Negligence Torts Flashcards
Negligence
The failure to exercise the care that a reasonable person in that situation would exercise and acting in a way that breaches the duty to prevent foreseeable risks of harm to others (i.e., what would a reasonable person have done under the circumstances?)
Elements of Negligence
(1) duty; (2) breach; (3) causation; and (damages)
Learned Hand Test
B < P * L
B = Burden P = Probability L = Gravity of Loss
Duty
A duty of care is owed to all foreseeable persons who may be injured by the defendants failure to follow a reasonable standard of care (generally, NO affirmative duty to act)
Foreseeability of Harm
Duty of care owed to plaintiff only if plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct (Palsgraf)
Rescuers
A person who comes to the aid of another is a foreseeable plaintiff
Standard of Care
Reasonably Prudent Person Under the Circumstances - a person is presumed to have average mental abilities and knowledge, particular physical characteristics are taken into account (e.g., blindness)
Standard of Care for Experts
Experts with special skills are held to a higher standard, the expert must have the knowledge and skill of a member in good standing in similar communities (national standard)
Standard of Care for Children
A standard of care of a reasonable child of similar age, intelligence, and experience, however, children engaged in adult activities are held to the same standard as adults
Negligence per se
A statute (criminal law or regulatory) that imposes a particular duty for the protection or benefit of others, (1) the plaintiff must be in the class of people intended to protected, (2) the accident must be the type of harm that the statute was intended to protect against, and (3) the harm must be caused by a violation of that statute
Res Ipsa Loquitor
(1) type of accident that does not normally occur in the absence of negligence; (2) caused by an instrumentality within the exclusive control of the defendant; and (3) plaintiff was not at fault
Breach
Failure to conform to the applicable standard
But-for Test
Plaintiff must show that the injury would not have occurred “but-for” the defendant’s negligence
Causation for Multiple Tortfeasors
Substantial Factor Test - was the defendant’s conduct a substantial factor in causing the plaintiff’s harm?
Joint and Several Liability
When the tortious acts of two or more defendants are each a factual cause of an individual injury to the plaintiff, joint and several liability applies and each defendant is potentially liable for the whole harm
Proximate Cause
Defendant is liable for all foreseeable harmful results that are normal incidents and within the increased risks of defendant’s act
Trespassers
If the trespasser is undiscovered there is no duty, if the trespasser is anticipated/discovered there is a duty to warn and make safe known conditions if they are not obvious and highly dangerous
Child Trespassers
Duty to warn if there is a dangerous artificial condition on land owners knows or should know when children frequent the area and the condition is likely to cause injury
Licensees
Duty to warn and make safe non-obvious dangerous conditions
Invitees
Duty to make reasonable inspections and warn or make safe non-obvious dangerous conditions
Lessors
Duty to warn of existing defects not likely discoverable by reasonable inspection
Damages
There must be an actual injury
Negligent Infliction of Emotional Distress
Plaintiff can recover from a defendant whose negligence creates a foreseeable risk of physical injury to the plaintiff if the defendant’s action causes a threat of physical impact that causes emotional distress
Bystander Cases of NIED
Bystanders can recover if they are closely related to the victim, were present on the scene, and personally observed the incident
