Torts: Negligence Flashcards
4 elements for negligence
- duty,
- breach,
- causation, and
- damages.
Situations Where There Is No Duty (or a Limited Duty):
Firefighter’s Rule: As a general rule, a firefighter, police officer, or other emergency professional may not hold a person (including a property owner) liable for injuries suffered by the professional in responding to a situation created or caused by the ordinary negligence of such person. This rule does not apply to injuries unrelated to the special dangers of the job (e.g., injuries from a routine traffic accident).
Primary Implied Assumption of the Risk: Under the majority view, a defendant owes no duty to the plaintiff to avoid creating unreasonable risks of harm for injuries that are inherent in sports and recreational activities.
Duty owed to those not on defendant’s land
The defendant must act like a reasonable person to protect those not on defendant’s land from (a) activities on the land, (b) overhanging trees in urban areas, and (c) dangerous artificial conditions near the border of the land.
Duty owed to undiscovered trespassers:
Defendant owes no duty to undiscovered trespassers for activities or static conditions on the land, until such trespassers are discovered.
Exception: The defendant is liable to undiscovered trespassers for intentional torts and reckless (willful and wanton) misconduct.
Duty owed to discovered trespassers
(those persons the defendant knows or should know—from known facts—are actually present on the land; defendant has no duty to search for trespassers):
a. Activity on land: defendant owes a duty to act like a reasonable person
b. Static Condition on land (e.g., an uncovered well, a concealed hole, a high-voltage electric fence): defendant owes a duty to warn of concealed, known, artificial (i.e., man-made) conditions that pose a risk of death or serious bodily injury; there is no duty to warn of obvious dangers (i.e., those not concealed)
Duty owed to licensees
(those on the land for their own purpose, including social guests, visiting relatives, police, firefighters):
a. Activity on land: defendant owes a duty to act like a reasonable person
b. Static Condition on land: defendant has a duty to warn of concealed, known, dangerous (natural and artificial) conditions; there is no duty to warn of obvious dangers (i.e., those not concealed) and there is no duty to inspect the property for dangerous conditions
Duty owed to business or public invitees
(those on the land for the purpose of the landowner, including customers, visitors to public property, and non-emergency public employees):
a. Activity on land: defendant owes a duty to act like a reasonable person
b. Static Condition on land: defendant has a duty to warn of (or preferably make safe) concealed, dangerous conditions known to defendant or should have been known (i.e., defendant has a duty to make reasonable inspections); there is no duty to warn of obvious dangers (i.e., those not concealed)
Trend: Many states apply this standard to both licensees and business invitees.
c. If the plaintiff goes into an area not intended for customers (e.g., a room labeled “for employees only”), plaintiff will revert to a licensee or trespasser
Duty owed to infant trespassers
(usually children 12 or younger):
Infant may recover for injuries if she can show
(1) owner knew or had reason to know children were likely to trespass;
(2) owner knew the artificial condition posed an unreasonable risk to children;
(3) because of her age, infant did not realize the danger;
(4) the cost of remedying the danger was slight compared to the risk; and
(5) owner failed to exercise reasonable care.
The owner must take reasonable measures to protect children; there is no requirement to make the premises “child-proof.”
Duty: Negligance Per Se:
If a criminal statute (or ordinance or traffic regulation) is quoted in a torts question, ask: Does the statute establish the standard of care? This requires (i) that the statute was designed to protect against this type of harm; and (ii) that the plaintiff is within the class protected by the statute.
If this showing is made, the statute (and the defendant’s failure to comply therewith) constitutes negligence per se and is conclusive proof of duty and breach (but not causation or damages).
In addition, if the plaintiff is within the class protected by the statute (e.g., children in a school zone), the plaintiff’s contributory negligence will not bar recovery.
There are some circumstances where the defendant’s failure to comply with a statute will be excused: (i) where compliance would be more dangerous; (ii) where compliance is beyond the defendant’s control (e.g., defendant has a heart attack while driving); (iii) where the violation is reasonable in light of the defendant’s young age or physical disability.
If Negligence Per Se is unsuccessful or excused, the plaintiff may rely on an ordinary negligence claim.
Also, compliance with the law is evidence that the defendant met the standard of care, but is not conclusive.
Duty: Negligent Infliction of Emotional Distress (NIED):
For a plaintiff to recover for NIED, the plaintiff must show:
i. emotional distress that resulted in physical injury (i.e., physical consequences, such as a nervous breakdown, miscarriage, paralysis, heart attack, etc.)
evidence of physical injury is not required for (a) the negligent handling of a relative’s corpse, (b) the erroneous reporting of a close relative’s death, or (c) a negligent diagnosis from a medical professional
ii. plaintiff was in the target zone of defendant’s negligence (i.e., there is no requirement that defendant make physical contact with plaintiff, but there must be at least a near miss)
a minority of states apply regular negligence standards to NIED (e.g., foreseeability)
Breach
Whether the defendant breached the applicable standard of care is a fact question.
If the defendant failed to meet the applicable standard of care, there is a breach.
By contrast, if the defendant met the applicable standard of care, there is no breach.
Compliance with or failure to meet an industry custom is admissible as evidence, but is not conclusive.
Exception: In medical malpractice cases, the defendant’s compliance with established medical customs is often dispositive (i.e., there is no breach).
Breach: Res Ipsa Loquitur (“RIL”).
In some cases, the very fact that a particular harm has occurred may satisfy (at least to some degree) the breach requirement. If a question provides that the plaintiff was injured but the plaintiff has no direct evidence to prove that the defendant was negligent, consider using res ipsa loquitur.
Elements: RIL applies where (1) the accident that injured the plaintiff is of a type that does not generally occur without negligence; (2) the defendant had exclusive control over the instrumentality or condition that caused the injury; and (3) there is no evidence that the plaintiff was contributorily negligent.
Element (3) is generally not required in states that use comparative fault.
Effect: If these conditions exist, a “permissible inference” of negligence will result, allowing the plaintiff to survive a motion for summary judgment or a motion for directed verdict (a/k/a motion for judgment as a matter of law) and permitting, but not requiring, the jury to rule in favor of the plaintiff.
Causation (generally)
There are two types of causation, both of which must exist for the plaintiff to prevail. First, the plaintiff must show causation-in-fact (a/k/a actual or factual causation). If (and only if) that can be shown, the plaintiff must then prove proximate (or legal) causation (a/k/a scope of liability).
Casuation-in-fact
i. “But for” test.
This test requires that, “but for the defendant’s negligent act, the plaintiff would not have been injured.” The “but for” test applies any time there is only one tortfeasor.
The “but for” test also applies where the negligent acts of two or more tortfeasors—each of which alone would not have caused the injury—combined to cause it; in such cases, each tortfeasor’s negligent act is a “but for” cause.
ii. Substantial Factor Test (a/k/a Independent Concurrent Causation).
If two or more tortfeasors commit negligent acts and either act alone would have been enough to cause the same indivisible injury to the plaintiff, both are jointly and severally liable for the damage.
iii. Alternative Liability Test (Summers v. Tice).
If two or more defendants commit negligent acts and only one act caused plaintiff’s injury, but plaintiff does not know which one, the court will shift the burden of proving causation to the defendants and, if they are unable to prove who caused the accident, they will be held jointly and severally liable.
Proximate cause
Even if the defendant’s negligent act is the actual cause of plaintiff’s injury, the defendant will not be held liable unless his negligent act is also the proximate cause of such injury. Under the doctrine of proximate causation, a defendant is liable only if the type of harm that occurs was a foreseeable risk of the defendant’s negligent act. In a typical tort case, the type of harm is usually foreseeable (and thus the defendant will be the proximate cause).
For UBE purposes, proximate cause will be lacking only:
(1) where the chain of events leading from the defendant’s negligent act and the plaintiff’s injury is bizarre or unbelievable or
(2) where an unforeseeable affirmative act of a third person or an unforeseeable act of God intervenes between the defendant’s negligent act and the plaintiff’s injury.
Not all intervening acts, however, will break the chain leading from defendant’s negligent act to plaintiff’s injury; only unforeseeable intervening acts (known as superseding acts) will break the chain.
