Negligent Torts

Question 1

negligence purpose

Answer 1

ensuring the right level of risk in society and protecting people from the carelessness of others

Question 2

negligence policy goals

Answer 2

• disincentivizing unreasonable behavior (determine)
• keep others safe (protecting people)
• ordering the world so people can move through it reasonably safe

Question 3

elements of negligence

Answer 3

Duty
Breach
Causation
Damages

** all four elements must be satisfied for P to have a negligence claim **

Question 4

duty

Answer 4

D must owe P a duty to act in a certain way

Question 5

Breach

Answer 5

D must breach that duty by failing to act as well as the duty required
- what standard should we recruit (RPS, a departure from RPS, professional?)
- how do we determine if a breach occurred (B</>P*M; neg per se; industry custom; res ipsa)

Question 6

causation

Answer 6

D must have actually and proximately caused the harm to P

Question 7

damages

Answer 7

D must have done legally cognizable harm to P or P’s property

Question 8

the reasonable person standard

Answer 8

its objective and its a construct
- not an avg person
- reasonable person = always acts prudent

does not require any inquiries about the individual
- deviations do exist

a reasonable person (Parrot)
- knows what a reasonable person knows – within the scope of general knowledge
- knows about foreseeable risks in light of the utility of the conduct

Question 9

breaching RPS

Answer 9

if D acted as a reasonable person in the context would have (or with more care), then the defendant has not breached

if D acted with less care than a reasonable person in context would have, then the D has breached

Question 10

learned hand formula (determining breach)

Answer 10

negligent if = burden of prevention (P) < [prob of harm] x [magnitude of harm]

if the burden of prevention by taking an action is less than the probability and magnitude of the harms taking that action would prevent, a person has acted unreasonably and has breached

Question 11

especially dangerous instrumentalities

Answer 11

standard of care never varies because of especially dangerous instrumentalities
- reasonable person standard is a reasonable person under the circumstances

the care which a reasonable person takes is proportional to the danger involved in the circumstances (from Stewart)

ex of especially dangerous instrumentalities: gas, guns, chemicals

Question 12

emergencies and the reasonable person standard

Answer 12

a sudden emergency instruction reduces the standard of care to less than that which a reasonable person with time to deliberate would be charged with – not a standard, its a jury instruction

Question 13

emergency jury instruction

Answer 13

only given (Myhaver)
- party seeking the instruction on their behalf has not been negligent prior to emergency
- emergency came about suddenly and without warning
- reaction to emergency was spontaneous and without time for reflection

Question 14

special knowledge and the reasonable person standard

Answer 14

if a person has special knowledge, skill, or experience that is relevant to the situation at hand, they are held to a standard of care higher than the reasonable person standard

standard of care becomes a person with such superior relevant attributes (Cervelli)

** special knowledge and skill must be relevant to the situation at hand **

experience and credentials are good indicators of special knowledge

Question 15

special knowledge policy rationale

Answer 15

holding people with superior qualities to a higher standard will help make society even safer

Question 16

we do two things in breach

Answer 16

identify the standard (reasonable person)

proving (hand formula)

Question 17

child standard

Answer 17

downward departure from the reasonable person standard

what a reasonable child of like age, experience, maturity, intelligence does
- more subjective standard for children

ex: child with low IQ gets a lower standard than a child with a higer IQ

policy = let’s kids be kids

Question 18

rule of sevens

Answer 18

birth to 7 = child cannot be negligent

7-14 = standard of care = child of like age, intelligence, experience, maturity

14+ = reasonable person standard

Question 19

exceptions to the child standard of care

Answer 19

reverts back to reasonable persons standard if activity involved is:
- adult activity (not our standard)
- inherently dangerous (THIS IS OUR STANDARD)

Question 20

inherently dangerous activities exception

Answer 20

reverts back to reasonable person standard instead of child standard when a child is engaging in an inherently dangerous activity

ex: hunting, skiing

higher the risk/probably of harm, more likely inherently dangerous

policy = protect the public

robinson v. lindsay

Question 21

physical disability

Answer 21

standard = what a reasonable person with that disability would do

Roberts v. Louisana: blind man working the concession stand

Question 22

Roberts v. Lousiana – D is blind, operates a concession stand in the Post office. Leaves to go to the bathroom, walks without cane, bumps into P, causing him to fall and injure hip

Answer 22

RULE = standard of a reasonable person with a physical disability
- determine what a reasonable blind person would do with expert testimony

holding = D is not negligent
reasoning = he acted as reasonably prudent blind person would in situation; relied on facial sense, normal for getting around familiar space in blind community

Question 23

mental disability

Answer 23

standard = reasonable person (with a narrow exception)

the exception: if sudden onset (only first time of onset)/not foreseeable

bruenig v. american family insur

Question 24

bruenig v. american family insurance – P struck by car driven on wrong side of road by Veith, who at time of accident had insane delusion affecting ability to drive. (saw light on car in front of her and followed)

Answer 24

RULE = only get exception to reasonable person standard during the first episode of mental illness if no clue/reason to believe it was going to happen

holding: no exception - pre-existing duty, held to a reasonable person standard

Question 25

professional standard of care

Answer 25

Standard of care for professional is defined by actual or accepted practice within their profession
- not a construct, proven by expert testimony

Evidence of custom and practice, proved by expert testimony, is dispositive in proving the professional standard of care
- “does a reasonable blood bank test blood for AIDS?”

Question 26

policy regarding professional standard of care

Answer 26

Policy in favor of applying PS: worried about hindsight bias for juries

Policy against applying the PS: does not incentivize innovation; removes agency of patient as decision maker (paternalistic)

Question 27

professional standard of care majority

Answer 27

custom standard (THIS IS OUR RULE) majority
- actual or accepted practice within a profession, rather than theories about what ‘should’ have been done (osborn)
- experts used to prove/establish custom and practice in that context

Question 28

professional standard of care minority

Answer 28

reasonable professional (this is NOT OUR RULE)

experts used to demonstrate what a reasonable professional would do in similar circumstances (discussing probability, magnitude, harms, burden)

Question 29

who gets the professional standard?

Answer 29

1. those specified by statute
2. possess special knowledge AND have a relationship with their clients including a fiduciary duty (think about having a contractual duty to an individual like doctors, investors, lawyers)

other things to consider: an obligation to maintain confidences; handling of sensitive or confidential information
- “decision making in conditions of uncertainty”

Professional must have been acting in their capacity as a professional for the standard to apply

Companies in competitive industries are generally not given a professional standard to prevent collusion to that status quo. (Russel)

Question 30

professional standard: informed consent

Answer 30

reasonable patient (OUR STANDARD)
- disclose all risks material to reasonable patient’s decision
- its objective! would a reasonable patient have the procedure anyway?
- policy – patient autonomy
- our RULE (largey v. rothman)

reasonable physician (NOT our standard)
- disclose all info a reasonable doctor would
- policy – docs know best, too much info for patients to get

Question 31

what makes something material?

Answer 31

if it potentially affects the decision to go through with procedure, etc

Question 32

causation for informed consent

Answer 32

P must show the reasonable patient would have decided differently if adequately informed
- if they would have had the procedure anyway –> not cause

failure to inform of material issue has to cause of harm

Question 33

causation of informed consent our jurisdiction

Answer 33

MAJORITY (our rule)
- a reasonable patient would not have had procedure if properly informed
- objective

other jurisdictions - minority
- the actual patient would not have had procedure if properly informed
- subjective

Question 34

toolbox for proving breach

Answer 34

hand formula
violation of statute
industry custom
res ipsa loquitor

Question 35

hand formula

Answer 35

burden of prevention < [magnitude of the harms] x [probability of the harms]

b < pm = breach
b > pm = not likely breach

Question 36

violation of statute (negligence per se)

Answer 36

what is it? martin v. herzog
how it is proven? thomas v. mcdonald

Question 37

when a statute imposes a duty on a person and person fails to perform the duty, he is negligent if both: (violation of statue)

Answer 37

1. harm occurred to someone in the class of people intended to be protected by the statute
2. harm caused was the type of harm the statute was intended to protect against

Question 38

three ways of interpreting violation of statute

Answer 38

1. absolute negligence per se
2. rebuttable presumption
3. some evidence

Question 39

absolute negligence per se

Answer 39

unexcused violation of statute is negligence per se and D is negligent as a matter of law

truck case

Question 40

rebuttable presumption

Answer 40

unexcused violation of statute establishes prima facie case of negligence and D bears burden to show he was not negligent

if D fails to produce evidence he was not negligent, he is negligent as a matter of law

zeni case

Question 41

some evidence

Answer 41

unexcused violation of statute is merely evidence of negligence; no prima facie case established. P gets a ‘little boost’ and may or may not satisfy burden of proof

Question 42

industry custom

Answer 42

what those in the industry actually do

only provides some evidence of breach

customary way of doing things is generally ‘well-known and probably affordable and reliable as well’ TJ hooper

its possible an entire industry may lag in adoption of new and available tech and methods

Internal quality manuals of corporation are some evidence of breach but do NOT become the standard of care (Walmart)

Question 43

Evidence of custom can be very relevant and persuasive; think of it as another tool to use to prove breach (industry custom)

Answer 43

• an industry may never set its own tests for what is reasonable in a given circumstance, but it’s custom may be persuasive
• if new tech is developed and is widely used and accepted, then it is negligent not to use it

Question 44

res ipsa loquitor

Answer 44

establishing a prima facie breach
- Type of injury is usually associated with negligence
- The defendant had exclusive legal or physical control of whatever caused the injury

thing speaks for itself

Using circumstantial evidence as proof of breach (when no direct evidence/don’t know what exact breach is)

Question 45

res ipsa applies if BOTH:

Answer 45

1. the type of injury more likely than not occurs as a result of negligence
   - If greater than 50% likelihood that this is the result of negligence = breach
2. the instrumentality that caused the harm was in the defendant’s exclusive control at the time of negligence
   - Then it’s 100% on defendant that something negligent was the D’s responsibility

Question 46

requirements for causation

Answer 46

1. cause-in-fact
2. proximate cause

Question 47

cause-in-fact

Answer 47

the producing cause

the plaintiff must show the defendant’s negligent act was a cause in fact of the plaintiff’s harm

Question 48

proving cause in fact

Answer 48

1. but-for test
2. alternative to but-for (alternative liability, lost chance, concert of action)

Question 49

but for test

Answer 49

would P have been free from harm but for D’s breach?
- did this breach cause the harm? (be specific about breach)
- remove the breach, would that harm still have happened? if yes, breach is not the but for cause

can be multiple but-for causes

Cay v. Louisiana
Lyons v. Midnight

Question 50

cay v. louisiana

Answer 50

If railing was 36’ instead of 32’, P would likely not have fallen over and died = height of railing is but-for cause
***Gives us but-for

RULE: the plaintiff must show by a preponderance of evidence that the defendant’s action or inaction was a cause in fact of the plaintiff’s injuries

Question 51

lyons v. midnight

Answer 51

Collision would have occurred EVEN IF D had not been speeding, because P pulled car out of lot right in front of him = D’s speeding is not but-for cause
- Gonna happen anyway case

RULE: a negligent defendant cannot be held liable for a plaintiff’s injuries if the defendant’s negligence was not the legal cause of the injuries

Question 52

alternative liability

Answer 52

when two actors acted unreasonably but only ONE caused the harm and defendant does not know who actually caused the harm

Question 53

lost chance

Answer 53

liability for medical malpractice when act took away chance of survival
- ONLY applies when P already had less than a 50% chance of survival

Question 54

concert of action (kinda)

Answer 54

ONLY applies if agreement between actors or tortious act OR a second actor substantially encourages or assists first actor

1. Does a tortious act in concert with the other or pursuant to a common design; or
   - D expressly or impliedly agrees to cooperate in a particular conduct or to accomplish a particular result
2. Knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other
   - five relevant elements

Question 55

5 relevant elements (concert of action)

Answer 55

1. Nature of the wrongful act
2. The kind and amount of the assistance
3. The relation of the defendant and actor
4. Presence or absence of D at the occurrence of the wrongful act
5. D’s state of mind

Question 56

concert of action application steps

Answer 56

1. Full negligence analysis on the primary actor
2. Full negligence analysis on the secondary actor for that actor’s own duty, breach, causation, and damages (determine if this actor can be held liable independently)
3. Negligence analysis on the secondary actor determining whether there was an agreement with or substantial encouragement of the primary actor

Question 57

alternative liability

Answer 57

Applies when multiple actors acted similarly unreasonably but only one or some of them (not all) caused the harm
- P must prove each D breached a duty to him
- burden of proof then switches to the D to provide evidence of who caused the P’s harm
- all D’s are liable if they cannot prove more likely than not which D caused P’s harm

Alternative liability is limited to two Ds in most courts; a minority allow the theory to be applied to three Ds

Policy: don’t want to prevent a P from recovering because they lack knowledge about the cause of injury

Summers v. Tice

Question 58

lost chance

Answer 58

ONLY used in medical malpractice when P’s already less than 50% chance of survival is further reduced

P must prove by preponderance of evidence physician’s negligence (professional standard) caused likelihood of achieving a more favorable outcome to be diminished

Matsuyama case

Policy: incentivize doctors to provide best medical care for patients, even those with small chance of survival (advances in science and tech allow for precise calculations of impacts of medical treatment)

Question 59

lost chance calculating damages

Answer 59

T$ * (CoSP - CoSA) = damages award

T$ = total amount of damages allowable for wrongful death/injury
CoSP = patient’s chance of survival immediately preceding the medical malpractice
CoSA = patient’s chance of survival after the medical malpractice

Question 60

Summers v. Tice

Answer 60

RULE: two independent tortfeasors may be held jointly liable if it is impossible to tell which one caused the plaintiff’s injuries, and the burden of proof will shift to the defendants to either absolve themselves of liability or apportion the damages between them

P standing ahead of Ds when both Ds shot at quail in the direction of P, knowing he was there, and two pellets hit and injured P
- All acted unreasonably, but only ONE actually caused harm
- Ds left to prove own innocence to get out of liability – BOTH LIABLE bc neither proves

Question 61

matsuyama case

Answer 61

doctor’s negligent misdiagnosis killed P with medical condition who had 37.5% chance of survival. Courts said while cancer was 62.5% (more likely than not) the cause of death, the misdiagnosis is 100% (more likely than not) teh cause of the loss of 37.5% chance of survival

RULE: a physician may be liable for damages when his negligence diminishes or destroys a patient’s likelihood of achieving a more favorable medical outcome

Question 62

proximate cause

Answer 62

D’s conduct and P’s harm must have a connection that is reasonably close to justify imposing liability on the defendant

To be proximate cause, D’s conduct must satisfy the policy criteria used by a jurisdiction to determine they should pay for the harm they caused

purpose: Circumscribes liability to only defendants we think SHOULD be held accountable

Question 63

three tests for proximate cause

Answer 63

each jurisdiction selects on these three tests to apply
1. directness - Polemis case
2. substantial factor - American truck leasing case
3. foreseeability - Tieder case

Question 64

directness

Answer 64

whether the Plaintiff’s damage is directly traceable to the defendant’s negligence, rather than the result of independent causes having no connection with the negligent act

Factors evaluated for the directness test are:
- The time between defendant’s conduct and plaintiff’s harm
- The distance/space between defendant’s conduct and plaintiff’s harm
- The intervention of another actor between the defendant’s conduct and plaintiff’s harm
- The mechanism of the plaintiff’s harm

emphasis on natural sequence

the exact harm does not need to be foreseen under Polemis!

Question 65

substantial factor

Answer 65

whether the contribution of a party’s act was relatively important compared with other but-for causes in producing the plaintiff’s harm

Factors evaluated in the substantial factor test:
- The number of other factors which contributed in producing the harm
- Whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm or has created a situation harmless unless acted upon by other forces for which the actor is not responsible
- The lapse of time between the actor’s conduct and the plaintiff’s harm

primary test for proximate cause in PA

Question 66

foreseeability

Answer 66

whether the type of harm inflicted on the P was a reasonably foreseeable consequence of the D’s conduct
- Put yourself in the shoes of the negligent actor at the time of the alleged negligence and consider the salient possibilities (avoid hindsight bias)

Determine whether the type of harm, NOT the mechanism of harm would have been foreseeable
- all about how you cast your net
- P’s want type of harm to be broad, D’s want type of harm to be narrow

Question 67

eggshell skull

Answer 67

a consideration for proximate cause, not a test
- applies in all proximate cause jurisdictions

Imposes liability when pre-existing conditions of the plaintiff are acted upon by the D’s negligence

Actor liable for all harms to P, regardless of whether those harms were foreseeable
- concerned about the extent of the harm (not type)
- D must take P as they find him

Question 68

intervening and superseding causes

Answer 68

applies for all three proximate cause theories

all superseding causes are intervening causes; BUT not all intervening causes are superseding

generally, an intervening act is a superseding act when the act was not foreseeable

Question 69

intervening cause

Answer 69

• 3rd party act that comes after D’s tortious act but before the plaintiff’s injury
• Must be factual cause to plaintiff’s harm and contribute to it
• Does not necessarily prevent liability

Question 70

superseding cause

Answer 70

• An intervening act that prevents the defendant from being liable
• Breaks the chain of proximate cause
• Generally a criminal or intentional act

Question 71

intervening and superseding reminders

Answer 71

• Applies regardless of proximate cause jurisdiction
• Chain remains unbroken when the third party’s act is reasonably foreseeable
• When is conduct unforeseeable? When it is criminal or intentional (generally)
• Suicide is always unforeseeable! Always superseding
• Medical malpractice is always foreseeable

Question 72

directness factors evaluted

Answer 72

is P’s damage directly traceable to D’s negligence?

time,
space/distance,
sequence,
intervention of actor,
mechanism of harm,
foreseeability of harm to P

Question 73

substantial factor evaluated

Answer 73

is D’s act relatively important to causing P’s harm relative to other but-for causes

of contributory factors + the extend of their effect;

whether the conduct has created a series of continuous forces acting up until time of harm; lapse of time

Question 74

foreseeability evaluated

Answer 74

is the general type of harm inflicted on P a reasonably foreseeable consequence of D’s conduct?

Put yourself in the shoes of the negligent actor –> is it foreseeable this act would cause harm to the plaintiff?

Determine whether the type of harm, NOT the mechanism of harm would have been foreseeable

Question 75

duty

Answer 75

legal obligation of an actor for the benefit of an injured person that arises between actor and injured person

people have a duty to exercise reasonable care

generally, there is no duty to act affirmatively or to rescue
- except if you created the risk or if a special relationship exists

Question 76

Duty - Palsgraf

Answer 76

Cardozo (majority) – role of judge
- duty is relational
- duty to the foreseeable plaintiff (Was it foreseeable that some kind of harm would result to the plaintiff as a result of the defendant’s action?)

Andrews (dissent) – role of jury
- Owe a duty to everyone
- foreseeability treated as one of many components of a causation analysis once a defendant’s negligence has been established
- duty to act reasonably under the circumstances to all
- ** current standard **

Question 77

foreseeability and the negligence analysis

Answer 77

Duty
- is there a foreseeable plaintiff?
- circumscribes scope of duty

Breach
- what is the probability (foreseeability) of harm? BPM
- assessing how much care a RP would take

Causation
- was the type of harm foreseeable?
- limits a defendant’s liability

Question 78

act/omission (duty)

Answer 78

generally no duty to act affirmatively or rescue (if you did not create the risk)

if you do not create the risk, you do not need to act

Question 79

special relationship (duty)

Answer 79

when (1) you control the mechanism that creates the risk of harm and (2) a party reasonably relies on your careful control to protect them from harm
- contract relationship is dispositive of reasonable reliance
- ex: innkeeper-guest, landlord-tenant, employer-employee, invitor-invitee

courts balance: social interests, severity of risk, burden on D, likelihood of occurrence, and relationship between parties, foreseeability to P, D’s ability to comply with duty, P’s inability to protect themselves, costs of protection

Question 80

pure emotional harm

Answer 80

Cases where D’s negligence causes P to suffer no physical injury, only emotional injury

D who causes contemporaneous physical harm to a plaintiff will be liable in damages for both that physical harm and any emotional consequences of the harm

Places an artificial limitation on liability
- Must circumscribe somehow, despite number of people that could be hurt
- Court ensures family members, most likely to be hurt, can recover

Question 81

direct emotional harm

Answer 81

for individuals who suffer emotional distress because of D’s negligence (P was in imminent bodily harm)

test: zone of danger

Policy rationale: fear of fraudulent suits, administrability, and judicial resources.
- Zone of danger broadens scope so plaintiffs have better ability to recover for harms

Question 82

zone of danger (Robb case)

Answer 82

1. person must be within the immediate area of physical danger presented by the negligence
   - What harms were foreseeable as the result of the negligence?
   - Could the plaintiff have been harmed physically?
2. person must have a physical manifestation of the emotional harm
   - ex: lost bladder control, fainting, vomiting, PTSD

P still must prove causation and damages, even if pass zone of danger test

Question 83

indirect emotional harm

Answer 83

For individuals who suffer emotional distress because of D’s negligence, rather than being personally in peril themselves
- You need to look at who you are analyzing to determine whether to use indirect or direct emotional harm!

test: modified dillon test (James case)

Question 84

modified dillon test

Answer 84

1. bystander must have marital or intimate familial relationship to victim
   - most crucial factor
   - Specific degree of consanguinity not required, but heavier burden of proving significant attachment the farther apart in consanguinity
2. bystander must have a sensory and contemporaneous observance of the incident
   - Considers nearness in time and space of observer to incident
   - Cannot rush onto scene after incident occurred or find them in hospital
   - Cannot learn of events from others
   - zoom/facetime – unclear if this would suffice
3. victim of physical harm observed must suffer serious injury or death
   - minor injuries trigger sorrow/anxiety, but death/serious injury product profound grief, fright, shock

** physical injury resulting from emotional trauma is NOT required to satisfy dillon test **

Question 85

pure economic harm

Answer 85

Defendant’s negligent conduct has caused P to suffer harms that are entirely economic
- If there is any contemporaneous property damage or personal injury because of the negligence, plaintiffs may recover for personal injury or property damage, as well as the economic harm suffered

foreseeability of the harm does not define duty

Question 86

pure economic harm 532 Madison Ave

Answer 86

courts rationale:
- Avoid driving business to bankruptcy with ruinous liability (preventing any recovery)
- Ensuring people have jobs and economy grows
- Concerns that we won’t have essential businesses
- Should cover such risks with business insurance
- Good policy case!!!!

Question 87

wrongful birth/life

Answer 87

Birth of healthy child → not a legally recognizable injury; contrary to public policy to award damages for birth or rearing of healthy child
- Cannot claim birth and rearing of healthy child resulted in damages to him

Failed sterilization procedure resulting in the birth of healthy child? → can recover for damages for hospital and medical expenses incurred with the sterilization procedures and pregnancy, pain and suffering of pregnancy, and loss of earning by mother during pregnancy

Birth of an unhealthy child? → damages for birth of unhealthy child born as the result of professional negligence shall be limited to damages associated with disease, defect, or handicap suffered by the child

Question 88

special duty rules

Answer 88

unforeseeable plaintiff
- no, to cardozo

pure emotional harm
- impact rule
- zone of danger
- dillon test

pure economic harm
- limited to situations where there is personal injury or property damages

wrongful birth/life
- Birth of normal, healthy child?
- Failed sterilization procedure?
- Birth of unhealthy child?

Question 89

duty summary

Answer 89

1. Plaintiff (Palsgraf) - duty to only foreseeable plaintiff (cardozo) OR duty to all (andrews)
2. act/omission - no duty to act
   - exception: special relationship
   - social host = no duty
3. special duty - emotional/economic/landowner
   - Emotional = zone of danger, modified dillon test
   - Economic = no recovery unless property damage/personal injury
   - Landowner = licensee, invitee, trespasser (criminal, noncriminal, tolerated, attractive nuisance

Question 90

landowner liability approaches

Answer 90

traditional – tripartite system (trespasser, licensee, invitee)
- degree of care designated by status of entrant at the time of injury

modern approach (USE THIS ONE)
- abandons tripartite system
- keeps distinction between trespassers
- abolishes licensee and invitee
- rationale: concerns about differentiating between members of three categories (lines blurry!). Want to take degree of reasonable care towards everyone (except certain kinds of trespassers)

Question 91

trespasser definition

Answer 91

one who enters or remains on the land without permission or consent

Question 92

wantonness

Answer 92

conscious doing of some act or omission of some duty under the knowledge of the existing conditions, conscious that injury will likely result

Question 93

attractive nuisance

Answer 93

liable for harm caused by artificial condition upon the land if (usually kids cases)

(1) the place the condition exists is one upon which possessor knows or should know children are likely to trespass
(2) the condition is one which the possessor knows or should know and realizes or should realize will involve an unreasonable risk of death or serious bodily harm to children
(3) the children, because of their youth, do not realize the risk involved
(4) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved
(5) the possessor fails to exercise reasonable care to eliminate the danger or protect the children

Question 94

discovered/frequent/tolerated

Answer 94

about what occupier of the land knows (not mental state of trespasser when entered land)

Question 95

types of conduct for trespassers

Answer 95

Active conduct: ex: operating a machine
Passive condition: ex: presence of a cliff

Question 96

trespasser with criminal intent (standard of care)

Answer 96

landowner must not intentionally injure

Question 97

trespasser without criminal intent (standard of care)

Answer 97

landowner must refrain from willfully, wantonly, or recklessly injuring them

Question 98

trespassers that are discovered/frequent/tolerated (standard of care)

Answer 98

reasonable care to protect the trespasser from injuries caused either by the landowner’s activities or by artificial conditions on the land
- Higher duty when landowner is engaged in active conduct than the passive conditions

Question 99

trespasser that is a child drawn to attractive nuisance (standard of care)

Answer 99

reasonable care to eliminate known artificial hazards or protect children against them

has to be attractive to a kid

Question 100

licensees

Answer 100

one who enters the land for their individual benefit or convenience with the owner’s consent; a social guest

Traditional standard of care – not to injure by willful, wanton, or grossly negligent conduct
- Must use ordinary care to warn of or make reasonably safe conditions if owners are aware of and licensees are not

Modern standard of care – reasonable care under the circumstances

Question 101

invitees

Answer 101

one who enters land for a public business purpose for the mutual benefit or advantage of the landowner and the entrant

Invitee, rather than licensee, if person and landowner confer a mutual economic benefit on one another

Traditional standard of care – exercise ordinary care to protect from risks owner is aware of or should be aware or after reasonable inspection

Modern standard of care – reasonable care under the circumstances

Question 102

public invitee

Answer 102

person who is invited to enter or remain on land as a member of public for purposes for which the land is held open to the public

Question 103

business visitor

Answer 103

person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land

Question 104

Nelson (landowner liability case)

Answer 104

modern courts have removed the distinction between licensee and invitee.

The duty of care owed by a landowner to a person legally present on their land is to exercise reasonable care under the circumstances

Question 105

types of damages

Answer 105

compensatory
- General (“non-economic” e.g. pain and suffering)
- Specific (“economic” e.g. medical expenses)

punitive
- Meant to punish, provide deterrence
- Typically intentional/reckless cases

nominal
- Token amount signifying D committed a tort

Question 106

damages reminders

Answer 106

Status quo - want to make the plaintiff whole - bring plaintiff to status quo before harm occurred

One shot - only have one chance to establish damages
- You deal with uncertainty at times, so it all depends on the quality of the evidence

Damages are all about proof

Question 107

survival statutes

Answer 107

NOT a new cause of action

Allows P’s estate to sue on his/her behalf as if plaintiff survived and asserted plaintiff’s rights, even though plaintiff is dead

** P’s cannot double recover under wrongful death and survival **

Question 108

wrongful death statutes

Answer 108

NEW cause of action for survivors of victim

Allows people who have suffered losses because of another’s tortiously caused death to recover any kind of pecuniary damages

Permits two types of recoveries:
1. Recovery for injuries sustained from time of injury to death (funeral expenses, medical expenses)
2. Recovery for incidental damages suffered by next of kin (loss of consortium)

Question 109

calculating damages principles

Answer 109

• judges and juries have a lot of discretion
• awards are only disturbed if clear abuse of discretion
• prior awards under similar circumstances
• test = whether present award grossly disproportionate to mass of past awards for truly similar injuries

Question 110

calculating medical expenses

Answer 110

past
- Rule: tortfeasor required to pay medical expenses of victim
- How to prove: P can give evidence of what he spent

future
- Rule: must be necessary and inevitable, burden includes P proving he wants/accepts the tx
- How to prove: put expert doctor on stand

Question 111

calculating lost wages

Answer 111

past
- Rule: need to prove length of time missed from work and past lost earnings and residual disability causally related to accident

future
- Rule: need to prove above + reasonable degree of certainty

Question 112

apportionment and allocation

Answer 112

Remember → we do not get to the point of apportioning fault for a party unless there was a duty that was breached that caused harm!

We only allocate between liable parties

Lacy v. CSX Transportation

Question 113

Lacy v. CSX Transportation

Answer 113

Both defendants were 1% responsible for the harm but because the plaintiff was the sole proximate cause of harm; it is not possible to apportion in this way unless each person was the cause of harm

Question 114

joint and several liability

Answer 114

Each defendant is liable for the entire judgment awarded to the plaintiff regardless of defendant’s percentage of responsibility

Plaintiff will often seek to collect entire judgment from wealthiest defendant

policy; making P whole, ensure P recovers even if one of the D’s cannot pay their share

right of contribution

Question 115

right of contribution

Answer 115

after defendant pays whole judgment to plaintiff, a cause of action arises at moment of overpayment for unjust enrichment against defendants who have not paid

Question 116

contributory negligence

Answer 116

defendant must prove plaintiff had a duty to him/herself, plaintiff breached that duty, and plaintiff’s breach caused him/her to suffer damages

Requires FULL NEGLIGENCE ANALYSIS on the plaintiff

A defense in joint and several liability jurisdiction

If jury finds that the plaintiff is ANY PERCENT contributorily negligent = FULL DEFENSE

Plaintiff cannot recover anything if even 1% liable

Question 117

comparative fault

Answer 117

defendant must prove plaintiff had a duty to him/herself, plaintiff breached that duty, and plaintiff’s breach caused him/her to suffer damages

DEFENSE: modified comparative fault

Question 118

comparative fault categories

Answer 118

traditional contributory fault
- Plaintiff’s negligent conduct is a total bar to recovery if it was one of the legal causes of plaintiff’s injury = NO RECOVERY IF PLAINTIFF IS AT ALL LIABLE
- Negligent defendant(s) shielded from all liability

49% rule (modified comparative fault - OUR JURISDICTION)
- McIntyre case
- Negligent plaintiff recovers damages only if their negligence is LESS THAN that of the defendant or other defendants
- Plaintiff is 49% responsible for own harm = can recover

50% rule
- Negligent plaintiff can recover damages only if their negligence is LESS THAN OR EQUAL TO that of the defendant or defendants
- Plaintiff 50% responsible for own harm = can recover

pure
- Each party liable only for their apportioned responsibility
- If one of the liable defendants cannot pay, plaintiff bears the loss
- If plaintiff is liable, sum of judgment collectible from defendants is total judgment less plaintiff’s contribution

Question 119

more defenses to negligence

Answer 119

Protects defendant from liability for negligence even if plaintiff can establish a prima facie case of negligence against the defendant

contrib neg (J+S) = full defense
modified comparative fault
assumption of the risk = full defense
sovereign immunity = full defense
statute of limitations

Question 120

assumption of the risk

Answer 120

Courts characterize this as venturesomeness (Whereas contrib neg = carelessness)

Can assume risk AND be contributorily negligent (or just one or neither)

Giving up the right to sue a defendant for harms that might be caused in the future by the defendant’s negligence

expressed (written) or implied (inferred from circumstances)

a full defense!

Question 121

express assumption of the risk

Answer 121

Involves a written release where P accepts risks created by activity

Courts are reluctant to allow those charged with a public duty to rid themselves of that obligation by contract (ex: common carrier, innkeeper, public utility)

Odessa/Wagenblast test to determine if written releases should be upheld

Question 122

Odessa/Wagenblast test

Answer 122

1. Does public policy permit releases in connection with this activity?
   if yes, go to step 2. if no, release = invalid
2. If public policy permits assumption of the risk, does the actual release furnished to the plaintiff merit enforcement
   if yes, release is valid. if no, release = invalid

** necessity and monopoly are two most important factors **

• Releases signed under conditions not providing the plaintiff with an informed voluntary choice or that contain oppressive terms are unenforceable
• Releases typically construed by courts in favor of plaintiff

Question 123

odessa/wagenblast step 1 factors

Answer 123

(1) agreement concerns an endeavor generally suitable for public regulation
(2) performing a service of great public importance, often a matter of practical necessity for some of public
(3) willing to perform service for general public, or any member within established standard
(4) decisive advantage in bargaining strength against public because of the essential nature of the service
(5) standardized adhesion contract with no provision to pay reasonable fees for protection
(6) person/property is under the control of the furnisher of services, subject to carelessness of the furnisher

Question 124

implied assumption of the risk

Answer 124

inferred by the circumstances when no contract is present

two part test
1. P must have actual knowledge of the particular risk
2. P must voluntarily encounter the risk

*** be precise about the risk
- what risk does P actually know exists? did he voluntarily encounter it?