Negligence Flashcards
(41 cards)
What are the elements of Negligence?
- Duty
- Breach
- Causation (actual and legal cause)
- Damages
Duty Rule
Does the law impose obligations from D to P?
Rule: D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others
Duty: The Foreseeable Plaintiff
D owes this duty only to those persons inside the geographic zone of danger at the time of D’s negligence
i) Rescuers owed an independent duty
ii) Nonprofessional rescuers are foreseeable P’s as a matter of policy and can recover against negligent party creating need
Duty: Nonfeasance
When do you have no duty to rescue?
Failure to intervene/confer benefit on the P
i) No duty to rescue or aid, except when:
(1) D’s tortious conduct creates need to rescue;
(2) Undertaking to act—at common law, you do not have to intervene but if you do, must act reasonably (many states have enacted Good Samaritan statutes—rescuer protected unless rescuer is reckless or engages in intentional wrongdoing)
(3) Special relationship of dependence or mutual dependence (carrier/passengers, inn keeper/guest, captain/passengers, drinking buddies)
Duty: Nonfeasance
Duty to Control 3rd Parties
(1) No duty to control the conduct of a third party as to prevent harm to another.
Exception: a special relationship between D and the third party that gives the third party a right of protection or imposes a duty on D to control the third party’s conduct
(2) Providers of alcohol
(a) Traditional Rule: Purveyor not responsible for DUI injuries
(b) Dram Shop Acts: impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party
(3) Negligent Entrustment
(a) When D gives something dangerous to someone D knows, or should know, is not competent to handle it (i.e., Father gives gun to infant who shoots P)
Duty: Nonfeasance
Duty to Protect
Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless:
(a) Special relationship – Landlord/Tenant, Business/Invitee
(b) Some jurisdictions only find a duty where there is a special relationship and prior similar incidents that make the third party criminal conduct particularly foreseeable
Duty: Nonfeasance
D is Government Entity
Whether a duty is owed depends on function
(1) Proprietary function (acting in private area) –> Treated as any other D for duty analysis
(2) Discretionary activity (using judgment and allocating resources i.e., setting policy) –> Courts will not find a duty
(3) Ministerial function –> Duty once government has undertaken to act (e.g.,: stop sign installed incorrectly leading to accident)
(4) Public Duty Doctrine: Courts find no duty when police officers/firefighters fail to provide an adequate response, except when:
(a) Special relationship; or
(b) Agency has increased the danger beyond what would otherwise exist
Duty
If P’s injury is not a personal injury or property damages, duty issues arise
i) Negligent Infliction of Emotional Distress NIED (courts reluctant)
(1) D engages in negligent conduct and, as a result, P suffers emotional distress + some sort of physical manifestation
(a) Most jurisdictions require P to be in the zone of danger – At risk of physical harm
(b) P must have suffered a physical manifestation of the emotional distress, proving genuineness
(c) Exceptions to these requirements:
(i) D negligently shares information about the death of a loved one
(ii) D negligently mishandles a corpse
(2) Bystander actions = Physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative
(a) P was located near the scene of the incident
(b) P suffered severe emotional distress
(c) P had a close relationship with the victim (immediate family member)
ii) Wrongful Conception, Birth, and Life
Duty: D is a land owner
Plaintiff’s on land = Invitees
i) Plaintiffs on the Land
(1) Invitees = Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities –> D has a duty to exercise reasonable care to prevent injuries caused by activities conducted on D’s land
Duty: D is a land owner
Plaintiff’s on land = Licensees
(2) Licensees = Enters D’s land with D’s express or implied permission and are not there for a purpose benefiting D or D’s activities, nor is the land held open the public (i.e., social guest) –> Must warn of known concealed dangers (just warn, not cure)
Duty: D is a land owner
Plaintiff’s on land = Trespassers
(3) Trespassers = Enters without express or implied consent of land possessor –> Duty to avoid infliction of willful or wanton harm
Duty: D is a land owner
Other Duties Owed by Land Possessors
(1) D is engaged in an activity on the land –> Duty of reasonable care owed to all except trespassers
(2) ONLY for an invitee does LO have a duty to reasonably search out dangers on the property
(3) If known or frequent trespassers (must be obvious- e.g., a well-worn path) –> Duty to warn of concealed dangerous artificial conditions
Duty: D is a land owner
Child Trespassers (Attractive Nuisance Doctrine)
A heightened standard of care may apply as to artificial conditions on D’s land. Even though the child is trespassing, if the below prerequisites are met, the child will be treated as an invitee:
(1) Too young to appreciate the danger; (2) D knows, or has reason to know, of trespass; (3) D knows of the dangerous condition; (4) Condition is artificial (fountain, pool, equipment that looks fun to climb on); and (5) The risk of danger of the artificial condition outweighs its utility and burden to fix it
Duty: D is a land owner
P’s not on the land but adjacent to it
iv) P’s not on the land but adjacent to it
(1) Artificial condition on land –> duty of reasonably care
(2) Natural condition from land –> no duty except trees in urban areas
Duty: D is a land owner
Landlord/Tenant
v) Landlord / Tenant
(1) LL not liable unless:
(a) Common area over which LL retains control;
(b) Negligent repairs;
(c) At time of lease, LL knows of a concealed dangerous condition; or
(d) LL knows that T is going to hold property open to the public
Standard of Care: Reasonable Prudent Person
Objective standard of care
Reasonable Prudent Person (RPP) under same or similar circumstances
i) Objective standard of care – D’s conduct measured against expectation of conduct within community
(1) Law does not take into account mental ability, speed of reflexes, or mental health
(2) The law does take into account:
(a) Physical conditions (blind, deaf, amputee) –> D held to the standard of a RPP with that condition (ex: RP blind person)
(b) Emergencies not of D’s own making considered by jury—(e.g., Rushing to hospital because child is dying). Jury can consider emergency to determine whether D acted reasonably under the circumstances
Standard of Care: Reasonable Prudent Person
Breach = Failure to act as a RPP
Factors to analysis breach:
(1) What is the probability of harm occurring from D’s conduct?
(2) What is the likely magnitude of the harm going to be?
(3) What is the burden on D to avoid the harm?
Standard of Care: Children
Minor D’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence, as D, would have done
(1) Exception: Children engaging in adult, inherently dangerous activities are held to an adult standard of care (ex: driving)
Standard of Care: Statutory Negligence
Statutes that provide civil liability supersede common law of torts (ex: A state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort. Thus, if P was not wearing a seatbelt when injured in a car accident, P cannot recover in a negligence action)
Standard of Care: Negligence Per Se
Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes (ex: crim traffic law)
i) Applicable if:
(1) P is member of a class the law is designed to protect; and
(2) Injury caused by D’s conduct is the type of statute sought to protect
ii) If statute applies –> (majority rule) unexcused violation of the law establishes D breached duty to
P. P still needs to prove proximate cause, damages, etc.
(1) Exception: Excused statutory violation, like an emergency not of D’s own making, or when it’s more dangerous to comply with the law
(2) Exception: Licensing statutes – Not having a license does not create liability
(a) Expired driver’s license is not negligence per se
iii) When statute does not apply –> statute will not set standard of care, case proceeds under RPP, not under negligence per se
Standard of Care: Professionals
Med Mal
Custom establishes standard of care for professionals
i) Medical Malpractice: Physicians required to possess and use the knowledge, skill, and training of other physicians in good standing in relevant geographiccommunity
(1) Specialists = National standard
(2) General practitioners = Locality standard
Standard of Care: Professionals
Lawyers, Architects, Accountants
so long as professional complies with custom, cannot be found to have breached duty—deviation from custom means breach of that duty
Standard of Care: Professionals
Lack of Informed Consent
(1) Traditional (battery): Physician is liable for battery if no informed consent about risks; consent is negated because of lack of disclosure –> still the case when there is gross deviation from actual consent (ex: P agrees to tonsillectomy, but leg is amputated instead)
(2) Traditional (negligence): Physician must divulge risks that are customarily divulged
(3) New Trend – Standard of materiality: Physician must divulge all material risks, risks that a reasonable patient would want to know in deciding whether to undergo procedure. Failure to divulge material risk is malpractice IF P can show that P would have refused procedure if risk was divulged
Breach of Duty = Failure to Meet Standard of Care
a) Direct Evidence (rare) – Eye witness or recording of the accident while occurring
b) Circumstantial – Evidence from which one can draw reasonable inference
i) Slip-and-Fall Cases –> P must show that D was negligent for not discovering, and repairing, the dangerous condition—dangerous condition was present long enough that D should have noticed it (Ex: Slipped on rotten banana peel)
ii) Res Ipsa loquitur –> Allows jury to infer D’s breach based on the nature of the accident and D’s relationship to it
(1) Only used to show breach
(2) P needs to show:
(a) This sort of thing does not occur absent negligence;
(b) D is probably the responsible party because D had control over instrumentality of harm; and
(c) P did not contribute to the injury
