3. Negligence Flashcards
What is the prima facie case for negligence?
1) DUTY (owed to all foreseeable victims/πs) to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury
2) BREACH (conduct falls short of duty)
3) CAUSATION: the breach is the actual (but-for) & legal/proximate (blameworthiness) cause of injury
4) DAMAGES (eggshell skull doctrine)
NOTE: if you are given a negl. question in an essay, you must discuss EVERY element
General rule: To whom do we owe a duty of care AND what’s the level of care?
1) everyone owes a duty of care to foreseeable victims of their potential negligence
* Foreseeable Victims: w/in Zone of Danger
2) standard of care = that given by a reasonably prudent person (RPP) in similar circumstances (objective std)
- RPP: NO allowances for Δ’s shortcomings;
- EXCEPT:
(i) ↑ std. for superior knowledge (e.g. NASCAR driver = higher driving std.);
(ii) adjust for physical characteristics (e.g. reasonable blind Δ).
Who are 2 victims’s who are presumptively foreseeable (so are owed a duty whether or not actually foreseeable)? NOTE: NY distinction
1) Rescuers: injuries to rescuers are ALWAYS (presumptively) foreseeable (“danger invites rescue”)
2) Fetuses: negligent Δ injures pregnant lady (baby already conceived).
- NY: If fetus is born dead: no damages;
- Child must be born alive, then can get damages for injuries/defects
In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure
- If fetus born alive w/ defects: injury to baby is foreseeable >> (i) baby can recover; (ii) parents can recover for marginal costs given defects
- If there is a botched sterilization (“wrongful birth”): CANNOT get damages for ordinary child rearing expenses; can ONLY recover for additional medical expenses and for pain and suffering with labor.
NY DISTINCTION: parents CAN’T recover damages b/c “joy of new child outweighs marginal expenses”
What is the std of care owed by professionals?
- Std of care = that is given by the average member of that profession (in good standing) **in similar community **
- Std. is empirical/discoverable
- Liability still turns on whether it was REASONABLY FORESEEABLE that the professional’s action/service would CAUSE a HARM
- “Similar community” = rural vs. urban;
- EXCEPTION: specialists (e.g. brain surgeons) are held to a **national standard **
What is the std of care owed by children?
1) Children ≤ 4: incapable of negligence
2) Children b/t 5 and 18: owes duty of hypothetical child of similar age, experience, intelligence and experience in similar circum.
- (NOTE: drastically different standard from RPP)
- EXCEPTION: if child engages in adult activity >> child is held to adult std. (e.g. vehicle w/engine)
What is the std of care owed by possessor of land? NOTE: NY Distinction
1) For undiscovered trespasser (on land w/o permission OR occupier’s knowledge)… NO duty of care for activity/condition (unforeseeable)
2) For discovered/obvious trespasser (occupier knows OR should know)…
Possessor activities: RPP in similar circumstances
Land conditions: duty to warn/make safe from:
(1) man-made (ONLY) condition;
(2) highly dangerous;
(3) concealed;
(4) known to occupier
NOTE: under attractive nuisance doctrine, LIABLE if child
(i) is foreseeably attracted to land (e.g. a pool);
(ii) CAN’T appreciate the risk of the condition; AND
(iii) compliance is less expensive than risk imposed >> then duty to warn/make safe for man-made conditions (ONLY)
3) For licensees (friends or other entrants who enter w/ permission)… Posessor activities: RPP in similar circumstances
Land conditions: duty to warn/make safe for conditions (natural AND man-made)
(1) concealed and
(2) known to occupier
4) For invitee (business or land open to public; benefit posessor)…
NOTE: an invitee loses his status as an invitee if he exceeds the scope of his invitation (i.e. becomes a trespasser)
Posessor activities: RPP in similar circumstances Land conditions: duty to warn/make safe for conditions
(1) concealed;
(2) known or should have discovered w/ reasonable inspection
NY DISTINCTION: doesn’t distinguish b/t type of entrant Std of care = reasonable care under the circumstance BUT entrant status is evidence of foreseeablity
(foreseeability scale: customer > guest > trespasser)
What are the 2 elements of negligent infliction of emotional distress? NOTE: NY Distinction
1) π is in zone of danger
2) serious subsequent physical manifestation
EXCEPTION 1: if π is not in zone of danger, but witnesses injury to 3d party; this requires:
(i) close relationship b/t π and 3d party;
(ii) the presence of π at scene of injury AND π’s witnessing the injury
* NY DISTINCTION: w/ this exception, π STILL has to be w/in zone of danger AND have a immediate family relationship (nuclear family, not extended)
EXCEPTION 2: if π is not in zone of danger, but is in a **special relationship w/ ∆ **where it is very foreseeable that carelessness will cause distress (e.g. DOCTOR negligently telling PATIENT he has AIDS when he doesn’t)
When is there an affirmative duty to act (the failure to do so constituting breach)? NOTE: NY Distinction
General Rule: NO affirmative duty to act
3 Exceptions, which necessitates doing what’s reasonable under circumstances (no requirement of martyrdom)
- Preexisting relationship: family member; common carrier; innkeeper; business owner/invitee
- Δ created the danger
- ∆ assumed responsibility (attempted to rescue) >> liable for negligent rescue
NY Distinction: For medical professionals, an attempted rescue is only actionable if grossly negligent (Good Samaritan Law)
What are the 3 elements of negligence per se? NOTE: NY Distinction
To establish duty/breach, π needs to show…
1) the statute provides for criminal penalty that clearly defines std. of conduct
2) π is w/ in class of ppl that the statute is meant to protect
3) the statute was designed to prevent the type of harm suffered by π
EXCEPTIONS:
(i) compliance more dangerous than violation (e.g. cross yellow lines to avoid hitting child); and
(ii) impossibility of compliance (e.g. heart attack caused violation)
NY DISTINCTION: ONLY state statutes (NOT local ordinance/reg.) will establish negligence per se (otherwise only some evidence of negl.)
What are the 3 theories of breach of duty?
1) Custom or usage to define standard of care: if ∆ acts differently from the custom that everyone else follows NOT controling as to whether conduct was negligence (as the entire industry/sector/etc may be negligent)
2) Violation of statute (Negligence per se): if the ∆ violates a duty as established by statute
3) Res Ipsa Loquitur: π can’t specifically explain what Δ did to cause the injury (e.g. barrel mysteriously falls from warehouse);
If π can prove 3 elements (inference of negligence), it goes to jury (i.e. no summary judgment)…
- Accident of type that doesn’t normally occur in the absence of negligence
- Negligence is usually committed by someone in Δ’s position (Δ had exclusive cntl of instrument of injury)
- π was not contributorily negl. in the injury
How does π establish but-for/factual causation?
Test = “But for the breach, there would be no injury”
2 important scenarios
1) Multiple Δs & mingled/merged causes (e.g. 2 Forest Fires)
* “Substantial Factor” test: joint liability for each Δ whose breach was substantial causal factor (i.e. could individual cause the damage) in π’s injury.
2) Multiple Δs & **unascertainable **cause (e.g. Quail Hunting case)
* Burden Shift: shift burden to each Δ to prove by a preponderance that they are NOT the cause; if can’t they are jointly liable
How does π establish proximate/legal causation?
1) For direct causes: established if π’s injury is an immediate foreseeable result of Δ’s breach ∆ is not liable for unforeseeable harmful results not within risk created by ∆’s negl.
2) For indirect causes: when there are intervening causes (increasing π’s injury), original Δ IS STILL liable for… intervening negligent medical treatment (e.g. malpractice) intervening negligent rescue, intervening reactions to protecting property/person subsequent accident/disease to π foreseeable independent intervening forces if ∆ increased the risk of harm by that force (e.g. theft, acts of God, etc);
- NOTE: if it’s an unforseeable independent intervening force AND an intentional tort by 3d person, then it’s a superceding cause (no ∆ liability)
What is the Eggshell Skull Rule AND the Collateral Source Rule? NOTE: NY Distinction
Eggshell Skull Rule: the ∆ takes π as she finds him…if ∆ is negligent (i.e. duty, breach, causation), then Δ pays for ALL damages
Collateral Source Rule: damages are not reduced just b/c π received benefits from other sources (i.e. health insurance)
- NY DISTINCTION: NY has abolished the collateral source rule; π’s damages are REDUCED by collateral payments
What are the 3 affirmative defenses to prima facie neglience (duty, breach, causation, damages)? NOTE: NY Distinction
1) Contributory negligence: negl on part of π that contributes to her injury that COMPLETELY bars π’s recovery
- Contributory negl. is a minority rule
- Contributory negl. is NOT a defense to wanton/willfull misconduct or intentional tortious conduct
- Last Clear Chance Exception: π is STILL able to recover n/w/s being contributorily negl. if ∆ had last chance to avoid the accident
2) Assumption of risk: π is denied recovery if she assumed the risk of any damage caused by ∆’s act.
- NOTE: Most comparative negl. jx have ABOLISHED the separate defense of “implied assumption of risk” → would just analyse the π’s conduct under comparative negl. principles
- Assumption of risk is NOT a defense to intentional tortious conduct (but it IS A DEFENSE to wanton/reckless misconduct)
- NY DISTINCTION: assumption of the risk has been abolished, but cts still use label, “primary assumption of the risk”, which applies **ONLY to participants or spectators in sporting/recreational activities **
3) Comparative negl.: π’s negligence is not a complete bar to recovery, but her recovery is reduced to the extent (%) that she is negl. in causing the injury; two types…
- Pure (**default**): π’s recovery is reduced by % of her fault
- Modified/partial: if π is ≥ 50% negligent, then she gets NO recovery
NY DISTINCTION: the π may recover even if the π’s negligence % is greater than the ∆’s (BUT if π’s conduct was illegal, NO recovery)
