Negligence Flashcards
(29 cards)
Child standard of care
The usual standard of conduct to which a child must conform is that of a child of like age, education, intelligence, and experience. However, a child must conform to an adult standard of care (the reasonable person standard) when engaging in a potentially dangerous activity in which usually only adults engage. A child under the age of 4 is usually without the capacity to be negligent.
Standard of care for someone with specialized knowledge or experience
Even when the reasonable person standard applies, someone with knowledge or experience superior to that of the average person is required to use that knowledge or experience.
Prima facie case for negligence
The following elements must be proved for a prima facie case of negligence: (i) the existence of a duty on the party of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against unreasonable risk of injury, (ii) breach of that duty by the defendant, (iii) that the breach of duty was the actual and proximate cause of the plaintiff’s injury, and (iv) damage to the plaintiff’s person or property.
Regular standard of care
Whenever a person engages in an activity, he is under a legal duty to act as a reasonably prudent person engaged in the same or similar activity. If the defendant’s conduct creates un unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff.
Duty property owners owe to those outside the property
As the owner of the property, the owner has a duty to exercise reasonable care with respect to activities on the land to avoid unreasonable risk of harm to others outside the property. To be owed a duty, those outside the property must be within the foreseeable zone of danger from the defendant’s activity.
Evidence of custom, usage, or industry standards
Evidence of custom, usage, or industry standards, while relevant, is not dispositive on the question of whether certain conduct constitutes negligence.
Actual Cause
An act or omission is an actual cause of an injury when the injury would not have occurred but for the act or omission.
Proximate Cause - generally
Proximate cause is present when the harmful result that occurs was within the range of foreseeable consequences that could result from the defendant’s act or omission. If a particular harmful result was at all foreseeable from the defendant’s negligent conduct, the unusual manner in which the injury occurred or the unusual timing of cause and effect is irrelevant to the defendant’s liability.
Eggshell-skull plaintiff rule
A tortfeasor takes its victim as it finds her. The fact that the extent or severity of harm was not foreseeable does not relieve the defendant of liability. If the defendant’s negligence causes an aggravation of the plaintiff’s existing physical or mental illness, the defendant is liable for the damages caused by the aggravation.
Comparative negligence - general rule
Under comparative negligence, fault is apportioned between the parties. The plaintiff’s percentage share of fault reduces his damage award by that percentage.
Partial comparative negligence
Unlike under a pure comparative negligence approach, jurisdictions applying a partial comparative negligence approach bar recovery for plaintiffs who are 50% or more at fault. Partial comparative negligence jurisdictions typically use a combined comparison approach when multiple defendants have contributed to the plaintiff’s injury.
Statutory standard of care
A statute providing for criminal penalties may establish a specific duty that will replace the more general duty of care in negligence cases. The statute will apply if:
1. it was designed to prevent the type of harm suffered by the plaintiff, and
2. the plaintiff is within the protected class.
In most jurisdictions, an unexcused violation of a statutory standard of care is negligence per se, which means that it establishes the first two prima facie elements of negligence (duty and breach of duty).
While violation of an applicable statute establishes a conclusive presumption of duty and breach of duty, compliance with the statute does not establish a conclusive presumption of due care. If there are unusual circumstances or increased danger beyond the minimum that the statute was designed to meet, it may be found that there is negligence in not doing more.
Proximate cause - indirect cause cases
Proximate cause is present when the harmful result that occurs was within the range of foreseeable consequences that could result from the defendant’s act or omission. In indirect cause cases, an intervening force combines with the defendant’s conduct to cause the plaintiff’s injury. Proximate cause exists in indirect cause cases only if the defendant’s negligence caused a foreseeable harm or cause d a foreseeable reaction from an intervening force. Intervening events that produce a harm outside of the scope of what one would normally anticipate from the defendant’s negligence are generally deemed unforeseeable and superseding. Such a superseding event will break the chain of causation and relieve the defendant of liability.
Abnormally dangerous activity
An activity may be characterized as abnormally dangerous if it involves substantial risk of serious harm to person or property even when reasonable care is exercised. Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for directed verdict. For an activity to be abnormally dangerous:
- the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
- the activity must not be a matter of common usage in the community.
Is a rescuer a foreseeable plaintiff?
A rescuer is a foreseeable plaintiff as long is not reckless. The defendant is liable if he negligently puts a third person in peril and the plaintiff is injured in attempting a rescue.
Duty to aid others
No duty is imposed on a person to come to the aid of another absent a special relationship between the parties. If the person gratuitously comes to the aid of the other, the actor must exercise due care in providing the assistance, and must not leave the person in a worse position than he found her.
Duty to prevent a third person from injuring another
Generally, there is no duty to prevent a third person from injuring another. Such a duty will be imposed when the defendant had a special relationship with the third person that gave the defendant the actual ability and authority to act, and the defendant knew or should have known that the third person was likely to injure the other person.
Duty of care to invitees
An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. Those who enter as members of the public for a purpose for which the land is held open to the public and those who enter for a purpose connected with the business or other interests of the landowner are considered invitees. However, a person will lose his status as an invitee if he exceeds the scope of the invitation - if he goes onto a portion of the property where his invitation cannot be reasonably said to extend. A landowner owes a duty to a licensee to make reasonable inspections of that area to discover dangerous conditions and make them safe. Those entering the defendant’s premises for a purpose connected to the business of the defendant are owed a duty of reasonable care in the defendant’s conduct of active operations on the premises. While generally no duty is imposed to affirmatively act for the benefit of others, one who gathers the public for profit has a duty to prevent injury to its patrons from third persons. If the defendant’s conduct falls short of the required level of care, the defendant has breached its duty.
Breach of duty
If a defendant’s conduct falls short of the required level of care, the defendant has breached its duty. Breach of duty is ultimately a question for the trier of fact.
Negligent infliction of emotional distress
A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. Usually, the plaintiff must satisfy two requirements to prevail:
1. the plaintiff must be within the zone of danger from physical injury; and
2. the plaintiff must suffer physical symptoms from the distress caused by the danger to her.
The rule is different when a bystander outside the zone of danger suffers emotional distress from seeing the defendant negligently injure another. Most states allow bystanders to recover if:
1. the plaintiff and the person injured by the defendant are closely related;
2. the plaintiff was present at the scene of the injury; and
3. the plaintiff personally observed or perceived the event.
Most of these states drop the requirement of physical symptoms.
Res ipsa loquitur
The res ipsa loquitur doctrine enables a plaintiff to establish breach of duty just from the fact that an injury occurred that would not ordinarily occur unless someone was negligent. The plaintiff must establish evidence connect a particular defendant with the negligence to support a finding of liability against that defendant. When more than one person was in control of the instrumentality that caused the injury, res ipsa loquitur generally may not be used. The doctrine sometimes has been applied to multiple parties involved in a joint venture.
Unascertainable liability approach
The unascertainable liability approach applies when two or more persons have been negligent but it cannot be determined which one caused the plaintiff’s injury. The court will shift the burden of proof to each of the negligent defendants to show that his negligence was not the actual cause of the injury.
Professional standard of care - doctors
A person who is a professional is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing. For doctors, courts will apply a national standard of care to evaluate their conduct. As part of the standard of care, a doctor proposing a course of treatment has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment.
Landowner duty of care - general rule
Under the traditional rule, the nature of a duty owed by an owner or occupier of land to those on the premises for dangerous conditions on the land depends on the legal status of the plaintiff regarding the property (i.e., trespasser, licensee, or invitee). While many states have abolished the distinction between licensees and invitees and simply apply a reasonable person standard to dangerous conditions on the land, must still maintain the trespasser classification.
