Torts - negligence Flashcards
negligence elements
1- duty
2- breach
3- causation - close causal connection
4- damages
parties to who duty is owed
all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care
duty owed for failure to act
generally none
duty & foreseeability of harm to P
Cardozo - D only liable to P’s w/ in zone of foreseeable harm - Palsgraf majority
Andrews - If D can foresee harm to anyone resulting from D’s negligence, D owed duty to everyone harmed
duty to rescuers
D liable for negligently putting rescuers / rescued party in danger
- can apply comparative responsibility if rescuer’s efforts were unreasonable
- emergency professionals barred from recovery from injury in course of job
duty to fetuses
duty of care owed to fetuses viable at time of injury
affirmative duties to acts - exceptions
1- assumption of duty
2- placing another in peril
3- by contract
4- by authority - in VA no cause of action based on duty by employer to supervise employee
VA Good Samaritan Law
protects people rendering the following from tort negligence liability
a- emergency care in good faith & without comp
b- emergency obstetrical care when pregnant woman’s medical records are not readily available, unless care is grossly negligent
c- emergency assistance to injured animals at scene of emergency
d- emergency personnel while operating emergency vehicle en route to emergency provided i- comply w/ warning lights, ii- act w/ out gross negligence
reasonably prudent person std
objective std
- physical, not mental, characteristics are considered
reasonably prudent person std for intoxicated persons
- voluntarily intoxicated person held to same standard as sober one
reasonably prudent person std for children
reasonable child of same age, intelligence and experience used as std
- children engaged in high risk adult activity held to adult standard
- irrebuttable presumption that children under age of 7 incapable of negligent conduct
- rebuttable presumption that children between ages 7 and 14 are legally incapable of negligence
use of custom to determine std of care
admissible but not conclusive
std of care for professionals
expected to show same skill, knowledge and care as other practitioners in SAME COMMUNITY
- specialists may be held higher std
- usually requires expert to est. proper std of care unless negligence would be apparent to a lay person (e.g. amputating wrong leg)
std of care for physicians
held to std of other physicians and specialists in VA but locality std may be applied if shown to be more appropriate
- failure to comply w/ informed consent requirement is medical negligence unless risk is commonly known, patient is unconscious, patient waives or is incompetent, or disclosure is too harmful
negligence per se (under statute)
1- specific duty imposed by criminal or regulatory statute
2- D neglects to perform required duty
3- D liable to anyone in the class of people intended to be protected by statute
4- for harms the type of which statute was intended to protect against
5- that were proximately caused by D’s violation of the statute
defenses to negligence per se
- compliance impossible or more dangerous than noncompliance
- violation reasonable under circumstances
- statutory vagueness or ambiguity
inn keeper std of care
ordinary negligence std
+ must warn or protect guests from foreseeable criminal acts (VA)
common carrier std of care
highest duty of care consistent w/ practical operation of business
auto drivers std of care
ordinary care to guests as well as passengers
bailor std of care
duty to warn all bailees of known dangerous defects
duty to warn bailee for hire or defects bailor should have known w/ reasonable diligence
bailee std of care
gratuitous bailee liable only for gross negligence
bailee for hire must exercise extraordinary care
bailee for mutual benefit must take reasonable care
sellers of real property std of care
duty to disclose known, concealed, unreasonably dangerous conditions
liability to 3rd parties continues until buyer has a reasonable opportunity to discover and remedy the defect
std of care for undiscovered trespassers
no duty unless owner should reasonably know that trespassers are entering the land
- no intentional misconduct toward trespassers (spring gun)
std of care for discovered trespassers
duty to warn / protect against concealed, dangerous and artificial conditions
attractive nuisance rule
repudiated in VA except landowner may be held liable for leaving hidden danger on property that is
i- easily accessible to children and
ii- known to be frequented by children
invitee definition
invited to enter for purposes for which land is held open
std of care for invitees
liable to invitees for injuries caused by land if owner should have known invitee would not realize danger -
NO duty to protect against open and obvious dangers
licensee - defined
enters onto land of another w/ permission or privilege (social guest, emergency personnel
std of care for licensees
carry on activities w/ reasonable care for safety of licensees
liable for resulting injuries unless licensee should be aware of risk
std of care for tenant
landlord liable for injuries a) occurring in common areas resulting from hidden dangers about which LL fails to warn on premises b) premises leased for public use c) hazrd caused by negligent repair, or d) involving hazard LL agreed to repair
std of care for off premises victims
- no duty for harm caused by natural conditions
- duty to prevent - unreasonable risk of harm caused by artificial condition
burden of proof for breach of duty
preponderance of the evidence:
- greater than not D failed to meet std of care
- failure was proximate cause of injury and p suffered damages
res ipsa loquitor
P’s harm wouldn’t have occurred if D used ordinary care - no injury absent negligence
P not responsible for injury
p’s injury under D’s exclusive control
