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Torts > Negligence/Affirmative Defenses > Flashcards

Negligence/Affirmative Defenses Flashcards

1
Q

Negligence

A

Elements =
1. duty
2. breach of duty
3. causation
a. actual
b. proximate
4. damages suffered - harm

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2
Q
  1. duty
A

Test = Was the defendant under an obligation to the plaintiff?
a. General duty of reasonable care?
b. Special relationship? (LUBITZ)
c. Caused plaintiff’s peril? (YANIA)
d. Worsened condition through helping?
e. Statutory duty?
d. Landowner liability?
f. Malpractice - doctor liability?
g. Palsgraf for duty - flashcards under proximate cause

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3
Q

Duty to Rescue

A

Generally there is NO duty to rescue!
- liberty interest - have the right to live your own life
- indirect utility - discourages/encourages people in situations of need

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4
Q

No Duty Scenarios

A

Is there a legitimate use that does not create liability (e.g., hitman book)?
- gun companies
- social hosts
- violent video games

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5
Q

a. general duty of reasonable care

A

(ROWLAND) factors - California
- close connection
- directness of impact
- foreseeability
- etc.
* William Prosser disagreed, believing duty should be left up to the court’s interpretation
* jurisdictional divide and modification on the use of these factors

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6
Q

b. special relationship

A
  • possessor of land to invitee (BAKER)
  • inkeeper to guest
  • parent/caretaker to child (BELLE)
  • therapist to patient (TARASOFF)
  • college to student
  • common carrier to passenger
  • employer to employee (MARTENSEN, BARCLAY, MEYER)

Emotional Distress TEST: (MOWER)
1) engaged in a relationship, activity or undertaking that has risk of emotional harm
2) highly likely that defendant’s negligence will cause severe emotional distress
3) public policy does not create heightened duty
- plaintiff MUST prove -
* defendant had duty
* defendant acted negligently
* there is causation
* emotional distress caused mental/physical harm

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7
Q

c. caused plaintiff’s peril

A

Directly contributed to the plaintiff’s injury
- words alone are not enough
- must be accompanied by physical conduct

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8
Q

d. worsened the condition through helping

A

Uncommon
- do not want to deter rescue
- reason states have “good samaritan” laws

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9
Q

e. statutory duty

A

Duties in writing such as a statute that requires incidents of child abuse to be reported

jurisdictional split

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10
Q

d. landowner liability

A

i. traditional approach according to common law
ii. modern approach according to the ROWLAND factors

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11
Q

i. traditional approach to landowner liability (common law)

A

Liability of owner is dependent on the plaintiff’s status
1) trespasser
2) licensee
3) invitee
- check exceptions/other rules

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12
Q

1) trespasser

A

Committing a tort by being on land without permission
- Duty owed: to avoid willful and wanton injury

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13
Q

2) licensee

A

On land with permission but not for pecuniary benefit - social guest (CARTER)
- Duty owed: to avoid willful and wanton injury; to warn people of known latent hazards

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14
Q

3) invitee

A

On land with permission through a general public invite or for pecuniary benefit
– Duty owed: full duty of reasonable care
- discover hazards
- warn of hazards
- remove hazards

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15
Q

ii. modern approach to landowner liability

A

Restatement abolished categories except for “flagrant” trespassers who are owed a lesser duty of care (ROWLAND)
- general duty of reasonable care that is not altered based on entrant’s status
- look to the burden imposed on owners using B vs. PL and foreseeability

jurisdictional split

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16
Q

Exceptions and other rules to landowner liability

A

1) firefighter
2) recreational use
3) child trespasser
4) people off premise
5) landlord
6) third party crime

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17
Q

1) firefighter

A

Public rescuers are licensees
- only owed a duty to warn about latent defects and avoid willful/wanton dangers
- are already compensated through workers’ compensation so recovery from defendants is unlikely

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18
Q

2) recreational use

A

Statute created to immunize owners who open their land for public recreational use - incentivize positive externalities
- only expected to avoid willful and wanton dangers

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19
Q

3) child trespasser

A

Attractive Nuisance Doctrine
- liable if landowner has reason to know children are likely to trespass (expand by the 2nd Restatement)

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20
Q

4) people off premise

A

Owe a duty of reasonable care
- owner of a baseball field (SALEVAN)

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21
Q

5) landlord

A

Traditional Approach (common law): generally a landlord has no duty to look after the safety of their tenants unless:
- there are known latent hazards
- the premise is leased for public use
- it is a common area
- landlord makes negligent repairs

jurisdictional split
Untraditional Approach: landlords owe a general duty of reasonable care to their tenants (SARGENT)
- enforced by the “implied warranty of habitability”
– if there are hazards that make a place uninhabitable the landlord can be held liable
– can sometimes concern a statutory argument based on building codes = negligence per se

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22
Q

6) third party crime

A

Level of duty depends on what rule/test is applied
- Specific Harm Rule
- previous similar incidents
- Balancing Test (WAL-MART)

jurisdictional split

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23
Q

f. malpractice - doctor liability

A

i. wrongful birth
ii. wrongful life
iii. wrongful death
iv. wrongful pregnancy

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24
Q

i. wrongful birth

A
  • brought by parents
  • alleging emotional distress and financial loss
  • entitled to extraordinary medical expenses (pecuniary recovery) for whatever ailment their child suffers from

jurisdictional split

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25
Q

iii. wrongful life

A
  • brought by child
  • alleging they would be better off dead (PROCAIK and TURPIN)
  • recovery amount is hard to allocate

jurisdictional split

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26
Q

iv. wrongful death

A
  • brought by parents
  • alleging emotional distress and potentially financial lost (i.e., IVF)

jurisdictional split

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27
Q

ii. wrongful pregnancy

A
  • brought by parents for medical errors like a botched vasectomy (FASSOULAS)

jurisdictional split

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28
Q
  1. breach of duty
A

Test = plaintiff must prove that the defendant behaved negligently
a. reasonable person standard of care
b. B vs. PL (CARROLL and WASHINGTON)
c. negligence per se
d. custom
e. res ipsa

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29
Q

a. reasonable person standard of care

A

A reasonable person is expected to know behaviors that are common in society and act accordingly (MURRAY)
i. Is relativization necessary?

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30
Q

i. relativizing the standard of care

A

Upwards
- experts (HELLING)

Downwards
- children UNLESS engaged in an “adult activity” (STEVENS)
- disabled individuals (ROBERTS)
- emergencies (CORDAS)

Neutral
- mental characteristics like awkwardness, intelligence level, or mental health
- elder age
- novice or beginner (STEVENS again)
- religion

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31
Q

b. B vs. PL

A

B = burden of taking precautions
P = probability of an accident if precautions are not taken
L = magnitude of the lose if the accident occurs
- negligence occurs when B<PxL
- “If the behavior is Kaldor-Hicks inefficient it is negligence”

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32
Q

c. negligence per se

A

1) Defendant violated the statute?
2) Statute defined the conduct?
3) Statute intended to prevent a specific harm?
4) Plaintiff was a protected class member under the statute?
* also requires actual and proximate cause
(REQUE)
i. Do any of the exceptions apply?

jurisdictional split

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33
Q

i. exceptions to negligence per se

A
  • incapacitation
  • lack of awareness for compliance
  • unable to comply after reasonable effort
  • emergency not caused by defendant
  • compliance would create greater harm (IMPSON)
34
Q

d. custom

A

Can serve are relevant evidence for negligence or non negligence (TRIMARCO)

35
Q

e. res ipsa

A

Does the accident speak for itself?
- negligence definitely happened somewhere (BRYNE and YBARRA)
- requirements vary jurisdictionally

jurisdictional split

36
Q
  1. causation - a. actual
A

Test = Would the harm have happened but for the defendant’s negligence? (PERKINS)
i. Was there a failure to warn?
ii. Was the defendant’s conduct a “natural tendency”?
iii. Is there an alternative plausible story?
iv. Can expert testimony prove causation?
v. Is there probabilistic causality - loss of chance recovery?
vi. Is there joint and several liability?

37
Q

i. failure to warn

A

Would it have made a difference had the plaintiff been warned or would they have still ignored the warning? (LIRIANO)
- heeded presumptions - courts usually use heeded presumptions in favor of the plaintiff that had the warning been there, they would have followed it
* burden of proof shifts to the defendant

38
Q

ii. “natural tendency”

A

Was the defendant’s conduct directly contributed to the harm suffered? (REYNOLDS)

39
Q

iii. alternative plausible story

A

Is there an alternative plausible story where negligence is not involved?
- only applies to res ipsa cases (WILLIAMS)

40
Q

iv. admissibility of expert testimony

A

Is the issue beyond ordinary knowledge?
- judges are often reluctant to allow probabilistic evidence
- use Frye or Daubert
* Frye: evidence accepted by the scientific community

  • Daubert: evidence that is “scientific” in nature - scientific methodology (RIDER)

jurisdictional split

41
Q

v. loss of chance recovery

A

When the plaintiff would have died anyway, but their chance of surviving was reduced by the defendant’s negligence (HERSKOVITZ)

jurisdictional split
- Wonnell prefers partial recovery!
* recovery based on the decreased chance of health/survival [50% –> 30% = 20%]

42
Q

vi. joint and several liability

A
  • indivisible harm
  • concerted action
  • market share liability
  • substantial factors
43
Q

Indivisible Harm

A

Both defendant’s individual acts of negligence were necessary, but not sufficient alone, to cause the injuries
- burden of proof shifts to the defendants (SUMMERS and HILL)
- plaintiff can recovery from any defendant
* then up to the defendants to work out recovery amounts amongst themselves

44
Q

Concerted Action

A

Includes anyone who contributed to the common plan even those who merely lended aid or encouragement (HERMAN and YBARRA)

45
Q

Market Share Liability

A

All companies can be held proportionally liable for their marks share of a product like a drug UNLESS they can prove otherwise (SINDELL)

46
Q

Substantial Factors

A

Defendants are liable for damages if they were a material or substantial element in producing it (KINGSTON)
- sufficient but not necessary
- “acts of God” do not absolve liability

47
Q
  1. causation - b. proximate cause
A

Test = Was the plaintiff’s injury weird, indirect, or did it involve intervening variables?
Of plaintiff?
Of type?
Of manner?
Of magnitude?

i. Was it foreseeable?
ii. Does the Eggshell Doctrine apply?
iii. Was there a superseding cause?

jurisdictional split

48
Q

i. foreseeability

A

Test = If you were to give the defendant advice what would you have warned them about regarding risks related to their actions?
- question for the jury
* Cardozo
* Andrews / 3rd Restatement
(PALSGRAF)

49
Q

Cardozo

A

Foreseeability is MORE of a duty issue - NO DUTY to an unforeseen plaintiff
* “zone of danger”

50
Q

Andrews / 3rd Restatement

A

Duty becomes an issue of proximate cause for the jury to decide
- universal duty
* “harm within the risk”
- only exceptions for policy considerations (MISS O’LEARY)

51
Q

ii. Eggshell Doctrine

A

“take your victims as you find them” (McCAHILL)
- courts do not exercise this doctrine when the plaintiff refuses treatment

52
Q

iii. superseding causes

A

1) Actions of a third party?
- does NOT break the causal connection if the “harm was within the risk” (FELIX)
2) Criminal act?
- breaks the causal connection because these actions are not foreseeable (WATSON)
3) Suicide?
- does NOT break the causal connection if it was impulse, rather than rational (FULLER)
4) Negligent medical care?
- does NOT break the causal connection because general medical negligence is foreseeable
- only gross negligence applies
5) Attempted rescue [Rescue Doctrine]? (CLINKSCALES)
- does NOT break the causal connection because “danger invites risk”
- rescue must have been reasonable
- look-e-loos are not foreseeable

53
Q
  1. damages suffered - harm
A

Punitive or Compensatory Recovery
i. Pure emotional distress?
ii. Pure economic loss?
iii. File according to Tort law, Contract law, or both?

54
Q

i. pure emotional distress

A

Uncommon
- courts occasionally allow recovery for pure emotional distress [NIED], following various rules . . .
1) Impact Rule: plaintiff must have been physically impacted by the negative act (CHAMBLEY and ABRIL)

2) Zone of Danger: plaintiff must have been close to being directly impacted by the negative act (WAUBE)

3) 3rd Restatement: plaintiff was in a special relationship or undertaking that makes distress likely
- elemental test is to be applied (THING adapted from DILLION)
(1) Closely related to the injured victim?
(2) Present at the scene where events occurred?
(3) Suffered emotional distress as a result?

4) Physical manifestation: courts are unsure how significant the manifestation must be

5) Incorrect Handling: defendant’s actions are bound to cause emotional distress
- mishandling a corpse
- mishandling genetic material

jurisdictional split

55
Q

ii. pure economic loss

A

Very uncommon
- economic recovery is normally only allowed when there is personal injury or property damage (TESTBANK)
- rare scenarios where pure economic recovery is given (J’AIRE and EXPRESS AIRLINES)
* requires the analyzation of a multi-factor test - foreseeability, degree of certainty, relation, etc.
- exceptions also apply to quasi property interests and when there is a contract

56
Q

iii. Tort Law VS. Contract Law

A

Contract:
- no pure economic loss rule
- instead uses third party doctrine
* intended beneficiary VS. incidental beneficiary

Tort:
- pure economic loss rule

57
Q

Negligence Defenses

A
  1. contributory negligence
  2. comparative negligence
  3. assumption of risk
  4. avoidable consequences - mitigating damages
  5. immunities
  6. statute of limitations
  7. statute of repose
  8. joint and several liability at common law
58
Q
  1. Contributory Negligence
A

If plaintiff is ANY amount negligent, they CANNOT revcover
- does not exist in most jurisdictions because it is too harsh on plaintiffs; have adopted comparative fault
- has been modified to include the Doctrine of Last Clear Chance

59
Q

Doctrine of Last Clear Chance

A

Whoever had the last opportunity to avert the harm is liable for 100% of the fault (BUTTERFIELD)

60
Q
  1. Comparative Fault - severally liable
    jurisdictional split - 50% –> 51%
A

When both parties have some fault so the court apportions it based on the amount of negligence attributable to each
- abolished joint and several liability in the majority of jurisdictions - split
* fault can be allocated by a jury or by combining an individual’s knowledge of and casual connection to the harm per the 3rd Restatement

jurisdictional split on the type of comparative negligence
Pure: apportion/recovery of fault based on percent at fault

Impure/Modified: if plaintiff is MORE at fault than defendant, defendant owes nothing (McINTYRE)

61
Q

Comparative Fault and Intentional Torts

A

jurisdictional split
- majority of courts usually do NOT allow the apportion of fault on a negligent party when the other person committed an intentional tort
- minority of courts recognize this defense in two situations . . .
1) when there is reckless conduct
2) when a plaintiff is suing a third party for failing to protect them from a crime - even includes sexual assault cases

62
Q

Uniform Comparative Fault Act

A

If defendant is insolvent, their portion gets apportioned to all other parties, including the plaintiff, based on their capacity to bear the additional loss

63
Q
  1. Assumption of the Risk
A

A plaintiff is bared from recovery if they assumed the risk that caused their damages - all or nothing doctrine
Types . . .
a. expressed
b. implied

64
Q

a. expressed assumption of risk

A

Written, verbal, or contractual releases
- narrow view is more favored
- contracts are more likely to be upheld in court when actions that caused the injury was (1) not necessary and (2) the risks were obvious
(STELLUTI)

65
Q

b. implied assumption of risk

A

Consent can be implied by the plaintiff’s knowledge of the risk and subsequent conduct
Requirements . . . (1) the plaintiff had actual knowledge of the danger involved (2) understood and appreciated the risks associated with that danger and (3) still voluntarily participate in the activity
- only duty defendant owes plaintiff is to not be super reckless
(TURCOTTE)

66
Q

Fleming James Critique of implied assumption of risk (BLACKBURN)

A

Implied assumption of risk should be completely abolished; reasoning can be separated into two scenarios -
Primary: since the defendant did not have a duty to being with and the plaintiff cannot meet their prima facie case, this affirmative defense is NOT needed

Secondary: plaintiff has meet their prima facie case but either they acted reasonably so using this doctrine would create perverse results OR they acted unreasonably in which it is the perfect situation for comparative negligence to be applied
- WONNELL struggles with Fleming’s logic because of consent!
- fault implies that the actor did something wrong and consent is an active choice, regardless of how irrational it may be

67
Q
  1. Avoidable Consequences - Mitigating Damages
A

An injured plaintiff CANNOT recover damages that could have been AVOIDED through reasonable efforts (NOVKO)
- how one behaves after they are injured
* e.g., you need physical therapy after a car accident, but refuse to go so your injury gets worse
- wearing a seat belt/helmet is reasonable = avoid consequence
- plaintiff is the lower cost avoider

jurisdictional split

68
Q
  1. Immunities
A

Some people/organizations are immune from being sued in tort law
- has become LESS common over time
Types . . .
1) family
a) interspousal
b) parental
2) charity
3) sovereign
4) military

69
Q

1) family immunity - a) interspousal

A

Spouses cannot sue each other for things like personal injuries/accidents
- want to keep family harmony and stop collusion
– exception is if there is spousal abuse
- has been abolished: trust insurance companies and the idea that litigation should be adverse [allow varying interests]

70
Q

1) family immunity - parental

A

Kids cannot sue their parents for most things in tort law because the courts did not want to mess with parental authority
– exception is if the parent goes beyond regular discipline and is abusive/harmful

71
Q

2) charity immunity

A

Charities cannot be sued for negligence
- want to encourage charities to do good without fear of being sued - positive externalities; similar to “Good Samaritan” laws
- has been abolished: nowadays charities have become huge business that need to be kept in line

72
Q

3) sovereign immunity

A

Traditional Rule: state and federal governments are “above the law” so they cannot be sued

Modern Rule: governments are more likely to waive immunity, meaning they can be sued under certain conditions
* e.g., Federal Tort Claims Act [FTCA] –> discretionary function exception (TIPPET - decision about how to patrol the park)

  • at the municipal level/local government there is technically NO immunity, but courts are still reluctant to recognize a duty to provide for the needs of a particular citizens (RISS)
73
Q

4) military immunity

A

Military personnel cannot use the U.S. government for torts (FERES Doctrine)
- have to do things that are dangerous so some leeway is necessary (KITOWSKI, STANLEY, and COSTO)
- doctrine may get extended too far, covering hazing rituals and other such abuses

74
Q
  1. Statute of Limitations
A

Suit MUST be brought within the statutory time or plaintiff will be barred from suing
- defendants should not have to worry about getting sued forever
- clock does not start UNTIL the plaintiff did discover or should have discovered their cause of action [discovery rule]
– uncertain what triggers the clock to actually start - jurisdictional split

75
Q
  1. Statute of Repose
A

A hard cutoff, no matter when the plaintiff discovers the issue
* e.g., if a surgical implant fails 16 years after and the statute of repose is 15 years, the plaintiff CANNOT sue the manufacturer regardless of when they discovered it was defective

jurisdictional split

76
Q
  1. Joint and Several Liability at Common Law
A

Multiple defendants could be jointly and severally liable for a plaintiff’s injury, meaning any one defendant could be required to pay the full amount of damages
Types . . .
a. concerted action
b. jointly necessary causes
c. jointly sufficient causes

REPONSES
i. indemnity
ii. contribution

77
Q

a. concerted action

A

Defendants act together with a shared goal making each responsible for the full damages (HERMAN)

78
Q

b. jointly necessary causes

A

Independent actions of multiple defendants combine to cause indivisible harm (SUMMERS)

79
Q

jointly sufficient causes

A

Multiple actions, each sufficient alone, cause harm; each defendant can be liable for the full harm (KINGSTON)

80
Q

i. indemnity

A

A defendant can sue for 100% reimbursement for damages paid to the plaintiff
e.g., you sue Target for an exploding toaster . . . Target can then sue the toaster manufacturer for indemnity

81
Q

ii. contribution

A

A defendant can sue another defendant for a share of damages they have paid to the plaintiff

82
Q

Settlement

A
  • according to common law if one defendant settles the other defendants can not go to trial [old school common law - not the case nowadays]
  • “buying peace” - when one defendant settles out, the other defendant cannot bring contribution
  • if there is J & S and/or comparative fault - depending on the type - the defendant that goes to trial can liable for their portion or up to 100%

Torts (6 decks)

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