Negligence

Question 1

Negligence - Definition

Answer 1

Negligence is conduct (the commission of an act or failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm.

Question 2

A prima facie case of negligence consists of four elements:

Answer 2

i) Duty, the obligation to protect another against unreasonable risk of injury;
ii) Breach, the failure to meet that obligation;
iii) Causation, a close causal connection between the action and the injury; and
iv) Damages, the loss suffered.

The plaintiff must establish all four elements of negligence by a preponderance of the evidence.

Question 3

Duty

Answer 3

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable.

Question 4

Duty - Foreseeability of Harm

Answer 4

While the foreseeability of harm alone does not create a duty, most courts emphasize the foreseeability of harm to the plaintiff when evaluating the existence of a duty. The foreseeability of the type of harm is also relevant to proximate cause.

Question 5

Duty - Foreseeability of the Plaintiff

Answer 5

a. Cardozo (majority) view
The majority rule is that a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called “foreseeable plaintiffs”) as a result of the defendant’s negligent conduct. The defendant is liable only to plaintiffs who are within the zone of foreseeable harm.

b. Andrews (minority) view
Minority and Restatement - if the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone (foreseeable or not) harmed as a result of his breach. The issue of whether the plaintiff is foreseeable is reserved for proximate cause.

Question 6

Specific Classes of Foreseeable Plaintiffs - Rescuers

Answer 6

A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries. To the extent that a rescuer’s efforts are unreasonable, comparative responsibility may reduce the rescuer’s recovery, but does not automatically bar it.

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job (“firefighter’s rule”).

Question 7

Specific Classes of Foreseeable Plaintiffs - Intended Beneficiaries

Answer 7

A defendant is liable to a third-party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently, and the defendant could foresee the harm of completing the transaction.

Question 8

Specific Classes of Foreseeable Plaintiffs - Fetuses

Answer 8

Fetuses are owed a duty of care if they are viable at the time that the injury occurred.

Question 9

Specific Classes of Foreseeable Plaintiffs - Anticipated victim of a crime

Answer 9

Generally, a psychotherapist owes a duty only to her patient.

However, when a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim.

The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance.

Question 10

Affirmative Duty to Act

Answer 10

Generally, there is no affirmative duty to act.

Question 11

Affirmative Duty to Act - Assumption of Duty

Answer 11

A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue.

“Good Samaritan” statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Question 12

Affirmative Duty to Act - Placing another in peril

Answer 12

A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

Question 13

Affirmative Duty to Act - By Contract

Answer 13

There is a duty to perform contractual obligations with due care.

Question 14

Affirmative Duty to Act - By Authority

Answer 14

Actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control.

Generally, this duty is imposed upon the defendant when the defendant knows or should know that the third person is apt to commit the injuring act.

Question 15

Affirmative Duty to Act - By relationship

Answer 15

A defendant with a unique relationship to a plaintiff, such as business proprietor–patron, common carrier–passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.

Question 16

Affirmative Duty to Act - By statute that imposes an obligation to act for the protection of another

Answer 16

A statute that imposes an obligation to act for the protection of another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.

Question 17

The Standard of Care - Reasonably Prudent Person

Answer 17

In most cases, the standard of care imposed is that of a reasonably prudent person under the circumstances.

Objective Standard

A defendant is required to exercise the care that a reasonable person under the same circumstances (i.e., in her position, with her information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.

Question 18

The Standard of Care - Mental and emotional characteristics

Answer 18

Defendant is presumed to have average mental abilities and the same knowledge as an average member of the community.

The defendant’s own mental or emotional disability is not considered in determining whether his conduct is negligent, unless the defendant is a child.

Majority - if a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care.

Question 19

The Standard of Care - Physical Characteristics

Answer 19

A defendant’s particular physical characteristics (e.g., blindness) are taken into account and the reasonableness of the conduct of a defendant with a physical disability is determined based upon a reasonably careful person with the same disability.

Question 20

The Standard of Care - Intoxication

Answer 20

Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary.

Question 21

The Standard of Care - Children

Answer 21

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience. The standard applicable to minors is more subjective in nature because children are unable to appreciate the same risks as an adult.

However, a child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult.

Courts regard children of a particularly young age as incapable of negligent conduct. Third Restatement - children under the age of five are generally incapable of negligent conduct.

Question 22

Standards of Care for Specific Classes of Defendants - Common carriers and innkeepers

Answer 22

Common law - holds both common carriers (e.g., planes, trains, buses) and innkeepers to the highest duty of care consistent with the practical operation of the business - could be held liable for “slight negligence.”

Majority today hold that an innkeeper (hotel operator) is liable only for ordinary negligence.

Third Restatement - common carriers and innkeepers are treated alike and must exercise reasonable care toward their passengers and guests. Although generally there is no affirmative duty to act, common carriers and innkeepers have a duty to act based upon the special relationship they have with their customers.

Question 23

Standards of Care for Specific Classes of Defendants - Automobile Drivers

Answer 23

Majority - automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride).

Minority:
“Guest statutes,” which impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car.
Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest.

Question 24

Standards of Care for Specific Classes of Defendants - Bailors and bailees

Answer 24

A bailment occurs when a person (the bailee) temporarily takes possession of another’s (the bailor’s) personal property, such as when a driver leaves his car with a valet.

The duty of care that must be exercised by a bailor or bailee varies depending on the type of bailment.

Question 25

Standards of Care for Specific Classes of Defendants - Bailors duty GRATUITOUS AND COMPENSATED

Answer 25

Gratuitous bailor - has a duty to inform the bailee only of known dangerous defects in personal property.

Compensated bailor - must inform a bailee of defects that are known or should have been known by the bailor had he used reasonable diligence.

Question 26

Standards of Care for Specific Classes of Defendants - Bailees duty

Answer 26

When a bailor receives the sole benefit from the bailment, the bailee is liable only if he has been grossly negligent.

In contrast, when a bailee receives the sole benefit from the bailment, he must exercise extraordinary care for the bailor’s property.

In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property.

Question 27

Standards of Care for Specific Classes of Defendants - Emergency Situations

Answer 27

The applicable standard of care in an emergency is that of a reasonable person in the same situation.

Less may be expected of the reasonably prudent person who is forced to act in an emergency, but only if the defendant’s conduct did not cause the emergency.

Question 28

Possessors of Land

Answer 28

Possessors of land - includes owners, tenants, those in adverse possession, and others in possession of land.

Only land possessors are protected by the rules limiting liability to trespassers or licensees.

Everyone else— easement holders or those licensed to use the land —must exercise reasonable care to protect the trespasser or the licensee.

In general, possessors of land owe a duty only to those within the boundaries of their land.

Question 29

The duty to entrants on the land includes:

Answer 29

i) Conduct by the land possessor that creates risks;
ii) Artificial conditions on the land;
iii) Natural conditions on the land; and
iv) Risks created when any of the affirmative duties are applicable.

Question 30

Possessors of Land - Two Approaches - Traditional Approach

Answer 30

Half jurisdictions - traditional rule - standard of care owed to land entrants depends upon the status of the land entrant as an invitee, a licensee, or a trespasser.

Question 31

Possessors of Land - Two Approaches - Modern Trend

Answer 31

Half of jurisdictions and Third Restatement - require that a standard of reasonable care applies to all land entrants except trespassers.

Third Restatement, the rule applies to all land entrants except for “flagrant” trespassers

Reasonable care to prevent harm posed by artificial conditions or conduct on the land.

Natural conditions there is no duty to remove or protect against the condition -exception for rotting trees in densely populated areas.

A land possessor must take reasonable precautions for known or obvious dangers when the possessor should anticipate the harm despite such knowledge or obviousness. When the danger is open and obvious to the entrant there is no liability for failing to provide a warning - fails to exercise reasonable self-protective care is contributorily negligent.

Question 32

Trespassers

Answer 32

A trespasser is someone who enters or remains upon the land of another without consent or privilege to do so.

Question 33

Trespassers - Traditional Approach

Answer 33

A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.

Question 34

Trespassers - Traditional Approach - Spring-guns and other traps

Answer 34

The use of a spring-gun or other trap set to expose a trespasser to a force likely to inflict death or grievous bodily injury will lead to liability for the land possessor. The land possessor cannot do indirectly what he would be forbidden to do directly (e.g., shoot the trespasser).

Question 35

Trespassers - Traditional Approach - Discovered Trespassers

Answer 35

Land possessors owe a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, artificial conditions.

There is no duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm.

Duty to use reasonable care while conducting activities on their land, as well as to control the activities of third parties on their property.

When a land possessor should reasonably know that trespassers are consistently entering his land the possessor owes a duty to the anticipated trespasser.

Question 36

Trespassers - Traditional Approach - Undiscovered Trespassers

Answer 36

Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.

Question 37

Trespassers - Traditional Approach - Attractive Nuisance

Answer 37

Attractive nuisance - a land possessor may be liable for injuries to children trespassing on the land if:

i) An artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass;
ii) The land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children;
iii) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
iv) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and
v) The land possessor fails to exercise reasonable care to protect children from the harm.

Question 38

Trespassers - Minority and Third Restatement approach

Answer 38

Minority - land possessors owe trespassers, like all other land entrants, a reasonable standard of care under all the circumstances.

Third Restatement only the duty not to act in an intentional, willful, or wanton manner to cause physical harm is owed to flagrant trespassers who are not imperiled and unable to protect themselves.

Question 39

Invitees: traditional approach

Answer 39

An invitee is either:

i) A public invitee—someone invited to enter or remain on the land for the purposes for which the land is held open to the public; or
ii) A business visitor—someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor.

Duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them.

does not extend beyond the scope of the invitation - trespasser in areas beyond that scope.

Question 40

Invitees - Non-delegable duty

Answer 40

The land possessor’s duty to invitees is a non-delegable duty.

Applies under the modern approach

Question 41

Invitees - Recreational land use

Answer 41

Some jurisdictions, a land possessor who opens his land to the public for recreational purposes is not liable for injuries sustained by recreational land users so long as he does not charge a fee for the use of his land, unless the landowner acts willfully and maliciously or, in some jurisdictions, with gross negligence.

Question 42

Licensees: traditional approach

Answer 42

A licensee is someone who enters the land of another with the express or implied permission of the land possessor or with a privilege.

Question 43

Licensees: traditional approach - Examples of licensees include:

Answer 43

i) Social guests—note, they may be “invited,” but they are still licensees, not invitees;
ii) Those whose presence is tolerated by the land possessor such as children who routinely cut across the land on their way home from school; and
iii) Emergency personnel such as police, firefighters, and emergency medical technicians.

The land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. The land possessor does not have a duty to inspect for dangers. In addition, the land possessor must exercise reasonable care in conducting activities on the land.

Question 44

Liability of landlords and tenants

Answer 44

Because the obligations associated with property are owed by the possessor of the land, a lessee assumes any duty owed by the lessor once the lessee takes possession.

Question 45

Liability of landlords and tenants - Landlord’s liability

Answer 45

The landlord remains liable for injuries to the tenant and others occurring:

i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) As a result of hidden dangers about which the landlord fails to warn the tenant;
iii) On premises leased for public use;
iv) As a result of a hazard caused by the landlord’s negligent repair; or
v) Involving a hazard that the landlord has agreed to repair.

Question 46

Liability of landlords and tenants - Tenant’s liability

Answer 46

As an occupier of land, the tenant continues to be liable for injuries to third parties arising from dangerous conditions within the tenant’s control, regardless of whether the land owner has liability.

Question 47

Off-premises victims

Answer 47

A landowner generally does not owe a duty to a person not on the premises (e.g., passerby, owner of adjacent land) who is harmed by a natural condition on the landowner’s premises. An exception exists, however, with respect to trees in urban areas.

With respect to an artificial condition, the landowner generally owes a duty to prevent an unreasonable risk of harm to persons who are not on the premises. Similarly, with respect to an activity conducted on the premises by the owner or by someone subject to the owner’s control, the landowner generally owes a duty of reasonable care to persons who are not on the premises.

Question 48

Sellers of real property

Answer 48

Sellers of real property owe a duty to disclose to buyers those concealed and unreasonably dangerous conditions known to the seller. These are conditions that the buyer is unlikely to discover upon reasonable inspection. The seller’s liability to third parties continues until the buyer has a reasonable opportunity, through maintenance and inspection, to discover and remedy the defect.

Question 49

Breach of Duty - Generally

Answer 49

A breach of duty occurs when the defendant departs from the required standard of care, such as failure to act as a reasonable person, an unexcused violation of a statute, or, if there is no direct evidence, through res ipsa loquitur.

There are two approaches for determining negligent conduct (breach of the general standard of care).

Question 50

Breach of Duty - Traditional Approach

Answer 50

Most courts determine breach of the standard of care by comparing the defendant’s conduct with what a reasonably prudent person under the circumstances would or would not have done (applying an objective standard).

Question 51

Breach of Duty - Cost-benefit analysis

Answer 51

The modern trend and the Third Restatement approach set out the primary factors to consider in determining whether the defendant has acted in accordance with the standard of care as follows:

i) The foreseeable likelihood that the defendant’s conduct would cause harm;
ii) The foreseeable severity of any resulting harm; and
iii) The defendant’s burden (costs or other disadvantages) in avoiding the harm.

The Third Restatement defines negligence using these terms rather than the reasonably prudent person standard. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3.

Question 52

Breach of Duty - Custom - Within a community or an industry

Answer 52

Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive. The entire community or industry may be negligent.

Question 53

Breach of Duty - Custom - Safety Codes

Answer 53

Safety codes promulgated by industries, associations, and government bodies for the guidance of operations within their respective fields of interest are admissible to prove custom.

Question 54

Breach of Duty - Custom - Professionals

Answer 54

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.

Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant’s deviation from that standard. However, when the defendant’s negligence is so apparent that a layperson can identify it, expert testimony will not be required. See, e.g., Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo. 1984) (Because the standard of care was regarded as within the common knowledge of a layman when the surgeon amputated the wrong leg, no expert testimony was required to establish the standard of care.).

With regard to professionals, deviation from the relevant custom is dispositive evidence of a breach. Similarly, compliance with the relevant custom is dispositive evidence that the professional did not breach a duty of care.

Question 55

Breach of Duty - Custom - Physicians - Local versus national standard

Answer 55

Traditionally, physicians were held to the “same or similar locale” rule of custom: did the physician’s actions comport with those customarily employed by doctors in the same locale or in similar localities? While some jurisdictions have retained the traditional rule, the majority of jurisdictions now apply a national standard to physicians, including physicians who are specialists.

Question 56

Breach of Duty - Custom - Physicians - Informed Consent

Answer 56

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure to comply with this “informed consent” doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice (medical negligence).

A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. However, a significant minority holds that the physician must disclose any “material risk”; that is, any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment.

Doctors are not under an obligation to disclose when:

i) The risk is a commonly known risk;
ii) The patient is unconscious or otherwise incapable of giving consent (e.g., emergency treatment);
iii) The patient waives or refuses the information;
iv) The patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian); or
v) The disclosure would be detrimental to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack).

Question 57

Negligence Per Se

Answer 57

The standard of care can sometimes be determined by statute. In most jurisdictions, the violation of such a statute establishes negligence as a matter of law (a conclusive presumption as to duty and breach). A minority of jurisdictions hold that violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach).

Question 58

Negligence Per Se - Elements

Answer 58

i) A criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a specific duty for the protection of others;
ii) The defendant violates the statute by failing to perform that duty;
iii) The plaintiff is in the class of people intended to be protected by the statute; and
iv) The harm is of the type the statute was intended to protect against.

Once negligence per se is established, in order for the defendant to be liable, the plaintiff must prove that his injuries were proximately caused by the defendant’s violation of the statute.

Question 59

Negligence Per Se - Effect of a defendant’s compliance

Answer 59

Generally, compliance with a statute, a regulation, or an ordinance does not prove the absence of negligence. However, if the defendant’s conduct complies with a federal regulatory statute, such as a statute that is part of comprehensive regulatory schemes, compliance with the federal requirements may preempt common-law tort actions.

Question 60

Negligence Per Se - Defenses

Answer 60

An excused violation of an applicable statute can be a defense to negligence perse under the following circumstances.

Question 61

Negligence Per Se - Defenses - Greater risk of harm

Answer 61

The defendant may be able to avoid liability by proving that compliance would have involved a greater risk of physical harm to the defendant or others than noncompliance would have (e.g., it was an emergency).

Question 62

Negligence Per Se - Defenses - Incapacity

Answer 62

The violation of a statute may not be negligence if the violation is reasonable in light of the defendant’s physical disability or incapacitation, or if the defendant is a child.

Question 63

Negligence Per Se - Defenses - Reasonable care

Answer 63

It is a defense that the defendant exercised reasonable care in attempting to comply with the statute.

Question 64

Negligence Per Se - Defenses - Vagueness

Answer 64

If the requirements of the statute at issue were presented to the public in a confusing manner (e.g., extremely vague or ambiguous), then the defendant’s violation is excused.

Question 65

Negligence Per Se - Defenses - Reasonable ignorance

Answer 65

If the statute imposes an obligation only under certain factual circumstances that are not usually present, and the defendant is not aware that these circumstances are present and further proves that his ignorance was reasonable, then the defendant’s violation of the statute is excused for the purposes of negligence per se.

Question 66

Negligence Per Se - Violation by a plaintiff

Answer 66

The violation of a statute, a regulation, or an ordinance by a plaintiff may constitute contributory negligence per se. The same requirements apply.

Question 67

Res Ipsa Loquitur

Answer 67

Doctrine of res ipsa loquitur - trier of fact may infer the existence of the defendant’s negligent conduct in the absence of direct evidence of such negligence.

Question 68

Res Ipsa Loquitur - Traditional requirements

Answer 68

Traditional standard for res ipsa loquitur the plaintiff must prove that:

i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
iii) It was not due to any action on the part of the plaintiff.

Plaintiff need not conclusively exclude all other possible explanations. It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation.

Question 69

Res Ipsa Loquitur - Modern Trends - Medical Malpractice

Answer 69

In medical malpractice cases when several physicians, nurses, and other medical personnel have access to the plaintiff during surgery, a small number of jurisdictions apply res ipsa loquitur, finding that each defendant has breached a duty of care unless he can exonerate himself. In the absence of such exonerating evidence, the courts hold all defendants jointly and severally liable. See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486 (1944).

Question 70

Res Ipsa Loquitur - Modern Trends - Products Liability

Answer 70

In negligence cases involving products, even if the product passes through many hands—those of the manufacturer, the distributor, the retail store, and the consumer/user—if the manufacturer wrapped the package or it is clear that any negligence took place during the production process, many courts ignore the exclusivity requirement.

Question 71

Res Ipsa Loquitur - Modern Trends - Comparative-fault Jurisdictions

Answer 71

Courts in the vast majority of jurisdictions that have adopted comparative fault also are inclined to loosely apply the third requirement—that the harm must not be due to any action on the part of the plaintiff (whether such action constitutes contributory negligence or not)—because such a requirement would otherwise be in tension with the law holding that the plaintiff’s contributory negligence is no longer a total bar to recovery.

Question 72

Res Ipsa Loquitur - Third Restatement

Answer 72

In light of the fact that the majority of jurisdictions generously apply the traditional requirements for res ipsa loquitur, the Third Restatement has rearticulated the requirements of the doctrine in the following manner.

The fact-finder may infer that the defendant has been negligent when:

i) The accident that caused the plaintiff’s harm is a type of accident that ordinarily happens as a result of negligence of a class of actors; and
ii) The defendant is a relevant member of that class of actors.

Note that a group approach to res ipsa loquitur is generally supportable only if the parties in the group have an ongoing relationship pursuant to which they share responsibility for a dangerous activity. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 17.

However, because the Third Restatement was only recently adopted, few courts have adopted this precise articulation of the doctrine.

Question 73

Procedural effect of res ipsa loquitur

Answer 73

If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.

Question 74

Causation

Answer 74

The plaintiff must prove that the defendant’s actions were both the actual cause (also known as the “factual cause” or “cause in fact”) and the proximate cause (also known as the “legal cause” or, under the Restatement, the “scope of liability”) of the plaintiff’s injury.

Question 75

Causation - Actual cause (Cause in Fact) - “But for” test

Answer 75

If the plaintiff’s injury would not have occurred but for the defendant’s tortious act or omission, then the defendant’s conduct is a factual cause of the harm. If the injury would have occurred despite the defendant’s conduct, then there is no factual cause.

Question 76

Causation - Actual cause (Cause in Fact) - Multiple and/or indeterminate causes

Answer 76

The but-for test of causation often will not work if:

i) There are multiple tortfeasors and it cannot be said that the defendant’s tortious conduct necessarily was required to produce the harm;
ii) There are multiple possible causes of the plaintiff’s harm, but the plaintiff cannot prove which defendant caused the harm; or
iii) The defendant’s negligent medical misdiagnosis increased the probability of the plaintiff’s death, but the plaintiff probably would have died even with a proper diagnosis.

Question 77

Causation - Actual Cause - Substantial Factor

Answer 77

When but-for causation does not work, most courts substitute a substantial-factor test. In cases in which the conduct of a defendant together with some other cause (e.g., another defendant or an independently occurring event) may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm.

Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as “multiple sufficient causes.” Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27.

Question 78

Causation - Actual Cause - Alternative causation

Answer 78

If the plaintiff’s harm was caused by (i) one of a small number of defendants—usually two and almost never more than four or five, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.

Question 79

Causation - Actual Cause - Concert of action

Answer 79

If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all defendants are jointly and severally liable.

Question 80

Causation - Actual Cause - Loss of chance of recovery

Answer 80

Some jurisdictions apply the “loss of chance” doctrine. The doctrine is usually applied in a medical malpractice case (e.g., failure to diagnose) when a plaintiff cannot meet the preponderance standard (i.e., more likely than not) for causation because the chance of recovery was already less than 50% before the defendant’s negligent conduct.

Under this doctrine, courts allow the plaintiff to recover reduced damages, often measured by an amount equal to the total damages recoverable as a result of the decedent’s death multiplied by the difference in the percentage chance of recovery before the negligent misdiagnosis and after the misdiagnosis.

Question 81

Causal Linkage

Answer 81

Most often, when the plaintiff proves that the defendant’s tortious conduct was a but-for cause of his injury, he also implicitly proves that the defendant’s conduct increased the probability that the plaintiff would be harmed.

However, a defendant is not the proximate (legal) cause of harm when the tortious aspect of the defendant’s conduct was of a type that does not increase the risk of that harm. In such cases, it is purely coincidental that the defendant’s tortious conduct was the but-for cause of the plaintiff’s injury.

Question 82

Proximate Cause (Legal Cause)

Answer 82

In addition to proving actual causation, the plaintiff must prove that the defendant’s tortious conduct was a proximate cause of her harm. Proximate cause is a legal limitation on actual cause, focusing on foreseeability. Some courts and the Third Restatement prefer the phrase “scope of liability.” The majority rule for proximate cause requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendant’s conduct.

Question 83

Proximate Cause - Foreseeability of harm

Answer 83

1) Majority rule

A defendant is liable for reasonably foreseeable consequences resulting from his conduct. The type of harm must be foreseeable, though the extent of harm need not be foreseeable, see §IV.E.3.c. Extent of damages, below. A defendant’s liability is limited to those harms that result from the risks that made the defendant’s conduct tortious, within the scope of liability of the defendant’s conduct. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29.

2) Minority rule

Some courts follow the Andrews test from Palsgraf and find proximate cause for all consequences that flow directly from the defendant’s conduct, considering factors including the number of intervening causes and the remoteness of the cause from the effect. Other courts find proximate cause if the defendant’s conduct was a direct cause of the plaintiff’s injury, regardless of foreseeability.

Question 84

Proximate Cause - Indirect causation

Answer 84

The second proximate cause issue is whether the injury resulted without any unforeseeable or extraordinary events that will serve to break the chain of the defendant’s liability.

Question 85

Proximate Cause - Indirect causation - Direct cause

Answer 85

A plaintiff can recover when the defendant’s tortious acts are the direct cause of the plaintiff’s harm without the intervention of independent contributing acts.

Question 86

Proximate Cause - Indirect causation - Indirect Cause

Answer 86

An indirect cause results from an act or event occurring after the defendant’s tortious act and before the plaintiff’s injury (i.e., an intervening event). A superseding cause is any intervening event that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm. Whether an intervening cause will be superseding depends upon its foreseeability. The fact that an intervening cause occurred at all is considered to be foreseeable.

Question 87

Proximate Cause - Indirect cause - Foreseeable intervening causes

Answer 87

A foreseeable intervening cause will not cut off a defendant’s liability. Examples of foreseeable intervening forces include subsequent medical malpractice, disease, or accident; negligence of rescuers; normal forces of nature; or efforts to protect a person or property.

As a general guideline, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff.

Question 88

Proximate Cause - Indirect cause - Unforeseeable intervening causes

Answer 88

Most courts hold that an unforeseeable intervening cause is a superseding cause that therefore breaks the chain of causation between the defendant and the plaintiff. Examples of unforeseeable superseding causes include extraordinary acts of nature (“act of God”) and criminal acts and/or intentional torts of third parties.

Criminal acts of third parties are generally regarded as unforeseeable superseding causes and therefore break the chain of causation between the original defendant’s negligence and the plaintiff’s harm.

However, if the duty breached by the defendant is one of failing to use reasonable care to protect the plaintiff and the plaintiff is harmed by a criminal act, then the original defendant remains liable.

Question 89

Proximate Cause - Indirect cause - Effect of non-superseding intervening causes

Answer 89

If the intervening negligent act is not a superseding cause, then the original defendant and the actor responsible for the intervening negligent act can be held jointly and severally liable to the plaintiff.

Question 90

Proximate Cause - Extent of damages

Answer 90

Under the “thin-skull” or “eggshell-skull” rule, the extent of the damages need never be foreseeable. The defendant is liable for the full extent of the plaintiff’s injuries that may be increased because of the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 91

Damages - Actual Damages

Answer 91

The plaintiff must prove actual harm, i.e., personal injury or property damage, in order to complete the requirements of liability for negligence. Unlike in actions for intentional torts, nominal damages are not recoverable in negligence actions. As with an intentional tort action, the thin-skull rule applies to a negligence action. Under this thin-skull rule (also known as the “eggshell-plaintiff” rule), the defendant is not required to foresee the extent of damages in order to be held liable for all damages.

Question 92

Damages - Actual Damages - Emotional distress damages

Answer 92

A plaintiff who is the victim of a tort that causes physical injury may also add emotional distress as an element of damages (sometimes known as “parasitic” damages).

Most jurisdictions do not allow a plaintiff to recover in negligence for pure emotional distress, though a plaintiff with a physical manifestation of the distress (e.g., nausea) may be able to recover through a claim for negligent infliction of emotional distress. See § IV.G.1. Negligent Infliction of Emotional Distress, infra.

Question 93

Damages - Actual Damages - Attorneys Fees

Answer 93

Attorney’s fees and interest from the date of damage are not recoverable in a negligence action.

Question 94

Compensatory Damages

Answer 94

The general measure of compensatory damages is compensation that would make the victim whole.

Question 95

Mitigation of Damages, Avoidable Consequences

Answer 95

The plaintiff must take reasonable steps to mitigate damages. Although sometimes phrased as a “duty to mitigate,” this “duty” is not an obligation that the plaintiff owes to the defendant but instead is a limitation on the plaintiff’s recovery due to the failure to avoid harm that could have been avoided by the use of reasonable effort after the tort was committed.

For example, if the victim fails to use reasonable care to treat a wound, resulting in infection and the loss of a limb, that failure to mitigate her damages likely will reduce or even eliminate her recovery, depending on the jurisdiction’s approach to contributory negligence.

Question 96

Personal Injury: Categories of Damages

Answer 96

The typical categories of damages recoverable in a personal injury action include:

i) Medical and rehabilitative expenses, both past and future;
ii) Past and future pain and suffering (e.g., emotional distress); and
iii) Lost income and any reduction in future earnings capacity.

Question 97

Property Damage - General Rule

Answer 97

When the plaintiff’s real or personal property is injured or destroyed by the defendant’s tortious conduct, the general rule is that the plaintiff may recover the difference between the fair market value of the property immediately before the injury and immediately after the injury.

Question 98

Property Damage - Cost of repairs

Answer 98

In the case of tortious harm to personal property, most courts also allow the cost of repairs as an alternative measure of damages, provided that the cost of repairs does not exceed the value of the property.

Question 99

Property Damage - Household items

Answer 99

In the case of household items, such as clothing and appliances, courts often hold that replacement value is the measure of damages.

Question 100

Collateral-Source Rule - Traditional Rule

Answer 100

Under the traditional rule, benefits or payments provided to the plaintiff from outside sources (such as the plaintiff’s medical insurance) are not credited against the liability of any tortfeasor, nor is evidence of such payments admissible at trial. However, under the traditional rule, payments made to the plaintiff by the defendant’s insurer are not considered payments from a collateral source, and such payments are credited against the defendant’s liability.

Question 101

Collateral-Source Rule - Modern Trend

Answer 101

A majority of states have passed statutes that either eliminate the collateral?source rule entirely or modify its application (e.g., not applicable in medical malpractice cases).

Question 102

Punitive Damages

Answer 102

The plaintiff may be entitled to punitive damages if he can establish by clear and convincing evidence that the defendant acted willfully and wantonly, recklessly, or with malice. Torts that inherently involve a malicious state of mind or outrageous conduct (such as intentional infliction of emotional distress) may often result in punitive damages for the plaintiff.

Note that in many states the availability of punitive damages as a remedy is determined by statute. There are also constitutional limitations on the amount of a punitive damages award. The Supreme Court has declined to impose a bright-line ratio which a punitive damages award cannot exceed, but has observed that very few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process. State Farm v. Campbell, 538 U.S. 408 (2003).

Question 103

Special Rules of Liability - Negligent Infliction of Emotional Distress

Answer 103

There are three types of cases in which a defendant may breach the duty to avoid negligently inflicting emotional distress upon a plaintiff. Whether a duty exists may depend upon whether the harm and the plaintiff are reasonably foreseeable. Some states deny recovery because one or the other is too speculative and thus not foreseeable.

Question 104

Special Rules of Liability - Negligent Infliction of Emotional Distress - Zone of danger

Answer 104

A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff demonstrates that:

i) He was within the “zone of danger” of the threatened physical impact—that he feared for his own safety because of the defendant’s negligence; and
ii) The threat of physical impact caused emotional distress.
1) Proof of emotional distress

The majority rule is that the emotional distress must be manifested by physical symptoms (e.g., nightmares, shock, ulcers). The severity of symptoms required varies by jurisdiction. A few states as well as the Restatement allow recovery for serious emotional disturbance without a physical manifestation of harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §4, comment d.

Question 105

Special Rules of Liability - Negligent Infliction of Emotional Distress - Bystander recovery

Answer 105

Most states allow a bystander plaintiff outside the zone of danger to recover for emotional distress if that plaintiff:

i) Is closely related to the person injured by the defendant;
ii) Was present at the scene of the injury; and
iii) Personally observed (or otherwise perceived) the injury.

A majority of jurisdictions have not expanded liability to an unmarried cohabitant. However, some jurisdictions do allow engaged cohabitants to recover.

1) Proof of emotional distress

As with a plaintiff who is in the zone of danger, for a plaintiff who is a bystander, the majority rule is that the emotional distress must be manifested by physical symptoms (e.g., nightmares, shock, ulcers).

Question 106

Special Rules of Liability - Negligent Infliction of Emotional Distress - Special Relationship

Answer 106

The duty to avoid negligent infliction of emotional distress exists without any threat of physical impact or physical symptoms in cases in which there is a special relationship between the plaintiff and the defendant. The most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative.

Question 107

Special Rules of Liability - Pure Economic Loss

Answer 107

A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. However, once a plaintiff has proven non-economic injury, he is entitled to recover both economic and non-economic damages.

Question 108

Special Rules of Liability - Wrongful-death actions

Answer 108

A decedent’s spouse, next of kin, or personal representative may bring suit to recover losses suffered as a result of a decedent’s death under wrongful death actions created by state statutes.

Typical statutes, the recoverable damages include the loss of support, companionship, society, and affection, but not pain and suffering.

Recovery, however, is limited to what the deceased would have recovered had he lived. Additionally, the decedent’s creditors have no right to institute a claim against the amount awarded.

Question 109

Special Rules of Liability - Survival Actions

Answer 109

Survival statutes typically enable the personal representative of a decedent’s estate to pursue any claims the decedent herself would have had at the time of her death, including claims for damages resulting from both personal injury and property damage. Such claims often involve damages resulting from the tort that injured the decedent and later resulted in her death.

Most states do not allow survival of tort actions involving intangible personal interests (such as defamation, malicious prosecution, or invasion of privacy) because they are considered too personal to survive the decedent’s death.

Question 110

Special Rules of Liability - Recovery for Loss Arising From Injury to Family Members - Spouses

Answer 110

One spouse may recover for loss of consortium and services as a result of injuries to the other spouse resulting from the defendant’s tortious conduct.

Question 111

Special Rules of Liability - Recovery for Loss Arising From Injury to Family Members - Parent-child

Answer 111

A parent may recover damages for loss of services if a child is injured due to the defendant’s tortious conduct. Many jurisdictions allow a parent to recover for loss of the child’s companionship in a wrongful-death action if the child is killed, but only a few jurisdictions allow a parent to recover for such damages if the child is injured but lives.

Similarly, many jurisdictions allow a child to recover for loss of the parent’s companionship in a wrongful-death action, but most do not allow the child to recover such damages if the parent is injured but lives. In a wrongful-death action, the child’s claim for loss of support resulting from the decedent’s death will be brought by the statutorily designated adult family member as part of the wrongful-death action.

Question 112

Special Rules of Liability - Recovery for Loss Arising From Injury to Family Members - Limitations

Answer 112

The amount of damages recoverable in a derivative action (an action arising solely because of tortious harm to another) for interference with family relationships is reduced in a comparative-fault jurisdiction (and eliminated in a contributory-negligence jurisdiction) by the injured family member’s contributory negligence. Thus, if the damages recovered in the injured family member’s own action are reduced by the plaintiff’s comparative fault, then the damages recoverable by his family members in their derivative action will also be reduced.

Question 113

Special Rules of Liability - Wrongful life

Answer 113

Most states do not permit actions by a child for “wrongful life” based on the failure to properly perform a contraceptive procedure or failure to diagnose a congenital defect, even if the child is born with a disability. A few states permit a “wrongful life” action, but they limit the child’s recovery to special damages attributable to the disability.

Question 114

Special Rules of Liability - Wrongful birth

Answer 114

Conversely, many states do permit parents to recover for “wrongful birth” (failure to diagnose a defect) or “wrongful pregnancy” (failure to perform a contraceptive procedure). Generally, the mother can recover damages for the medical expenses of labor as well as for pain and suffering. In the case of a disabled child, the parents may be able to recover damages for the additional medical expenses of caring for that child, and, in some states, may recover for emotional distress as well.