Negligence

Question 1

Negligence elements

Answer 1

1. Defendant owed a duty of care to Plaintiff
2. Defendant breached that duty
3. The breach is the actual and proximate cause of Plaintiff’s injury
4. There are damages

Question 2

The general duty of care in negligence

Answer 2

1. To whom is the owed duty?
   -To all foreseeable victims, including rescuers (but not firefighters/police)
   -Unforeseeable victims are outside the zone of danger and always lose (i.e., people passing)
2. What is the applicable standard of care?
   -Reasonably prudent person (basic)
   -Special duty for children, professionals, and possessors of land

Question 3

Basic standard of care

Answer 3

Everyone owes a duty to behave as a reasonably prudent person to avoid injuring foreseeable victims
-Objective standard: measured against hypothetical average person under similar circumstances
-Defendant’s stupidness, drunkenness, and inexperience are no excuse

Two exceptions:
1. Defendant with superior knowledge or experience is required to exercise that experience
2. Defendant with relevant physical characteristics is judged compared to a reasonable person with that characteristic (i.e., a blind person should not attempt to drive a care)

Question 4

Special duty for defendant children

Answer 4

A child under 5 years of age cannot be liable for negligence

A child between the ages of 5 and 18 is held to the standard of a child of the same age, intelligence, and experience
-Subjective standard that is pro-defendant

Exception: child engaging in potentially dangerous adult activities are held to the basic adult standard of care
-Always operating some type of motor vehicle (i.e., car, boat, tractor, etc.)

Question 5

Special duty for professional defendants

Answer 5

A professional is judged by a national standard of care for the AVERAGE member of the profession
-Always medical professionals on the exam
-Doctors must disclose serious risks of treatment to have informed consent

Question 6

Special duties for possessors of land (premises liability)

Answer 6

Depends on status of plaintiff as:

1. Unknown trespasser
2. Known trespasser
3. Licensee
4. Invitee

Question 7

Premises liability short hands

Answer 7

Known = known to land possessor
Man-made = artificial
Death = highly dangerous
Trap = concealed

Question 8

Unknown trespasser (no duty)

Answer 8

A possessor of land (owner/lessee) owes no duty to an undiscovered trespasser because they are unforeseeable

Question 9

Known trespasser (known, man-made death traps)

Answer 9

A possessor of land (owner/lessee) owes a duty to known trespassers to protect (warn/eliminate) from known, man-made death traps
-Artificial
-Highly dangerous
-Concealed
-Known to land possessor

Known trespasser = significant pattern of trespassing

Question 10

Licensee (social guests - known traps)

Answer 10

A possessor of land (owner/lessee) owes a duty to licensees to protect (warn/eliminate) from known traps
-Concealed
-Known to the land possessor

Licensee = person who enters land with permission, but does not financially benefit the land possessor
-i.e., social guests

Question 11

Invitees (business customers - reasonably knowable traps)

Answer 11

A possessor of land (owner/lessee) owes a duty to invitees to protect (warn/eliminate) from all reasonably knowable traps
-Concealed
-Known to land possessor or could have been discovered by a reasonable inspection (reasonable intervals + thoroughness)

Invitee = person who enters land with permission and financially benefits the land possessor
-i.e., business customers at a grocery store (don’t have to pay if open to public)

Question 12

Attractive nuisance doctrine

Answer 12

Land possessor must exercise reasonably prudent person standard of care to protect TRESPASSING CHILDREN from artificial hazards
-Land possessor on notice if the condition is likely to attract children (i.e., ferris wheel on land)
-CHILDREN DO NOT HAVE TO BE ATTRACTED TO HAZARD

Question 13

How to satisfy premises liability duty

Answer 13

1. Eliminate hazardous condition
   -Repair
   -Replace
   -Remove
2. Warn of hazardous condition

Question 14

Duties of lessors and lessees

Answer 14

An injured guest of a tenant may bring suit against both the owner of the property and the lessee of the property (both have right of possession)

Lessee has general duty to maintain the premises

Lessor must:
-Warn of any known latent defects
-Not negligently repair

Question 15

Negligence per se

Answer 15

A specific duty imposed by a criminal statute (including fines for regulatory offenses such as speeding) may replace the ordinary duty of care when:
-P is within the protected class (i.e., pedestrians); and
-Statute was designed to prevent the specific type of harm suffered by P

Exception: when complying with the statute would be more dangerous or impossible

Negligence per se conclusively establishes a duty and breach of the duty, but compliance with the statute at issue does not mean the defendant acted in accordance with the ordinary duty of care

Question 16

Affirmative duty to act

Answer 16

There is no duty to affirmatively act, to rescue or to prevent harm from third parties, except when:
-Special relationship between the parties (i.e., parent-child, common carrier, innkeeper, or shopkeeper)
-Defendant placed the plaintiff in peril
-Defendant assumed the duty by acting (except in jurisdictions that enacted Good Samaritan statutes (assume no statute unless stated otherwise))

Question 17

Negligent Infliction of Emotional Distress

Answer 17

If P has no physical injury resulting from a tort, he can still pursue emotional distress damages in three scenarios:
-Near miss cases
-Bystander cases
-Business relationship cases

*If a physical injury has been caused by a tort, P can add on emotional distress damages to his physical injury damages without needing to consider the elements of the emotional distress torts

Question 18

Near miss cases

Answer 18

1. P must be within the “zone of danger”
   -Sufficiently close that they are subject to a high risk of physical impact
2. P must suffer physical symptoms from the distress
   -i.e., severe shock

Question 19

Bystander cases

Answer 19

A bystander outside the “zone of danger” of physical injury who sees D negligently injuring another can recover for his own distress when:
1. The person injured is closely related to P; and
2. P was present at the same and personally observed the event

Question 20

Business relationship cases

Answer 20

A plaintiff may recover when a duty arises from the commercial relationship between plaintiff and defendant that makes D’s negligent performance highly foreseeable to cause emotional distress
-i.e., patient and medical lab, customer and funeral parlor, but NOT customer and dry cleaner

Question 21

Breach

Answer 21

Occurs when D’s conduct falls short of the applicable standard of care owed to P

Breach is a fact question that can be shown by P through:
-Custom or usage of others to show how a reasonable person should have behaved
-Negligence per se (establishes duty and breach)
-Res ipsa loquitur (establishes duty and breach)

Question 22

Res ipsa loquitur (“the thing speaks for itself”)

Answer 22

When the occurrence of an event tends to establish a breach of duty
-Used by a plaintiff that does not have knowledge of the defendant’s breach

Plaintiff must show:
1. Accident causing the injury would not normally occur unless someone was negligent; and

2. Negligence was probably attributable to the defendant
   -Shown by evidence that the instrumentality was in D’s exclusive control

Question 23

Effect of res ipsa loquitur

Answer 23

Establishing res ipsa = P establishes duty + breach = no directed verdict for D

P failing to establish res ipsa + no triable fact = directed verdict for D

Always deny P’s motion for directed verdict because causation and damages must still be shown
-Usually reject directed verdict for D unless no triable fact

Question 24

Causation

Answer 24

Plaintiff must show both factual and proximate causation

Factual causation tests:
-“But for” test
-“Substantial factor” test
-“Unascertainable cause” test

Question 25

Factual causation

Answer 25

Factual causation tests:
1. “But for” test

2. “Substantial factor” test
3. “Unascertainable cause” test

Question 26

But for test

Answer 26

An act or omission is a factual cause of an injury when the injury would not have occurred “but for” the act or omission

D can refute by showing that P would have been injured “even if” the act or omission did not occur

Question 27

Substantial factor test

Answer 27

When two defendants, acting independently of each other, are negligent causing an indivisible harm (i.e., starting two fires)
-P can recover full damages from either D (“joint and severally liable”)

Question 28

Unascertainable cause test

Answer 28

When two defendants both act negligently and only one causes the injury, but you cannot tell which defendant caused the injury (bird hunting problem)
-Burden of proof shifts to each defendant to show that his negligence was not the actual cause of the injury

Question 29

Proximate causation

Answer 29

A defendant is liable for all the harmful results that are within the realm of foreseeable risks
-Limitation on liability for the unforeseeable consequences of one’s actions
-Any foreseeability issue for the jury means no MSJ should be granted

Foreseeability guidelines
-Passage of time: the more time that has passed, the less foreseeability
-Geographic distance: the more distance, the less foreseeability
-Prior occurence: if something has never happened before, its not foreseeable

Question 30

Intervening forces

Answer 30

The natural response or reaction to the situation created by the defendant’s conduct

Common foreseeable intervening forces that do not cut off liability:
-Medical malpractice
-Negligence of rescuers
-Protection or reaction forces (i.e., causing panic that leads to injury)
-Disease or accident caused by the original injury

D might also be liable if his negligence increased the risk of harm from intervening forces:
-Negligent acts from third persons
-Crimes and intentional torts of third persons
-Acts of God

Question 31

Superseding forces

Answer 31

Intervening forces that produce unforeseeable results and therefore break the causal chain between the defendant’s negligence and the plaintiff’s injury

Question 32

Eggshell-skull rule (damages)

Answer 32

Defendant is liable for all damages, including the aggravation of an existing condition, even if it was unforeseeable
-D takes P as he finds him

Question 33

Personal injury

Answer 33

A plaintiff is entitled to compensation for both economic (i.e. medical expenses) and non-economic (i.e., pain and suffering) damages stemming from his physical injury

May also recover any resulting emotional distress damages

Question 34

Property damage

Answer 34

Property damaged (i.e., trespass to chattel) = cost of repair

Property destroyed (i.e., conversion) = fair market value at the time of the accident

*Pets are property, so no emotional distress damages for dead pets

Question 35

Comparative negligence

Answer 35

Jury determines the plaintiff’s negligence and reduces damages accordingly (i.e., 10% fault = 10% reduction in damages)
-P’s negligence is not a bar to recovery

Two types:
1. Pure comparative (MBE default)
2. Partial comparative

Question 36

Pure comparative negligence (MBE default)

Answer 36

Plaintiff’s own negligence contributes to his injuries, but proportional recovery is allowed no matter how great P’s negligence was

Question 37

Partial comparative negligence

Answer 37

Plaintiff’s own negligence contributes to his injuries, barring his recovery if his negligence was more serious than the defendant’s negligence
-i.e., Plaintiff was 51% at fault and Defendant was 49% at fault

Question 38

Contributory negligence

Answer 38

Plaintiff’s own negligence contributes to his injuries, completely barring his right to recover at common law
-Minority rule (MBE tests comparative negligence)
-Not a defense to negligence per se or intentional torts