NEGLIGENCE Flashcards

Question

Negligence: Affirmative Duty to act - Placing another in peril

Answer 1

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

Answer 2

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

Answer 3

One with actual ability and authority to control another, such as a parent over child and employer over employee, has an affirmative duty to exercise reasonable control. Generally, this duty is imposed upon the D when the D knows or should know that the third person is apt to commit the injuring act.

Answer 4

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

Answer 5

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.

Answer 6

In most cases, the standard of case imposed is that of a reasonably prudent person under the circumstances. This standard is an objective one, measured by what a reasonably prudent person would do, rather than whether a particular D is acting in good faith or using his best efforts. A D is required to exercise the care that a reasonable person under the same circumstances (i.e., in his position, with his information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person. * Mental and emotional characteristics: D is presumed to have average mental abilities and the same knowledge as an average member of the community. * D's own mental or emotional disability is not considered in determining whether his conduct is negligent, unless the D is a child. * **IN OTHER WORDS, a mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge.** * Physical characteristics: A D's physical characteristics (e.g. blindness) are taken into account and the reasonableness of the conduct of a D with a physical disability is determined based upon a reasonably careful person with the same disability. * Intoxication: Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary.

Answer 7

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience. Unlike the objective standard applies to adult Ds in negligence actions, the standard applicable to minors is more subjective in nature because children are unable to appreciate the same risks as an adult. * Child engaged in a high-risk activity that is characteristically undertaken by adults: held to the same standard as an adult. * Children under the age of five generally held to be incapable of negligent conduct.

Answer 8

Florida follows the traditional approach and defines negligence as: the failure to use reasonable care . Reasonable care is the degree of care that a reasonably careful person would use under like circumstances. Florida also tends to find children under the age of six incapable of negligent conduct.

Answer 9

In Florida, if the D;s conduct creates a **FORESEEABLE ZONE OF RISK**, the D owes a duty of care to those within that zone. It is not necessary for the D to be able to foresee the actual injury that occurs.

Answer 10

Under the C/l, a majority of jurisdictions held both common carriers (e.g. planes, buses, trains) and innkeepers to the highest duty of care consistent with the practical operation of the business. Under this approach, common carriers and innkeepers could be held liable for "slight negligence". Majority of courts continue to hold **common carriers** to this **higher standard**. However, most courts today hold that an **innkeeper** (hotel operator) is liable only for **ordinary negligence**

Answer 11

In most jurisdictions, automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride). Minority of jurisdictions distinguish between the two with "guest statutes", which impose only a duty to refrain from gross or wnaton 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.

Answer 12

A bailment occurs when a person (the bailee) temporarily takes possession of another (the bailor's) personal property such as when a driver leaves his care with a valet. The duty of care that must be exercised by a bailor or bailee varies depending on the type of bailment. * Bailor's duty * A **gratuitous bailor** (e.g. the owner of a power saw who lends it without charge to a friend) has a duty to inform the bailee only of **known dangerous defects** in personal property, but a **compensated bailor** (e.g. a commercial entity that leases a power saw to a customer) must inform a bailee of defectsthat are **known or should have been known** by the bailor had he used reasonable diligence * Bailee's duty * When a bailor receives the sole benefit from the bailment, the **bailee has a lesser duty of care for the property** and 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. * **Slight negligence** **on the bailee's part will result in liability** for any injuries to the property from failure to properly care for or use it. * In a **bailment for mutual benefit**, the **bailee must take reasonable care** of the bailed property.

Answer 13

Applicable standard of care in an emergency is that of a reasonable person in the same situation. In other words, **less may be expected of the reasonably prudent person who is forced to act in an emergency** , but only if the D's conduct did not cause the emergency.

Answer 14

Possessors of land: Includes owners, tenants, those in adverse possession, and others in possession of land. Rule only applies to the land possessor. **Only the land possessors are protected by the rules limiting liability to trespassers or licenses.** Contrast: Everyone else, e.g. easement holders -utility compnay with power lines on the land, or those licensed to use the land (e.g. hunters) 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. The duty to entrants on the land includes: * **Conduct** by the land possessor that creates risks; * **Artificial conditions** on the land; * **Natural conditions** on the land; and * Risks created when any of the **affirmative duties are applicable**.

Answer 15

As for **natural conditions**, the general rule is that there is **no duty to remove or protect** against the condition, although there is an **exception for rotting trees in densely populated areas.** * **Known dangerous conditions** * A **land possessor must take reasonable precautions for known or obvious dangers when the possessor should anticipate the harm despite such knowledge or obviousness**. * However, when the danger is open and obvious to the entrant, a warning will not provide additional protection against harm. * Consequently, if the only purpose of a warning would be to provide notice of a danger that is open and obvious, there is no liability for failing to provide such a warning. * Also, even when a warning is required, **an entrant who encounters an obviously dangerous condition and fails to exercise reasonable self-protective care is contributorily negligent.**

Answer 16

In Florida, a **discovered trespasser** is one who enters real property without an express or implied invitation and whose **actual presence was detected within 24 hours preceding the accident.** **Undiscovered trespasser** is one who enters real property without an express or implied invitation and whose **actual presence was not detected within 24 hours preceding the accident.** A trespasser is only elevated to the level of invitee if the landholder extends an express invitation or manifests a clear intention to hold the property open to the use of others pursuing purposes similar to those pursued by the trespasser

Answer 17

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

Answer 18

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)

Answer 19

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. Land possessors also have a duty to use reasonable care while conducting activities on the 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 (e.g. frequent trespassers using a footpath to cut across the corner of the property), the possessor owes a duty to the **anticipated trespasser**, regardless of the land possessor's actual knowledge of the trespasser's presence.

Answer 20

* An owner of real property will not be liable for damages to a trespasser, if the **trespasser was under the influence of controlled substances, chemicals, or alcoholic beverages with a blood-alcohol level of 0.08 or higher or** * If the trespasser was affected by these substances to the extent that his normal faculties were impaired at the time of the event. * Owner will **not be immune from liability if**: * the **owner's gross negligence or intentional misconduct was a proximate cause** of the death or injury to the trespasser * Additionally, the owner is **not liable for damages to any discovered or undiscovered trespasser regardless of whether the trespasser was intoxicated or impaired except:** * i) To avoid liability to **undiscovered trespassers**, the owner must r**efrain from intentional misconduct that proximately causes injury to an undiscovered trespasser ,** but the **owner has no duty to warn** of any know dangerous conditions. * ii) To avoid liability to **discovered trespassers**, the owner must refrain from gross negligence or intentional misconduct that proximately causes injury to the discovered trespasser and the owner must warn of any known dangerous conditions. * Finally, an owner **will not be liable for negligence** that results in death or injury to a **person committing or attempting to commit a felony on the property.** * Immunity provided by this section **does not alter the attractive nuisance doctrine.**

Answer 21

Under the “attractive nuisance doctrine” 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. FLORIDA DISTINCTION: ATTRACTIVE NUISANCE DOCTRINE * Although most states have rejected the CL requirement that the child must be lured or enticed onto the property by the condition that ends up injuring him, **FL does still impose this requirement**.

Answer 22

An invitee is either : * 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 * a **business visitor** - someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor. Land possessor owes an invitee the 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 .** * However, the **duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation**, and the invitee is treated as a trespasser in areas beyond the scope. * **Non-delegable duty** * The **land possessor's duty to invitees is a non-delegable duty**. * Example: Even if a store owner hires an independent contract to maintain the escalator in her store, she will remain liable if the contractor negligently fails to properly maintain the escalator. * **Recreational use**: In 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.** *

Answer 23

Traditional approach: A licensee is someone who enters the land of another with the express or implied permission of the land possessor or with a privilege. Examples of licensees are: * **Social guests**: they may be “invited”, but they are still licensees, not invitees; * 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 * **Emergency personnel such as police**, firefighters, and emergency medical technicians. 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 him.** 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.

Answer 24

In Florida , a **public invitee is a** **licensee** on the premises by the express or implied invitation of the owner or possessor of the property. A public invitee is owed the same duty as a business invitee. Licensees : FL classifies licensees as i**nvited or uninvited** **Uninvited Licensee**: is one who chooses to come onto the property for his **own convenience without invitation**. The duty owed is to refrain from inflicting willful or wanton injury. There is **no duty to protect against third-party crimes**. **Invited Licensee**: Is on the premises **by invitation of the property owner, either by express or reasonably implied invitation** (e.g. social guest). FL eliminated a distinction between commercial visitors (business invitee) and social guests (invited licensee) and holds them to the **same standard of reasonable care**. There is a **duty to invitees and invited licensees to protect against foreseeable third-party crimes.** * A business owner as a duty of reasonable care to maintain the premises in a reasonably safe condition for business invitees including r**easonable efforts to keep the premises free from transitory objects or substances that might foreseeably give rise to loss, injury or damage and warn the invitee of any such object or substance.** The **burden of proof** rests with the claimant to show that the **business had actual or constructive notice of the object alleged to have caused the injury.** Firefighters and law enforcement officers engaged in the lawful performance of their employment who enter another's premises are treated as invitees.

Answer 25

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.** * i) LANDLORD'S LIABILITY * The landlord remains liable for injuries to the tenant and others occurring: 1. In **common areas** such as parking lots, stairwells, lobbies and hallways; 2. As a result of **hidden dangers** about which the **landlord fails to warn the tenant**; 3. On premises **leased for public use**; 4. As a result of a hazard **caused by the landlord's negligent repair**; or 5. Involving a **hazard that the landlord has agreed to repair**. * ii) TENANT'S LIABILITY * 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.

Answer 26

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**. **Exception exists with respect to trees in urban areas.** **Artificial conditions**: The landowner generally **owes a duty to prevent unreasonable risk of harm** to persons who are not on the premises. With respect to an a**ctivity 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.

Answer 27

Sellers of real property owe a **duty to disclose to buyers those concealed and unreasonably dangerous conditions** known to the seller. * These are condition 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.**

Answer 28

A breach of duty occurs when the d 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 ispa loquitur. Two approaches for determining negligent conduct (breach of the general standard of care) * Traditional approach * Most courts determine breach of the standard of care by comparing the D's conduct with what a reasonably prudent person under the circumstances would or would not have done (applying an objective standard). * Cost-benefit analysis * Modern trend and Third Restatement approach set out the primary factors to consider in determining whether the D has acted in accordance with the standard of care as follows: * i) The foreseeable likelihood that the D's conduct would cause harm; * ii) The foreseeable severity of any resulting harm; and * iii) The D's burden (costs or other disadvantages) in avoiding the harm. * This is how the Third Restatement defines negligence using terms rather than the reasonably prudent person standard.

Answer 29

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

Answer 30

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.levaatatttt Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the D's deviation from the standard. * However, when the D's negligence is so apparent that a layperson can identify it, expert testimony will not be required. --*Std 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. *

Answer 31

Local vs. national standard Traditionally, physicians were held to the "same or similar locale: rule of custom. Some jurisdictions have retained the traditional rule, but the majority of jurisdictions now apply a national standard to physicians, including physicians that are specialists. FL Distinction: **FL holds generalist to a local standard, and specialists to a national standard.**

Answer 32

A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. Hoe

Answer 33

A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. Hoe

Answer 34

Informed consent: 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” – 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: * The risk is a **commonly known** risk; * The **patient is unconscious** or otherwise incapable of giving consent (e.g. emergency treatment); * The **patient waives or refuses** the information; * The **patient is incompetent** (although the physician must make a reasonable attempt to secure informed consent from a guardian; or * The **disclosure would be detrimental** to the patient (e.g. would upset the patient enough to cause extreme illness, such as a heart attack.) FL POINT OF LAW: INFORMED CONSENT The informed consent rule in FL applies to physicians, chiropractors, podiatrists, dentists, advance registered nurse practitioners, and physician assistants. No recovery is allowed in an action brought for treating, examining, or operating on a patient without informed consent when: * i) The obtaining of consent was in accordance with the accepted standard of medical practice among medical professionals with similar training and experience and a reasonable individual would have a general understanding of the procedure, acceptable alternatives, and risks inherent in the treatment based upon the information provided by the medical professional; or * ii) Based upon the surrounding circumstances, the patient would reasonably have undergone such procedure or treatment had he been so advised. **If such consent meets the foregoing requirements and is in writing, signed by the patient or other authorized person, a rebuttable presumption of valid consent is raised.**

Answer 35

* i) A criminal or regulatory statute (or administrative regulation or municipal ordinance) imposes a specific duty for the protection of others; * ii) The **D violates the statute** by failing to perform that duty; * iii) The Pl is in the class of people i**ntended 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 D to be liable, the Pl must prove that his injuries were proximately cause by the D's violation of the statute. Effect of a D's compliance: Generally, compliance with a statute, a regulation or an ordinance does not prove the absence of negligence. However, sometimes, if the D's conduct complies with certain types of federal regulatory statutes, such as those establishing comprehensive regulatory schemes, compliance with the federal requirements may preempt common law tort actions. **FL DISTINCTION - VIOLATION OF A STATUTE** In FL, a **violation of a penal statute or ordinance** is generally treated as negligence per se. **Violation of other statutes**, ordinances or regulations (including traffic regulations, even those with a penal aspect, and building code violations) is merely **evidence of negligence, not negligence per se.**

Answer 36

An excused violation of an applicable statute can be a defense to negligence per se under the following circumstances: * i) **Greater risk of harm** * The D may be able to avoid liability by proving that the **compliance would have involved a greater risk of physical harm** to the D or others than noncompliance would have (e.g. it was an emergency). * ii) **Incapacity** * The violation of a statute may not be negligence if the violation is reasonable in light of the D's *physical disability* or incapacitation, or if the **D is a child**. * iii) **Reasonable care** * It is a defense that the **D exercised reasonable care in attempting to comply** with the statute. * iv) **Vagueness** * 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 D's violation is excused. * v) **Reasonable ignorance** * If the statute imposes an obligation **only under certain factual circumstances** that are not usually present, and the **D is not aware that these circumstances are present** and further proves that his i**gnorance was reasonable**, then the D;s violation of the statute is excused for the purposes of negligence per se. Violation by PL: The violation of a statute, regulation or ordinance by a PL may constitute contributory negligence per se. The same requirements apply.

Answer 37

Under the traditional standard for res ipsa loquitur, still used in many jurisdictions, the PL 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 D**; and * iii) It was **not due to any action on the part of the Pl**. In establishing that the accident was of a kind that ordinarily does not occur in the absence of negligence, PL does not need to conclusively exclude all other possible explanations. It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation.

Answer 38

Even under the traditional requirements, courts often generously interpret the “exclusive control” requirement. * **Medical malpractice**: In medical malpractice cases when several physicians, nurses, and other medical personnel have access to the Pl during surgery, a **small number** of jurisdictions apply res ipsa loquitur, finding that **each D has breached a duty of care unless he can exonerate himself.** * In the absence of such exonerating evidence, the **courts hold all the Ds jointly and severally liable**. * **Products liability**: 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**. * **Comparative fault jurisdictions:** Courts in the vast majority of jurisdictions that have adopted comparative fault are also inclined to loosely apply the third requirement of the res ipsa loquitur doctrine--that the harm must not be due to any action on the part of Pl (whether such action constitutes contributory negligence or not)--because such a requirement would otherwise be in tension with the law holding that the Pl's contributory negligence is no long a total bar to recovery. PROCEDURAL EFFECT OF RES IPSA LOQUITUR If the Pl establishes a prima facie case of res ipsa, then the **trial court should deny the D's motion for a directed verdict**, and the i**ssue 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 D's part. It simply establishes an inference of negligence sufficient to avoid dismissal of the Pl's action.

Answer 39

Actual Cause (Cause in fact): * **"But for" test** * If the Pl's injury **would not have occurred but for the D's tortious act** or omission, then the D's conduct is a factual cause of the harm * If the injury **would have occurred despite the D's conduct**, then there is **no factual cause**. * **Multiple and/or indeterminate causes** * The but-for test for causation will not work if: * i) There are multiple tortfeasors and it cannot be said that the D's tortious conduct necessarily was required to produce the harm; * ii) There are multipe possible causes of the Pl's harm, but the Pl cannot prove which D caused the harm; or * iii) The D's negligent medical misdiagnosis increased the probability of the Pl's death, but the Pl probably would have died even with a proper diagnosis. * 1) **Substantial factor** * When but-for causation does not work, most courts substitute in the **substantial factor test.** * In **cases in which the conduct of a D together with some other cause** (e.g. another D or an independently occurring event) may have contributed to a Pl's indivisible injury, each of which alone would have been a factual cause of that injury, the **test is whether the D's tortious conduct was a substantial factor in causing the Pl's harm.** * 2) **Alternative causation** * If the Pl's harm was caused by * (i) one of a small number of Ds--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 D to prove that his conduct was not the cause in fact of the Pl's harm.** * 3) **Concert of action** * 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 Pl's harm, then all Ds are jointly and severally liable. * **Loss of chance of recovery** * Usually applied in a **medical malpractice case** (e.g. failure to diagnose) when a PL 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 D's negligent conduct. * * Under this doctrine, courts allow the PL 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.

Answer 40

FL POINT OF LAW: Loss of chance of recovery To recover damages in FL, the Pl must produce evidence that **he had a greater than even chance of survival** before the negligence.

Answer 41

That the D's conduct increased the probability that the Pl would be harmed. However, a **D is not the proximate cause (legal cause( of harm when the tirtious aspect of the D's conduct was of a type that does not increase the risk of that harm.** In such cases, it is purely coincidental that the D's tortious conduct was the but-for cause of the Pl's injury.

Answer 42

Pl must prove that the D's tirtious conduct was a proximate cause of his 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". * **Majority rule for proximate cause** requires that the Pl suffer a **foreseeable harm that is nott too remote and is within the risk created** by the D's conduct. *NOTE THE FL POINT OF LAW*: In FL, if the D's conduct creates a **FORESEEABLE ZONE OF RISK**, the D owes a duty of care within the zone. * **Important: It is not necessary for the D to be able to foresee the actual injury that occurs. \>--contrary to the proximate cause stated above.** * However, case in question was about the following facts. * **Court was looking at D's duty to Pl when a third party injured the Pl when 3rd party pulled a hatchet out of the D's truck and severely injured the Pl. Ct said that PL was in the foreseeable zone of risk that he might be injured when PL was in the parking lot near D's unlocked truck and D blocked his exit. Thus D owed a duty of care to the Pl.-**because D 's conduct created a foreseeable zone of risk. * ****It is not whether it was foreseeable that Pl would sustain the actual injury that occurred. It is whether D's negligent conduct, not permitting PL to leave - blocking his exit coupled with leaving his truck unlocked knowing there was a hatchet inside--. created a zone of risk---which would result in a duty owed to PL for the third party acts causing his injury. * In FL, proximate cause looks at whether and to what extent the D's actions foreseeably and substantially cause the injury. The injury must be foreseeable -- a prudent human must be able to expect that similar harm is likely to be substantially caused by the act or omission at issue.

Answer 43

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 D's liability. * 1) **Direct cause** * A Pl can recover when the D's tortious acts are the **direct cause of the Pl's harm without the intervention of independent** contributing acts. * 2) **Indirect cause** * An indirect cause **results from an act or event occurring after the D's tortious act and before the Pl's injury** (i.e. intervening event). * A **superseding cause** is any **intervening event that breaks the chain of proximate causation** between the D's tortious act and the Pl's harm. * **Whether an intervening cause will be superseding depends upon its foreseeability**. The fact that an intervening cause occurred at all is considered foreseeable. * A D is **liable if the type of harm is foreseeable**, even if it occurred in an unforeseeable manner.

Answer 44

**Foreseeable intervening causes** * A foreseeable intervening cause **will not cut off a D's liability.** * * Examples of foreseeable intervening forces: subsequent medical malpractice; disease; negligence of rescuers; normal forces of nature; 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 D from being held liable to the Pl. **Unforeseeable intervening causes** * Most courts hold that an **unforseeable intervening cause is a superseding cause that therefore breaks the chain of causation** between the D and the Pl. Examples: extraordinary acts of nature ('acts 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 D's negligence and the Pl's harm. * * However, if the d**uty breached by the D is one of failing to use reasonable care to protect the Pl and Pl is harmed** by a criminal act, then the original D remains liable. * **Effectof non-superseding intervening causes** * * Original D and the actor responsible for the intervening negligent act can both be held jointly and severally liable to the Pl. * * * * **FL Point of Law: Superseding Causes** * To be superseding, an intervening cause **must not be foreseeable**, and **must not be set in motion by the D's negligence.**

Answer 45

Under the **eggshell-skull rule,** the **extent of the damages need never be foreseeable**. The D is liable for the full extent of the Pl's injuries that may be increased because of the **Pl's preexisting physical or mental condition or vulnerability**, even if the extent is unusual or unforeseeable.

Answer 46

FL DISTINCTION: **Rear-end collision rebuttable presumption** There is a **rebuttable presumption** that the negligence of the rear driver in a rear-end collision was the **sole proximate cause** of the accident. * The rear driver may **rebut the presumption** by showing that: * i) The lead driver **stopped or changed lanes abruptly** or arbitrarily in a place that a reasonable person would not expect; * ii) The lead driver **stopped illegally**; or * iii) The rear driver's **car suffered from a mechanical failure** that is not the rear driver's fault.

Answer 47

* ACTUAL DAMAGES: Must prove actual harm to complete the requirements of liability for negligence. Nominal damages not recoverable. Remember the "thin -skull" rule applies. D is not required to foresee the extent of damages in order to be held liable for all damages. * * EMOTIONAL DISTRESS DAMAGES: Pl wo is the victim of a tort that causes physical injury may also add on emtional distress as an element of damages - parasitic damages. * * ATTORNEY FEES: Not recoverable * * COMPENSATORY DAMAGES: Compensation that would make the victim whole, as if he had never suffered the injury. * * MITIGATION OF DAMAGES AND AVOIDABLE CONSEQUENCES: Pl must take reasonable steps to mitigate damages. Not a duty of the Pl's but it is a limiation on the PL's recovery due to the failure to avoid harm that couldd have been avoided by the use of reasonable effort after the tort was committed. * * PERSONAL INJURY: CATEGORIES OF DAMAGES: Typical categories recoverable in a personal injury action include: * Medical and rehabilitative expenses, both past and future; * Past and future pain and suffering (e.g. emotional distress); and * Lost income and any reduction in future earnings capacity. * * PROPERTY DAMAGE: General rule: When the Pl's personal property is injured or destroyed by the D's tortious conduct, the general rule is that the Pl may recover the difference between the FMV of the property immediately before the injury and immediately after the injury. * Cost of repairs: Most courts 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. * Household items: such as clothing and appliances - Courts often hold the replacement value is the measure of damages. *

Answer 48

**Collateral source rule** - **Traditional rule**: Benefits or payments provided to the Pl from outside sources (such as Pl's medical insurance) are not credited against the liability of any tortfeasor, nor is evidence of such payments admissible at trial. However, under this traditional rule, payments made to the Pl by the D's insurer are not considered payments from a collateral source, and such payments are credited against the D's liability. Modern trend in majority of states: either eliminating the collateral-source rule entirely or modifying its application (e.g. not applicable in medical malpractice).

Answer 49

Modified by statute Damages are reduced by the total of all amounts paid for the benefit of the claimant, or that are otherwise available. However, damages are not reduced if a subrogation or reimbursement right exists for the benefit. The reduction is offset by any amount paid, contributed, or forefeited by the claimant, or on his behalf, to secure a right to a collateral-source benefit Collateral sources include: social security, disability, insurance (except life insurance), contract benefits and wage contribution plans.

Answer 50

Pl may be entitled to punitive damages if he can establish by clear and convincing evidence that the D acted willfully and wantonly, recklessly, or with malice. Torts that inherently involve a malicious state of mind. Note that in many states, the availability of punitive damages as a remdy is determined by statute . There are also constitutional limitations on the amount of a punitive damages award. S. Ct has decline to impose a bright-line ration which a punitive damage award cannot exceed, but has observed that very few awards exceeding a single-digit ration between punitive and compensatory damages will satisfy due process.

Answer 51

Punitive damages must be pled and may be awarded if it established by **clear and convincing evidence** that the D was personally **guilty of intentional misconduct or gross negligence.** * **Gross negligence**: Means the D's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or right of persons exposed to such conduct. Additionally, for punitive damages to be imposed against an employer for acts of an employee or agent, the employee or agent must be guilty of intentional misconduct or gross negligence and the **employer must**: * i) Actively and knowingly **participate in the conduct**; * ii) **Ratify, condone or consent** to the conduct; or * iii) **Engage in conduct constituting gross negligence** that contributes to the injury. Punitive damages in excess of **three times the claimant's compensatory damages or $500,000** whichever is greater are presumed to be unreasonable * Court must order a remittitur unless it determines by clear and convincing evidence that the amount is not excessive.

Answer 52

In most jurisdictions, an innkeeper owes a duty to use ordinary care to protect its guests while they are on the premises. Evidence that the innkeeper complied with (or deviated from) community or industry custom is relevant to—but not conclusive on—the issue of negligence.

Answer 53

**Special relationships** **imposing duty to protect others** * **P**arent/child * **H**ospital/patient * **E**mployer/employees * **S**hopkeeper/business invitees * **C**ommon carrier/passengers * **C**ustodian/person in custody * **I**nnkeeper/guests: Many courts have changed the duty to ordinary reasonable care. A **negligence action** requires proof of four [elements](https://www.themisbar.com/learners/27269): duty, breach, causation, and damages. Under the **common-law approach** (majority rule), **common carriers** can be **liable for even slight negligence** because they owe the ***highest*** **duty of care** to their passengers that is consistent with practical business operations. But under the **modern approach** (minority rule), common carriers are negligent only if they fail to **use** ***reasonable*** **care** to **protect passengers** from harm that arises within the **scope of that relationship**.

Answer 54

In **traditional contributory negligence** jurisdictions (as seen here), a plaintiff's failure to use reasonable care for his/her own safety is a **complete defense** to [negligence](https://www.themisbar.com/learners/27269). One way the defendant can establish the plaintiff's failure to use reasonable care is through the doctrine of **negligence per se**. Under this doctrine, the plaintiff's **negligence is presumed** if: * the plaintiff violated a statute * the statute was intended to prevent the type of harm suffered by the plaintiff *and* * the plaintiff is within a class of persons that the statute was intended to protect*.* However, even when negligence per se is established, the **defendant still must prove** that the plaintiff's **violation** of the statute **caused** the **plaintiff's harm**.

Answer 55

A plaintiff harmed by a [defective product](https://www.themisbar.com/learners/16461) can prevail on a **negligence** claim against a commercial or noncommercial seller even when there is no *direct* evidence of the seller's failure to use reasonable care. That is because the seller's negligence can be **inferred** from circumstantial evidence under the doctrine of **res ipsa loquitur**. Under the **traditional standard**, negligence is inferred when: the plaintiff's harm would not normally occur unless someone was negligent the defendant had **exclusive control**, or was responsible for all others who had control, over the **thing that caused the harm**\* *and* the plaintiff did nothing to cause the harm. When res ipsa loquitur applies, the plaintiff's burden to produce evidence of negligence is satisfied and the court will generally deny the defendant's efforts to dismiss the case (e.g., through a motion for a directed verdict).

Answer 56

A **negligence** action requires proof that the defendant's conduct was the **actual cause** (i.e., **cause in fact**) of the plaintiff's damages. This is often established under the but-for test, which is satisfied if the plaintiff's harm would not have occurred without the defendant's conduct. However, this test does not apply when **multiple forces combined** to cause the plaintiff's harm and **any one alone** would have been **sufficient to cause the harm**. Instead, the test is whether the defendant's conduct was a **substantial factor** in causing the harm.

Answer 57

**Pure comparative negligence** (default rule on MBE) – when the plaintiff's own negligence contributes to his/her harm, the plaintiff's **recovery is reduced** by his/her **proportionate share of fault** **Several liability** – when multiple defendants cause the plaintiff indivisible harm, the plaintiff can only **recover from each defendant** the **portion of damages** that corresponds to that defendant's **proportionate share of fault** (e.g., 15% of the damages for 15% of the fault) Any defendant who pays damages that exceed his/her proportionate share of the fault may sue the other defendants for contribution to collect the amount of excess damages paid. However, the need for contribution rarely arises in jurisdictions that adopt several liability because the damages paid by each defendant are limited to that defendant's share of the fault.

Answer 58

Under modified (or partial) comparative negligence, recovery is reduced by the plaintiff's percentage of fault and barred if it exceeds 50%. If multiple defendants cause the plaintiff indivisible harm, then several liability limits the plaintiff to recovering the portion of damages that corresponds to each defendant's share of fault.

Answer 59

Land possessors (the amusement park) generally have a duty to keep their premises safe for invitees (the plaintiff here). A land possessor who breaches this duty and causes the plaintiff physical harm is liable for negligence. If there is no direct evidence of negligence, then the doctrine of **res ipsa loquitur** permits an **inference** of **negligence** when: the plaintiff suffered a **type of harm** that is **usually caused by negligence** of someone in the defendant's position *and* the evidence tends to **eliminate other potential causes** of that harm (e.g., the instrumentality that inflicted the harm was under the defendant's **exclusive control**).

Answer 60

In **negligence** actions, the standard most often applied to determine if the defendant breached a duty to the plaintiff is ordinary care—i.e., the care that a reasonably prudent person would use under the circumstances. In most jurisdictions, automobile drivers owe a duty of ordinary care to their passengers (persons who pay money for the ride) as well as their guests (persons who ride for free). However, a minority of jurisdictions—including the one at issue here—have enacted "**guest statutes**." Under these statutes, the only **duty** that **automobile drivers owe** to their **guests** is to **refrain from gross** or **wanton and willful (i.e., reckless) misconduct**. As a result, a plaintiff-guest can recover damages from a defendant-driver under a guest statute if the driver's reckless behavior caused the guest's injuries.

Answer 61

Under the **attractive-nuisance doctrine**, land possessors have a **duty to exercise reasonable care** to **protect child trespassers** from **artificial (i.e., man-made) conditions** on their land when: the condition exists where the land possessor knows or should know that **children are likely to trespass** the land possessor knows or should know that the condition poses an **unreasonable risk of serious bodily harm** or death to children children of the trespasser's age **cannot reasonably discover or appreciate** the risk *and* the **risk outweighs** the condition's **utility and the burden** of eliminating the risk. A land possessor that breaches this duty and causes the child trespasser physical harm is liable for negligence.

Answer 62

**Contributory negligence** occurs when a plaintiff fails to exercise reasonable care for his/her own safety and thereby contributes to his/her own injury. In **traditional common-law** jurisdictions (as seen here), the plaintiff's contributory negligence is a **complete defense** to [negligence](https://www.themisbar.com/learners/27269) and **bars the plaintiff's recovery** of damages—regardless of the percentage that the plaintiff's own negligence contributed to the harm

Answer 63

A successful [negligence](https://www.themisbar.com/learners/27269) claim requires proof that the plaintiff suffered physical harm (i.e., personal injury or property damage) as a result of the defendant's negligent conduct. Assuming all other elements are proved, the fact finder (e.g., a jury) considers the following **factors to determine** the amount of **compensatory damages** the plaintiff can recover in a **negligence action**: * the **initial physical harm** caused by the defendant's negligent act * any **subsequent harm** (physical, economic, or emotional) that is **traceable to** that **initial harm** *and* * any **steps taken** by the plaintiff to **mitigate that initial harm**. But the fact finder will *not* consider the player's failure to seek medical attention for several days after his knee was injured during the football game. That is because the **plaintiff's actions prior to** the **defendant's negligent act** are **not a factor** in determining the amount of compensatory damages a plaintiff can recover.

Answer 64

**Liability of multiple tortfeasors for indivisible harm** **Joint & several liability**\* * Any tortfeasor can be held liable for plaintiff's *total* amount of damages * Tortfeasors can sue each other for contribution **Several liability** * Each tortfeasor is liable for *portion* of damages corresponding to his/her proportionate fault (eg, 15% of damages for 15% fault) \*Default rule on MBE. **Joint and several liability** arises when **two or more defendants** were [negligent](https://www.themisbar.com/learners/27269) and any one of them **could have caused** the **plaintiff's indivisible harm**. This allows the plaintiff to recover the full amount of damages from any of the negligent defendants, even if it is impossible to prove which one actually caused the harm.\* However, the plaintiff must first prove that **each defendant was negligent**.

Answer 65

Under the doctrine of respondeat superior, an employer is **vicariously liable** for any tort committed by its employee while acting within the scope of the employment relationship (as seen here). But when the **employee's liability** has been **discharged by** the **employer**—e.g., payment of a judgment for damages—the employer can seek **indemnity** (i.e., full compensation) from the employee for its loss. Parties may, by agreement, agree to indemnify one another for the damages caused by the other party's tortious conduct. But such an agreement is not required in order for a party who was found vicariously liable for the negligence of another (as seen here) to bring an indemnification suit against that party.

Answer 66

Under the traditional common-law approach,\* **land possessors** owe a **duty of reasonable care** to foreseeable land entrants, including **invitees** who enter the land for a business purpose (e.g., to play miniature golf). **An invitee becomes a trespasser if that person intentionally enters an area without permission.** And if that person is a **known or anticipated trespasser**, then the land possessor owes a **limited duty** to: warn the trespasser about, or protect the trespasser from, **hidden, artificial dangers** that are known to the land possessor but **unlikely to be discovered** by the trespasser *and* **use reasonable care** in active operations conducted on the land. A land possessor who breaches this duty and causes the trespasser physical harm is liable for negligence.

Answer 67

**Rescue doctrine** **General rule** Rescuers can recover for injuries sustained while attempting to rescue another if that person's peril was caused by defendant's negligence **Exception** (firefighter's rule) Professional rescuers cannot recover for injuries attributable to special dangers of their job—eg: * firefighter entering burning building * police officer arresting suspect * paramedic/lifeguard attempting risky rescue The **firefighter's rule** bars **emergency professionals** from recovering for harm that resulted from a risk inherent to their jobs—e.g., a firefighter injured while extinguishing a fire caused by another's negligence cannot recover. However, an emergency professional ***may*** **recover** for harm caused by another's negligence if that **harm did** ***not*** **result** from a **risk inherent to the professional's job**. This is true even if the harm occurred while the professional was on duty.

Answer 68

![]() A land possessor owes a **duty** of reasonable care **to** ***foreseeable*** **plaintiffs** who enter the land. But a land possessor owes **no duty to trespassers**—i.e., persons who intentionally enter another's land without permission—**unless** the land possessor **discovers or has reason to anticipate** their presence.\*

Answer 69

**Special relationships** **imposing duty to protect others** * **P**arent/child * **H**ospital/patient * **E**mployer/employees * **S**hopkeeper/business invitees * **C**ommon carrier/passengers * **C**ustodian/person in custody * **I**nnkeeper/guests Mnemonic: **P**lease **H**elp **E**liminate **S**afety **C**oncerns **C**ausing **I**njuries To prevail in a [negligence](https://www.themisbar.com/learners/39449) action, a plaintiff must prove duty, breach, causation, and damages. A **common carrier** owes a heightened **duty of care to its passengers** due to its special relationship with those passengers. At common law, that duty was described as one requiring the **highest level of care** consistent with the **practical operations of the business**. This approach is still used in a majority of jurisdictions.\* A common carrier that breaches its duty of care to a passenger is liable for the harm caused by that breach. [Causation](https://www.themisbar.com/learners/27827) requires a showing that the harm would not have occurred but for the carrier's conduct (actual cause) and was a foreseeable consequence of that conduct (proximate cause).

Answer 70

![]() To succeed on a **negligence claim**, a plaintiff must establish that the **defendant breached** a **duty of care** owed to the plaintiff. For example, a **driver** owes a **duty of care** to others to **maintain his/her automobile** to such an extent that it is **safe to drive** on public roads. If the plaintiff fails to prove that the defendant breached that duty, then the plaintiff cannot prevail.

Answer 71

![]() Under products liability law, a **commercial supplier** (e.g., the drug manufacturer) generally is **strictly liable** for harm caused by its **defective product**. A product is defective due to **inadequate warnings or instructions** when: * **foreseeable risk of harm** that is not obvious to an ordinary user *and* * **reasonable instructions or warnings** by the commercial supplier could have **reduced that risk**. However, under the **learned-intermediary rule**, a **prescription drug** or medical device is **not defective** due to inadequate warnings or instructions when its **manufacturer warned** the **prescribing physician** about the risk of harm associated with that product. When this occurs, the manufacturer will *not* be held strictly liable for any harm caused by the product because the physician is expected to convey the manufacturer's warning to the product's user.

Answer 72

**Vicarious liability** (liability for tortious acts of another) **Respondeat superior** Employee's conduct occurred within scope of employment—ie, under employer's control or while performing assigned work **Nondelegable duty** Independent contractor's work involved abnormally or inherently dangerous activity, condition on land open to general public, or activity regulated by law **Parent** Child committed tort while acting as parent's agent **Business partner** Business partner's conduct occurred within scope of business **Automobile owner** Family member drove car with permission (family-car doctrine) *or* any person drove car with permission under owner-liability statute **Dram shop**\* **& social host** Alcohol sold (dram shop) *or* served at noncommercial setting (social liability) to visibly intoxicated person or minor \*Only applies when question provides dram-shop statute. A person who hires an independent contractor is generally not vicariously liable for torts committed by the independent contractor. However, **vicarious liability can be imposed** if the independent contractor's work involved a **nondelegable duty**, including the performance of inherently dangerous activities. An activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the type common to the community.

Answer 73

Negligence is the commission of an act (or the 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. 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). By failing to discuss the patient’s allergies, and the risk of death from the eggs in the vaccine, the doctor breached his duty to the patient to obtain informed consent.

Answer 74

Under the “attractive nuisance” doctrine, 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.

Answer 75

A land seller must disclose unreasonably dangerous conditions if (1) the condition exists at the time of the sale, (2) the seller knows or has reason to know of the condition and its risk, (3) the buyer does not know or have reason to know of the condition or risk, and (4) the seller has reason to believe that the buyer would not discover or realize it.

Answer 76

A plaintiff can recover for **negligent infliction of emotional distress** (NIED) under three theories: (1) zone of danger, (2) bystander, or (3) special situations. Liability under the **special-situations theory** arises when the plaintiff suffers **serious emotional distress** because the **defendant negligently**: * delivered an erroneous announcement of death or illness * mishandled the **corpse or bodily remains** of a loved one *or* * contaminated food with a repulsive foreign object. An NIED plaintiff who alleges that the defendant mishandled the corpse or bodily remains of a loved one **need not have witnessed the mishandling** to prevail

Answer 77

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant's negligent conduct in the absence of direct evidence of such negligence. To permit this inference, the plaintiff must prove that the accident (i) was of the kind that ordinarily does not occur in the absence of negligence, (ii) was caused by an agent or instrumentality within the exclusive control of the defendant, and (iii) was not due to any action on the part of the plaintiff. Note that res ispa loquitur does not create a rebuttal presumption of negligence; rather, it **simply establishes an inference of negligence sufficient to avoid dismissal** of the plaintiff’s action.

Answer 78

The commercial supplier of a component, such as sand used in manufacturing cement, is subject to liability if the component itself is defective, but not when the component is incorporated into a product that is defective for another reason. However, the commercial supplier of a component may be liable if that supplier substantially participates in the process of integrating the component into the design of the assembled product and that product is defective due to the integration.