Prima Facie Negligence

Question 1

Prima Facie Negligence overview

Answer 1

1. Does Δ owe a legal duty to π (yes or no)? If there is a duty, then what is the standard of care?
2. Did Δ breach?
3. Did π suffer a legally cognizable harm?
4. Was the Δ’s breach the cause in fact of π’s legally cognizable harm?
5. Does the LCH fall within the scope of Δ’s negligence?

Question 2

Assume D owes a duty unless the following no duty exceptions apply:

Answer 2

1. Involuntarily hospitalized patient owes no duty to their caregiver.
2. Landlords (lessors) owe no duty to trespassers; and in some jurx no duty to tenant or tenant’s guests unless exception applies.
3. Failure to Act/No Duty Rule/Nonfeasance (Δ owes no duty to π and so cannot be liable)
4. No Duty to protect from 3rd Persons

Question 3

What does the No Duty Rule mean?

Answer 3

Δ did not create or increase the risk of harm, but check for exceptions

Exceptions listed elsewhere.

Question 4

What are exceptions to the No Duty Rule?

Answer 4

1. Δ knows or should know that their conduct caused some prior harm to π; or
2. Statute imposes a duty; or
3. Δ takes charge of assisting or caring for π; or
4. While Δ and π are in a special relationship
5. Δ has made certain promises

Promises will be obvious on exam.

Question 5

No Duty Rule Exceptions
Special Relationships

Answer 5

1. Land possessors – all entrants
2. Lessor – tenant and their guests only
3. School – students at school or engaged in school activities
4. Custodian – wards
5. Employee – employers while at work
6. Common-carrier – passengers
7. Innkeeper – guest
8. Courts can add to this list

Question 6

What is the rule where there is No Duty to Protect from 3rd Persons

Answer 6

Δ owes no duty to π respecting acts of 3rd persons regardless of whether the Δ’s conduct creates or increases a risk of harm
* There are exceptions

Question 7

Exceptions to the No Duty to Protect from 3rd Persons

Answer 7

1. Statute imposes a duty
2. Special relationships between:
   - (a) Δ and π (as in Failure to Act),
   - (b) Δ and the 3rd Person (second Δ)
   - Employer – employee w facilitation
   - Custodian – ward
   - Parent – dependent, minor child
   - Mental health professional – patient
3. Δ made certain promises
4. Commercial vendors of alcohol for on-premises consumption where patron was noticeably intoxicated

Question 8

If there is a duty, what is the standard of care?

Answer 8

Default: Reasonable person under similar circumstances

Question 9

What are the exceptions to the default Standards of care

non-exhaustive list

Answer 9

• Kid standard
• Physical infirmity standard
• Medmal
• Common carriers - higher standard of care
• Land possessors
• Lessors
• Negligence Per Se

Question 10

Minor = Kid Standard of Care, Unless:

Answer 10

Reasonable person of same age, maturity, intelligence, and life experience as X.
* Minor
* Activity characteristically undertaken by adults and
* Distinctly dangerous

Question 11

Physical Infirmity Standard of Care

Answer 11

Reasonable person with same physical infirmity.

Question 12

MedMal Standard of Care

Answer 12

Standard is set by national customs in field, which usually requires expert testimony

bc custom sets the standard in medmal case (which may require testimony), it is an issue for the jury.

No B<P(L) analysis.

In extreme cases that the custom has fallen behind, the judge may use B<P(L).
Don’t need expert testimony when it is so obvious

Question 13

What is Informed consent regarding MedMal

Answer 13

1. Δ failed to disclose “required info”, with that information being set by either the:
   -Patient’s rule (materiality)
   -Physician’s rule (professional standard)
2. π suffered an LCH
3. resulting from the risks from which the π was not informed
4. π would have rejected the proposed treatment if she had known of the risk AND
5. A reasonable patient if properly informed would have also rejected the proposed treatment

Question 14

What is the Patient’s rule under Informed Consent

Answer 14

There were significant risks that the doctor actually knew or should have known about AND
The risks were material, a (reasonable patient would have wanted to know about it before the procedure

Question 15

What is the Physician’s Rule under Informed Consent

Answer 15

Physicians must disclose to his patient only such information as is customarily disclosed in similar cirumstances (need expert testimony)

Question 16

What is the traditional premises liability rule for Land Possessor Standard of Care

Answer 16

(1) Traditional premises liability rules:
-If invitee, then reasonable care.
-If trespasser or licensee, then recklessness standard, unless:
- Entrant is discovered (Reasonable standard of Care)
- Entrants are frequent (Reasonable standard of care)
- Trespasser is a child and attractive nuisance applies:

(2) Rejecting the Status Approach and Using Reasonable Standard of Care:
- For all persons regardless of entrant status OR
- For all persons regardless of entrant status except trespassers.

Question 17

What are the Two types of Invitees under Land Possessors Standard of Care

Answer 17

1. Business Invitee – on premises for economic benefit of land possessor. Ex: Customers.
2. Public Invitee – Narrow. Churches, when ppl visit the church, treat as public invitee

Question 18

What are the exceptions to the recklessness standard of care for trespasser and licensees

RE: Traditional premises liability standard for land possessors

Answer 18

1. Entrant is discovered (Reasonable standard of Care)
   Trespasser/Licensee: Δ knows or should have known that π was on the property. Δ knew or should have known that π was at risk of harm.
2. Entrants are frequent (Reasonable standard of care)
   Trespasser/Licensee: Know of frequent trespassers and know that there is a risk of harm. (Actual Knowledge)
3. Trespasser is a child and attractive nuisance applies:
   a. Artificial condition
   b. Tender years (pre-teen)
   c. Nuisance was Attractive
   d. Kid wouldn’t realize danger

Question 19

What is the recklessness standard:

Answer 19

A reduced standard of care:
1. High P(L) (but actually just huge difference between the B and P(L))
2. Requires Δ has actual knowledge/conscious disregard of that High P(L) (high risk).

Question 20

Lessor (Landlord) Duties/Standard of Care

Answer 20

1. Traditional Rule:
   a. Lessors owe no duty at all to their own tenants and the tenant’s guests (and thus no duty to trespassers either). A lessor is treated as having nothing to do with the premises.
   b. There are exceptions which create a duty of reasonable care to tenant and their guests
2. Discarding Traditional Rule and its Exceptions: Lessor owes a duty of care to its tenants and the tenant’s guests.

Question 21

What are the Exceptions that create a reasonable care duty from LL to tenant & their guests

RE: Lessor/Landlord Duties/Standard of Care

Answer 21

• If LL was contracted to fix the defects, and the LL learns of the defects.
• If the LL knows the defect at the time of the possession and the tenant does not know or wouldn’t know of the defect
• If the premises are specifically leased for public use
• Premises are retained and in the LL’s control
• If LL repairs something on the premises and regardless of whether there is a contract requiring it

Question 22

What is the test to determine if π is entitled to a negligence per se instruction?

Answer 22

1. Does the statute fail to provide for private civil cause of action?
2. Does it set forth a specific and particular rule of conduct?
3. Is the statute designed to protect against the type of accident/harm?
4. Is the statute designed to protect a class of persons to which the victim belongs?

Courts typically dont apply NPS to kids where kids would typically get kid standard of care. kid should be able to do kid things. If the kid is doing an adult activity, then adult standard of care.

Question 23

What is Breach

Determined by fact finder

Answer 23

Standards based on reasonable care or recklessness. Use B < P(L)
- B (Burden of Untaken precaution/Should have Done)
- P (Probability of Harm occurring)
- L (Severity of Potential Harm, by reasonable person standard)

Def’s actual knowledge and skills can influence B, P and L.

Question 24

What is Res Ipsa Loquitur

Answer 24

A form of circumstantial evidence. When you can’t prove underlying conduct happened, how can you prove B<P(L)?
1. Accident – that doesn’t ordinarily doesn’t happen without negligence
2. Inferring Δ is more likely than not negligent (B/c other possible causes of the accident have been sufficiently eliminated)
3. P couldn’t feasibly investigate specific evidence of negligent conduct.
4. Can’t use But For test with RIL b/c no B (should have done).

we have already essentially determined there was causation, since we have already shown that it was defendant. it is implicit.

Question 25

What is the Standard of Breach for Medmal

Answer 25

Did the dr/physician person do x or not?

Where x is set forth by custom or standard.

Question 26

What is the analysis for Breach in a Negligence Per Se claim

Answer 26

1. Has Δ violated the statute?
2. Is Δ entitled to an excuse instruction? (judge decides)
3. Is Δ’s violation of the statute excused?

Question 27

What is the Superior Knowledge Standard

Answer 27

A reasonable person would be expected to use whatever superior knowledge and skills they actually possess.

Question 28

What is a Legally Cognizable Harm
(default understanding and special standards)

Answer 28

Default: Requires actual physical injury to person or property
Special Standards:
a. Loss of chance for a better outcome (med mal only):
b. Emotional Distress (see NIED)
c. Loss of consortium: derivative claim by spouse for loss of support or services (love, companionship, affection, society, sex relations) (does not apply to death)

Question 29

What are other LCH’s

Answer 29

Survival Statute
Wrongful Death

Question 30

What is a Survival Statute

Answer 30

Allows the estate of the deceased to step into the shoes to continue the claim for the party. Applies to D and P.

Question 31

What is the general principle for Wrongful Death

Answer 31

Plaintiff’s death must be caused by Def’s negligence

Question 32

What is the majority approach to wrongful death claim?

Answer 32

Wrongful death claims are derivative of other claims.
This implies that affirmative defenses that negate or trump the derivative claims would affect the Wrongful death claims, too.

(would have to tell us about WD statutes on exam)

Question 33

Questions to answer if Wrongful Death comes up

Answer 33

Who are the beneficiaries (based on statute)
What LCH’s work? (like loss of consortium, pain and suffering, etc)

Question 34

What is the analysis for Cause in Fact

Was the Δ’s breach the CIF of plaintiff’s legally cognizable harm?

Answer 34

1. Start with “But For” Test. “But for” Δ’s breach, π would not have suffered the LCH.
   a. If Δ did B (should have done), then π would not have suffered the LCH.
   b. There may be multiple interdependent “but for” causes

In the exam, do the But for Test. If it doesn’t work, you can only use substantial factor test if there are multiple independently sufficient causes.

Question 35

When do you use the substantial factor test

Answer 35

The π may instead show that the Δ’s breach was a substantial factor in causing π’s harm
a. Do the “but for” test for all the Δ’s causes, and if the only reason it fails is if there are multiple independently sufficient causes, then there is causation.
b. Don’t use the substantial factor test for everything.

Question 36

What are the elements to Scope of Risk/Proximate Cause

Answer 36

1. The LCH suffered must fall within the scope of Δ’s negligence.
   a. Could a reasonable person would have foreseen harm like LCH?
2. The π falls within scope of Δ’s negligence .
3. Manner of Occurrence of LCH doesn’t have to be foreseeable:
   a. Some aspects how of the LCH happened must be foreseeable.
   b. Intervening force can fall within scope of risk that Δ imposed if the intervening act was also foreseeable

Liability for negligence is liability for the unreasonable risk the Δ created, not for reasonable or unforeseeable risks.

Question 37

Overview of Affirmative Defenses to Negligence

Δ has Burden to allege, produce and persuade. Successfully arguing an affirmative defense usually absolves Δ of liability.

Answer 37

1. Contributory/ Comparative Negligence
2. Express Assumption of Risk
3. Implied Assumption of Risk
4. Statute of Limitations
5. Statutes of Repose

Question 38

What are Contributory and Comparative Negligence

Answer 38

Affirmative defenses that makes P liable to an extent.
Cont and Comp are essentially the same things, but just different outcomes.

Questions to ask for both:
- Is π’s claim barred against Δ?
- What is the max π can recover if not barred
- From whom can π recover?

For a Δ to prove contributory/comparative negligence, need to prove Duty, Breach, LCH, CIF and SOR.

Question 39

What is traditional Contributory Negligence

Answer 39

All or nothing. This is a true affirmative defense as it completely absolves Δ of liability.

Question 40

What are the two types of comparative Negligence

Answer 40

1. Pure comparative negligence
2. Modified Comparative Negligence

Question 41

Pure comparative Negligence

Answer 41

When Δ is negligent, π is negligent, and we know π’s damages, jury can assign percentage of responsibility for Δ and π.

π still wins. The amount of damages recoverable are diminished proportionally.

Question 42

Modified Comparative Negligence

Answer 42

1. If π’s percentage of fault > Δ’s percentage of fault, then π’s claim is barred.
2. If π’s percentage of fault => Δ’s percentage of fault, then π’s claim is barred.
3. Will need to know if the fault of Δs is aggregated

Question 43

What are the two types of Assumption of Risk

Answer 43

1. Express Assumption of Risk
2. Implied Assumption of Risk

Question 44

What is Express Assumption of Risk

Answer 44

P expressly assumed the risk.
Survives as a separate and complete defense Unless
1. contract is void as a matter of public policy. (Tunkle Factors):
a. The business is of a type that is generally thought suitable for public regulation OR
b. Δ’s service is important to public or a practical necessity OR
c. Δ performs the service generally for the public OR
d. The need for the service/economic setting gives Δ more bargaining power.
Other public policy reasons
2. Outside the scope of the release

Question 45

Traditional aka Secondary Implied Assumption of Risk

Answer 45

1. Elements:
   a. π knows and
   b. understands risk and
   c. voluntarily incurs it.
2. This Survives as a separate complete defense in traditional contributory negligence jurx:
3. Does not survive as a separate complete defense in comparative negligence jurx.

Question 46

What is ‘Primary Implied Assumption of Risk’

Answer 46

The P impliedly assumes those risks that are inherent in a particular activity.

(so, Def owes no duty to p for risks that are inherent to a particular activity.)

This is a No Duty Rule that Judges just make up.

Question 47

What are the general principles of Statute of Limitations (SOL)

Answer 47

1. True/Pure Accrual Rule
2. Discovery Rule (Pro π):
3. Tolling
4. Equitable Estoppel

Question 48

What is true accrual under statute of limitations

Answer 48

SOL starts when all the elements of the claim are present even if the P is unaware of the injury/elements. (Pro Δ)

Question 49

What is the discovery rule under statute of limitations

Answer 49

a. True accrual AND
b. π knew or should have known: (i) they were Injured (some, say non-trivially injured), (ii)Δ caused it, (iii) Δ acted wrongfully

Question 50

What is Tolling

Answer 50

Tolling happens for minors, or for people of unsound minds (unable to manage their own affairs or an inability to comprehend legal rights)
a. Tolled until age of majority or when someone is no longer incapacitated.

Question 51

What is equitable estoppel

Answer 51

a. Δ caused delay in filing
b. Δ misled π
c. In relying on D in good faith, π failed to pursue his action in a timely manner.