Tort - Negligence

Question 1

What are the five theories of breach of duty of reasonable care (determining how much care must D exercise)?

Answer 1

1. Reasonable Prudent Person / Objective Test
   - under the exact circumstance what a reasonable prudent person (in community) would have done (objective test doesnt care if D had good faith or did the best he can)

• Mental and Emotional - a mentally disable person is held to the standard of someone of ordinary intelligence and knowledge
• Special Skill and Knowledge (as Professionals) - D held to higher standard if has special skills or knowledge must act with superior competence with reasonable attention of care … professionals’ care must be same as another professional with same skill, knowledge, and care in community (doc, lawyers, accts, electrician)
• Physical Characteristics - D particular Physical Characteristics (eg blindness measured as blind person) are taken in to acct when determining standard of care whereas D care must be reasonably just as another with the same disability
• Intoxication - no exception, held to the same standard as sober person (only exception is with consent to an intentional tort (no consent bc incapacity) - - - Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary.

-Children - held to standard of reasonable CHILD of same age intelligence and experience
(except for child engaged in adult conduct like driving, they are held to adult standard)

2. Cost-Benefit - measure foreseeable likelihood of harm was, what the severity of that harm was, and the utility to the defendant in engaging in the activity
3. Custom or Usage or Safety Codes - evidence is admissible to establish proper care but NOT conclusive (as the entire industry/sector/etc may be negligent)
4. Violation of Statute (Negligence Per Se): D violates/neglect a duty as established by criminal or regulatory statute for benefits of other (protected class) … D is liable in negligence to and P that shows that
   (i) P (who the statute is protecting) is a member of the protected class intended to be protected by the statute
   (ii) P suffered an accident or harm of the type the statute was intended to protect against (what type of physical or emotional injury will occur if statute is violated)
   (iv) D violation of the criminal or regulatory statute was prox causes of injury (did the injury materialize in the manner the legislative envisioned that harm will occur (eg statute forcing cars to stop for school bus (a) child is hit by car that didnt stop (D is liable to child under negligence per for violation of statute) (b) child is hit by debris from car (D is NOT liable for to child under negligence per for violation of statute bc legislator enacted the statute in order to protect kids from getting hitby cars not debris from cars

• Defense of Negligence Per Se (i) compliance impossible (ii) violation was reasonable under the circumstance
• Also,Contributory Negligence Per Se if P was the one that violated the statute or regulation (same reqs)

5. Res Ipsa Loquitur (Circumstantial Evidence) - P cannot specifically explain what D did to cause the injury (e.g. barrel mysteriously falls from warehouse); If π can prove3 elements (inference of negligence), it goes to jury (i.e. no summary judgment)
   (i) accident of type that doesn’t normally occur in the absence of negligence
   (ii) negligence is usually committed by someone in D’s position (Δ had exclusive control of instrument of injury) (agent or instrumentality)
   (iii) P was not contributorily negl. in the injury

Question 2

What is theEggshell Skull Rule AND the Collateral Source Rule? NOTE: NY Distinction

Answer 2

Eggshell Skull Rule: the ∆ takes π as she finds him…if ∆ is negligent (i.e. duty, breach, causation), then Δ pays for ALL damages Collateral Source Rule: damages are not reduced just b/c π received benefits from other sources (i.e. health insurance) NY DISTINCTION: NY has abolished the collateral source rule; π’s damages are REDUCED by collateral pmts

Question 3

What is the std of care owed bypossessor of land? NOTE: NY Distinction

Answer 3

1) For undiscovered trespasser(on land w/o permission OR occupier’s knowledge)… NO duty of care for activity/condition (unforeseeable) 2) For discovered/obvious trespasser (occupier knows OR should know)… Posessor activities: RPP in similar circumstances Land conditions:duty to warn/make safe from(1) man-made (ONLY) condition; (2) highly dangerous; (3) concealed; (4) known to occupier NOTE: under attractive nuisance doctrine, LIABLE if child (i)is foreseeably attracted to land (e.g. a pool); (ii)CAN’T appreciate the risk of the condition; AND (iii) compliance is less expensive than risk imposed&raquo_space;then duty to warn/make safe for man-made conditions (ONLY) 3) For licensees(friends or other entrants who enter w/ permission)… Posessor activities: RPP in similar circumstances Land conditions: duty to warn/make safe for conditions (natural AND man-made) (1) concealed and (2) known to occupier 4) For invitee (business or land open to public; benefit posessor)… NOTE: an invitee loses his status as an invitee if he exceeds the scope of his invitation (i.e. becomes a trespasser) Posessor activities:RPP in similar circumstances Land conditions:duty to warn/make safe for conditions(1) concealed; (2) known or should have discovered w/ reasonable inspection NY DISTINCTION: doesn’t distinguish b/t type of entrant Std of care = reasonable care under the circumstance BUT entrant status is evidence of foreseeablity(foreseeability scale: customer>guest>trespasser)

Question 4

When is there an affirmative duty to act (the failure todo so constituting breach)? NOTE: NY Distinction

Answer 4

General Rule: NO affirmative duty to act 3 Exceptions, which necessitatesdoing what’s reasonable under circumstances(no requirement of martyrdom) Preexisting relationship: family member; common carrier; innkeeper; business owner/invitee Δ created the danger ∆ assumped responsibility (attempted to rescue)&raquo_space; liable for negligent rescue NY Distinction: For medical professionals, an attemted rescue is only actionable if grossly negligent (Good Samaritan Law)

Question 5

General rule: To whom do we owe a duty of careAND what’s the level of care?

Answer 5

1) everyone owes a duty of care to foreseeable victims of their potential negligence Foreseeable Victims: w/in Zone of Danger 2) level of care = that given by a reasonably prudent person (RPP) in similar circumstances (objective std) RPP: NO allowances for Δ’s shortcomings;EXCEPT: (i) ↑ std. for superior knowledge (e.g. NASCAR driver = higher driving std.); (ii) physical characteristics (e.g. reasonable blind Δ).

Question 6

What are the 3 elements of negligence per se? NOTE: NY Distinction

Answer 6

To establish duty/breach, π needs to show… 1) the statute provides for criminal penalty that clearly defines std. of conduct 2) π is w/ in class of ppl that the statute is meant to protect 3) the statute was designed to prevent the type of harm suffered by π EXCEPTIONS: (i) compliance more dangerous than violation (e.g. cross yellow lines to avoid hitting child); and (ii) impossibility of compliance (e.g. heart attack caused violation) NY DISTINCTION:ONLY state statutes (NOT local ordinance/reg.) will establish negligence per se (otherwise only some evidence of negl.)

Question 7

Who are 2 victims’s who are presumptively foreseeable(so are owed a duty whether or not actually foreseeable)? NOTE: NY distinction

Answer 7

1) Rescuers: injuries to rescuers are ALWAYS (presumptively) foreseeable (“danger invites rescue”) 2) Fetuses: negligent Δ injures pregnant lady If fetus is born dead: mother has a claim, but baby’s estate CAN’T bring claim If fetus born alive w/ defects: injury to baby is foreseeable&raquo_space; (i)baby can recover; (ii) parents can recover for marginal costs given defects If there is a botched sterilization (“wrongful birth”): can get damages for child rearing expenses NY DISTINCTION: parent’s CAN’T recover b/c “joy of new child outweighs marginal expenses”

Question 8

What is the std of care owed bychildren?

Answer 8

1) Children ≤ 4: incapable of negligence 2) Children b/t 5 and 18: owes duty of hypothetical child of similar age, experience, intelligence in similar circum. (NOTE: drastically different standard from RPP) EXCEPTION: if child engages in adult activity&raquo_space; child is held to adult std. (e.g. vehicle w/engine)

Question 9

What is the std of care owed byprofessionals?

Answer 9

Std of care = that is given by the average member of that profession (in good standing) in similar community Std. is empirical/discoverable Liability still turns on whether it wasREASONABLY FORESEEABLEthat the professional’s action/servicewouldCAUSEa HARM “Similar community” = rural vs. urban;EXCEPTION: specialists (e.g. brain surgeons) are held to a national standard

Question 10

How does π establishbut-for/factual causation?

Answer 10

Test = “But for the breach, there would be no injury” 2 important scenarios 1) Multiple Δs & mingled/merged causes (e.g. 2 Forest Fires) “Substantial Factor” test: joint liability for each Δ whose breach was substantial causal factor (i.e. could individual cause the damage)in π’s injury. 2) Multiple Δs & unascertainablecause (e.g. Quail Hunting case) Burden Shift: shift burden to each Δ to prove by a preponderance that they are NOT the cause; if can’t they are jointly liable

Question 11

What are the 2 elements ofnegligent infliction of emotional distress? NOTE: NY Distinction

Answer 11

1) π is in zone of danger 2) serious subsequent physical manifestation EXCEPTION 1: if π is not in zone of danger, but witnesses injury to 3d party; this requires: (i) close relationship b/t π and 3d party; (ii) the presence of π at scene of injury AND π’s witnessing the injury NY DISTINCTION: w/ this exception, π STILL has to be w/in zone of danger AND have a immediate family relationship (nuclear family, not extended) EXCEPTION 2: if π is not in zone of danger, but is in a special relationship w/ ∆where it is very foreseeable that carelessness will cause distress (e.g. Dr. negligently telling patient he has AIDS when he doesn’t)

Question 12

What are the 3affirmative defensesto prima facie neglience (duty, breach, causation, damages)? NOTE: NY Distinction

Answer 12

1. Contributory negligence: negl on part of π that contributes to her injury that COMPLETELY bars π’s recovery Contributory negl. is a minority rule. - Contributory negl. is NOT a defense to wanton/willfull misconduct or intentional tortious conduct
   - Last Clear Chance Exception: π is STILL able to recover n/w/s being contributorily negl. if ∆ had last chance to avoid the accident
2. Assumption of Risk: P is denied recovery if she assumed the risk of any damage caused D’s act
   - Express Assumption of Risk in Exculpatory Contracts (P contractually accepts the risk of damages caused by D’s acts) (might bar P from recovery)
   - Primary Implied Assumption of Risk (court concludes that the D did not breach any duty) - participants and spectators in athletic events (for both people who play in the games and those who watch it) cant hold other players (w/ P that are participants) or owners (for P’s that are spectators) liable for certain risk that are usually incident to and inherent in the game or activity - - look at tradition/rules of the game and not D’s misconduct (bars p from recovery)
   - Secondary Implied Assumption of Risk (D breaches a duty but P also makes a mistake by knowingly, voluntarily and unreasonably encountering the risk of danger) - all other things outside sporting events - - P unreasonably and voluntarily proceeded with his own act in face of known, specific risk (bars p from recovery)
   - NOTE: Most comparative negl. jx have ABOLISHED the separate defense of “implied assumption of risk”→ would just analyse the π’s conduct under comparative negl. principles
   - D CANNOT use an Assumption of risk for his to INTENTION TORTIOUS CONDUCT (consent is a defense for intentional torts,where as assumption of risk is a defense for negligent (and wanton/reckless misconduct) and strict liability against D (affirmative defense for D)
   - NY DISTINCTION:assumption of the risk has been abolished, but cts still use label, “primary assumption of the risk”, which applies ONLY to participants or spectators in sporting/recreational activities
3. Comparative negl.: π’s negligence is not a complete bar to recovery, but her recovery is reduced to the extent (%) that she is negl. in causing the injury; two types
   (i) Pure (default): π’s recovery is reduced by % of her fault
   (ii) Modified/partial: if π is ≥ 50% negligent, then she get’s NO recovery
   - NY DISTINCTION: the π may recover even if the π’s negligence % is greater than the ∆’s (BUT if π’s conduct was illegal, NO recovery)

Question 13

What is the prima facie case for negligence?

Answer 13

1) duty (owed to all foreseeable victims/πs) 2) breach (conduct falls short of duty) 3) causation: factual (but-for) & legal/proximate (blameworthiness) 4) damages (eggshell skull doctrine) NOTE: if you are given a negl. question in an essay, you must discuss EVERY element

Question 14

How does π establishproximate/legal causation?

Answer 14

1) For direct causes:established if π’s injury a immediate foreseeable result of Δ’s breach ∆ is not liable for unforeseeable harmful results not within risk created by ∆’s negl. 2) For indirect causes: when there are intervening causes (increasing π’s injury),original Δ IS STILL liable for… intervening negligent medical treatment (e.g. malpractice) intervening negligent rescue intervening reactions to protecting property/person subsequent accident/disease to π foreseeableindependent intervening forces if ∆ increased the riskof harm by that force(e.g. theft, acts of God, etc); NOTE:if it’s an unforseeableindependent intervening forceAND an intentional tort by 3d person, then it’s a superceding cause (no ∆ liability)

Question 15

Three Ways to Create a ‘Duty’ for Negligence Tort

Negligence - Duty, Breach, Causation, Damages (not allow nominal damages eg damages to dignity)

Answer 15

1. Special Relationship - (a) fiduciary special relationship (inkeeper or common carrier, guardian or someone with contractual care eg nurses and doctors) (b) familial special relationship (parent to child (duty by authority)
2. Enhancement of Risk of Harm (D’s affirmative act with reasonable care creates a general duty to foreseeable of harm to another resulting from act - D’s alleged misconduct enhanced the risk of harm to the victim (P) TWO APPROACHES

• (a) duty owe to foreseeable victim (P) based on misconduct - - Specific Classes of Foreseeable _
  (i) anyone within the zone of foreseeable harm, (ii) 3rd party rescuers, (iii) intended (known) beneficiaries (eg legal or business transaction prepared negligently and the lawyer/acct could foresee the harm of completing the transaction (eg acct does audit and knows bank will rely on it so can foresee bank harm (but not other unknown banks), (iv) fetuses (if they are viable at the time that injury occured)
• (b) duty owed to everyone/public at large when conduct enhances the risk
  3. Assuming a Duty - voluntary assume duty under own volition so owe reasonable care enforcing aid (eg rescue attempt (voluntary aid) bc everyone else assumes you will care for victim (P) and not help out) (also NOTE placing another in peril then owe duty to prevent further harm by rendering care and/or aid

Question 16

What are the effects of non-superseding intervening causes?

Non-Superseding Intervening Causes

(1) Foreseeable Intervening Causes
- Medical malpractice (even negligence act that results in much more damages, D negligent act caused P’s broken leg, but doctor medial malpratice caused it to be amputated (D may still be liable fully)
- Disease or Accident
- Negligent 3rd Party Rescuers
- Normal Forces of Nature
- Efforts by P to protect person or property
(2) Generally as a whole ANY Negligent Intervening other Acts are usually foreseeable and therefore DO NOT break the Prox Cause to hold D liable

Answer 16

If the negligent intervening act is NOT a liable as a superseding intervening causes (which they usually are not), the original D and the actor responsible for the intervening negligence act can be held JOINTLY and SEVERALLY liable to P

Jointly - then they are each liable up to the full amount

Severally - D are liable for only their respective obligations

So jointly and severally liable - or all sums, P may hold against any one party as if they were jointly liable and it becomes the responsibility of the Ds to sort out their respective proportions of liability. P can even pursue only one D and receive full payment, and that D must then pursue the other obligors for a contribution to their share of the liability.

Question 17

Dummy do the math correctly — D is liable for 3000 (to P) + 300 (to self), but P is liable 7000 (to self) + 700 (to D) – - The net amt P will get from D is 3000 from D owe to damage of P but P will pay 7700 to D for what P did to D’s car

Question

In the parking lot of a mall, two drivers, while simultaneously backing up, each carelessly struck the other’s car. Neither suffered physical injuries, but the damages to the plaintiff’s car totaled $10,000; damages to the defendant’s car were $1,000. The plaintiff sued to recover the damages to his car and the defendant counterclaimed for the damages to her car. At trial, it was determined that the plaintiff was 70% at fault and the defendant 30% at fault for the accident. The applicable jurisdiction has enacted a pure comparative negligence statute. After taking into account his own liability to the defendant, how much may the plaintiff recover from the defendant?

Answers

Nothing
$2,300
$3,000
$9,000

Answer 17

Rationale:

Answer choice B is correct. In a pure comparative negligence jurisdiction, the plaintiff is not precluded from recovering if his fault exceeds the defendant’s fault. Because the defendant was 30% at fault, she is liable for 30% of the plaintiff’s damages (i.e., $3,000). Because the plaintiff was 70% at fault, he is liable for 70% of the defendant’s damages (i.e., $700). Offsetting the defendant’s recovery from the plaintiff’s recovery, the plaintiff is entitled to recover $2,300 (i.e., $3,000 - $700). Based on this analysis, answer choices A, C, and D are incorrect.

Question 18

Negligence Definition and Physicians Informed consent and Exception to Informed Consent

A patient visited his physician to get an influenza vaccine. Before seeing his physician, the patient completed a form that, among other things, asked the patient to list his allergies. The patient, believing that the question referenced allergies to medication, listed the medications to which he is allergic. He did not list his food allergies, which include eggs. Before administering the vaccine, the physician had a discussion with the patient regarding various side effects associated with the vaccine. They did not specifically discuss the patient’s allergies. The physician administered the vaccine, which is made with eggs. The patient had a severe allergic reaction, and died shortly thereafter. Would the hospital be liable in a negligence action for the patient’s death?

Answers

Yes, because the physician did not obtain informed consent.
Yes, because the physician did not exhibit the same skill, knowledge, and care of a doctor of similar education and experience.
No, because the physician exhibited the same skill, knowledge, and care as another physician in the community.
No, because the physician acted in a reasonably prudent manner

Answer 18

Negligence is the commission of an act (or the failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm.

Physicians Standard of Care - A physician must exhibited the same skill, knowledge, and care as another physician in the community.

Also under inform consent doctrine, a physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment.

Rationale - Answer choice A is correct. By failing to discuss the patient’s allergies, and the risk of death from the eggs in the vaccine, the doctor breached his duty to the patient to obtain informed consent. Answer choice B is incorrect because it basically describes the standard of care imposed upon children rather than professionals (though substituting “education” for “age”). Answer choice C is incorrect because, although it lists the correct standard for professionals, it fails to account for a physician’s duty to obtain informed consent. Answer choice D is incorrect because a physician is under a special duty to obtain informed consent, which the physician failed to do in this case.

However, physicians are not under an obligation to disclose(get informed consent from patients) when the:

i) Risk is a commonly known risk;
ii) Patient is unconscious;
iii) Patient waives or refuses the information;
iv) Patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian); or
v) Disclosure would be too harmful to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack).

Question 19

Processors of land (owners, tenants, those in adverse possession) - - what is their duty to care to

(i) business/public invitees
(ii) licensees
(iii) known/discovered trespassers
(iv) unknown/undiscovered trespassers
(v) frequent unknown/undiscovered trespassers where land possessors should reasonably know consistenly entering his land and takes not actions to prevent (think cool highschool who cuts pass neighbor’s land to get to school)

Answer 19

(i) business/public invitees (highest duty of care for group of people on land)
- Duty of reasonable care with any actions that land possessor is doing on land (dont be negligent - the commission of an act (or the failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm – dont let dangerous dog out)
- ALSO the duty to use reasonable care to INSPECT the property, DISCOVER unreasonably dangerous conditions, and to PROTECT the invitee from them
- NB this is a NON-DELEGABLE duty so even if independent contractor is at fault the LAND OWNER is still liable to invitee) (highest duty of care for group of people on land)

HOWEVER - duty of reasonable DOES NOT extend beyond the scope of the invitation, and the invitee is treated as a DISCOVERED TRESPASSER IN AREA BEYOND SCOPE (still owe some duty of care)

(ii) licensees - (social guests, those whose trespassing/presence is tolerated land owner frequent (or frequent unknown/undiscovered trespassers) and emergency personel)
- Duty of reasonable care with any actions that land possessor is doing on land (dont be negligent - the commission of an act (or the failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm
- ALSO the duty to use reasonable care to to either CORRECT or WARN of concealed dangers that are either KNOWN by land possessor or SHOULD BE OBVIOUS
- NB - land possessor has NO DUTY TO INSPECT DANGER
(iii) known/discovered trespassers (some duty is owed to them by land possessors) (these are discovered and anticipated trespassers those who land possessor want to stop from coming on land)
- Duty of reasonable care with any actions that land possessor is doing on land and those of 3rd party (dont be negligent - the commission of an act (or the failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm
- ALSO Duty to WARN or PROTECT from CONCEALED, DANGEROUS, ARTIFICIAL CONDITIONS (which are man-made-non-natural conditions)
- NO duty to warn or protect from (i) Natural Conditions or (ii) Artificial Conditions that involve no risk of death or serious bodily harm
(iv) unknown/undiscovered trespassers (lowest bc there is NO duty) - NO DUTY AND NO DUTY to INSPECT Property for Trespassers
(v) frequent unknown/undiscovered trespassers where land possessors should reasonably know consistently entering his land and takes not actions to prevent (think cool highschool who cuts pass neighbor’s land to get to school

–Duty is the same as listed for LICENSEES this is true regardless of land possessors actual knowledge of frequent unknown/undiscovered trespassers bc they are those whose trespassing/presence is tolerated land owner frequent

Question 20

Joint and Severally liable

Answer 20

Only deal with the procedures of how P can recover damages - but doesnt bar recovery bc of multiple Ds

Question 21

What are the components of causation?

Answer 21

But-for - - > factual causation

Proximate cause - - > legal causation (to limit scope of liability)

In order to prove negligence, the plaintiff must establish that the defendant’s actions were both the actual cause and the proximate cause of the plaintiff’s injury. Generally, the plaintiff must show that his injury would not have occurred but for the defendant’s conduct. When multiple defendants have contributed to the plaintiff’s injury, the plaintiff may establish causation by showing that the defendant’s conduct was a substantial factor in causing the plaintiff’s injury.