
3. Relationship Cases

Question 23

Elements of “near miss” negligent infliction of emotional distress claim?

Answer 23

This is based on FRIGHT.

Need:

1) D almost caused a direct physical injury to plaintiff.
2) P showed a subsequent physical manifestation of the distress.

Question 24

Elements of “bystander” negligent infliction of emotional distress claim?

Answer 24

Elements:

1) D serious injured or killed an individual who is not the plaintiff
2) Plaintiff is distressed because of this injury/death.

Requirements:

1. Plaintiff must be a close family member
2. Plaintiff must have been physically present when the victim got hurt. [NEW YORK requires P to be in zone of danger]

Note: In NEW YORK a close family member is likely a member of the nuclear family.

Question 25

In what relationships can a negligent infliction of emotional distress result?

Answer 25

A business relationship where it is very foreseeable that carelessness will cause distress.

1) Negligent medical laboratory: Doctor is conducting physical. They wrongly tell you you are HIV positive. You learn a few weeks later it was erroneous. You can recover.
2) If funeral parlor makes an error you can recover [negligently cremating remains when you wanted burial, failed to properly embalm, wrong body].

Question 26

How do you prove breach of a duty on exam?

Answer 26

Fact + Reason.

Reasons can come from

1. Custom
2. If the precaution would be of a very low cost
3. Common sense

Question 27

Res Ipsa Loquitor

What negligence elemment does this apply to?

What must P show?

What is the effect?

Answer 27

A breach doctrine [the thing speaks for itself].

P must show both:

1) The accident is of the type normally associated with negligence [all about probabilities, an appeal to common knowledge]
2) An accident of this type is normally due to the negligence of someone in defendant’s position. [normally shown by the fact that D had control of the object].

Effect of res ipsa: No directed verdict may be given for defendant.

Question 28

How to phrase factual cause on exam?

Answer 28

“A” factual cause, not “the” factual cause.

Question 29

What is the test for determining factual cause?

Answer 29

BUT FOR: But for the breach, P would be healthy and uninjured today.

D can counterargue that even if D had not breached, P would STILL have been injured.

It is up to jury to decide between these two stories.

If there are multiple defendants use:

1. Merged Causes : Substantial Factor Test [Merged Causes. Two separate negligent acts come together to hurt plaintiff (like 2 fires, 2 polluters). Both D’s are jointly and severally liable.
2. Unascertainable Causes: Example is two hunters negligently shooting guy, can’t tell who it was 50% chance for each. Answer = Shift burden of proof to defendants to prove they did NOT do it.

Question 30

What is proximate cause a test of?

Answer 30

Fairness/Foreseeability.

Question 31

What do you say on exam when proximate cause is clear? (For instance, the breach and harm occurred close in time, and harm was foreseeable)?

Answer 31

Say “because the consequences here were obviously foreseeable because of the breach, there will be no significant proximate cause issues.”

Only exceptions to finding proximate cause when the breach and harm are nearly simultaneous are FREAKISH OR BIZARRE events.

Question 32

What are the established examples of indirect (delayed in time) proximate cause?

Answer 32

1) Intervening Medical Malpractice [Doctor will be liable too]
2) Intervening Negligent Rescue
3) Intervening Protection or Reaction Forces [Ex. Pedestrians stampede after you run a red light, injure others]
4) Subsequent Disease or Accident [fall on crutches, get hurt again]

Question 33

What is the practical test you should use to determine proximate cause?

Answer 33

1) Ask, what is it about this conduct that makes me call it negligent? What do I fear might happen?
2) Skip ALL of the facts
3) Look at what happened to P. Is what happened to P what you were afraid of?

[shrimp example - broken leg is not harm we associate with bad shrimp]

Question 34

What is the eggshell plaintiff rule?

Answer 34

Once all 3 previous negligence elements are proven, the plaintiff recovers all damages even if they are surprisingly great in scope.

Question 35

How do damages in NY work?

Answer 35

NEW YORK damage rule: in NY, a P’s recovery is normally reduced by any amounts received from other sources [like insurance policies].