Negligence Terms

Question 1

Negligence

Answer 1

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

Question 2

Strict Liability

Answer 2

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

Question 3

Negligence Policy Arguments

Answer 3

• 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.

Question 4

Strict Liability Policy Arguments

Answer 4

• 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

Question 5

Negligence Prima Facie Elements

Answer 5

Actor is subject to liability to the other person P for negligence if:

1. P has suffered an injury (P broke leg from motorcycle driver) JURY
2. 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) JUDGE
3. A breached that duty (motorcycle was on the phone) JURY
4. A’s breach was an actual and approximate cause of P’s injury (if motorcycle wasn’t careless, P wouldn’t have been injured) JURY

Question 6

Injury elements/types

Answer 6

1. Physical harm
2. Damage to, destruction of, tangible property
3. Loss of wealth (ex: someone cannot repay loan)
4. Emotional distress

Question 7

Duty Elements

Answer 7

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)

Question 8

Reasonable Foreseeability as a Test for Duty

Answer 8

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

Question 9

Reasonable Foreseeability: Probabilities and Norms

Answer 9

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

Question 10

Limited (Qualified) Duties of Care

Answer 10

1. Affirmative defenses to rescue or protect
2. premises liability
3. pure economic loss
4. emotional distress

Question 11

Affirmative duties to rescue or protect

Answer 11

1. Duty to rescue statutes (rare in the US and criminal not tort)
2. Voluntary undertakings (A promises or chooses to aid B)
3. Imperilment (A with or without fault puts B in peril, Osterland)
4. Special relationships (Taco Bell in Baker)
5. Premises Liability (invitee, licensee vs. trespasser)

Question 12

Premises liability traditional rules

Answer 12

• 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.

30% states retain all categories
50% collapse licensee and invitee; separate trespassers (Demag)
-R3d 52: Duty owners to all except “flagrant trespassers”
20% abandon all categories (Rowland: D was hurt by faucet in guest’s home. Court rejected the tripartite system and said a duty of care is owed to all entrants (even known trespassers)).

Question 13

Duty of care
Rest 2nd, 315

Answer 13

• 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

Question 14

Breach

Answer 14

Failure to conduct oneself as would a person of ordinary prudence (failing to take ordinary, or reasonable care; these connotare a moderate amount of care—neither minimal nor extravagant)

• third part of negligence (injury, duty, breach, causation)
• speaks to the establishment of negligence—an issue of fact for *JURY
  
  • Negligence jury instructions are quite similar: TPI (TN Pattern Instruction): defining breach within ordinary and reasonable standards of care
• involves legal inquiries that inform how we can apply the standard and make factual findings

Question 15

Adjusting the standard of reasonable care

Answer 15

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)

Question 16

Heightening the Standard, two principle/rules

Answer 16

Superior knowledge rule (Rest 3rd, 12)= if an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account and determining whether the actor has behaved as a reasonably carefully person

profession or trade principal (TN Pattern Instructions 6.01 Professional Fault) = an actor engaged in a professional trade to act as a reasonable member or such professional or trade with under the same or similar circumstances
- in TN (and most states), deciding reasonable care on the professional standard is based ONLY on expert evidence (no personal knowledge)

Question 17

Professional v. ordinary standard of care

Answer 17

P = Jury must determine if D use the care/skill ordinarily used by a reasonably qualified, certified nurses aide under the circumstances

O = jury must determine if D used ordinary care that are reasonably careful person would exercise under the circumstance

Question 18

Emergency Doctrine

Answer 18

Special jury instruction that says it was a reasonable person acting in an emergency situation

• Rest. says this is a dumb rule because
• Move away from this toward an ordinary standard of care
• Don’t need to heighten the hurdle, keep the same standard of care but taken into account the context

Question 19

Custom

Answer 19

Standard practice adopted by most people

• A custom we can point to lowers the price (burden) of implementing than gathering lots of evidence on untaken precautions —> lowers transaction cost, and gives jury proxy for reasonable care
• Probative but not dispositive of reasonable care:
• Helps P
  
  • determine foreseeability
  • overcome information deficits since in many cases they (victim) will have the least amount of info—gives P something they can point to
  • make conduct of others relevant to showing breach
  • provides a jury instruction

Question 20

Res ipsa loquitur

Answer 20

“The thing speaks for itself.” Permits some P’s to prevail when the exact cause of action is unknown

• P does not have to produce evidence for what D did wrong, but does not mean he has met the burden of persuasion (more likely than not)
• Recognize from everyday experience: accidents by the very nature wouldn’t happen without negligence
• Applicable to mundane injuries that occur without anyone’s fault, like slips and falls
• for a jury to draw such an inference there are three features
  (1) injury must happen in a way that ordinarily does not occur absent carelessness on someone’s part
  
  • this elements prevents its application in majority of negligence cases (many cases go badly without anyone’s fault) —> P has to employ pre-trial discovery to get docs and testimony allowing P’s expert witnesses to construct what went wrong
  • have to establish more likely than not someone’s negligence caused the harm (establishing causation)
    (2) instrumentality, causing the injury must have been in D’s exclusive control; and
    (3) injury must not have arisen from acts or carelessness on part of P
• Even though P has no evidence of breach, D can’t get case dismissed; D can try and disprove inference of breach; jury decides

Question 21

Negligence per se

Answer 21

Violation of a statute is a basis for negligence

Question 22

Nonfeasance v. Misfeasanxe

Answer 22

N: omitting/failing to act in a situation in which assistance could have prevented P’s injury

M: Acting to cause foreseeable physical injury or property damage

Question 23

Rest 2nd, 312A Special Relations Giving Rise to Duty or Aid to Protect

Rest 3rd, 40

Answer 23

1. A common carrier to its passengers.
2. And innkeeper to his guests.
3. A possessor of land to hold it open to public to enter response to invitation.
4. Required by law who voluntarily takes the custody of another deprive other opportunities for protection.

• Innkeeper-guest
• Business- invitee
• Camp-camper
• Carrier-passenger
• School-minor

Question 24

Scope of Duties to Rescue

Answer 24

Where is an exception to the general rule of no duty, the duty owed is a duty to make reasonable efforts to rescue (ex: if someone fell off the subway track determining that helping could cause more harm, it’s reasonable not to help)

Question 25

Extensions to Duty

Answer 25

• Domestic Violence - most states are fairly broad in requiring reporting (expansive reading of Tarasoff), but some outliers (NC)
• Campus violence - How specific must professional prediction/foresight be?
  • no duty owed:
  • 1995 shooting in downtown Chapel Hill by disturbed law student who confided in counseling
  • Virginia Tech shooting case

But 2018 CA Supreme Court case expands duty to warn students on campus of foreseeable risks of harm from other students (duty to protect students from assault—at school-sponsored events)

Question 26

Professionals v. Non professionals (custom)

Answer 26

Prevailing practices play a special role in suits, alleging professional malpractice (ex: doctors have to exercise the same level of care as is considered standard by members of the profession)

• Proof of compliance with professional custom —> reasonable care
• MD must provide information that a reasonable patient in p’s circumstances would deem material to her decision for informed consent malpractice, return to TJ Hooper Rule (custom probative, not dispositive)
• Causation determined by objective standard: would a prudent patient in peace circumstances have declined the procedure given proper disclosure of the risks?

Question 27

Plausible v. Implausible Res Ipsa Cases

Answer 27

Plausible
- object falls out of window and lands on P
- airplane crash where evidence is destroyed
- mishap during surgery where injury is unrelated to underlying medical condition

Implausible
- multiple car collision
- slip and fall
- improperly designed products