Torts - Negligence Flashcards
Four Elements of Negligence
(1) Duty
(2) Breach
(3) Causation
* Proximate Causation
* Factual Causation
(4) Damages
Duty - Whom do you owe a duty of care?
You owe a duty to forseeable victims.
No duty to UNFORSEEABLE victims. They are outside the zone of dangers.
Exception: Rescuers are seen as forseeable b/c once bad things happen. People rush in to help.
What is the general duty standard for an adult?
You must be acting as a reasonably prudent person under the circumstances. [Even if its not possible for the individual D]
What the duty standard for a person with superior skill or knowledge or if they have a physical attribute relevant to the case?
If D has superior skill or knowledge, the reasonably prudent person becomes a person with the same skill or knowledge.
If the physical attribute is relevant to the case, then the reasonably prudent person is a person with the characteristic.
What is the duty of care for negligence claims against children?
Under the Age of Five: Zero duty of care
5 to 18: Duty of care for hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
Exception Adult Activity –> Apply “adult” reasonably prudent person standard.
What is the duty of care for a professional?
Professional is obligated to exercise the skill and knowledge normally possessed by members in good standing in similar communities.
What are the four types of entrants and the MA distinction?
(1) Undiscovered Trespasser
(2) Discovered Trespasser
(3) Licensees
(4) Invitees
MASS.
Lawful Entrants (Licensee and Invitees) –> duty owed - must act like a reasonably prudent person under the circumstances.
Unlawful Entrants (Discovered and undiscovered trespassers) —> NO DUTY OWED
Except: You know the trespasser is in a position of peril then you owe the trespasser a duty.
What is the rule for undiscovered trespasser?
Duty OWED –> NONE –> They are unforeseeable.
What does a landowner owe a duty to a discovered trespasser (including anticipated trespassers)?
Duty only arises for a dicovered trespasser IF:
(i) The condition is artificial;
(ii) Condition is Highly Dangerous
(iii) Condition must be concealed from the trespasser AND
(iv) Condition must be known in advance to the possessor.
[Duty only arises for known man made death traps]
Who is a licensees and when is duty owed to a licensee?
Licensee: Enter with permission from property owner, but provide owner with no economic benefit.
Duty arises to protect licensee if:
(1) Concealed Conditions AND
(2) Possessor knew about in advance
Who is an invitee and when is a duty owed to an invitee?
Invitee: Enter land with permission and do provide economic benefit to the possessor OR alternatively the land is open to the public.
Duty arise to protect invitee if:
(1) Concealed Conditions AND
(2) Possessor must either know about the condition or could have discovered from a reasonable inspection.
Must protect from all reasonably known traps on a land.
What duty is owed to trespassing children?
Owe child a duty of reasonable prudence to protect the child.
The more likely a child is to trespass –> the more that’s required of you. [Attractive nuisance]
What is negligence per se and when can P use it?
P can use a criminal statute and apply it as D’s duty of care - takes away jury’s discretion. If D violated the statute, he/she is negligent.
P can use it if:
(1) P is part of a class of person that the statute seeks to protect.
(2) P must show that the accident is in the class of risks that the statute seeks to prevent.
Two Exceptions to When Negligence Per Se can be used:
(1) Don’t use if compliance with the statute would have been more dangerous than actions taken by D.
(2) Don’t use if compliance with statute is impossible.
Massachusetts Distinction on Negligence Per Se
When statute meets two prong test, violation of the particular statute is just evidence of negligence not “negligence per se.” It can still be rebutted by the D.
