Torts Law Flashcards
Negligence
Under common law, negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised under the same set of facts. To establish a prima facie case of negligence, the following elements must be present: duty, breach of duty, actual and proximate cause, and damage.
i. - General elements of a prima facie case for negligence
- existence of a duty of the defendant to conform to a specific standard of conduct to protect the plaintiff against an unreasonable risk of injury,
- breach of that existing duty by the defendant
- the breach of duty is the actual and proximate cause of the plaintiff’s injury, and
- damage to the plaintiff or the plaintiff’s property
ii. -Duty
iii. - Breach
iv. - Causation
v. - Damages
Negligence
a.- Duty
To establish a prima facie case for negligence, the plaintiff must be able to prove that he was owed a duty of care by the defendant. Even if the defendant’s negligent conduct is the cause of physical harm, the defendant is not liable for that harm if the court determines that the defendant owes no duty to the plaintiff. Under common law, findings of no duty are unusual in cases involving physical harm to persons and property.
i.- Foreseeability
ii.- Rescuers
iii.- Legal dury to act
- Voluntary admission aid
- Defendant creates peril where rescue is necessary
- Duty created by undertaking
- Special relationships
- Duty to control conduct of third parties
* Vehicle owner (negligent entrustment)
* Parents and children
iv.- Duty owed by landowners
- Duty owed to those off landowner’s land:
* Protection from natural conditions on the land * Protection from artificial conditions on the land
- Duty owed to people on the land
* Trespasser
_Undiscovered or unknown trespasser
_ Expected trespasser
_ Known trespasser
_ Child trespasser
* Licensee
_ Duty to licensees
* Invitee
_ Duty to invitees
* Recreational User
- Duty attached to leased property
- Real Estate vendors and brokers
Negligence
a. - Duty
- Foreseeability
A defendant owes a duty of care to all foreseeable (previsible) plaintiffs. When analyzing issues of duty, look to whether it was reasonably foreseeable that someone in the plaintiff’s position was within the scope of risk created by the defendant’s conduct. In other words, the duty of care does not extend from the defendant to the plaintiff if, at the time of the negligence act, there was no foreseeable risk of injury to a person in the plaintiff’s position.
Negligence
a. - Duty
- Rescuers
A rescuer is a foreseeable plaintiff if the rescue is in accordance with customary practice. If the defendant negligently placed himself or a third party in harm’s way, the defendant is liable to a recur-plaintiff who was injured in an attempt to save the defendant or third party.
Negligence
a. - Duty
- Legal duty to act
There is no legal duty to act for the benefit of another. Example: hit by a car. There are several exceptions to this general rule.
- Voluntary admission aid: a person who voluntarily administers aid, with no preexisting duty to act, owes a legal duty of reasonable care. Once a person begins to render aid, he is required to exercise reasonable care in the rendering of aid (prestación de ayuda).
NY Distinction: Pursuant to NY statute, nurses, physicians, and veterinarians who give aid at the scene of an accident, are exempt from liability if the aid is rendered negligently. Such persons are exempt from liability for ordinary negligence, but they remain liable for gross negligence.
- Defendant creates peril where rescue is necessary: a person who creates another's peril is under a duty to render reasonable care or aid to that person. Example: A is driving and a tree falls an sprains B's ankle. A has the duty to rescue B, even if A drove carefully.
- Duty created by undertaking: A duty of care may be created by the defendant's unilateral undertaking (compromise unilateral del demandado). For a defendant to be under a duty because of an undertaking: the plaintiff must have relied on the undertaking, or the undertaking reflects well-established customs or patterns.
- Special relationships: the existence of a special relationship may create a duty to act if one party is in danger. A defendant in one of these relationships who fails to act when the plaintiff is in danger may be liable to the plaintiff for damages. Are: employer-employee, parent-child, common carries-passengers, innkeepers-guests, invitor-invitee, school-pupil.
- Duty to control conduct of third parties: there is no duty to control the conduct of a third party to avoid injury to someone else. This rule has exceptions, and in each of these exceptions, for the defendant to be held liable, it must appear that the defendant had the actual opportunity, ability and authority to control the conduct of the third party. * Vehicle owner (negligent entrustment): the owner of an automobile is not liable for the negligence of a person who borrows the vehicle for his own purpose. However, if the owner of the automobile entrusts the vehicle to someone he knows or should know is unfit to operate the vehicle, the owner will be liable for any foreseeable resulting injury. * Parents and children: parents are generally liable for the actions of their children. However, a parent can be liable for the conduct of his child if the parent allowed the child to use a dangerous weapon or instrumentality that results in injury to a third party (negligent entrustment), or the parent failed to take corrective measures to keep a child from committing some harm which the parent knew or should have known the child was likely to commit (negligent supervision).
NY Distinction: a parent does not owe a duty to his child to exercise reasonable care in supervision the child’s daily activities. Therefore, a child cannot sue his parents for negligent supervision. However, a parent does have a duty to protect third parties from injury caused by his infant child from use of a dangerous instrument, where the child’s use of the dangerous instrument is subject to the parent’s control. If an infant child harms a third party with a dangerous instrument, the parent can be liable to the third party under a theory of negligent entrustment.
Negligence
a. - Duty
- Duty owed by landowner
The following is a set of rules that governs the duties owed by a landowner with respect to those off and on his land (intermittently).
* Duty owed to those off landowner’s land:
_ Protection from natural conditions on the land: a landowner owes no duty to protect people off his land from the natural conditions of the land, except when his conduct added to the risk posed by the natural condition. There is an exception classified as “urban area possessors”. Under this exception, landowners in urban areas have a duty to reasonably protect persons off the land from injury caused by the condition of trees on or near highways or sidewalks.
_ Protection from artificial conditions on the land: a landowner owes a duty to protect people off his land from artificial conditions on the land from unreasonable and dangerous artificial activities that may escape his property. Ex: falling material outside the property
* Duty owed to people on the land: under common law, the duty owed by a landowner to a person on his land depends upon the eval status of the person on the land. There are three majors categories for a person on la landowner’s land:
_ Trespasser: Under common law, a trespasser is a person who enters the landowner’s land without permission or privilege.
. Undiscovered or unknown trespasser: landowner owes no duty to an undiscovered or unknown trespasser; and he is not expected to inspect the property to discover whether there are trespasser.
. Expected trespasser: if a landowner anticipates trespasser on his property, he is under a duty to warn the trespasser of, or to make safe, activities and artificial conditions known by the landowner that the present risk of death or serious bodily harm, and are unlikely to be discovered by the trespasser.
. Known trespasser: if a landowner knows, he is under a duty of ordinary care towards that trespasser with regard to his activities.
. Child trespasser: landowner must exercise ordinary care to avoid reasonably foreseeable harms to children that are created by conditions on the property. An artificial condition on the land is the basis of a claim under this doctrine; however, a natural condition may also be the basis of a claim if the following elements are satisfied. To establish a duty under this doctrine, the plaintiff must show: a dangerous condition existed on the land of which the defendant knew or should have known, the defendant knew or should have known that children frequently used the ares, the condition is likely to cause injury because of the child’s inability to appreciate the risk, and the cost of fixing the condition is minor compared to the risk on injury.
_ Licensee: Under common law, a licensee is a person who enters the landowner’s land for his own purpose or business, with the landowner’s permission, including social guests.
. Duty to licensees: a landowner has a duty to warn a licensee of a known dangerous condition (is anything that creates an unreasonable risk of harm tho the licensee) that the licensee is unlikely to discover. The landowner is not required to inspect for unknown defects nor is he required to repair known defects; but must use reasonable care while maintaining active operations.
Policemen and firefighters are treated as licensees when they are on the property in the capacity as a public service worker.
_ Invitee: Under common law, an invitee is a person who enters the landowner’s land because he was expressly or impliedly invited by the landowner.
. Duty to invitees: There are two types of invitee: Public entrants (ex: people entering in museums and airports), and Business entrants (ex: customers of a store). The landowner has a duty of reasonable and ordinary care to ensure the property is safe for the invitee.
_ Recreational User: the landowner is not liable for injuries suffered by someone recreationally using one’s open land for no charge unless the landowner willfully and maliciously failed to guard against or warn of some known danger.
NY Distinction: the plaintiff’s classification as a trespasser, licensee, or invitee does not impact the duty owed to him. The reasonable care under the circumstances is applied to all persons on the landowner’s premises. That is relevant when determining the foreseeability of the plaintiff and the warnings required to meet the reasonable care under the circumstances standard.
- Duty attached to leased property: tort liability related to the conditions of leased property is determined by occupancy and control. If the landowner rents his entire property to a lessee, the lessee has the burden of avoiding unreasonable risk to others. If the landowner rents only part of his property to a lessee, the owner remains
- Real Estate vendors and brokers: they must disclose any concealed or unreasonably dangerous conditions of which they know, and of which the buyer is not likely to discover on inspection.
Negligence
a. - Duty
- Duty for negligent infliction of emotional distress
A person may not, through outrageous conduct, intentionally inflict extreme emotional distress on another. This is the tort of intentional infliction of emotional distress. However, there is only a limited duty to avoid the negligent infliction of emotional distress on another (NIED). There are two rules that govern NIED.
i. - Zone of danger: which controls when the plaintiff is within the zone of danger of physical impact. Here the plaintiff must generally prove:
- he was within the zone of danger, meaning that the plaintiff emotional distress was caused by a threat of physical impact
- that he suffered physical symptoms from the emotional distress of the threat of impact.
ii. - Bystander rule: which determines the duty in most jurisdictions when the plaintiff is outside the zone of rule of physical impact. Here, a plaintiff outside of the zone of danger of physical injury cannot recover damages for NIED. Under the majority rule, a bystander who was not in danger of physical impact may still recover for emotional distress cause by witnessing the defendant injure another person if:
- the enjured person and the bystander are closely related
- the bystander was present at the scene of injury
- the bystander personally observed or perceived the eve or accident.
NY Distinction: NY rejects the bystander rule and strictly follows the zone of danger rule.
Negligence
b.- Breach (incumplimiento de una obligación)
A breach of duty occurs when a defendant fails to exercise the requisite standard of care owed to the plaintiff.
i. - The ordinary, prudent, reasonable person standard.
- physical capacity
- mental capacity and knowledge
ii. - Specific standard of care (defendant have a superior knowledge).
- Professionals
- Children
- Automobile driver and rider
- Common carriers and innkeepers
- Bailor-bailee
- Emergency situations
iii. - Failure to meet requisite standard of care owed to plaintiff
iv. - Proving a breach of duty.
- Violation of statute as breach of duty (negligence per se)
v. - Res ipsa loquitur
- Elements of a claim for res ipsa loquitur
- Common fact pattern
- Multiple defendants
Negligence
b. - Breach (incumplimiento de una obligación)
i. - The ordinary, prudent, reasonable person standard
The requisite standard of care is to act as an ordinary, prudent, reasonable person under the circumstances. The reasonable person standard is an objective standard that requires individuals to take precautions to avoid creating unreasonable risks of injury to other people. A person is required only to exercise the degree of care that a reasonable person in his position would have used to prevent an unreasonable risk of harm to another. The reasonably prudent person is assumed to have the same physical capacity as the defendant. The reasonably prudent person is assumed to have average mental capacity.
- physical capacity: the reasonable prudent person is assumed to have the same physical capacity as the defendant. The characteristic of clumsiness is not considered a physical handicap.
- mental capacity and knowledge: the reasonably prudent person is assumed to have average mental capacity. However, a person with superior knowledge is expected to use his superior knowledge in determining what is reasonable.
Negligence
b. - Breach (incumplimiento de una obligación)
ii. - Specific standard of care (defendant have a superior knowledge)
i. - Professionals: a profesional personal with special skill set is required to act in accordance with the knowledge and skill of members in good standing within that profession. Such as lawyers and doctors.
ii. - Children: children of almost any age are held to a standard of care of other children of like age, education, intelligence, and experience, unless the child is engaging in an adult activity. Like subjective standard.
iii. - Automobile driver and rider: an automobile driver owes nonpaying passenger a duty of ordinary care. Some states have adopted “guest statutes” that impose a duty upon drivers to their nonpaying passenger to refrain from gross, reckless, or intentional misconduct.
NY Distinction: NY follows that the driver of an automobile owes a nonpaying passenger a duty of ordinary care. There is no guest statute in NY.
iv. - Common carriers and innkeepers: can be liable for even the slightest negligence.
v. - Bailor-bailee: a bailor is a person who entrusts goods to another; a bailee is a person to whom goods are entrusted. If the bailment is for the sole benefit of the bailor, the bailee is liable only if there is gross negligence. If the bailment is for the sole benefit of the bailee, the bailee is liable even for slight negligence. If the bailment equally benefits both the bailor and the bailee, a duty of ordinary are is required.
vi. - Emergency situations: when a person acts in an emergency situation where he has little time to reflect upon alternate courses of action, he is judged according to how a reasonable person would have acted in a similar circumstance. To apply this rule, the defendant must not have been the cause of the emergency situation.
Negligence
b. - Breach (incumplimiento de una obligación)
iii. - Failure to meet requisite standard of care owed to plaintiff
When the defendant’s conduct fails to meet the required standard of care owed to the plaintiff, the defendant has breached his duty. Whether the duty of care has been breached is a determination made by the trier of fact.
Negligence
b. - Breach (incumplimiento de una obligación)
iv. - Proving a breach of duty
To prove a breach of duty, the plaintiff must offer facts surroundings the negligent act and evidence that the defendant’s actions were unreasonable. This proof may be established by direct or circumstantial evidence.
- Violation of statute as breach of duty (negligence per se): Under common law, negligence per se is a legal doctrine that provides that in certain circumstances a safety statute or regulation may be used to set the standard of care in a negligence case. To establish a breach of that standard under negligence per se, the following elements must be present:
* the defendant violated the statute or regulation: plaintiff must show that a defendant violated a safety statute or regulation and the statute is clearly defined.
* the violation caused the type of harm that the statute or regulation is designed to prevent: plaintiff must show that the statute was meant to prevent the particular harm that he suffered.
* the plaintiff belongs to the protected class the statute or regulation is designed to protect: the plaintiff bears the burden of showing he is within the protected class of the statute he alleges the defendant violated.
NY Distinction: a defendant’s violation of a state statute can be used to establish negligence per se. Violation of a regulation or local ordinance qualifies only as some evidence of negligence.
Negligence
b. - Breach (incumplimiento de una obligación)
v. - Res ipsa loquitur
Under common law, the doctrine of res ipsa loquitur holds that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of unreasonable conduct so as to establish a breach of the duty owed to the plaintiff.
Elements of a claim for res ipsa loquitur: to establish the doctrine of res ipsa loquitur, the plaintiff must be able to prove:
- the accident causing the plaintiff's injury is of the type that would not normally occur unless someone was negligent
- there must be evidence that connects the defendant to the negligence. The plaintiff can accomplish this by showing that this type of accident ordinarily occurs only because someone in the defendant's position acted negligently. This is often demonstrated by showing that the instrumentality that caused the plaintiff's injury was in exclusive control of the defendant, and
- the plaintiff is free from any negligence causally related to the defendant's breach of duty.
Common fact pattern: a patient goes to the hospital for surgery, who were present during it the unconscious patient, one surgeon, and the nurses and assistants. When the patient wakes up, the hospital discovers that a sponge was left inside the body during the surgery. While the patient does not have any evidence about how the sponge got into his body, he has a claim for recovery against the surgeon for negligence under the doctrine of res ipsa loquitur.
Multiple defendants: Res ipsa loquitur may not be asserted to establish a prima facie case of negligence against an individual if there may have been more than one defendant.
Negligence
c.- Causation
The plaintiff must show that the defendant’s negligence conduct was the actual and proximate cause of his injuries. Both actual causation (cause-in-fact) and proximate (legal) causation are discussed in this section.
i. - Actual cause
a. - “But for” Test (sine qua non test)
b. - Other tests for actual cause:
- Multiple Sufficient Causation Test- multipple causes of injury, both caused the injury
- Alternative Causation Test- multiple acts of negligence, uncertain which caused the injury
- Loss of a Chance Test- creation of risk of injury that cannot be proven by preponderance of the evidence to be the legal cause
ii. - Proximate Legal Cause
a. - Foreseeability- Scope of Risk
b. - Direct proximate cause
c. - Indirect proximate cause
- Intervening cause
* Dependent Intervening forces- defendant’s negligent conduct invites foreseeable action
* Superseding intervening forces- third party negligence, acts of god, intentional torts, or criminal acts of a third party
- Corollary rules regarding foreseeability:
* Rule 1
* Rule 2
* Rule 3
* Rule 4
d. - Substantial Factor: Non-trivial actual cause
Negligence
c. - Causation
i. - Actua Cause
The defendant’s conduct must be the actual cause of the plaintiff’s injuries. The defendant’s conduct must be shown to be a cause-in-fact of the injury. Actual cause is generally determined by the “but for” test, but other test for actual cause exist.
a.- “But for” Test (sine qua non test): to prove that the defendant’s conduct was the actual cause of the injury, the plaintiff must show that his injury would not have occurred but for the defendant’s act or omission. Also applies when several acts combine to cause the injury, but none of the acts alone would have been sufficient to be the actual cause of injury.
b.- Other tests for actual cause:
- Multiple Sufficient Causation Test- multipple causes of injury, both caused the injury: when several causes converge to cause the plaintiff’s injury, and any one of these causes would have been sufficient to cause the injury, actual cause will be found for each defendant.
Also called Substantial factor test. Ex: two fire same time.
- Alternative Causation Test- multiple acts of negligence, uncertain which caused the injury: applies when two or more defendants have been negligent, but it is unclear which one caused plaintiff’s injury. Here, the plaintiff must show that one of the defendants caused his injury. The burden then shifts to the defendants to show that he, respectively, was not the actual cause.
- Loss of a Chance Test- creation of risk of injury that cannot be proven by preponderance of the evidence to be the legal cause: applies in a very limited set of cases where the evidence shows only that the defendant’s conduct created less than a 50% risk of injury.
This one is usually restricted to medical malpractice.
