Negligence Flashcards
What are the elements of negligence?
- Duty
- Breach
- Causation [actual and proximate]
- Damage
To whom do you owe a duty of care?
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.
Does a D owe a duty to rescuers?
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.
What happens when a doctor misdiagnoses a birth defect and child is born with birth defect?
Parents can recover additional cost of care, but not emotional distress.
What happens when a doctor messes up a sterilization?
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.
What is the default duty of care?
The amount of care of a reasonably prudent person acting under similar circumstances.
Do we look at specific characteristics of the D in determining whether he breached the reasonable duty of care?
Exceptions?
We do NOT look at his personal attributes [we don’t care if mentally disabled!!], it is an objective test, with the exception of:
- Physical characteristics [standard is actor with the SAME physical characteristics - reasonably prudent blind person, reasonably prudent tall person, etc.]
-
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.
What is the special standard of care for children?
Companion exception?
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.
What is the standard of care for professionals?
Companion Exception?
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.**
What is the duty of care to an undiscovered trespasser?
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.
What is the duty of care to a discovered/anticipated trespasser?
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.
What is the duty of care to a licensee?
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.
What is the duty of care to an invitee?
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.
How does NY deal with premesis liability?
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!
Can firefighters and police officers recover on a theory of premesis liability?
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).
What is the duty of care to child trespassers?
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.
How can a possessor of property solve a premises liability problem?
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].
What element must be present through all 4 premises liability categories?
That the danger is CONCEALED.
Thus, a warning solves the problem every time.
What is negligence per se?
When will it occur?
Exceptions?
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].
When does tort law impose an affirmative duty to act?
When these duties apply, D just needs to act reasonably, no heroics necessary.
- 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].
- If D was one who put the P in peril. [doesn’t have to be a negligent act]
- A gratuitous rescuer that rescues carelessly. [NY has good samaritan statute that insulates rescuer from ordinary negligence].
What do good samaritan statutes do?
Does NY have one?
Makes a gratuitous rescuer not liable for ordinary negligence in the rescue.
What is negligent infliction of emotional distress?
1) Negligent Offender
2) D suffers emotional distress.
3 varieties:
- Near-Miss Cases [Fright]
- Bystander Cases [Grief]
- Relationship Cases
Elements of “near miss” negligent infliction of emotional distress claim?
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.
Elements of “bystander” negligent infliction of emotional distress claim?
Elements:
1) D serious injured or killed an individual who is not the plaintiff
2) Plaintiff is distressed because of this injury/death.
Requirements:
- Plaintiff must be a close family member
- 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.
