Negligence Essay Flashcards
Negligence
In order for plaintiff to prevail in a cause of action based on negligence, plaintiff must show duty, breach, actual and proximate causation, and damages.
Duty of Care
A general duty of care to act as a reasonably prudent person is owed to all foreseeable plaintiffs. A foreseeable plaintiff is anyone in the foreseeable zone of danger from the defendant’s activity. (majority view)
Relevant Standard of Care
The general standard of care is that of a reasonably prudent person under the same or similar circumstances.
The general rule for children is that they must conform to the standard of care of a child of like age, intelligence, and experience. However, when a child engages in an activity that normally is one only adults engage in (such as driving a car), she is required to conform to the same standard of care as an adult.
Breach of Duty
When the defendant’s conduct falls below the level required by the applicable standard of care, she has breached her duty.
Actual Cause
The defendant’s conduct is the actual cause of the plaintiff’s injury if the injury would not have occurred but for the defendant’s conduct.
Proximate Cause
In addition to being the actual cause, the D’s conduct must also be the proximate cause of the injury.
The general rule of proximate cause is that the D is liable for all harmful results that are the normal incidents of, and within the increased risk caused by, his conduct.
In other words, if one of the reasons that make the D’s act negligent is a greater risk of a particular harmful result occurring, and that harmful result does occur, the defendant generally is liable.
In an indirect cause case, an intervening force comes into motion after the D’s negligent conduct and combines with it to cause the plaintiff’s injury.
If the defendant’s negligence created a foreseeable risk that this intervening force would harm the plaintiff, the defendant is liable for the harm caused.
Damages
Damages is the final element of P’s prima facie case
Defenses
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VICARIOUS LIABILITY
An employer will be vicariously liable for torts committed by her employee within the scope of the employment relationship.
On the other hand, a principal will not be vicariously liable for the torts of her agent if the latter is an independent contractor rather than an employee, unless the contractor is engaged in inherently dangerous activities or the principal’s duty is nondelegable on public policy grounds. Whether the agent is an employee or an independent contractor depends on the extent to which the principal has the right to control the manner and method of the work. The relevant factors that make an agent more likely to be an independent contractor include that (i) the employment is for a short and/or definite period rather than a longer or indefinite period, (ii) the employment was for a personal task of the principal rather than for her business, (iii) the compensation was task-based rather than time-based, and (iv) the parties did not believe the arrangement to be an employer-employee relationship.
Negligent Infliction of Emotional Distress
A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff.
Usually the plaintiff must show that he was in the zone of danger and suffered physical symptoms from the distress.
However, a bystander who was not in the zone of danger may recover for injuries suffered from seeing injury to another as long as (i) the plaintiff and the person injured are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event.
Standard of Care—Owner/Occupier of Land and Attractive Nuisance Doctrine
The general standard of care is that of a reasonably prudent person under the same or similar circumstances. However, the owner of land is subject to a standard of care that varies depending on the plaintiff’s status as trespasser, licensee, or invitee.
The general rule for property owners is that one who comes onto land without permission or privilege is a trespasser, to whom the property owner owes no duty.
However, if the property owner knows or reasonably should know of the presence of trespassers regularly entering onto the property, the entrant may be an “anticipated trespasser,” to whom the property owner owes a duty to warn of or make safe artificial conditions that carry the risk of death or serious bodily injury.
If the trespasser is a child, the duty may be more extensive. Under the “attractive nuisance” doctrine, the property owner owes a duty to exercise reasonable care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on the property.
To establish an attractive nuisance, the plaintiff must show that
(i) there is a dangerous condition present on the land of which the owner is or should be aware;
(ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition; (iii) the condition is likely to cause injury, that is, 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.
The plaintiff does not need to show that the child was lured onto the property by the dangerous condition.
Defenses—Conduct of P
A plaintiff in a negligence case is also held to a standard of reasonable care.
At common law, a plaintiff whose negligence was found to have contributed to his injury was completely barred from recovering under traditional contributory negligence rules.
Similarly, a plaintiff who knowingly and voluntarily assumed the risk of injury from the defendant’s conduct, whether expressly or impliedly, was barred from recovering damages.
Most states now have replaced the traditional contributory negligence and implied assumption of risk rules with a comparative negligence system, in which the trier of fact weighs the plaintiff’s negligence against that of the defendant and reduces the plaintiff’s damages accordingly.
In a pure comparative negligence system, the plaintiff may recover some damages no matter how much at fault he is.
In a partial comparative negligence system, the plaintiff may not recover any damages if his negligence rises above a threshold level.
