Negligence Terms Flashcards
Negligence
A failure to heed to a duty of care to another that causes injury to that other (careless/inadvertent injuring)
- If D injures P, D is not subject to liability if he uses ordinary care
- Acts more like a touchstone to find carelessness, but is not a hard rule
- Emerging principle in the late 19 century that liability for accidents requires D’s fault
Strict Liability
Liable, regardless of intent or fault of D (casts a much broader net for wrongdoers)
- if D injures P, D is subject to liability even if he uses ordinary care
- Much more pro-P
- small sliver of tort claims so negligence dominates
Negligence Policy Arguments
- Fairness: it’s not fair to hold someone liable for an accident if they’ve taken care
- Incentives/Deterrence: Strict liability sometimes overly discourages productivity
- Legal Process: judges and jurors can reliably determine if an actor was careless. The extra process-related costs are worth it.
Strict Liability Policy Arguments
- Fairness: at least between an innocent injurer and innocent victim. It’s not fair to leave the victim with the loss.
- Incentives/ Deterrence: negligence induces care for our activities (drive carefully) but strict liability further induces us to limit or avoid unsafe activities (drive less)
- Legal Process: it’s difficult to determine what counts as carelessness, negligence, introduces uncertainty into law and generates excessive litigation costs
Negligence Prima Facie Elements
Actor is subject to liability to the other person P for negligence if:
- P has suffered an injury (P broke leg from motorcycle driver)
- A owed a of duty to a class of persons including P, to take care not to cause an injury suffered by P (motorcycle has to avoid hitting pedestrians on sidewalk)
- A breached that duty (motorcycle was on the phone)
- A’s breach was an actual and approximate cause of P’s injury (if motorcycle wasn’t careless, P wouldn’t have been injured)
Injury elements/types
- Physical harm
- Damage to, destruction of, tangible property
- Loss of wealth (ex: someone cannot repay loan)
- Emotional distress
Duty Elements
Duty element requires P to establish that D owed her a class of persons, including her and obligation to take care not to cause a type of injury that she has suffered two types:
Unqualified or General Duties where D should take ordinary care to avoid causing physical harm to foreseeable victims (cab driver should drive around, reasonably, “easy cases”)
Limited or Qualified Duties D should make reasonable efforts to protect or rescue, provide safe premises, or take reasonable care to avoid causing non-physical harm (difficult cases)
Reasonable Foreseeability as a Test for Duty
Exercise care with respect to persons’ physical well-being to any person whom one can reasonably foresee physically harming if one were to act carelessly
- Sword for P: if one can anticipate that one’s actions might injure certain others one is morally obligated to those persons to take reasonable steps avoid injuring them
- Shield for D: It wouldn’t be fair for law to impose a duty and liability for failure to take steps against causing injuries that one could not have anticipated
Reasonable Foreseeability: Probabilities and Norms
Probabilities = there must be a meaningful possibility of harm to a person, not a large statistical probability
Normative judgments= only a duty to foreseeable partners
Limited (Qualified) Duties of Care
- Affirmative defenses to rescue or protect
- premises liability
- pure economic loss
- emotional distress
Affirmative duties to rescue or protect
- Duty to rescue statutes (rare in the US and criminal not tort)
- Voluntary undertakings (A promises or chooses to aid B)
- Impairment (A with or without fault puts B in peril, Osterland)
- Special relationships (Taco Bell in Baker)
Premises liability traditional rules
- Invitee (enters at invitation of possessor in furtherance of possessors or mission): must take care to provide reasonably safe premises
- Licensee (enters with permission of possessor, but not in furtherance of possessors, business or mission): warn of hidden dangers about which the possessor knows or should know
- Trespasser (enters without permission): no duty of care to adults (exception for known trespassers) only to avoid willful or wanton injury. Duty owed to children not to maintain attractive, nuisance, or foreseeably dangerous condition.
Rest 2nd, 315
Duty of care
- a special relation between the actor and third-party which imposes a duty upon the actor to control the third-party’s conduct
- a special relation between the actor and the other, which gives to the other a right of protection
Breach
Failure to conduct oneself as would a person of ordinary prudence (failing to take ordinary, or reasonable care)
- third part of negligence (injury, duty, breach, causation)
- speaks to the establishment of negligence—an issue of fact
Adjusting the standard of reasonable care
Not considered:
- clumsiness (Vaughan)
- foolishness
- mental illness (held to same standard)
- old age
Considered
- youth
- physical disability (blind person held to a reasonably blind person standard)
- expertise (higher standard, see below)
