Negligence Cause of Action (Midterm) Flashcards
Negligence elements
- duty
- breach
- causation
- damages (did P suffer harm)
- defenses
How do you breach?
A person breaches their duty when they fail to use ordinary or reasonable standard of care under the circumstances
Ordinary or reasonable care
Care which another person of ordinary prudence would use in order to avoid injury to themselves or others under similar circumstances
Reasonable person standard:
What wpuld a reasonable person have done under the circumstances?
1. would have noticed (actual/constructive); and
2. would have done something; or
3. would have warned
Constructive notice:
(1) defect must be visible and apparent; and
(2) it must exist for a sufficient length of time prior to the accident to allow D to discover and remedy it
Respondent Superior
“The Superior”/employer is responsible for the torts of an employee acting within the scope of employment:
1. Employee is about the employer’s business (generally the kind employee was hired to do)
2. Breach must occur within hours and ordinary spatial bounds of employment
3. Employee must be serving the employer’s interest
Apparent Authority
A principal is vicariously liable for a non-employee even if the agent doesn’t appear to be acting on the principal’s behalf if:
1. Representation by principal (that actor is principal’s agent)
2. Detrimental reliance by P
Hand’s Negligence Formula
if Burden (B) < Probability of harm (H) * Severity of harm (S) –> Negligence
Negligence Per se
Negligence in itself. You are considerd to have breached your duty of care when not complying with a public safety statute (except when not complying is actually safer)
Res Ipsa Loquiter (RIL)
Permits an inference of negligence if:
1. the accident is a type that would not ordinarily occur without negligence
2. the instrumentality that caused the injury was within exclusive control of D
Ybarra rule–> when multiple Ds, burden shifts to D to prove he was not negligent*
*Not all states follow Ybarra rule
Common Carriers
Traditional rule: extraordinary standard of care (NY)
Modern rule: regular standard of care (CA)
Common Carriers Policy Implications
Traditional rule:
1. potential for huge loss of life if not using extraordinary care
Modern rule:
1. RRs and other common carriers aren’t as dangerous as they were in the 19th/early 20th century
2. juries can recognize circumstances of moving people en masse and adjust their analyses accordingly
Business Practice Rule (exception to notice)
A customer need not establish actual or constructive notice when the business practice of the store provides a continuous and foreseeable risk of harm to customers
Custom and Usage Principle (Landlords)
Doesn’t set the standard of care, but deviation from it may be important in determining whether one acted reasonably
1. [popularity] Widely used (many people do it–> D should have known)
2. Feasibility (practical in operation and readiness with which it can be employed)
3. Reasonableness (Whether D should have done it)
Hospitals Standard of Care
[Ybarra rule] Minority rule: RIL applies to multiple Ds (Ybarra)
[Minority] Similar locality rule: Dr. must exercise same degree of care that is commonly exercised by other members of same profession in same practice when diagnosing or treating a patient.
[Majority] Uniform Knowledge rule: any Dr. with knowledge of or familiarity with the procedure, acquired through experience, education, observation, is competent to testify about the standard of care, and whether it was deviated from
(Get rid of similar locality rule bc info, education, training is nationwide in character)
Doctrine of Informed Consent: when treating a patient, a Dr. must disclose all info material to a reasonable patient’s informed decision
Minors
Standard of care for minors is the care that would be exercised by a reasonable child of similar age and experience, EXCEPT when a child is engaged in a dangerous activity usually done by adults. Standard is then that of any person conducting the activity.
Duty Default Position
Everybody owes everyone a duty of reasonable care (when you act, have to act reasonably)
Affirmative duty default
No duty. Generally can’t make someone do something.
Exceptions (affirmative duty):
No affirmative duty to act unless:
1. special relationship
a. innkeepers and guests
b. common carriers and passengers
c. possessors of land
d. person’s who have custody of another in circumstances in which the other is deprived of normal opportunities for self protection
e. co-adventurers on a hazardous undertaking
2. Voluntary undertaking
3. Negligent/non negligent injury of another
4. Negligent/non negligent creation of risk
Rowland Factors (when departure from default position is appropriate)
- foreseeability of harm (less foreseeable-no duty)
- certainty that P suffered injury
- Closeness of the connection between conduct and injury
- Moral blame attached to Ds conduct
- Policy of preventing future harm
- Burden to defendant in imposing a duty to exercise care
- Insurance for risk involved
Psychotherapist Rule
Psychotherapist owes a duty not only to patient, but to third party foreseeably in danger of harm by patient
Social Hosts
Generally no duty to a third party injured by the actions of their guests’ intoxication
Negligent entrustment
One who supplies a piece of personal property for the use of another whom the supplier knows is likely to use it in a manner involving unreasonable risk of harm to himself or others is subject to liability for resulting physical harm.
Broad rule: applies to anyone who supplies a chattel for use of another
Narrow rule: limited where D owns or has the right to control the chattel
Duties of landowners and occupiers, policy implications to get rid
- Outdated, less than 0.5% of Americans own estates of a comparable size (to those in England)
- arbitrary, why reasonableness only to invitees?
- unpredictable, so many exceptions
Duties of landowners and occupiers, policy implications to keep
- New rule makes more cases go to juries
- deciding duty is a matter of law for a judge to decide
- but when the duty is uniform, it goes to the jury to decide if reasonable care was exercised
- lengthier trials
- arbitrary outcomes? Juries already decide based on reasonable care standard for other tort cases
Landowner duties regarding criminal activity
Landowner owes a duty to take reasonable measures to protect against criminal acts that are reasonably foreseeable. 4 approaches to foreseeability:
1. Specific harm rule: landowner does not owe a duty unless he is aware of specific imminent harm about to befall them
2. prior similar incidents rule: foreseeability established by evidence of previous crimes on or near premises
3. Totality of circumstances: takes into account nature, condition, and location of land as well as any other circumstances bearing on foreseeability
4. Balancing test: seeks to address the interests of both business proprietors and their customers by balancing foreseeability of harm against burden of imposing duty to protect against criminal acts of a third party
Governmental entities
most states have waived sovereign immunity to some extent
Public Duty Doctrine
denies a tort duty when the governmental obligation is owed to all members of the public
Governmental function
undertaken for protection and safety of the public, not subject to liability (police depts)
Proprietary functions
activities that substitute for or supplement traditionally private enterprises (public hospitals, transit systems), subject to liability
Discretionary acts
exercise of judgment by employees, no liability
Ministerial acts
Conduct requiring adherence to a governing rule, with a compulsory result–>liability
Public duty doctrine exception
Lauer, can bring tort actions when a statute protects individual’s interest (duty owed to individual)
Proprietary Action
once a gov’t entity has decided on implementing a new plan or design for public safety they must
1. exercise due care in preparing the design
2. implement the plan within a reasonable period of time
Attractive nuisance doctrine
landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property
Emotional Harm
Generally no cause of action unless (1) physical impact, (2) zone of danger, (3) bystander, or (4) distress causing physical illness by being in zone of danger. OR (5) loss of consortium
(1) Physical Impact
Physical impact does not include exposure, has to result in manifestation of symptoms or injury
(2) Zone of Danger
A person who Is placed in immediate risk of physical harm as a result of Ds negligence, and who suffers an emotional injury as a result, may recover
(3) Bystander Rule
- death or serious physical injury of another is caused by Ds negligence
- Marital or intimate familial relationship
- Observation of death or injury at the scene
- Resulting in severe emotional distress
Loss of consortium
When one spouse physically injured as a result of Ds negligence, the other spouse has a cause of action for loss of injured spouses’s physical and emotional companionship and support
Economic Harm
not a cause of action unless (1) negligently supplied false info to another that causes economic loss or (2) physical injury
(1) negligently supplied false info
limited to recipient or to the people who the professional intends will rely on the info or be influenced by the information
(2) economic harm absent physical injury
cannot recover
Causation
Ds acts are the actual (but-for) cause and proximate cause of Ps injury
Actual (but for)
Ps injury would not occur but for the Ds acts. If multiple causes of injury, D is the actual cause if the act is a substantial factor in causing the injury.
Proximate Cause
Ps injury is a foreseeable result of Ds act
Superseding Cause
An unforeseeable intervening event that severs the causal connection between a Ds act and a Ps injury
Affirmative Defenses
(1) contributory negligence, and (2) comparative negligence, (3) assumption of risk, and (4) preemption
(1) Contributory negligence
If P was negligent at all, he is barred from recovery
(2) Comparative Negligence
If P is negligent, Ps recovery will be reduced according to percentage of fault
Pure comparative fault
Ps recovery is reduced according to his percentage of fault (UFTA)
Modified comparative fault
Ps recovery is reduced according to his percentage of fault, up to 49 or 50%. Past that, P is barred from recovery
Assumption of risk
(1) Express, (2) implied, (3) Primary implied, (4) secondary implied
Express Assumption of risk
when P expressly agrees to assume the risk of the injury complained of
Implied assumption of risk
Ps conduct indicates that they understood a risk and consented to it
Primary Implied Assumption of risk
P impliedly assumes those risks inherent in a particular activity
Secondary Implied Assumption of risk
When P consented to a risk created by their own negligence and by Ds negligence (contributory negligence)
Preemption
When federal law and state law conflict, state law is preempted under Supremacy Clause
Express preemption
Congress enacts a statute that expressly preempts state law causes of action
conflict preemption
state law is preempted if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of congress
police duties
in general, police do not owe an affirmative duty to protect public
Do have affirmative duty when special relationship with party
1. assumed through promises or action
2. knew inaction could lead to harm
3. direct contact between police and injurd party
4. injured party relied on police’s undertaking
