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.
What are the exceptions to the general NO DUTY TO RESCUE RULE?
(1) Pre-existing Relationship
(2) Defendant caused the Peril
(3) Gratuitous Rescuer –> once you undertake the rescue, you must act like a careful/reasonable person
Who is exempt under the MA Good Samaritan Law?
MA Law covers physicians, physician’s assistant, nurse, EMTs when on duty, cops and fire fighters –> immunize when they rescue.
What is negligent inflection of emotional distress cases?
D is negligent, but P suffers no physical harm, but P has suffered emotional harm.
Two-Tier Analysis
(1) Must look to see if D is negligent.
(2) Engage in a special analysis to determine what P can recover for emotional distress.
What are cases where P can recover for emotional distress caused by D’s negligence?
(A) Near Miss Case - D didn’t cause P physical harm, but it was a close class.
(i) Negligent D can put P in a zone of physical danger. (ii) Because of the stress, P developed physical symptoms of distress.
(B) Bystander Claim: D directly injures X and P who witnessed it bring a claim against D.
(i) P must show that he is a close family member of X AND
(ii) P must show that he saw the injury as it happened.
MA Distinction - Don’t have to see accident while it happened, just have to arrive at scene while victim is still there.
(C) Relationship Cases - P and D are in a business relationship and its highly foreseeable that careless performance will cause significant distress.
How can P show a breach of duty?
(1) P must identify specific wrongful conduct of the D AND
(2) Give us a reason why this constitutes a breach?
What is Res Ipsa Locquitur and when can P use it?
**Back door to the jury room, used when P doesn’t know D did wrong.
P gets to proceed by showing two facts:
(1) P must show that the accident is normally one associated with negligence
(2) The accident would normally be due to the result of negligence of someone in this defendant’s position. [Usually by demonstrating that D has control over the item]
What is the Factual Causation Standard?
“But For” Test - P must demonstrate that “but for” the breach P would be uninjured today.
What are the two special cases where the “but for” test isn’t used?
(1) Merger Cause Cases –> multiple D’s doing careless act that merged and cause injuried.
(*) Apply the “substantial factor” test - ask whether each breach was a substantial factor in causing the harm. - Results in joint liability
(2) Unascertainable cause –> multiple D, but unascertainable cause.
* Burden shifts to the multiple D’s to show that they are the one that didn’t cause the harm.
What is the test for Proximate Causation and four known fact patterns?
Last second test to see if the result is fair.
Ask: Is it forseeeable that the harm would result from D’s negligence?
Four fact patterns that have been determine to be forseeable:
(i) Intervening medical negligence
(ii) Intervening Rescue Negligence
(ii) Intervening Protection or Reaction Forces - Injuries caused to victim due to others reaction.
(iv) Subsequent disease/injury
Proximate cause is a function of time and space.
