Negligence: Negligence Generally + Duty

Question 1

What are the two meanings of negligence?

Answer 1

Negligence can mean conduct or liability.
1.) Negligent conduct/behavior: unreasonably risky behavior (below standard of care established by law for the protection of others against the unreasonable risk of harm), but defendant is not liable because he was under no duty to the plaintiff to use reasonable care
2.) Negligence with liability: breach of duty that causes damages to the plaintiff (must satisfy all 4 elements)

Question 2

Who does the reasonable standard of care apply to?

Answer 2

Both defendants and plaintiffs

Question 3

What are the four elements of negligence?

Answer 3

Duty, breach, causation, damages

Question 4

Duty

Answer 4

one has an obligation to avoid engaging in unreasonably risky conduct, which can generally be done by exercising reasonable care with respect to foreseeable risk of harm to foreseeable plaintiffs (this applies to both plaintiffs and defendants)

Question 5

Breach

Answer 5

by engaging in unreasonable risky conduct, one fails to conform to the relevant standard of care

Question 6

Causation

Answer 6

close causal connection between conduct and the resulting injury: (a) causation in fact; and (b) legal or “proximate” causation

Question 7

Do damages have to exist?

Answer 7

YES (Nominal damages are insufficient here)

Question 8

Judge Learned Hand’s Formula

Answer 8

B < LP
B = burden of taking adequate precautions
L = liability/damage/harm
P = probability (is it foreseeable?)
If the burden to prevent the harm is less than risk x probability, you must do it (burden), or else risk liability. When liability and probability increase, so does the burden; if L or P is 0, there’s no known risk, so nothing must be done to prevent it

Question 9

Evidence in negligence cases

Answer 9

Customs, internal company policy

Question 10

Duty (generally)

Answer 10

i. Whether or not duty is owed is a question of law for the court to decide; whether the duty is breached is usually a question for the jury
ii. If defendant’s risk-creating negligent conduct threatens but does not harm plaintiff, however, plaintiff may be able to obtain and injunction and stop the activity as a nuisance
iii. Plaintiff should try to prove as many different types of legally recognized duty (if possible based on facts)

Question 11

RPP (Reasonably Prudent Person)

Answer 11

i. Obligation imposed on all human activity to act as a reasonably prudent person under the same or similar circumstances and to take precautions against unreasonable risks of harm to foreseeable others
1. RPP is someone of ordinary (1) cognitive ability, (2) rationality, (3) common knowledge
2. Standard is subjective for someone with distinct physical characteristics and someone who has superior physical characteristics

Question 12

Duty (common knowledge)

Answer 12

a. It’s not necessarily that you must know, but you have a duty to learn
i. Student from southern California driving in Indiana snowstorm (risks too high to not learn)
ii. Shitty tire that blew up; the risk is too great for a driver to not know when tires are bad – Delair v. McAdoo)

Question 13

Duty (rationality)

Answer 13

Standard is not of an extremely cautious or nervous person, just ordinary

Question 14

RPP in Emergencies

Answer 14

i. To qualify for emergency jury instructions, the event must be (1) sudden (unforeseen and unexpected), (2) not of one’s own making, (3) patent emergency (serious/grave), (4) not enough time to think/react
1. Judge makes decision whether emergency instruction is given to jury  if so, jury decides if conduct was reasonable
2. Some jurisdictions don’t allow emergency jury instructions
3. Defendants want these instructions, plaintiffs do not
ii. Actor’s conduct can still be considered unreasonable, despite an emergency
iii. Some emergencies should be anticipated, like a child running out into the road, hydroplaning, etc.

Question 15

RPC (Reasonably Prudent Child) - MAJORITY JURISDICTION

Answer 15

children are held to the standard of a reasonably careful child of the same maturity, intelligence, experience, customs, and training
1. Exceptions:
a. Rule for children engaging in adult activities
i. Children held to adult standard when engaging in adult activities, such as: deer hunting, motorcycling, downhill skiing, driving motor scooter, etc.
ii. Snowmobile case in which child was operating an inherently dangerous vehicle/participating in an adult activity (11 y/o held liable)
b. Customs
i. Think rural versus urban locations
ii. If uncommon, most likely to apply adult standard

Question 16

RPC (Reasonably Prudent Child) - MINORITY JURISDICTION

Answer 16

Rule of 7’s (NC)
1. 0-7 years: incapable of forming negligence and unable to be held liable (no exceptions)
2. 7-14 years: presumed incapable of forming negligence, but evidence may be able to prove otherwise
3. 14+ years: presumed capable of forming negligence and being held liable, can be proven incapable with affirmative defenses

Question 17

RPPro

Answer 17

i. Possess and exercise the requisite degree of (1) learning, (2) skill, and (3) ability (still objective) with reasonable care, and use discerning judgment so to not be held liable for mere errors in judgment
1. Actions must fall within this realm
2. Possess knowledge, skill, and ability to exercise it with reasonable care, and use discerning judgment
a. Due care: regarding steps that are mechanical, rather than discretionary (e.g., doctor failing to read the test results)
b. Best judgment: as long as there’s room for an honest difference of opinion among competent professionals, a professor exercising best judgment can’t be liable

Question 18

Requirement of RRPro suits

Answer 18

ii. Expert testimony required unless a layperson could understand without the aid of an expert

Question 19

RPPro DOCTOR (general malpractice)

Answer 19

i. The standard is what an ordinary member of that professional community would have done under those circumstances

Question 20

RPPro DOCTOR (informed consent)

Answer 20

i. Across all jurisdictions: if a doctor fails to fulfill duty of informing patient (must inform of nature of treatment, available alternatives, material collateral risks), then the patient’s consent is defective, and the physician is responsible for the consequences. Doctor must also inform patient of any personal interests unrelated to patient’s health (Moore v. The Regents – profiting from cell patent).
1. Exceptions creating a privilege not to disclose: (1) risks already known by everyone/patient, (2) emergency when patient unable to determine if treatment is needed (patient incapacitated, treatment at issue is necessary to preserve life, where a reasonable patient would give consent if they could, and doctor has no reason to think specific patient would object), and (3) when disclosure would be detrimental to patient (disclose alarms emotional person)

Question 21

How to weigh duty of informed consent?

Answer 21

ii. You will weigh it from the doctor of patient’s perspective, depending on the jurisdiction
1. Reasonable patient SOC (MINORIRY JURISDICTION): what would the reasonable patient want to know? Doctor must disclose what reasonable patient would want to know. (e.g., patient neglecting to go to ER despite doctor’s advice to go)
2. Reasonable physician SOC (MAJORITY JURISDICTION): what would the reasonable physician disclose in the relevant community?
a. Disclose anything that may be significant to a patient’s decision in light of the potentially severe consequences

Question 22

RPPro DOCTOR (professional standard of care community)

Answer 22

a. National Rule – MINORITY RULE
i. Held to a national standard (based on national board certification tests)
b. Locality Rule
i. Standard of care of practitioner in good standing in the local community
c. Middle Ground (NC) – MAJORITY RULE
i. “Similar community in similar circumstances” test designed to balance the need to avoid evaluating a general practitioner in a rural area by the same standards as a specialist in an urban teaching hospital with the need of the plaintiff for access to expert testimony
1. Doesn’t focus on locality but it is one of the factors

Question 23

What must plaintiff prove for a medical malpractice suit to succeed?

Answer 23

3. For a medical malpractice suit to succeed, plaintiff must show with affirmative evidence that the defendant parted from the standard of care of an ordinary member of the profession
   a. Evidence can’t be speculative and must be established by expert medical testimony
   i. Exception: unless negligence would be obviously apparent to a layperson (e.g., leaving sponge in body after surgery)

Question 24

RPPro ATTORNEY (duty)

Answer 24

1. Attorneys have the duty to act as a reasonably prudent attorney in the same or similar circumstances of an ordinary member of the profession

Question 25

What must plaintiff prove for an attorney malpractice suit to succeed?

Answer 25

-Plaintiff must show that but for the attorney’s negligence, the client would have been successful in prosecution or defending the claim
-It’s not malpractice for an attorney to fail to correctly anticipate the resolution of an unsettled legal principle

Question 26

Judicially Imposed Duty (rare)

Answer 26

i. Particularized duties (in negligence actions) can be established as “rules of law” by judges (this is RARE)
1. This is usually done only when situations are “new” and/or when harm and probability are really high
2. When it is a very common experience (daily occurrence)
a. Usually imposed regarding cars and trains
i. Stop, look, listen (Pokora v. Wabash)
ii. “Range of vision rule”: (in nearly all jurisdictions) it’s negligence to drive an automobile at night at such speed that you cannot stop within your range of vision
1. Exceptions in unusual circumstances: suddenly blinded by headlights, view obstructed by snowplow fog, etc.

Question 27

Statutorily Imposed Duty

Answer 27

i. A court may conclude that a statute establishes what a RPP will always do under circumstances
ii. The court has discretion to decide which statutes are eligible
1. But NOT statutes that have a built-in remedy (e.g., Title VII has built in remedies in the text of the law) because the courts say that if the legislature, while drafting the statute, already has a remedy that’s it. Not a basis for negligence action.
2. Also, NOT statutes that impose public duty (public duty doctrine: a duty to all is a duty to none)

Question 28

3-part test of when court will import a statute as a standard of care in a particular tort suit

Answer 28

1. Plaintiff is a member of the class legislature intended to protect.
2. Injury that occurred was the type of injury statute stood to protect.
3. It’s otherwise appropriate to impose tort liability for violations of the statute.

Question 29

Rules other than statutes that may indicate negligent conduct

Answer 29

1. Ordinances
   -Most states treat ordinances the same way they treat statutes
2. Administrative regulations
   -Are sometimes held by states to have a lesser effect than statutes
3. Advisory codes, voluntary industry standards
   -May be admissible, but not binding on issue of negligence
4. Ethical standards, codes of product
   -Violation not malpractice per se; most states admit violations as evidence

Question 30

Attractive Nuisance Doctrine (5 elements)

Answer 30

possessor of land is subject to liability for physical harm to trespassing children caused by a natural or artificial fixtures upon the land
i. the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
ii. the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
iii. the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
iv. the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
v. the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.