Tort Law: Negligence Flashcards
Negligence
Plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty and that the duty breached is the cause of the plaintiff’s damages, and that there are damages.
Duty
The court decides if the defendant owed a duty to the plaintiff. In general, the court considers the foreseeability of the harm and the burden to prevent the harm.
Cardozo v Andrews
Under Proximate cause
Cardozo believes that if you are near the zone of danger then you are considered foreseeable and Andrews believes that every person is foreseeable.
Special Duty (Premises Liability)
Under duty
1. Undiscovered Trespasser: Never have a duty to them
2. Trespasser: Does not owe a duty to them unless you’ve noticed them frequently come onto your property.
3. Licensee: some one who comes over for social gatherings; you owe a special duty to them.
4. Invitee: Business for money; people come to your house for business then you owe a duty to them.
5. Children: “The attractive nuisance doctrine” when a landowner sets before children a temptation that he has reason to believe will lead them into danger, he must use ordinary care to protect them from the harm.
6. Lessor and Lessee:
a Landlord (lessor) does not owe duty to his tenant’s visitors except when:
a. undisclosed dangerous conditions known to the lessor but not known to the lessee.
b. conditions dangerous to the persons outside the premises.
c. premises leased for admission to the public.
d. parts of the land retained in the lessor’s control.
e. lessor contracts to make repairs.
f. negligence of the lessor in making the repairs.
No duty owed by a landlord to protect persons from third party criminal activities
The Standard of care: Part 1
Falls under breach of duty
1. Reasonable prudent person: used to determine what a reasonable person would do under similar circumstances.
2. The professional: what would someone have done in the same profession
3. Insanity: You do not talk about a reasonably insane person
4. Minor: what would a reasonable child of that age, intelligence, and experience, under the same or similar circumstances.
if the minor is engaged in an adult activity and in some jurisdiction certain dangerous activities, the child will be charges as an adult.
if an activity has a motor then it is an adult activity.
Standard of care: Proof of negligence
Falls under Breach of Duty
1. Proof of negligence
a. Circumstantial evidence is reliance on an inference to connect it to the conclusion
b. Direct evidence: evidence that directly links a person to a tort.
c. Res Ipsa Loquitur
“the thing speaks for itself
the event is one that ordinarily would not have occurred in the absence of negligence
defendant had exclusive control over the instrumentality.
Standard of care: Negligence per se
Falls under Breach of Duty
- Negligence per se: the court must determine:
a. the party seeking to prove the violation is a member of the class of persons the statue was designed to PROTECT and
b. the harm occurred was one the state was intended to PREVENT.
Privity of contract
Falls under Duty
a defendant does not owe a duty to an injured plaintiff who is not in privity of contract with the injured plaintiff.
Failure to Act
Duty of Care
4. Failure to Act:
There is generally no duty to act…
a. Criminal Acts: a person does not have a duty to warn or protect another from criminal acts of a third person because criminal acts cannot reasonably be foreseen.
b. For schools: A university does not owe a duty of care to protect minors from negative outside influences or private lives.
c. A duty to act may be owed to others under those circumstances where the defendant is in control of the instrumentality causing the injury.
d. the spouse of a child molester may owe a duty to take reasonable steps to protect or warn of the molestation based upon particular knowledge or a special reason to know.
e. Therapist: A duty may exist to protect 3rd persons when a therapist determines or should have determined a patient poses 1. a serious danger to 2. an identifiable third person.
Pure Economic Loss
Falls under Duty of Care
This is when a person suffers a pecuniary loss not consent upon injury to his person or property.
Finding no special relationship between the plaintiff and the defendant, the court held there is “no general duty to avoid unintentional infliction of economic loss on another.”
Emotional Distress
Falls under Duty of Care
Physical manifestation test: whether or not a normal person would have manifested those injuries
Bystander Liability: A bystander may recover for injuries to another only if plaintiff is:
1. closely related to the victim
2. is present at the scene and aware of the injury producing event and is aware it is causing injury to the victim.
3. Suffers serious emotional distress: a reaction beyond that which would be anticipated in a disinterested witness and is not an abnormal response.
Unborn children
Falls under Duty of care
Since the children were never alive, there is no cause of action for wrongful death.
A born child: may recover from damages for extraordinary medical and healthcare expenses but not general damages.
Breach of Duty
Defendant breaches their duty when they fall below what a reasonable person under similar circumstances would do in an objective standard
Causation:
In order to prove the negligence was a cause you must have both actual and proximate cause
Actual Cause
Falls under causation
Sine Qua Non =”But for” test
