Negligence and Defenses Flashcards
What is the prima facie case for negligence?
- A duty on the part of the defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury.
- A breach of that duty by defendant.
- The breach is the actual/factual and proximate cause of plaintiff’s injury; and
- Damages (injury).
To whom, is a duty of care owed?
A duty of care is owed to all foreseeable plaintiffs. If the defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff.
Who is a foreseeable plaintiff?
A foreseeable plaintiff is one that can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances; i.e. she was located in the foreseeable zone of danger.
What are the exceptions to the foreseeable zone of danger plaintiffs?
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Rescuers: a rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril.
a. Firefighters/Police: get reasonable care standard - they assume the risk. - Prenatal Injuries: a duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may not recover for “wrongful life,” but the parents may recover damages in a “wrongful birth” or “wrongful pregnancy” action for any additional medical expenses and for pain and suffering from labor; ordinary child-rearing expenses, however cannot be recovered.
New York: wrongful pregnancy is not a basis for negligence action.
What is the basic standard of care?
The basic standard of care is what a reasonably prudent person acting in similar circumstances. The reasonable person standard is an objective standard, i.e. one’s conduct measured against what the average person would do. A defendant’s mental deficiencies and inexperience are not taken into account. However, the “reasonable person” is considered to have the same physical characteristics as defendant.
What is the standard of care for professionals?
A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Medical specialists will be held to a national standard of care. The modern trend applies to a national standard to all physicians.
Informed Consent: A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.
What is the standard of care for children?
Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. A child under five is usually without the capacity to be negligent. Children engaged in adult activities may be required to conform to an “adult” standard of care.
Exam Tip: Any motor operated vehicles is usually considered an adult activity.
What is the standard of care for common carriers and innkeepers?
Common carriers and innkeepers are held to a very high degree of care; (i.e. they are liable for slight negligence).
For the higher common carrier and innkeeper standard to apply, the plaintiff must be a passenger or guest.
What duty do landowners owe to those off the premises?
There is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises.
In urban areas, the landowner is liable for damage caused off the premises by trees on the premises (e.g. falling branches).
What duty do landowners owe to trespassers?
Duty owed to undiscovered trespassers: no duty is owed to an undiscovered trespasser.
**Duty owed to discovered or anticipated trespassers: **As to discovered or anticipated trespassers, the landowner must (i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and (ii) use reasonable care in the exercise of “activity operations” on the property.
What is the attractive nuisance doctrine?
Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonable foreseeable risk of harm to children caused by artificial conditions on his property.
To establish the doctrine’s applicability, plaintiff must show:
(i) a dangerous condition on the land that the owner is or should be aware of,
(ii) the owner knows or should know children frequent the vicinity of the condition,
(iii) the condition is likely to cause injury (i.e. it is dangerous because of the child’s inability to appreciate the risk), and
(iv) the expense of remedying the situation is slight compared with the magnitude of the risk.
What duty do landowners owe to licensees?
A licensee is one who enters onto the land with the possessor’s permission for his own purpose or business, rather than for the possessor’s benefit.
The possessor has a duty to (i) warn of or make safe dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover; and (ii) exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair.
What duty do landowners owe to invitees?
Invitees enter onto the land in response to an invitation by the landowner (i.e. they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public).
The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe (a warning may suffice).
One will lose invitee status if she exceeds the scope of the invitation.
What is the NY distinction on landowner duties?
In New York, the categories of invitee, trespasser, licensee are eliminated and just uses the reasonably prudent person standard. However, because of the similar circumstances, the analysis looks very similar.
What are statutory standards of care? When and how are they applied?
A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines) may replace the more general common law duty of due care if: (i) plaintiff is within the protected class, and (ii) the statute was designed to prevent the type of harm suffered by plaintiff.
However, if compliance with the statute would cause more danger than violation or where compliance would be beyond defendant’s control.
An unexecused statutory violation is negligence per se (i.e. it establishes the first two requirements in the prima facie case - a conclusive presumption of duty and breach of duty).
