Negligent Crimes Flashcards
Negligence Elements
When one has:
- a legal duty
- breaches that duty
- the breach causes the Ps harm (both actual and proximate causation)
- damages
Duty
An obligation, recognized by law, requiring the D to conform to a certain standard of conduct for the protection of others against unreasonable risk.
Duty: Duty to Rescue?
The traditional rule is that there is no affirmative duty to take action to aid or protect a P at risk of injury unless the D is responsible for putting the P in position of peril (modern majority approach doesn’t care whether Ds action is tortious).
Duty: Continuing Risk of Harm
When a Ds prior conduct, whether tortious or not, creates a continuing risk of harm of a type characteristic to the conduct, the D has a duty to exercise reasonable care to prevent or minimize the harm.
Duty: Duties Based on Undertaking
When a Ds gratuitously or for compensation undertakes to render services to P and knows or should know that the services will reduce the risk of physical harm to the P, the D has a duty of reasonable care if:
- the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking or
- the person to whom the services are rendered or another relies on the actor’s exercising reasonable care in the undertaking
Duty: Duties Based on Undertaking (Reliance Req.)
- CL –> varied as to whether a promise alone was sufficient to impose a duty on the D
- Modern approach –> imposes a duty when the plaintiff relies on the promised undertaking to their detriment
Duty: Good Samaritan Statutes
Limit the liability of rescuers who provide emergency aid.
Duty: Omissions
A negligent omission occurs when the D fails to do something that a reasonable person would have done (e.g. stopping at a stop sign).
Duty: Duty to Control Third Parties
Generally, there is no duty to control third parties to prevent them from harming another unless:
- A special relationship exists between the D and the third party that imposes a duty upon the D
- A special relationship exists between the D and the P that gives the P a right of protection.
Duty: Special Relationship
A person in a special relationship with another has an affirmative duty of reasonable care to the other with regard to risks arising within the scope of that relationship. This often the case when a D has a position of power over the P.
Types of Special Relationships that Create a Duty to Act
Include:
- Employer-employee during and in the scope of employment
- Common carrier and innkeeper customer
- School-pupil
- Parent-child
- Landlord-tenant
- Business-patron
- Custodial relationships (e.g. jailer-prisoner)
Duty: Duty to Control Third Parties (Parents)
A parent is under a duty to exercise reasonable care to control his minor child so as to prevent the child from intentionally harming others or creating an unreasonable risk of bodily harm if:
- the parent knows or has reason to know that he has the ability to control his child; and
- knows or should know of the necessity and opportunity for exercising such control.
Duty: Duty to Control Third Party (Employer)
An employer is under a duty to exercise reasonable care to control is employee while acting outside scope of employment to prevent employee from intentionally harming others or creating unreasonable risk of bodily harm if:
- the employee is on employer’s premises or is using employer’s chattel; and
- the employer knows or has reason to know that he has the ability to control his servant and knows or should know of the necessity and opportunity for exercising such control.
Duty: Providers of Alcohol
Generally, a purveyor is not responsible for DUI injuries (but watch out for Dram Shop Acts).
Dram Shop Acts
Impose liability on establishments when they know or should know a patron is drunk and that person drives while intoxicated and harms a third party. These acts usually apply to sellers with a liquor license rather than social hosts.
Negligent Hiring
An employer has a duty to society to exercise reasonable care in hiring employees. Therefore, a defendant may be liable to a P if an employee subsequently injures the plaintiff.
Negligent Infliction of Emotional Distress (NIED)
When a D engages in negligent conduct and, as a result, P suffers emotional distress that has some sort of physical manifestation. Rarely given.
NIED: Zone of Danger Requirement
Req. that P be in zone of danger, the area in which there is a risk of being physically injured, to recover for NIED.
NIED: Physical Manifestation Req.
Req. that P has suffered some accompanying physical manifestation of the emotional distress.
NIED: Exceptions to Zone of Danger and Physical Manifestation Req.
- When the D negligently communicates the announcement of the death of a loved one; and
- if the D negligently mishandles a corpse
- rationale is that negligence in these activities creates an increased likelihood that Ps will suffer severe emotional distress
NIED: Bystander Theory
When a P sued for his emotional distress as a result of an injury to a loved one. Premised on Ds violation of duty not to negligently cause emotional distress to people who observe the conduct which causes harm to another.
NIED: Elements for Bystander Theory
When a bystander:
- Was located near the scene of an accident.
- Suffered a severe emotional distress (“shock”) resulting from the sensory and contemporaneous observance of the accident; and
- Had a close relationship with the victim
Duties of Government (Functions)
Whether a gov entity owes a duty depends on the function. Types of functions include:
- proprietary function
- discretionary activity
- ministerial function
- public duty doctrine
Proprietary Function
When government is acting in a private area. Treated as any other D for duty analysis.
Discretionary Activity
When gov official uses judgment and allocating resources such as establishing a policy. Courts will not find a duty.
Ministerial Function
Duty once government has undertaken to act (e.g. stop sign installed incorrectly leading to accident).
Public Duty Doctrine
Courts find no duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, except when:
- there is a special relationship between P and the agency; or
- the agency has increased the danger beyond what would otherwise exist
Land Possessor Liability
Liability depends on:
- the categories of danger (activities, artificial conditions, natural conditions)
- the visitor’s status (invitee, licensee, trespasser)
Invitee
A person who enters onto the Ds land at the Ds express or implied invitation, and who enters for a purpose relating to the Ds interests or activities. Includes business and public invitees.
Business Invitee
An invitee who enters onto the Ds land for a purpose related to the defendant’s business activities or interests.
Public Invitee
A member of the public who enters onto the Ds land for a purpose as to which the land is held open to the public.
Invitees: Scope of Invitation
An invitee may be regarded as a licensee or even as a trespasser if the invitee enters areas of the defendant’s property to which his invitation does not extend, or if the invitee stays in a permitted area longer than was contemplated by invitation.
Land Possessor’s Duty to Invitees
- A land possessor has a duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on his land.
- A land possessor has a duty to exercise reasonable care to discover dangerous artificial and natural conditions that invitees would not reasonable be aware of, and warn invitees of the condition or correct the conditions.
Licensee
A person who enters onto the Ds land with the Ds express or implied permission, and who does not enter for a purpose benefiting the D or the Ds activities (social guests).
Land Possessor’s Duty to Licensees
- A land possessor has a duty to exercise reasonable care to protect licensees from injury arising from activities conducted by the land possessor or on the land possessor’s behalf.
- A land possessor also has a duty to exercise reasonable care to warn of any artificial or natural conditions of which he is aware, which present an unreasonable danger, and of which the plaintiff-licensee is unaware (land possessor does not have to inspect the property for dangerous conditions).
Trespasser
Has four categories:
- Known
- Unknown
- Frequent
- Children
Known Trespasser
When a D becomes aware that a particular P has trespassed on property or becomes aware of facts from which he should reasonably conclude that a plaintiff has trespassed.
Land Possessor’s Duty to Known Trespassers (Activities)
Most jurisdictions impose a duty of reasonable care to protect a known trespasser from injuries deriving from activities conducted on land.
Land Possessor’s Duty to Known Trespassers (Artificial Conditions)
A land possessor will be liable to a known trespasser for failing to exercise reasonable care in warning them of an artificial condition maintained on the premises by the D if:
- the possessor knows or has reason to know of their presence in dangerous proximity to the condition; and
- the condition is of such a nature that the defendant has reason to believe that the trespasser will not discover it or realize the risk involved
Land Possessor’s Duty to Known Trespassers (Natural Conditions)
The land possessor has no duty
Land Possessor’s Duty to Unknown Trespassers
A land possessor has no duty of care as to a trespasser whose presence is unknown to him. The land possessor has no duty to inspect his land to attempt to discover unknown trespassers.
Frequent Trespasser
Individuals who a land possessor knows or reasonably should know frequently enter upon a portion of land.
Land Possessor’s Duty to Frequent Trespassers
Frequent trespassers are owed the same duty of care owed to known trespassers.
Land Possessor’s Duty to Child Trespassers (Activities and Natural Conditions)
The duty to child trespassers are the same as that for the applicable category (known or unknown) of adult trespassers.
Land Possessor’s Duty to Child Trespassers (Attractive Nuisance Doctrine)
A heightened standard of care may apply as to artificial conditions on Ds land. Even though the child is trespassing, the child is treated as an invitee if certain factors are met.
Five Factors For the Heightened Standard of Care to Child Trespassers for Artificial Conditions
Include:
- whether child is too young to appreciate the danger
- whether the D knows or has reason to know, of the trespass
- whether D knows of the dangerous condition
- whether the condition is artificial; and
- whether the risk of danger of the artificial condition outweighs its utility and burden to fix it
Privileged Entrants
Entrants to property without an express or implied permission or invitation but are privileged by law to enter onto the land (e.g. firefighters). Can be licensees or invitees.
When Privileged Entrants are Invitees
If the public purpose for which the privileged entrant was acting has a connection with the Ds activities conducted on the premises, the privileged entrant is regarded as an invitee for standard of care purposes.
Land Possessor’s Duty to Individuals Adjacent to Land (Activities)
A land possessor must exercise reasonable care to prevent a P adjacent to his land from an injury deriving from the land possessor’s activities or the activities of others conducted on his land.
Land Possessor’s Duty to Individuals Adjacent to Land (Artificial Conditions)
A land possessor must exercise reasonable care to prevent a P not on his land from an injury deriving from unreasonably dangerous artificial conditions that abut or protrude onto adjacent land.
Jurisdictions that Do Not Look at Visitor Status
A substantial number of jurisdictions have eliminated the distinctions between various classes of persons entering the land, and simply hold the landowner to a “reasonable under the circumstances” test.
General Duty of Care: Reasonable Care
In general, a D breaches a duty to a P if he fails to conduct himself as a reasonable person would in the same circumstances.
Does Physical Disability Affect Reasonable Care?
Yes, if there are physical conditions (blind, deaf, amputee). A D will be held to the standard of a reasonable person with that condition.
Reasonable Care: Specialized Knowledge/Experience
Can taken into account for a reasonable person standard (e.g. how a reasonable person would act with one’s skiing experience)
Reasonable Care: Emergencies
Emergencies not of D’s own making can be considered by jury to determine if D acted reasonably under the circumstances.
Reasonable Care: Children (Majority Rule)
- Majority rule –> a minor Ds conduct is assessed according to what a reasonable child of the same age, education, intelligence, and experience would have done unless:
- they engage in an inherently dangerous activity for adults (e.g. driving)
Reasonable Care: Children (Minority Rule)
- Minority rule –> a minority of states follow the traditional rule, which divides minors into three age levels
- 6 and below –> D is incapable fo being negligent
- 7 to 13 –> rebuttable presumption that D is not negligent
- 14 and up –> rebuttable presumption that defendant is capable of being negligent
- Children engaging in adult activities are required to conform to an adult standard of care.
Statutory Duties
A statute that provides for civil liability supersedes the CL of torts
Statutory Violations: Majority Rule (Negligence per se)
In a majority of jurisdictions, an unexcused violation of a statute conclusively establishes that the D breached his duty to the P.
Requirements for the Negligence per se Rule
Three conditions must be met:
- The injury caused by the Ds conduct is the type that the statute was intended to prevent
- The plaintiff is a member of the class intended to be protected by the statute; and
- The Ds violation of the statute is not excused (when compliance would have been impossible or resulted in greater harm)
Statutory Violations: Minority Rule
A minority of jurisdictions regard a violation of a statute as creating a rebuttable presumption or as prima facie evidence that the Ds conduct breached the duty of care owed to P.
Heightened Standards of Care
Heightened standards of care can apply to:
- Common carriers
- Innkeepers
- Public utilities
- Professionals (doctors, lawyers, accountants)
Professional Standard of Care
The customary practice of professionals in good standing sets the standard of care. If the D deviates from that custom, there is a breach.
Medical Malpractice
Physicians are required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community.
- specialists –> national standard
- general practitioners –> locality standard
Breach of Duty
The P generally meets this burden by establishing that the Ds conduct failed to conform to the applicable standard of care.
Breach of Reasonable Person Standard (Hand Formula)
Looks at:
- The probability of harm occurring from a Ds conduct
- the magnitude of the potential harm
- the burden it would have been for D to avoid the harm
Res Ipsa Loquitur
Doctrine that allows the P to prove that a D was negligent when it is unclear what the Ds conduct was. Translates to the thing that speaks for itself.
Res Ipsa Loquitur: Elements
Elements:
- The event that caused the plaintiff’s injury was one which would not ordinarily occur in the absence of negligence; and
- D is probably the responsible party because D had control over the instrumentality of the harm (P does not have to prove this was sole cause); and
- The P did not contribute to the injury
Res Ipsa Loquitur: Ps Actions
A P must demonstrate that he did not set in motion the forces that resulted in his injury. However, it is immaterial that the P placed himself in a situation of peril or that he did not take precautions to avoid injury.
What Happens if Res Ipsa Loquitur Applies?
Then the breach element is satisfied. P must still prove the remaining elements of the breach.
Cause-in-Fact (Actual Causation)
Relevant concepts include:
- But-For Causation
- Substantial Factor Test
- Alternative Liability Theory
- Loss of Chance
- Market Share Liability
But-For Causation
A Ds conduct was the cause-in-fact of an event if that event would not have occurred but for the existence of the conduct.
Loss of Chance
Typically applied for medical malpractice situations (minority rule). P must show but for the medical malpractice, P would not have lost chance/died. The majority of courts now reduce damages based on one’s actual chance of survival but does not bar Ps claim (E.g. if P had a 40% chance of surviving, damages will be reduced 60%).
Substantial Factor Test
- A Ds conduct is also the cause-in-fact of a Ps injury if that conduct:
- was a substantial factor in bringing about the injury; and
- there is no rule of law relieving the actor from liability because of the manner in which his or her negligence has resulted in the harm.
- the test does not require that an actor’s conduct be a possible sole cause of the harm.
Alternative Liability Theory
Where a Ps injury arises from the negligent conduct of two or more independently Ds, only one of whom can actually be responsible, and the plaintiff is unable to establish which D is responsible, each Ds conduct is regarded as cause-in-fact unless D can prove that he did not cause the injury.
Requirements for Alternative Liability Theory
- All Ds are tortious/negligent
- All Ds are being sued together (can’t use if one D is left out); and
- Small number of Ds
Market Share Liability
When P is damaged by a generic product and cannot show which of a large group of negligent Ds was responsible for manufacturing the product that caused harm, P can sue any D for their share of the market.
-The burden will be on the D to prove that it could not have made the product that harmed the P.
Joint and Several Liability Theory
Where there are multiple negligent parties, each of whom contributes to the Ps indivisible harm.
Proximate (Legal) Causation
The harm must be a foreseeable result of the Ds negligent conduct.
Proximate Causation: Eggshell Plaintiff Rule
A D is liable for the full consequences of a Ps injury, even though, due to the Ps peculiar susceptibility to harm, those consequences were more severe than they would have been in a normal person.
Proximate Causation; Foreseeable Intervening Forces
As a general rule, Ds will be held liable for harm caused by foreseeable intervening forces. Examples include:
- Ordinary negligence of rescuers
- Ordinary negligence of Ps treating physician or nurse
- Diseases or subsequent injuries acquired because of impairment of Ps health resulting from original injury caused by Ds tortious conduct
- When an original injury was a substantial factor in causing the second accident.
Proximate Causation: Unforeseeable Intervening Acts (Superseding Causes)
Break the chain of causation and relieve the D of liability. Superseding causes include:
- Naturally occurring phenomena
- Criminal acts of third persons
- Intentional torts of third persons
- Extraordinary forms of negligent conduct
Rescuer Liability
A negligent D owes an independent duty of care to a rescuer even where the rescue efforts are done negligently (but are not wanton).
Damages: Actual Damages
A P must affirmatively prove actual damages to have a negligence claim.
Are Nominal Damages Available for Negligence?
No.
Compensatory Damages
Damages that return P to pre-injury position. Can include specific or general damages. Requires:
- type of damage that is foreseeable
- must be reasonably certain (not speculative); and
- not avoidable
Special Damages
Include pecuniary damages:
- medical costs
- lost wages
- costs of repair
- One can recover for past, present, and future damages, however, future damages will be reduced to present value.
General Damages
Intangible damages such as:
-pain and suffering.
Damages: Mitigation
The P has a duty to mitigate damages
Damages: Collateral Source Rule
Says that collateral benefits (payments from other sources other than the D (e.g. insurer) are not subtracted from the Ps recovery for certain cases.
Benefits that Fall Under the Collateral Source Rule
Include:
- Insurance policies, whether maintained by the P or a third party
- Employment benefits
- Gratuities, including cash gratuities and the rendering of services; and
- Social legislative benefits
Damages: Previous Payments Made By a Tortfeasor
A tortfeasor’s previous payments or a person acting for him are credited against the Ds tort liability.
Punitive/Exemplary Damages
Punitive damages are only available for willful, wanton, or malicious conduct. They are usually not allowed in negligence actions.
Defenses to Negligence
Include:
- Contributory negligence
- Comparative negligence
- Assumption of risk
Contributory Negligence
At CL, a plaintiff’s own negligence barred the plaintiff’s recovery, regardless of the amount of fault. Is generally inapplicable to intentional torts or SL cases. Has essentially fallen out of favor almost everywhere.
Contributory Negligence: Last Clear Chance Doctrine
After the P has engaged in contributory negligence, if injury to the P could still have been avoided through a subsequent exercise of due care by the D, then the D is said to have had the last clear chance to avoid harm, and the Ps contributory fault will not bar recovery.
-keep in mind that this doctrine only applies in a jurisdiction that has adopted contributory negligence.
Comparative Negligence
Where a plaintiff’s negligence has contributed to his own injuries, the total damages caused by D may be apportioned based upon a determination of fault to each party. Includes pure comparative negligence systems and partial comparative negligence systems.
Pure Comparative Negligence
Jurisdictions apply an apportionment of damages that tracks apportionment of fault perfectly. If P is 75% responsible, P recovers 25% of damages from the D.
Modified Comparative Negligence
Jurisdictions apportion damages only if the Ds responsibility exceeds the Ps responsibility. P is denied any recover if he is responsible for 50% or more of his own damages. (E.g. if P is 40% at fault, he can proceed with claim and claim 60% of the damages).
Assumption of Risk
A P assumes the risk of injury from a Ds negligence if the P expressly or impliedly consents to undergo the risk created by the Ds conduct.
Express Assumption of Risk
A P may expressly assume the risk of a Ds negligent or reckless conduct by contract or otherwise. Agreement can be general (relieving D of all liability) or specific (limited to risks specified in agreement).
Implied Assumption of Risk
Present when:
- The P had knowledge of and appreciated the nature of the danger involved (subj. standard)
- The P appreciated the specific danger that injured him
- The P voluntarily chose to subject himself to that danger
Requirements for Express Assumption of Risk
- The plaintiff must be aware of and understand the terms
- The injury that occurs must be within the risks of which the plaintiff agreed to relieve the defendant
- The agreement must not be contrary to public policy
Firefighter Rule
- Where a P is a professional rescuer and is injured due to an inherent risk of that job, P cannot recover in negligence against he person who created the need for rescue (does not apply to good samaritans).
- Does not apply to risks outside of the job (e.g. being rear-ended)
Assumption of Risk: Necessities
Assumption of risk is not allowed for necessities, for example, if a LL rents an apartment or a hospital provides care.
