Negligence Flashcards
1
Q
Rule statement for negligence
A
Negligence is carelessness. In order to determine liability, the plaintiff must prove, by a preponderance of the evidence, that the defendant owed a legal duty to the plaintiff, which the defendant breached, and the breach was both the factual cause and proximate cause of the plaintiff’s damages.
2
Q
General rule statement for duty
A
At first, there was no duty. However, over time, policy changes led to the idea that a general duty exists upon everyone not to act carelessly so as to harm another. More specifically, duty is an obligation, based on special relationship between the parties or a relationship imposed by law, that one person will not place the other in risk of foreseeable and unreasonable harm.
3
Q
General rule statement for breach
A
Once a duty is established, the plaintiff must prove that the defendant breached that duty. A breach is a defendant’s failure to exercise reasonable care through nonconformance with the applicable standard of care.
4
Q
Duty
Failure to Act
A
Generally, there is no duty and no liability for a failure to act.
5
Q
Duty
Exceptions to failure to act (6)
A
- Relationship to victim: family; carriers, innkeepers, utilities; custody; employment; property ownership
- Relationship to tortfeasor: children; mental health patients
- Entrustment of dangerous instrumentalities
- Involvement in the accident
- Voluntary assumption of duty
- Statutory duties
6
Q
Duty
Duty to aid others in emergency
A
Generally, there is no duty at common law to warn, protect, or rescue a stranger where the defendant is not at fault
7
Q
Duty
Duty to aid others in emergency found (6)
A
- Special relationship between defendant and victim
- Defendant induces reliance or interferes with other rescuers
- Defendant aused the plaintiff’s injury
- Statutes may impose duty
- Special relationship between defendant and harmer
- Where defendant has understaken aid to the plaintiff
8
Q
Duty
If the defendant voluntarily undertakes to aid the plaintiff . . .
A
The defendant must exercise due care. The defendant can abandon her efforts, but the condition in which she may leave the plaintiff varies based on jurisdiction (no worse, no comparable peril, or no imminent peril of serious bodily harm). Many states exempt physicians who render aid in an emergency from negligence liability.
9
Q
Duty
Duty to protect and control
A
There is no duty to control a third person to prevent him from causing harm to another unless (a) a special relationship exists between the defendant and the third person which imposes a duty to control the third person’s conduct or (b) a special relationship exists between the defendant and the other which gives the other a right to protection.
10
Q
Breach
5 ways a plaintiff can prove the defendant failed to use reasonable care
A
- Common sense (reasonable, prudent person)
- Balancing of costs and benefits (hand formula)
- Custom
- Negligence per se
- Res Ipsa Loquitor
11
Q
Breach
Negligene may be proven by . . .
A
direct or circumstantial evidence. Direct evidence is evidence of the fact in question while circumstantialevidence is evidence from which the fact in question may be inferred.
12
Q
Breach
Notice requirement
A
Notice is only required if a dangerous condition is out of the ordinary. If the defendant’s mode of operation makes injury otherwise foreseeable, the failure to take precautions may give rise to liability, even in the absence of notice of specific conditions which caused harm to the plaintiff.
13
Q
Breach
Actual notice
A
Actual notice is when the defendant is explicitly informed of the risk of harm.
14
Q
Breach
Constructive notice
A
Constructive notice is established by evidence that the danger existed so long that it should have been discovered through the exercise of reasonable care.
15
Q
Breach
Spoliation
A
The information is in the hands of the defendant. They are required to maintain the information for a specific period of time. Generally, courts will handle spoliation through sanctions. However, in cases of spoliation by a third-party, there is a stronger case for recognizing spoliation as an independent cause of action.
16
Q
Breach
Reasonable, prudent person
A
Once a duty is established, breach can be determined if the person that owes the duty fails to act as a reasonable, prudent person would under the circumstances. The reasonable, prudent person is neither super cautious, nor inattentive to risks.
17
Q
Breach
Emergency & reasonable, prudent person standard
A
The existence of an emergency does not change the standard of care, but is a factor bearing upon whether a defendant acted reasonably, unless the defendant created the emergency.
18
Q
Breach
Physical handicap/intoxication & reasonable, prudent person standard
A
A person with a physical handicap is expected to act as a reasonable, prudent person with the same handicap would. There are generally no allowances for voluntary intoxication, but involuntary intoxication is held to the same standard as physical handicap.
19
Q
Breach
Religious beliefs & reasonable, prudent person standard
A
A person’s religious beliefs are a relevant factor in determining whether that person acted reasonably, but do not change the standard of care.
20
Q
Breach
Children/age & reasonable, prudent person standard
A
The standard of care for a child is measured by the degree of care which would ordinarily be observed by children of the same age, intelligence, and experience under similar circumstances. Children are held to an adult standard when they engage in adult activities that are inherently dangerous. Generally, children 5 year and under are not liable for negligence.
21
Q
Breach
Mental deficiency & reasonable, prudent person standard
A
Generally, metnal deficiency does not excuse a person from liability for conduct which does not conform to the standard of a reasonable, prudent person under the circumstances, unless the mental state is so low the person lacks the capacity to understand a danger exists. Mental deficiency is always relevant to the issue of contributory negligence.
22
Q
Breach
Superior knowledge, training, or skill & reasonable, prudent person standard
A
If the actor is a member of a profession, the standard of care will be defiend with reference to that group. The actor will be found negligence for failing to perform with the degree of knowledge, skill and diligence of an ordinary, minimally competent member of that profession.
23
Q
Breach
Race, gender, ethnicity & reasonable, prudent person
A
The majority rule is that an actor’s race, gender, or ethnicity does not change the standard of care or is even a relevant circumstance in determining whether ordinary care was exercised.
24
Q
Breach
Judge-made standards of care
A
The conduct of a reasonable person may also be established by judicial decision without reliance on legislation. This somtimes yields inflexible results.
25
# Breach
Hand formula
Once a duty is established, courts may employ a negligence balancing test to determine if the defendant's conduct is unreasonable. The hand formula provides that if the burden on the defendant to prevent the risk is less than the probability the event will occur combined with the magnitude of the loss, the defendant will be liable.
| B
26
# Breach
Custom
Custom does not determine the standard of care (except for doctors). Conformance with custom raises a rebuttable inference of reasonableness. Departure from custom raises a rebuttable inference of unreasonableness.
27
# Breach
Custom exception
An exception to custom raising an inference of reasonableness arises in cases where the custom is negligent as a matter of law.
28
# Breach
Negligence established by statute
A statute defines the standard of care if the legislature says it does or the court nevertheless says it does.
29
# Breach
Negligence Per Se
Negligence per se leads to a conclusive finding of negligence if the plaintiff can prove that the defendant, without excuse, violated a criminal statute that is designed to protect against the type of harm caused by the defendant and the plaintiff is wihtin the class of persons to be protected.
30
# Breach
Excusable violations of statutes (negligence per se)
In majority jurisdictions, a violation only raises a preumption of negligence which the defendant can rebut with evidence of an adequate excuse or reasonable care. If rebutted properly, the jury may disregard the violation as evidence of negligence.
31
# Breach
Excuses for statute violations (6)
1. Violation is reasonable in light of the defendant's childhood or physical diability/incapacitation
2. The defendant exercised reasonable care in attempting to comply with the statute
3. The defendant does not know nor should know of the factual circumstances that render the statute applicable
4. Violation is due to the confusing way in which the statute's requirements are explained
5. Where it was safer, under the circumstances, to disobey
6. Other excuses worthy of recognition
32
# Breach
Not excuses for violation of statute (3)
1. An actor's personal opinion that the statute is excessive or unwise
2. Ignorance of the law
3. People customarily violate the law
33
# Breach
Compliance with statute
Compliance with a statute does not necessarily establish that a defendant acted reasonably. If the situation is more hazardous than usual, precautions beyond the statutory minimum may be required.
34
# Breach
Statutes allowing no excuse or defense
Certain types of statutes are commonly interpreted to permit no excuse, imposing a form of strict liability. If laibility is imposed under this theory, no excuse is permitted and thus comparative fault and assumption of the risk are not available.
35
# Breach
Special standards of care
Courts have sometimes attempted to implement degrees of negligence through gradations: slight, ordinary, and gross. These are typically avoided because they are impractical in application because they are highly fact-specific, time consuming, and subject to dispute. They are rarely employed, except in connection with bailments, common carriers, innkeepers, and utilities, and some statutes.
36
# Breach
Res ipsa loquitor: type of evidence and when used
Res ipsa loquitor ("the thing speaks for itself") allows a plaintiff to use circumstantial evidence to prove negligence, a duty and a breach, and recover. It is used in situations where there are no witnesses or the witnesses aren't talking.
37
# Breach
Res ipsa loquitor: reason for doctrine
One of the reasons for res ipsa loquitor is cases in which the defendants are in control of all of the evidence.
38
# Breach
Res ipsa loquitor: rule statement
The plaintiff must prove that the incident would not normally occur without someone's negligence; that the incident was of a type that the defendant had a duty to guard against; the instrumentality causing the injury was under the defendant's exclusive control; and that neither the plaintiff nor any third party contributed to or caused the plaintiff's injuries.
39
# Breach
Res ipsa loquitor: exclusive control
Control is not a rigid requirement. All that is required is that the instrumentality is under the defendant's control at the time the injury occurred, not necessarily that the defendant was in possession of the instrumentality.
40
# Breach
Res ipsa loquitor: greater access to information
It is not necessary that the defendant possess superior knowledge or superior opportunity to obtain knowledge of how the injury occurred. However, it is often present in res ipsa loquitor cases as evidence of negligence where companies have greater knowledge of and access to information regarding hazards or risks and potential contributors to such risks.
41
# Breach
Res ipsa loquitor: rebuttal evidence
In cases in which the plaintiff asserts res ipsa loquitor, the defendant often respons by producing evidence that due care was in fact exercised. If the defendant's evidence does not prove such, the plaintiff is entitled to a reasonable inference of negligence.
42
# Breach
Res ipsa loquitor: multiple defendants
Res ipsa loquitor may be used if there are multuple defendants and it would be unreasonable to expect the plaintiff, due to no fault of their own, to be able to identify which defendant caused the harm. The defendant must stand in special relationship to each other and that all had responsibility for the plaintiff's safety. The doctrine typically will not apply in cases where the defendants are strangers to one another. Many cases in non-medical scenarios have required the key test of whether the defendants had joint control over what caused the injury.
43
# Legal Malpractice
Duty
An attorney owes a duty of care to anyone who becomes a client. The duty of care extends as far as the scope of representation. Limited obligations may arise to prosective clients, third-party beneficiaries, or nonclients who would reasonably rely on the attorney.
44
# Legal Malpractice
Breach
A lawyer, because of her superior knowledge and professional experience, is held to a higher standard of care, that is ,to act as a reasonable, prudent and minimally competent lawyer of the same state would under the circumstances. The standard of care is reasonableness, not good faith. Liability is imposed only if the defendant did what no attorney could do or failed to do what every attorney must do. Expert witnesses from the same state would need to testify as to the state standard.
45
# Legal Malpractice
Exercise of discretion
There is no liability for exercise of discretion, including reasonable errors of judgment, failure to predict the resolution of unsettled questions, failure to question well-settled law, or reasonable failure to assert a novel topic.
46
# Medical Malpractice
Duty
For a claim of medical malpractice, the plaintiff must prove that a doctor/patient relationship was establishe, such as proving there was an in-person, physical examination.
47
# Medical Malpractice
Breach
A physician, because of her superior knowledge and professional experience, is held to a higher standard of care, that is, to act as a reasonable, prudent, and minimally competent physician within the United States would under the circumstances.
48
# Medical Malpractice
Proving breach
For physicians, custom is dispositive. Breach of standard of care is usually only provable by expert testimony to establish the threshold at which the physician failed to act properly or the adoption, however skillfully administered, of the wrong method. If the breach is so obvious that a lay person could easily determine there has been a breach, expert testimony is not required.
49
# Medical Malpractice
Informed consent: broadly
The doctrine of informed consent requires an adequate disclosure of risks to a patient. The failure to obtain informed consent is professional negligence, even if the treatment is skillfully rendered.
50
# Medical Malpractice
Informed consent: rule statement
The plaintiff must prove that the doctor did not disclose all material risks and/or treatment alternatives that a reasonable, prudent, miniminally competent doctor would have disclosed under the circusmtances and in accordance with the recognized standard of acceptable professional practices, which will likely require expert testimony to establish.
51
# Medical Malpractice
Informed consent: material risk
A material risk is anything that might change a plaintiff's decision in whether or not to undergo the treatment. The plaintiff must show that a reasonable, prudent person probably would have declied the treatment had there been full disclosure.
52
# Medical Malpractice
Informed consent: exceptions (3)
1. If the information is, or should be, known to the patient
2. Disclosure would be detrimental to the patient's best interest
3. There is an emergency and the plaintiff cannot give consent
53
# Factual cause
Factual cause: general rule
Once the plaintiff has shown that the defendant has acted negligently, he/she must prove that the negligence was the factual cause of the injury and resulting damages.
54
# Factual cause
But for test
The plaintiff must show that but for the defendant's negligence, the injury would not have occurred. There can be multiple but for causes for an event.
55
# Factual cause
Substantial factor test
If the plaintiff sustains an injury as the result of the negligent conduct of two or more tortfeasors, and it appears that the conduct of either one alone would have been sufficient to cause the injury, both are liable if each of their acts was a substantial factor in causing the injury.
56
# Factual cause
Substantial factor?
A substantial factor is one which multiplies the odds of the incident occurring from possible to probable.
57
# Factual cause
Concurrent causes test
Where the separate negligent acts of the defendant and a party concur to cause a single injury, and it appears that the plaintiff would not have been injured but for the concurrence, then both defendants are actual causes and jointly liable.
58
# Factual cause
Loss of chance
Loss of chance is the loss of ability to secure a correct diagnosis and earlier treatment which might have extended the patient's life. The plaintiff must prove that the physician's negligence caused the plaintiff's likelihood of achieving a more favorable outcome to be diminished.
59
# Factual cause
Formula for loss of chance
(1) Total amount of damages allowed under wrongful death statute; (2) % chance of survival prior to malpractice; (3) % chance of survival after malpractice; (4) subtract (3) from (2); multiple (4) by (1)
60
# Factual cause
Multiple fault and alternative liability
Where a plaintiff cannot show whether one of two defendants' negligence was the actual cause of the injuries, the burden of proof shifts to the defendant to show his/her negligence was not the actual cause. If the defendants cannot decide amongst themselves who is liable, they will be held jointly liable.
61
# Factual cause
Market share laibility: broad applications
Market share liability is a limited liability theory and, in the vast majority, only applies to fungible goods.
62
# Factual cause
Market share liability: requirements (4)
1. All named defendants are potential tortfeasors
2. Alleged products of all tortfeasors are identical
3. Plaintiff, through no fault of her own, cannot identify which defendant caused the injury
4. Defendants represent a substantial share of the market. (each defendant is liable for damages representing only its share of the market at the relevant time)
63
# Factual cause
California market share
The burden shifts to the defendants if the number sued is sufficiently substantial to prevent injustice. Defendants may exculpate themselves by proving they did not make the particular item in question.
64
# Factual cause
New York market share
Defendant who engaged in a particular type of conduct is liable even if it neither caused the plaintiff's harm nor acted in concert with the one who did. Enforced a national market measure.
65
# Factual cause
Enterprise liability
Enterprise liability requires that multiple manufacturers cooperated in the production and design of a faulty product based on an industry-wide standard. The buden shifts to the defendants if they jointly controlled the risk and it is virtually certain that the responsible party is in court.
66
# Factual cause
Concerted action liability: broad, general rule
A concerted actoin is a common plan or design to commit, aid, or otherwise further a tortious act.
67
# Factual cause
Concerted action liability: rule statement
A person is subject to liability for harm resulting to a third person from the tortious conduct of another if the person (1) commits a tortious conduct as a part of a common scheme or design with the other; (2) gives substantial assistance to the other knowing that the other's is a breach of duty; or (3) gives substantial assistance to the other to accomplish a tortious result while also acting in a manner that is a breach of duty to the third person.
68
# Factual cause
Concerted action: common scheme or design
Some level of knowledge or awareness of pertinent attendant circumstances is required. The focus is on the defendant's knowledge of the conditions that resulted in harm to the plaintiff. Merely acting in concert is not enough if the plan or scheme itself is not tortious, unless there is knowledge of some aspect of circumstances that creates a foreseeable risk.
69
# Factual cause
Concerted action: aiding and abetting
Aiding and abetting is providing substantial assistance or encouragement to someone committing a tortious act
70
# Factual cause
Concerted action: civil conspiracy
Civil conspiracy is an agreement to act together and requires intent to accomplish an unlawful purpose or a lawful purpose by unlawful means
71
# Proximate cause
Proximate cause: general rule statement
After proving factual causation, the plaintiff must prove that the defendant was the proximate cause, or legal cause, of the harm. The question is whether the harm to the plaintiff was so remote, so unforeseeable, so bizarre that holding the defendant liable is unfair.
72
# Proximate cause
Foreseeability: rule statement
A defendant is generally only liable for consequences qhich are reasonably foreseeable. Foreseeability focuses on whether the defendant should have reasonably foreseen, as a risk of her conduct, the general type of harm suffered by the plaintiff. However, the result must be within the risk created by the defendant's conduct and foreseeability is not sufficient to create liability if the harm is too tenuous and remote.
73
# Proximate cause
Intervening cause
An intervening cause is a new force which joins with the defendant's conduct to cause the plaintiff's injuries. An intervening cause can be human, animal, mechanical, or natural. If the defendant should have foreseen the possibility that the cause might occur or the type of harm was foreseeable, the defendant's conduct is nonetheless the proximate cause.
74
# Proximate cause
Superseding intervening cause
The defendant is relieved from liability if there is a superseding intervening cause. [Intervening cause]. An intervening cause is considered superseding only when unforeseeable and its occurrence appears extraordinary under the circumstances. If the intervening cause is foreseeable, liability is still superseded if the defendant's conduct in no way increases the likelihood of the harm occurring.
75
# Proximate cause
Must be foreseen (3)
1. General class of persons
2. General type of harm
3. Only a remote possibility of harm
76
# Proximate cause
Does not have to be foreseen (3)
1. Exact maner of harm
2. Full extent of harm
3. Ordinary rescue measures
77
# Proximate cause
Pure economic loss
In general, there is no liability for negligent interferences with economic interests.
78
# Proximate cause
Exceptions to pure economic loss rule
1. Where negligence relates to legal or accounting malpractice
2. Misrepresentation
3. Failure to settle an insurance claim within policy limits
4. Spoliation of evidence
5. Breach of fiduciary duty
79
# Proximate cause
Criminal or intentionally tortious acts as intervening causes
An intentional tort or a criminal act will cut off foreseeability and will relieve the liability of the tortfeasor, except where the intentional tort and criminal act is in fact forseeable.
80
# Proximate cause
Rescue doctrine
Danger invites rescue. Rescue is presumed reasonably foreseeable, and the defendant is liable for any injury to a rescuer, so long as the rescue was not undertaken carelessly. The rescue doctrine requires imminent peril, an act of intervention, and an underlying tortious conduct by the defendant.
81
# Proximate cause
Rescue: Peril created by victim
The rescue doctrine applies where the peril has been created by the victim
82
# Proximate cause
Rescue: liability for losses when?
The doctrine governs liability for losses subsequent to intervention.
83
# Proximate cause
Rescue: Liability of rescuer to victim
A rescuer whose careless intervention injures the person in peril may be liable for that harm. However, the emergent nature of the circumstances will be taken into account in determining whether the rescuer was in fact negligent.
84
# Proximate cause
Rescue: contributory negligence of rescuer
The contributory negligence of the rescuer to his or her own injuries may be taken into account in determining damages.
85
# Proximate cause
Rescue: liability of third party to rescuer
Generally, a third party will not be liable to a rescuer after the rescue has already begun
86
# Proximate cause
Rescue: Professional rescuers
A professional rescue cannot sue the creator of peril for negligence, except where the peril is create by reckless or intentional conduct.
87
# Proximate cause
Victim suicide
Generally, courts will not allow recovery against an original tortfeasor when a victim subsequently commits suicide, as the court finds this to be an intervening superseding cause so as to cut off liability.
88
# Proximate cause
Omissions by others
Omissions by another are not a superseding cause. The third party's failure to stop and render aid does not forgice the original tortfeasor of neglgience.
89
# Proximate cause
Omissions of others: shifting responsibility
When the initial tortfeasor has done everything possible to avoid the harm or if the omission is unforeseeable, responsibility may shift and the tortfeasor will not be liable for subsequent losses.
90
# Proximate cause
Omissions of others: relevant factors to determine when responsibility shifts (5)
1. Lapse of time
2. Contract governing duty to act
3. Magnititude of threatened harm
4. Character and position of the third party
5. Likelihood the third party will act
91
# Proximate cause
Original tortfeasor liability for medical malpractice
Medical malpractice is presumed as reasonable and foreseeable if the defendant's negligent conduct caused the need for medical attention
92
# Proximate cause
Original tortfeasor's liability for instinctive reactions
Instinctive reactions to a defendant's negligent conduct are reasonably foreseeable and the defendant will be liable for consequences of those instinctive reactions
93
# Proximate cause
Original tortfeasor's liability for negligence of others
Negligence of others can be reasonably foreseeable and the defendant may be held liable for it
94
# Proximate cause
Original tortfeasor's liability for contraction of disease
Contraction of disease is a reasonably foreseeable result when a defendant negligently injures a plaintiff
95
# Duty
Negligent Entrustment
The defendant is responsible because of what they knew or what they should have known would or could have happened, whether or not it was foreseeable.
96
# Duty
Public Duty Rule
A duty to all is a duty to none. A public entity cannot be held liable for a failure to provide protection absent a special relationship to the victim.
97
# Duty
Public duty rule: special relationship (4)
1. Agency's knowledge of the need
2. Agency's response
3. Plaintiff's reasonable expectation
4. Action by co-equal branches
98
# Duty/Premises Liability
Modern rule
The landowner has a duty to maintain a premises as a reasonable, prudent person would in view of the probability of injury to others, except for in the case of flagrant trespassers.
99
# Duty/Premises Liability
Modern rule: treatment of traditional categories
The modern view sees the traditional statuses as a potential factor in liability, but not determinative.
100
# Duty/Premises Liability
Modern rule: flagrant trespassers
The only duty owed to flagrant trespassers is not to act in an intentional, willful, or wanton manner to cause physical harm.
101
# Duty/Premises Liability
Modern rule: Known or obvious dangers
The presence of known or obvious dangers is merely a factor in determining whether reasonable care was exercised.
102
# Duty/Premises Liability
Traditional rule
Traditionally, the duty of care owed by the defendant varied according to the status of the plaintiff as a trespasser, licensee, or invitee.
103
# Duty/Premises Liability
Definition of possessor
A possessor is one who exercises actual control over the property, not necessarily the owner. Whoever controls the land is responsible for the upkeep of the property, as if they were the owner. Only a possessor or someone acting on the possessor's behalf is protected by the limited rules. Anyone else on the property must act with reasonable care.
104
# Duty/Premises Liability
Status: trespasser
Persons with no right to be upon the land
105
# Duty/Premises Liability
What is the duty owed to trespassers?
No duty is owed to a trespasser, except to refrain from willful, wanton, and reckless conduct resulting in harm to the trespasser.
106
# Duty/Premises Liability
What are the two exceptions to the trespasser duty rule?
Two exceptions may impose a duty of reasonable care in the case of trespassers: (1) constant trespass on a limited area of land (duty to use reasonable care to make premises safe or at least warn of latent and hidden dangers) and (2) discovered trespassers (duty to warn as far as is reasonable of any artificial conditions that are latent or hidden dangers; no duty for open and obvious)
107
# Duty/Premises Liability
Attractive Nuisance Doctrine
An attractive nuisance is an artificial condition on land highly dangerous to trespassing children
108
# Duty/Premises Liability
Factors for Liability of Attractive Nuisances (5)
1. Possessor knows or should know that children are likely to trespass;
2. Possessor knows or should know the condition involves an unreasonable risk of death or serious bodily harm;
3. The children, because of their youth, do not discover the conditoin or realize the risk of danger;
4. The utility to the possessor of maintaining the condition and burden to remediate are slight compared to the risk; and
5. The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.
109
# Duty/Premises Liability
Status: Licensees
Persons rightfully upon land (by reason of consent, express or implied, or privilege) for their own purposes or as social guests
110
# Duty/Premises Liability
Licensees: duty owed
Duty to (1) warn of latent dangers (natural and artificial) and (2) exercise reasonable care in active operations
111
# Duty/Premises Liability
Can statuses be exceeded?
Yes, licensee and invitee can be exceeded
112
# Duty/Premises Liability
Licensee to invitee
Even if a licensee has spontaneous business, the licensee does not necessarily become an invitee. The homeowner has to be in the business of doing that business.
113
# Duty/Premises Liability
Emergency Personnel and Utility Workers
Generally, emergency personnel and utility workers are going to be licensees. Varies by state.
114
# Duty/Premises Liability
Status: Invitee
One who either (1) enters land by express or implied invitation to conduct business with the owner or (2) enters for purposes for which the land is held open to the public
115
# Duty/Premises Liability
Invitees: duty owed
Duty to (1) warn of known latent dangers, (2) exercise reasonable care in active operations, and (3) use care to insepct and repair dangerous conditions
116
# Duty/Premises Liability
Invitee: exception
The exception to the duty owed to invitees is found in recreational use statutes. If an owner/occupier of open land permits the public to use the land for rereational purposes without charging a fee, the landowner is not liable for injuries suffered by a recreational user, unless the landowner willfully or maliciously failed to guard against or warn of a dangerous condition or activity.
117
# Duty/Premises Liability
Is an invitee required to buy anything before becoming an invitee?
No
118
# Duty/Premises Liability
What duty is owed to invitees who are injured?
If an owner sees an invitee injured on the property, there is a duty to call for help.
119
# Duty/Premises Liability
Invitee: Known or obvious dangers exceptions (4)
Generally, no duty for known or obvious dangers. There is a duty to exercise reasonable care if it is foreseeable that the plaintiff will:
1. Be distracted
2. Forget
3. Not see
4. Elect to encounter
120
# Duty/Premises Liability
Obligation to an invitee does not include . . .
Heroic measures like jumping in front of a bullet.
121
# Duty/Premises Liability
Protection of Entrants from Third Party Criminal Activity
Genearlly, nobody is required to protect a third party from criminal activity unless they know about it. If the owner is on notice that there is a particular criminal activity, there may or likely will be an obligation to protect invitees from that particular crime.
122
# Duty/Premises Liability
Duties to people outside owner's land (natural conditions)
There is no duty unless (1) the possessor or anyone else has ever altered the natural condition so as to aggravate the risk and (2) in urban area, where trees are near public streets which pose an unreasonable risk of harm to those on the street
## Footnote
Duty is excepted if tree fall or breaks due to some unforeseen or unknown circumstance.
123
Duties to people outside owner's land (artificial conditions)
There is no duty except to maintain buildings, fences, and the like that abut other land/streets so as not to pose an unreasonable risk of harm to those outside the land.
124
# Duty/Premises Liability
Responsibility for Entrant Between Tenant and Landlord
A lessor who is not in possession of property is not liable for failure to prevent injury to a tenant or the tenant's guest. Once a renter signs a lease and moves in, that renter is responsible as the possessor for any injury to someone inside the rented space.
125
# Duty/Premises Liability
Exceptions to Landlord/Tenant Rule (6)
1. Undisclosed dangerous conditions known to the lessor
2. Conditions dangerous to persons outside the premises
3. Premises leased for admission of the public
4. Common areas under the lessor's control
5. Contract or promise to repair
6. Negligence by the lessor in making repair
126
# NIED
NIED general rule
NIED allows recovery for mental suffering. For a claim of NIED to prevail, the plaintiff must prove, by a preponderance of the evidence, that the defendant, through an act of negligence (proved by presence of a duty and breach), caused the plaintiff to suffer severe emotional distress, that the distress was genuine, and that the plaintiff was the primary victim or bystander who is entitled to recovery of damages.
127
# NIED
NIED negligence statement
Negligence is carelessness. Negligence is established by proving that the defendant owed a legal duty to the plaintiff (or a third party) which the defendant then breached. Duty is an obligation based on relationship that one person will not place the other in risk of foreseeable and unreasonable harm. Once a duty is established, breach can be determined if the person that owed the duty fails to act as a reasonable, prudent person would under the circumstances. The reasonable, prudent person is neither super cautious nor inattentive to risks.
128
# NIED
NIED factual cause statement
Once the plaintiff has showing that the defendant has acted negligently, she must show that the negligence was the cause in fact of the severe emotional distress. In other words, the plaintiff must prove that but for the defendant's negligence, the plaintiff would not have suffered severe emotional distress.
129
# NIED
NIED prox cause statement
After proving factual causation, the plaintiff must prove that the defendant was the proximate cause, or legal cause, of the harm. The question is whether the harm to the plaintiff was so remote, so unforeseeable, so bizarre, that holding the defendant liable is unfair. A defendant is generally only liable for consequences which are reasonably foreseeable. Foreseeability focuses on whether the defendant should have reasonably foreseen, as a risk of her conduct, the general type of harm suffered by the plaintiff. However, the result must be within the risk created by the defendant's conduct and foreseeability is not sufficient to create liability if the harm is too tenuous and remote.
130
# NIED
NIED genuine severe emotional distress statement
The plaintiff must then show that the severe emotional distress was genuine. Emotional distress includes, but is not limited to, suffering, anguish, fear, anxiety, grief, and shock. Traditionally, the genuineness of emotional distress could only be proved through the plaintiff first suffering a physical impact. However, courts now allow emotional distress damages to be proven by (1) physical consequences which manifest as a result of the emotional distress, (2) an invasion of a legally protected interest (i.e. bodily autonomy or privacy), (3) other compelling facts, and (4) other evidence.
131
# NIED
NIED direct claims general statement
The plaintiff must also prove that she was the primary victim or a bystander entitled to recovery. For direct claims of primary victims, the plaintiff traditionally had to prove that she suffered a physical harm followed by emotional distress. However, the majority rule allows recovery for mental distress if the plaintiff was at risk of impact. In other words, that the plaintiff was within the zone of danger. The plaintiff must be aware that she is within the zone of danger at the time it occurred.
132
# NIED
bystander claims general statement (majority)
The plaintiff must also prove that she was the primary victim or a bystander entitled to recovery. Bystander claims, also known as indirect claims, arise out of a third party observing someone else being negligently injured by the defendant. The majority of courts allow recovery for all foreseeable plaintiffs who witness the injury of a close relative, where the plaintiff was also in a position to fear for her own safety (in the zone of danger).
133
# NIED
bystander claims minority rule
Extends right of bystander to recovery where they were not at physical risk themselves. Three factors considered: (1) whether PL was near the scene, (2) whether PL observed the incident contemporaneously, (3) whether PL and victim were closely related
134
# Alcohol Related Injuries
Traditional view (minority)
At common law, neither sellers of liquor nor social hosts were liable to those injured by those to whom they served alcohol.
135
# Alcohol Related Injuries
Dram shop - modern view (majority)
The majority view still limits the liability of commercial vendors of alcohol, unless the vendor serves a person who is visibly intoxicated or someone underage. Social hosts are generally not responsible for the actions of those who drink alcohol in their homes.
136
# NIED
Alternatives for recovering emotional distress damages
1. Loss of consortium
2. Wrongful death
3. breach of fiduciary duty
137
# Strict Liability
General rule
Strict liability is liability without fault. To establish a claim of strict liability, the plaintiff must prove, by a preponderance of the evidence, that there was an act (by the defendant) for which the law imposes a duty to make absolute safe and harm resulting from a breach of that duty, factual causation, proximate causation, and damages.
138
# Strict Liability
Duty/breach general statement
With negligence, duty is an obligation based on relationship, and the defendant breaches that duty when he fails to act with reasonable care. Strict liability, however, essentially provides the elements of duty and breach without an investigation into reasonableness. With strict liability, the duty of the defendant is based on the defendant's undertaking of a particular activity for which the law imposes an absolute duty to make safe, such as keeping dangerous animals and carrying out abnormally dangerous activities. Meanwhile, breach is simply the occurrence of the harm. Therefore . . .
139
# Strict liability
Factual cause general statement
Next, the plaintiff must prove that the defendant's activity was the factual cause of the plaintiff's injury. In other words, the plaintiff's injury would not have happened but for the defendant's undertaking of the dangerous activity.
140
# Strict liability
Proximate cause general statement
After proving factual cause, the plaintiff must prove that the defendant's activity was the proximate cause, or legal cause, of the plaintiff's injury. The question is whether the plaintiff's injury was so remote, so unforeseeable, so bizarre that holding the defendant liable is unfair. With strict liability, the harm has to be something that could have been anticipated, and imposition of liability still has to be fair. The harm must be to a foreseeable plaintiff and a reasonably foreseeable event from the activity that made what the defendant was doing to be considered dangerous.
141
# Strict liability
Vicarious liability general statement
Strict liability imposes liability without fault. Vicarious liability is a form of strict liability in that it holds a defendant liable for another's tortious conduct, regardless of the defendant's fault, due to a special relationship between the two such as family relationships, employment relationships, or joint ventures.
142
# Strict liability
Employer liability/respondeat superior
To successfully invoke the doctrine of respondeat superior, which holds an employer vicariously liable for an employee's negligent acts, the plaintiff must prove, by a preponderance fo the evidence, that a negligent act was committed by the defendant's employee and within the scope of employment.
143
# Strict liability/respondeat superior
Employee
The plaintiff must prove that the tortfeasor was an employee of the defendant/employer at the time of the act. Generally, courts consider whether the employer had the right to control and the degree of that control of the employee's behavior.
144
# Strict Liability/respondeat superior
Scope of employment
The plaintiff must then prove that the employee was acting within the scope of employment at the time of the negligent act. Generally, courts consider whether the conduct was consistent with the intent to beenfit the employer
145
# Strict liability/respondeat superior
Effect of violating company rules
An employee's tortious conduct may be considered within the scope of employment even if it violates a company rule prohibiting such conduct.
146
# Strict liability/respondeat superior
Commute
Commuting to work is outside the scope of employment.
147
# Strict liability/respondeat superior
Frolic and detour
Where an employee makes a detour for personal reasons on a business trip and causes damages, traditionally, an employer is liable only if the accident occurred while the employee was returning to the business route after ending the personal business. However, today's courts will generally hold the employer liable if the detour is reasonably foreseeable. A factor used to determine the foreseeability of the detour is the distance of the detour, also known as the slight deviation rule.
148
# Strict liability/respondeat superior
Business partners
Business partners are vicariously liable for torts committed within the scope of the partnership.
149
# Strict liability/respondeat superior
Intentional torts
Employers are not liable for an employee's intentionally tortious conduct, unelss the tortfeasor was somehow furthering the business purposes of the employer in the commission of the tortious act.
150
# Strict liability/respondeat superior
Independent contractors
A principal is not ordinarily liable for harm caused by an independent contractor.
151
# Strict liability/respondeat superior
Independent contractors exceptions (3)
A principal may be liable if:
1. the duty of the employer to do a particular act was rendered a non-delegable duty by statute and public policy.
2. the work carried out by the independent contractor involved ultrahazardous, abnormally dangerous activity.
3. where an employer negligently selects an incompetent cnotractor.
152
# Strict liability/respondeat superior
Examples of non-delegable duties
* Work contemplated requires special precautions
* Work to be done in a public place
* Construction or maintenance of buildings in the principal's possession
* Instrumentalities used in highly dangerous activities
* Work subject to safety requirements imposed by legislation
* Work is inherently dangerous
* Work involves abnormally dangerous activities
153
# Strict liability/respondeat superior
Negligent hiring
If unable to pursue strict vicarious liability of an employer, a plaintiff may pursue a claim of negligent hiring. This action requires a showing that the principal had actual or constructive notice of the agent's incompetence and that the injury complained of resulted from that incompetence.
154
# Strict liability/respondeat superior
Apparent/ostensible agency
A principal may be liable for the torts of an independent contractor so long as the tortfeasor acted with apparent/ostensible agency. Apparent agency requires (1) that the plaintiff reasonably believed that the tortfeasor was an agent of the defendant, (2) that the belief was caused by the defendant's conduct, and (3) that the plaintiff detrimentially relied on the belief.
155
# Strict liability/respondeat superior
Indemnification
The employer can sue the tortfeasor employer and seek indemnification (payment) for 100% of what it paid out, so long as the employer does not have independent negligence.
156
# Strict liability
Workers' Compensation
Workers' compensation is a statutory substitute for tort law which imposes strict liability for on the job accidents. Compensation is certain, but less generous than tort damages.
157
# Strict liability/workers' compensation
Coworkers/employers/third parties
A covered worker's employer and fellow employees are made immune from claims for negligence and usually recklessness. Intentional tort claims and actions against coworkers and third parties are not barred.
158
# Strict liability
Family purpose doctrine (purpose)
The doctrine is an exception to the usual rule that parents are not vicariously liable for the torts of their children in the absence of employment relations, joint enterprise, or knowledge of past tortious behaviors. The parent may of course be liable for his or her own tort in failing to control a minor child.
159
# Strict liability
Family purpose doctrine, generally
To successfully invoke the family purpose doctrine, the plaintiff must prove, by a preponderance of the evidence, that the defendant was the owner of the car driven by the tortfeasor child and that the defendant provided the child with the car and gave consent (express or implied) for the child to drive the car for the authorized purpose which is typically general use by family members.
160
# Strict liability/animals
Wild animals, general rule
A possessor will be held strictly liable for harm caused by a wild animal. A wild animal is one not generally domesticated and likely to cause injury when unrestrained.
161
# Strict liability/animals
Fear of wild animals
Fear of unrestrained wild animals can be one of the dangerous propensities imposing strict liability.
162
# Strict liability/animals
Exceptions to wild animals rules (2)
Exceptions to the general of imposing strict liability for harm by wild animals:
1. Where the wild animal is kept under a public duty, like a zoo or national park, strict liability will not usually apply. The plaintiff must show negligence but the defendant is held to a higher standard of care.
2. Where the plaintiff did something consciously to provoke the injury.
163
# Strict liability/animals
Domestic animals, general rule
A possessor will be held strictly liable for injuries caused by dangerous domestic animals. Domestic animals are those used in the service of mankind, like cats and dogs.
164
# Strict liability/animals
Dangerous propensities
Dangerous propensities do not necessarily have to be that the animal is mean or aggressive. It can be satisfied by friendly behaviors that are dangerous, like a large dog jumping up to greet people.
165
# Strict liability/animals
Exception to domestic animals rules: trespassers
To trespassers, a landowner/animal owner may generally not be held to a strict liability standard. The trespasser must show that the possessor acted negligently in the injury, as where the landowner knew that a trespasser was on the land and the owner failed to warn the trespasser of the animal.
166
# Strict liability/animals
Exception to the trespasser exception: the watchdog
Where the possessor/landowner has reason to know that a vicious watchdog is likely to cause serious bodily harm, the possessor may be striclty liable to the trespasser, based upon the intentional tort principle that a landowner is not allowed to use deadly force to protect property.
167
# Strict liability/animals
Livestock
An owner or possessor of livestock or other animals, except for dogs or cats, that intrude upon the land of another is subejct to strict liability for physical harm caused by the intrustions. Livestock hit by motorists are typically held to a negligence standard.
168
# Strict liability/animals
One bite rule
Mostly abolished, the one bite rule allows an owner to escape liability if it is the first instance of a dog bite.
169
# Strict liability/abnormally dangerous activities
General rule
An actor who carries out an abnormally dangerous, ultrahazardous activity is subject to strict liability for harm resulting from that activity, regardless of whether reasonable care was exercised to prevent harm.
170
# Strict liability/abnormally dangerous activities
Examples of abnormally dangerous activities (4)
1. blasting
2. manufacturing, storing, and using explosive or flammable materials
3. oil well drilling
4. crop dusting
171
# Strict liability/abnormally dangerous activities
Third restatement definition for abnormally dangerous activities
In determining whether an activity is abnormally dangerous, consider the seriousness and frequency of harm, whether the activity is appropriate to the locale, and the plaintiff's conduct
172
# Strict liability/abnormally dangerous activities
Second restatement factors for determining abnormally dangerous activity (6)
1. Whether the activity involves a high degree of risk;
2. The gravity of that risk;
3. Whether the risk can be eliminated by the exercise of reasonable care;
4. Whether the activity is a mater of common usage;
5. Whether the activity is appropriate to the locale; and
6. The value of the activity to the community.
173
# Products liability/negligence
Negligence theory generally
Negligence-based products liability is based on a manufacturer's breach of the reasonable standard of care in failing to make a product safe. It is a cause of action based upon the reasonable action of the manufacturer.
174
# Products liability/negligence
Duty generally
The manufacturer's duty is established by the relationship between the manufacture of the product and the consumer's purchase of that product.
175
# Products liability/negligence
Breach generally
A manufacture musst exercise due care in designing products, manufacturing and assembling products, inspecting and testing products, and placing adequate warning labels.
176
# Products liability/negligence
Negligence per se
Manufacturers who violate state or federal law in the manufacturing or labeling of a product may be subject to negligence per se.
177
# Products liability/negligence
Privity of contract
No privity of contract is required between plaintiff and manufacterer in negligence. Liability extends to any person's injuries caused by a negligently made, defective product, but the injury must still be foreseeable.
178
# Products liability/negligence
Generaly rule statement
In general, the defendant is liable for negligence in manufacturing or selling any product that, if defective, can reasonably be expected to be capable of inflicting substantial harm, as long as the defendant's act constitutes a failure to exercise due care, and the product in fact causes harm.
179
# Products liability/negligence
Negligent failure to warn
As to negligent failure to warn, a failure to warn is neglgient if it involves an inherent danger in the product's design or intended use of which the consumer is likely to be unaware, and the unheralded danger causes harm.
180
# Products liability/negligence
Manufacturing flaw
A manufacturing flaw is a condition different from that which was intended
181
# Products liability/negligence
Suing multiple defendants
If suing a manufacturer under negligence theory, think about the product chain. If suing all in the product chain, every single defendant must have been independently negligent.
182
# Products liability/negligence
Known and obvious dangers
There is no duty to warn of obvious dangers to be known by expected uses or to warn concerning unforeseeable misuse.
183
# Products liability/strict liability
Requirements for strict liability (just the terms) (6)
1. Defect
2. Control
3. Changes
4. Business
5. Causation
6. Privity not requires
## Footnote
Defendant Can't Conceal Bad Commercial Products
184
# Products liability/strict liability
Requirements: Defect
The product must have been in a defective condition unreasonably dangerous to the user/consumer or his property
185
# Products liability/strict liability
Requirements: Control
When it left the defendant's control
186
# Products liability/strict liability
Requirements: Changes
The product must not undergo significant changes before it gets to the user
187
# Products liability/strict liability
Requirements: Business
The seller must be in the business of selling the product
188
# Products liability/strict liability
Requirements: Causation
Damage must result from the defect
189
# Products liability/strict liability
Requirements: Privity not required
Duty extends to anyone foreseeably endangered by the product
190
# Products liability/strict liability
Defective product general definition
A defective product is one which is in condition that is unreasonably dangerous to users
191
# Products liability/strict liability
Third restatement types of defects (just naming) (3)
1. Manufacturing defects
2. design defects
3. Inadequate warnings
192
# Products liability/strict liability
Manufacturing defects
When a product is produced different from other identical products and is more dangerous due to the way it was made
193
# Products liability/strict liability
Design defects
Where all of the products are made the same, but a dangerous condition of each product has dangerous propensities because of unique features or packaging which makes the entire product line defective because of poor design
194
# Products liability/strict liability
Inadequate warnings
A type of design defect, but a situation where the product may not be in any way defective, but the product fails to contain effective and clear warnings of any dangers that may not be apparent to users.
195
# Products liability/strict liability
Types of warnings/audiences
The warning has to be gauged to the audience and understandable to the primary audience (sophisticated audience warnings v. inexperienced audience warnings)
196
# Products liability/strict liability
Consumer expectation test (minority)
Product must be dangerous beyond that which would be contemplated by the ordinary adult consumer who purchases the product, with the ordinary knowledge common to the ocmmunity as to its characteristics, which has been interpreted to mean that the product must be more dangerous than an ordinary consumer would expect when the product is used in its intended or reasonably foreseeable manner. Typically only used for food products now.
197
# Products liability/strict liability
Risk/Utility Test (majority)
The plaintiff is generally required to show that the risk of the product outweighs the utility of the product.
198
# Products liability/strict liability
Risk/utility test demonstrated by
Often demonstrated by expert testimony showing that there exists a feasible alternative design such that the product in its present form was unreasonably dangerous.
199
# Products liability/strict liability
Risk/utility test defense
The defendant can defend with "state of the art" evidence showing that the product could not have been designed any sager at the time it was manufactures and that any risk that the product posed was unknown to the manufacturer or reasonably scientifically unknowable at the time the product was designed and manufactured.
200
# Products liability/strict liability
Risk/utility test factors (7)
1. Utility of the product to the public and individual user
2. Nature of the product/likelihood to cause injury
3. Availability of a safer design
4. Potential for designing so that it is safer but remains functional and reasonably priced
5. Ability of Plaintiff to have avoided injury by careful use of product
6. Degree of awareness of potential danger of the product which reasonably can be attributed to the plaintiff
7. Ability to spread any cost related to improving safety of the design
201
# Products liability/strict liability
Leased/bailed goods
Strict product liability may extend to leased or bailed goods, proivded the defendant is in the business of such transactions
202
# Products liability/strict liability
Services/pharmaceuticals
Strict product liability generally does not extend to services or pharmaceuticals
203
# Products liability/strict liability
Blood shield statutes
Strict product liability generally does not apply to blood products, usually only negligence will apply in such situations
204
# Products liability/strict liability
Real estate
New homes may be seen as products for the purposes of strict products liability. Jurisdiction dependent.
205
# Products liability/strict liability
Used products
Strict product liability can be extended to used products, but the reasonable expectation of a consumer may be adjusted by what would be reasonably expected of a used product which is defective.
