Negligence - Duty/Breach/NIED

Question 1

Default Standard of Care

Answer 1

Reasonably Prudent Person - the caution or care that a man of ordinary prudence would observe in the circumstances.
Objective. A hypothetical reasonable person.

Question 2

Characteristics of the Reasonably Prudent Person

Answer 2

What a reasonable person would have known and/or perceived.
We will take into account what the defendant actually knew (what he was on notice for ).
If defendant has superior knowledge, intelligence, judgment - that notice is included.
Deficiencies of mental attributes are ignored.

The physical characteristics of the reasonably prudent person match the defendant.
A handicapped person must act a reasonably prudent handicapped person would in the same circumstances (including the handicap).
Voluntary intoxication does not count as a physical disability.

Question 3

Emergency Doctrine (Duty)

Answer 3

We will take the emergency circumstance into account for the standard of care as long as it was (1) sudden, (2) unexpected emergency that (3) was not the fault of the defendant.
Still have to act as a reasonably prudent person would in that emergency.
There are situations where one may be required to anticipate an emergency and prepare for it (was it foreseeable??)

Question 4

Child’s Standard of Care

Answer 4

Restatement 238A = Child’s conduct is to be compared to a reasonably careful child of the same age, intelligence, and experience. (children are so variable we need more characteristics)

Exception = when the activity a child engages in is inherently dangerous (or is normally an adult activity) the child will be held to an adult standard of care (Robinson v. Lindsay).
Policy - protects the need of children to be children while discouraging immature individuals from engaging in inherently dangerous activities.

Question 5

Professional Malpractice talking points (list only)

Answer 5

Elements of standard
Not average
Specialists
Expert Testimony
Cause

Question 6

Professional Standard of Care Elements

Answer 6

i. Has the (1) knowledge, (2) skill, (3) exercise of best judgment, and (4) use of due care that an ordinary member of the profession regardless of experience (we don’t care if he’s been a pilot for 6 days or 6 years, we hold him to the same standard).
1) This is NOT the average member, but closer to the minimum.
ii. Standard is appropriately modified for specialists within a particular profession holding themselves out to have higher skills.
1) A heart surgeon will be held to the standard of a heart surgeon instead of a general surgeon.

Question 7

Professional Standard of Care - Expert Testimony

Answer 7

1) Because a professional is engaged in work that is technical in nature, expert testimony must be used to establish the standard of care.
a) Testimony of other physicians that they would have followed a different course of treatment is not sufficient to establish malpractice unless it also appears that the course of treatment followed deviated from the standard in that community
b) Many jurisdictions require the plaintiff to obtain an expert opinion before filing suit.
Exception = don’t need expert testimony if the negligence is so obvious that it is within the common knowledge and experience of lay jurors.

Question 8

Medical Professional Standard of Care

Answer 8

In a same or similar community / circumstance
Do not need locality rule anymore, but also not necessarily national.

Question 9

What is the most difficult part about proving professional negligence?

Answer 9

You still have to get through cause in fact….
“I would have healed but for the doctors malpractice”
“I would have won the case but for my lawyer’s malpractice”

Question 10

Attorney Malpractice

Answer 10

Ordinarily, an attorney only owes a duty to his client.
Exception when the third party is a direct beneficiary (estate)

Question 11

Standard of Care — Customs

Answer 11

What is usually done (customary) may be used as evidence of what a person of reasonable prudence would do, but it is not conclusive.

This can be used as evidence by the plaintiff (D failed to do what is customary… strong evidence of negligence) or by defendant (I did what was customary… not as strong).

Question 12

Standard of Care — Physical & Mental Incapacity

Answer 12

Sudden physical incapacity (heart attack, seizure, fainting, etc.) works as an excuse for negligence.
UNLESS, the incapacity was foreseeable (recently had seizure, vision started to blur, symptoms recognized, etc.)
Most states do NOT make the same allowance for mental illness/incapacity (including lack of intelligence).

Question 13

Privity of Contract

Answer 13

a. Nonfeasance
i. No performance of contract typically means no common law tort duty. Only a contract law duty.
b. Misfeasance
i. Once you start performing, now you owe a tort duty of reasonable care.
ii. It is clear that an individual who in contracted to make a repair owes a duty to use care to those who may be foreseeably injured in case the repair is negligently made.
Not under a duty to an indefinite number of potential beneficiaries.

Question 14

Failure to Act

Answer 14

a. Generally, there is no duty to affirmatively act (failure to act is not a breach of a duty)
b. Exceptions
i. Created the Risk
1) When the actor created the risk, they have a duty to exercise reasonable care to minimize or prevent harm.
ii. Special relationships where a person has a duty to take measures against the risks posed by another to a third party
1) Employer-Employee
2) Parental duty to protect others against dependent child
3) Automobile owner-driver
4) Persons who have taken charge of dangerous lunatic, criminals, contagious diseases.
iii. Particularized foreseeability
1) Person that has specialized knowledge or special reason to know that a particular plaintiff would suffer a particular type of injury.
a) Husband-Wife (child abuse – JS and MS v. RTH)
b) Psychotherapists (patient poses a serious threat to a specific others, duty to protect foreseeable victim – Tarasoff v. Regents of University of California)
iv. Instrument Under Control
1) Legal duty to take affirmative steps of reasonable care when the injury to another person resulted from an instrument under your control.
LS Ayres and co v. Hicks (hand stuck in escalator)

Question 15

Pure Emotional Distress

Why Pure?
List tests from most strict to least strict.

Answer 15

We already know that if you were physically injured due to a negligent act, the actor is liable for all emotional distress as well as physical injury. This is when the plaintiff ONLY has emotional damages.

Impact Rule
Zone of Danger
Dailey (Physical Manifestation) Test
Thing Rule
Dillon Foreseeability Test

Question 16

NIED - 1. Impact Rule

Answer 16

Need contemporaneous physical impact in order to claim emotional distress damages (Most jurisdictions have eliminated).
If you don’t sustain a physical injury, there is no liability for emotional distress.

Question 17

NIED - 2. Zone of Danger

Answer 17

a. Where the plaintiff was so close to the negligent conduct that they have narrowly escaped imminent and serious harm to his own physical well being
i. Under this test, you will be liable for emotional damages, if for example, you nearly miss hitting someone with your car and that traumatic event gives them panic attacks
ii. Lots of wiggle room for arguing how close you need to be for this rule to apply.
How severe was the harm? How close was it?

Question 18

NIED - 3. Dailey Test

Answer 18

a. Physical Manifestation Test - where a definite and objective physical injury is produced as a result of emotional distress and proximately caused by the defendant’s conduct, the plaintiff may recover without a contemporaneous physical impact. Needs to be a natural consequence of emotional disturbance
i. Under this test, you will only be liable for emotional distress damages if there is a physical injury caused as result (stomach aches from anxiety, vomiting, etc.)
NO eggshell skull rule here - absent specific knowledge of plaintiffs unusual sensitivity, to recovery for hypersensitive disturbance where a normal person would not be affected.

Question 19

NIED - 4. Thing Rule

Answer 19

The plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if
(1) The plaintiff is closely related to the injury victim (immediate family)
(2) The plaintiff is present at the scene of the injury producing the event at the time and is then aware that it is causing injury to the victim (hearing from someone else is not enough)
(3) As a result suffers serious emotional distress, a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances (emotional distress MUST be serious, but given the circumstances that serious emotional distress is not an unusual response)

Question 20

NIED - 5. Dillon Foreseeability Test

Answer 20

Test that examines whether the D should have reasonably foreseen the injury to the P. Takes into account the factors:
i. Whether P was near or far
ii. Whether the shock was a direct emotional impact from the sensory and contemporaneous observance of the accident, or learning about the accident from others
iii. Whether plaintiff and the victim were closely related
This test is very similar to the thing rule, but the thing test has essential elements that must be met, while the Dillon rule is a looser factor test, where not every factor needs to be satisfied in order to recover emotional damages.

Question 21

Premises Liability - Outside the Premises

Answer 21

General rule = owner / possessors have no duty to protect persons outside the premises
a. Exceptions
i. Trees (if he knows or has reason to know that the tree is defective)
ii. Foreseeable danger (16 foul balls per game hit on the highway)
Cannot obscure highway visibility

Question 22

Premises Liability - On the Premises Entrant Status’ & Duties

Answer 22

i. Entrant Status’ & Duties
a. Trespasser
i. Outside the scope of any of the other categories.
ii. No duty except not to willfully or wantonly injure.
iii. Exceptions
1. Once presence has been discovered
2. If frequent trespasser on limited area… reasonable care.
3. Tolerated intruders
b. Licensee
a) There for their own benefit (social guests)
i) Licensee generally take the premises as they find them.
b) Duty to warn of hidden dangers that are unknown to the guest or which the owner has knowledge. Also duty to refrain from injuring willfully or wantonly.
c. Invitee
a) There for the possessor’s benefit (think business)
b) Duty = to exercise reasonable care in making / keeping the premises safe for the use of the invitee.
ii. Rejection or Merging of Status’
Lots of states got rid of distinctions. Some got rid of licensee/invitee but kept trespasser. Some kept them.

Question 23

Premises Liability - Attractive Nuisance Doctrine

Answer 23

Raise the duty owed to child trespassers and licensees. When an owner has something that they have reason to believe would tempt a child into danger, he must use ordinary care to protect them from harm.

It is not necessary that that child be lured into the premises by the thing that injured them.

Question 24

Informed Consent Elements

Answer 24

Duty AND Breach
i. Defendant physician failed to inform patient adequately of material risk before securing consent for treatment
1) A risk is material if it would be likely to affect the patient’s decision.
2) Flexible - A 1-3% chance could be material if it would result in serious consequences, including death.
ii. If plaintiff informed of the risks would not have consented
1) How do we know this? Can we rely on patient’s testimony?
iii. The material risk not made known to the plaintiff occurred as a result of the treatment.
*in order to satisfy fiduciary duty and obtain informed consent must also disclose any personal interests unrelated to the patients heath, that may affect medical judgment (Moore v. Regents of the University of California).

Question 25

Informed Consent - Exceptions

Answer 25

Do not need to fully inform if:
i. Emergency situation/incapable of understanding (think medical procedure without consent elements).
ii. If the risks are common knowledge.
iii. Full disclosure detrimental to total care (alarm an emotionally upset or apprehensive patient)

Question 26

Negligence Per Se Elements

Answer 26

Duty AND Breach

i. The injury is done to a member of the class of persons that the statute was meant to protect.
ii. The hard is of the kind which the statute or regulation was enacted to protect.
iii. Whether it is appropriate to impose tort liability for violations of the statute.

Question 27

Negligence Per Se - Considerations to guide whether to impose tort liability

Answer 27

a) There is an element of duty solely from the statute
b) Would it create liability without fault?
c) Would it impose ruinous liability disproportionate to the seriousness of the defendant’s conduct?
d) Whether the injury directly or indirectly resulted from the violation of the statute.

Question 28

Negligence Per Se - Excuses

Answer 28

If one of these apply, negligence per se doesn’t work, but the other duties (or default) of care may still be used.

1) The violation is reasonable because of the actors incapacity.
2) He neither knows nor should know of the occasion for compliance.
a) Two narrow circumstances where this works 1 = when the statute requires specialized knowledge and a normal person wouldn’t know about it (hyper-technical regulation?). 2 = someone coming from different culture (very very very narrow). I think this example is shitty.
3) The person is unable after reasonable diligence or care to comply.
4) He is confronted by an emergency not due to his own misconduct.
5) The compliance would involve a greater risk of the harm to the actor or to others. - Sidewalk nurse case (Zeni v. Anderson)

Question 29

Constructive Notice - Definition & Elements

Answer 29

a. Constructive notice assumes that if the defendant was taking reasonable care, they would have had actual notice of a hazard, so they are treated as having actual notice. “you should have known.” Think Slip and fall.
b. Elements
i. There was actual or constructive knowledge of a condition on the premises
ii. The condition posed an unreasonable risk of harm
iii. The company did not exercise reasonable care to reduce or eliminate the risk and
iv. The companies failure to use such care proximately caused her injuries. (causation element)

d. Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury (no exact time limits)
e. When the operating methods of a proprietor are such that dangerous conditions are continuous or foreseeable, the logical basis for the notice requirement dissolves. (Jasko v. F.W. Woolworth Co.)

Question 30

Res Ipsa Loquitor

Answer 30

Duty AND Breach - The occurrence of the accident implies negligence.

b. Elements
i. The event is of a kind which ordinarily does not occur in the absence of negligence.
ii. Other responsible causes, including the conduct of the plaintiff and third persons are sufficiently eliminated by evidence OR the thing or instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of the defendant.
1) Barrel falling from warehouse was in the exclusive control of the manager or employees (who are the responsibility of the manager via _____) (Byrne v. Boadle)
2) Chair falling from hotel window was not in the exclusive control of the manager/hotel staff because there are guests that may have done it (Larson v. St. Francis Hotel).
iii. Indicated negligence is within the scope of the defendant’s duty to the plaintiff
c. As soon as you have an eye witness res ipsa is gone. This is why it is said it is kind of a dying doctrine (cameras, technology, etc.)
d. Ordinarily, res ipsa loquitor only provides the jury with an inference of negligence for the jury to choose
In exceptional cases, the inference may be so strong as to require a directed verdict.