Torts - Negligence Flashcards
The general rule for when a duty exists in tort:
Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity. To be owed a duty, a prospective plaintiff must be in the foreseeable “zone of danger” from the defendant’s activity.
**Memorize for essays.
A duty is owed to
all people who are foreseeable victims of your failure to exercise reasonable care.
**On the bar almost everyone is a foreseeable victim.
Plaintiffs who are foreseeable as a matter of law are
(1) Rescuers (but see firefighter’s rule exception for police and firefighters who rescue as a part of their job)
(2) Viable fetuses (even if D does not know that victim was pregnant)
Special duty standards apply to
(1) children
(2) professionals
(3) owners and occupiers of land
Under the majority rule, a child must exercise the degree of care that
a reasonable child of like age, intelligence, and experience would exercise under the circumstances.
**Most states have a minimum cutoff of age 4, under which the child is incapable of negligence.
Under the traditional (minority) view, a child’s duty of care is governed by the “Rule of ____”
“Rule of Sevens”
(1) Under age 7: incapable of negligence
(2) 7 to 14: Rebuttable presumption that the child is NOT capable of negligence
(3) 14 and older: Rebuttable presumption that child IS capable of negligence
A child involved in an adult activity must exercise an ______ degree of care.
adult. (i.e. driving a car).
**But lookout for tractor-driving 13 year olds who are held to a “superior” degree of care b/c they’ve been doing it since they were 11 (wtf).
A person who holds him/herself out as a professional must possess and exercise
the knowledge and skill of an ordinary member of that profession in good standing.
**Profession itself sets the standard of care, usually through expert testimony. Usually a national standard.
To exercise ordinary care, a person must exercise the
amount of care that would be undertaken by a reasonably prudent person under the circumstances.
Objective standard, even for inexperienced people, mentally incompetent, etc (but see superior skill or physical disabilities case)
For doctors as defendants, the doctrine of ______ consent applies.
informed.
Under “Good Samaritan” statutes in many states, licensed doctors, nurses, etc. who _______________ render emergency treatment are exempt from __________ but liability still exists for ____________.
voluntarily and gratuitously; ordinary negligence; gross negligence.
For attorneys as defendants, the plaintiff asserting a malpractice case must still prove
CAUSATION.
Owners and occupiers of land owe a duty
to persons on their property
The four statuses of plaintiffs on land are
(1) undiscovered trespasser
(2) discovered/anticipated trespasser
(3) licensee
(4) invitee
The two potential sources of a plaintiff’s injury on property are
(1) conduct of ACTIVITY (2) encounter with a static CONDITION
If the plaintiff is an undiscovered trespasser, the owner/occupier owes
no duty.
If the plaintiff is a discovered trespasser, the owner/occupier owes
(1) for ACTIVITY: the owner/occupier owes a duty of reasonable care. (2) for CONDITIONS: only as to artificial, highly dangerous, KNOWN conditions (man-made death traps)
The duties that owner/occupiers owe to LICENSEES are
(1) for ACTIVITY: the owner/occupier owes a duty of reasonable care.
(2) for CONDITIONS: a duty to warn of or make safe known dangerous conditions on the land of which the licensee is not aware (this is a duty to protect against (a) concealed conditions (b) known to owner/occupier)
The duties that owner/occupiers owe to INVITEES are
(1) for ACTIVITY: the owner/occupier owes a duty of reasonable care.
(2) for CONDITIONS: duty to protect against (a) concealed conditions either (b) known to owner/occupier or that (c) could have discovered through reasonable inspection (duty to inspect)
A “licensee” is a
social guest (a [L]icensee is someone you [L]ike).
An invitee is a
anyone who comes onto land held open to the public at large (business visitor)
An invitee that exceeds the scope of the invitation by _________________, the invitee ______________ and is at most treated like a _________________.
going into a portion of the property where his invitation cannot reasonably be said to extend;
loses invitee status;
licensee (but possibly even an anticipated/discovered trespasser).
In a static condition question, an owner/occupier can satisfy his/her legal duty by
(1) making the condition safe or
(2) giving a warning (most likely)
For child trespassers the standard of care is
almost always reasonable prudence (attractive nuisance doctrine).
Was D aware that children might be near land, was child unable to appreciate the danger (this is almost always a JURY question)
Under the attractive nuisance doctrine, the plaintiff must show that
(1) there is a DANGEROUS CONDITION present on the land of which the OWNER is or should be AWARE,
(2) the OWNER SHOULD HAVE FORESEEN that CHILDREN would be on the land
(3) the condition is likely to cause injury, i.e., is dangerous, because of the CHILD’S INABILITY TO APPRECIATE THE RISK, and
(4) the EXPENSE of REMEDYING the situation is SLIGHT compared with the MAGNITUDE of the RISK.
A jury usually decides whether the attractive nuisance doctrine applies by determining whether the landowner should have
foreseen that children would be on the land.
If an entrant on property is injured by an open and obvious condition, then the entrant will almost always
lose.
No duty to warn for an open and obvious condition, the condition provides its own warning. But see attractive nuisance for a child’s ability to appreciate the risk.
Under the modern trend for owner/occupier duties, the distinction between invitees and licensees has been
abolished
A plaintiff can use a statute to set the standard of care (negligence per se) by showing that
(1) the statute is designed to protect the “CLASS OF PERSON” of which P is a member
(2) the statute is designed to protect against the “CLASS OF RISK” or harm that is the type of harm in P’s case
The two EXCEPTIONS to using a statute to set the standard of care are
(1) compliance with the statute is MORE DANGEROUS than violating the statute (e.g. exceeding the speed limit while trying to get a severely injured to the hospital)
(2) compliance is IMPOSSIBLE under the circumstances (heart attack, seizure, faint)
There is generally no duty to rescue or otherwise ________ act.
affirmatively.
There is an affirmative duty to act when
(1) D created the risk/peril (even non-negligently)
(2) relationship between the party (close family, common carrier or innkeeper, invitee-invitor)
(3) D controls 3rd persons (D must have actual ability and authority to control)
P can recover for negligent infliction of emotional distress (NIED) in the following situations
(1) Zone of Danger (physical symptoms generally required)
(2) Bystander Recovery (physical symptoms generally required)
(3) Relationship (e.g. doctor-patient for negligent misdiagnoses of a terminal illness)
(4) erroneously reporting a relative’s death (physical symptoms not required)
(5) mishandling a relative’s corpose (physical symptoms not required)
Under the zone of danger rule, P can recover for NIED if
(1) P was in the “zone of danger”, i.e. threat of physical impact (a “near miss”)
(2) Most states require that P have physical symptoms, but there is a modern trend to abolish them
Under the bystander recovery rule, P can recover for NIED if
(1) P and the person injured were closely related
(2) P was present at the scene of the injury
(3) P personally observed or perceived the event
(4) Most states require physical symptoms, but there is a modern trend to abolish them
A plaintiff’s introduction of custom to establish a standard of care and breach is
admissible, but is NEVER conclusive. An entire industry can be negligent.
**In essays, analyze both sides of the standard of care and potential breach, but ultimately send it to the jury.
Res ipsa loquitur relieves P’s obligation to show specific conduct for a breach by instead showing
(1) the event is one that does not normally occur in the absence of negligence
(2) any negligence would be attributable to the D
*Under res ipsa, P gets to the jury
**This is usually used by desperate Ps who don’t know or can’t prove what happened.
To prove causation, P must show both
(1) cause-in-fact; and
(2) proximate (legal) cause
The three cause-in-fact tests are
(1) but for (most important - P’s injury would not have occurred but for D’s conduct)
(2) substantial factor (use for multiple Ds in a co-mingled cause, e.g. pollution cases)
(3) burden shifting (multiple Ds in an unknown cause)
Proximate cause only holds a D liable for
harms that are within the risk of D’s activity, i.e. foreseeable consequences. This limits D’s liability.
