negligence Flashcards
(44 cards)
res ipsa loquitor
under the traditional standard for negligence,
(1) the accident was of a kind that does not occur in the absence of negligence
(2) the thing that caused the harm was within the defendants exclusive control
(3) that harm was not due to the acts of plaintiff.
standard of care for children
reasonable child of same age, intelligence and experience under same and similar circumstances
- exception:
- child is engaging in dangerous, or adult activity; then they are held to the standard of reasonable prudent adult in similar circumstance
- a minor who engages in adult activity that is inherently dangerous is held to the standard of a reasonable prudent adult under the circumstances (driving)
general standard/duty of care
care that a reasonable, prudent person under the same or similar circumstances would provide (RPPSSC)
custom
evidence of custom is admissible and probative of breach, but it is not dispositive
foreseeability
equals probability sufficiently high or severe enough that ordinary care requires precaution
(harms more foreseeable that others = risk of probability of harm is greater)
risk utility
magnitude and gravity of the risk, against the utility of conduct and cost of making conduct safer
cost benefit
liability is imposed when B<PL
- burden of precaution is less than the probability of harm times its magnitude (loss)
- hand formula (one way to prove breach (economic)
duty (decision that one is negligent is a function of 3 variables)
- probability of harm (p)
- magnitude or gravity of harm (loss)
- burden of adequate precautions (breach)
negligence per se
plantiff also has to prove causation and damages!!!!!!!
elements of NPS;
- statute or regulation must clearly defined required standard of conduct
-replaces ORPP; statute becomes standard - statute or reg must have been intended to prevent type of harm defendants act or omission cause
- plaintiff must be member of class of persons the statute or reg is designed to protect
- violation must have been cause of injury
factual cause
- plaintiff must prove that harm was caused in fact by defendant negligence act or part of defendants conduct created unreasonable risk
- cause in fact, just is
- looking for causal relationship between breach and harm
summers rule
When two or more defendants are negligent and their actions create a risk of harm, but it is impossible to determine which defendant caused the injury, the burden shifts to the defendants to prove they were not responsible. If they cannot, they can be held jointly liable for the damages.
but for
- but for defendants negligence at, plaintiffs injury would not have occurred
- defendants conduct is the cause in fact of plaintiffs injury if it directly contributed to plaintiffs injury
- but for:
- if the conduct is a direct antecedent to injury
- “but for” the defendants action the injury would not have occured
cause in fact is not established if plaintiffs harm would have occurred without defendants negligence
alternative ways proving causation in fact
substantial factor
- one which “has such an effect in producing harm as to lead a reasonable person to regard it as a cause”
substaintal factor
- multiple acts for forces combined to cause injury
- either force alone would have been sufficient to cause injury, but its impossible to tell which forced caused injury
proximate cause
jury decides
Defendant is liable for all harm he or she
causes within the scope of the risks
Defendant negligently created.
■ Was the outcome within the scope of the
risk?
– Yes = Defendant Liable
– No = Defendant NOT Liable
SCOPE OF RISK PRINCIPLE
- defendant is subject to liability for all harm he causes within the scope of the risk he negligently created
- a defendant is not liable for any harm he causes that is not within the risk he negligently created
TYPES OF HARM AND CLASS OF PERSONS OUTSIDE THE RISK
- harm or risk is not within the scope of risks negligently created by the defendant in any of the following circumstances:
- if a reasonable person in similar circumstances would not have foreseen harm or risk of the same general type
- if a reasonable person should have foreseen the general type of harm but would not have taken greater precautions to avoid it than the defendant took ( a case of no negligence or breach of duty).
- if a reasonable person would not have foreseen harm of the same general type to a general class of persons that includes plaintiff
RISK OF SPECIFIC TYPE OF FORCE
recurring problems in assessing the scope of risk
- manner of harm
If harm resulted from mere variant of what
was foreseeably expected = proximate
cause.
■ If harm resulted from something that is
completely different than what was
expected ≠ proximate cause.
- extent of harm
a. thin-skulled plaintiff; take your plaintiff as you find them and you are responsible for all damages caused even if plaintiff has a greater propensity to get harmed - intervening intentional criminal acts
a. multiple tortfeasor act in sequence, earlier actors will defend by saying “the other guy did it”
b. earlier actors only not liable if one or more of the cause are superceding cause - unintentional intervening acts
a. where the acts of a third person intervene between defendants conduct and plaintiffs injury, the casual connection is not automatically severed if foreseeable
b. liability turns upon
- whether the intervening act is a normal or foreseeable consequence of the situation created by the defendants negligence
- if the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, it may well be a superceeding act which breaks the causal nevus
- unintentional intervening acts after time lapse
actual harm
actual harm
- actual damages is required and must be proven by plaintiff
- what it is caused in
-
physical harm
- can mean either the physical impairment of body or of real property, or tangible person property
-
compensatory
- lost wages
- medical expenses (past and future)
- pain and suffering endured (mental or emotional)
- special or particularized
damages
- ways to collectjoint and several liability (economic) can collect all damages from one
- plaintiff can enforce tort claim against either tortfeasor
- plaintiff can get judgement against both but can only collect up to the judgement; cannot collect twice
- if plaintiff had damages of $10,000 plaintiff could enforce that judgement entirely against defendant A or entirely against defendant
comparative fault liability**
- pay your own way
- non economic
contribution
- if plaintiff goes after one tortfeasor, that tortfeasor can collect some from second tortfeasor to pay full amount
- if one tortfeasor cannot pay; plaintiff may have to bear burden
excuses to violate statute in NPS cases
(1) incapacity
(2) lack of knowledge
(3) compliance was impossible
(4) emergency
(5) following statute would cause greater harm
types of entrants
trespasser
- no legal riight to be on land, enters without consent
duty to not intentionally wantonly or willfully harm is owed to
-
known trespasser
- regular duty of care
invitee
determined by if they had present business relations with owner or occupier which would render his present with mutual benefit to both
must:
- in part for pecuniary benefit of landowner OR
- on the premises held open to general public
regular duty applies: RPPSSC
licensee
- on land with permission but limited license to be there
- duty to not intentionally wantonly of willfully harm is owed to both licensees and trespassers
- social guest
flagrant trespasser
restatement 3rd torts
- duty of reasonable care owed to all entrants on land to protect them from hazardous conditions or activities on the land
-
exception:
- duty of reasonable care is not owed to flagrant trespassers; LO owes only duty not to act in an intentional, willful, or wanton manner to cause physical harm to a flagrant trespass unless the the trespasser reasonably appears to be imperiled (1) helpless; (2) unable to protect him or herself
- flagrant
- there to commit crime
- there went past the preventative measure
- extent of effort trespasser takes
attractive nuisance removes trespass status from child
dangerous artificial condition on land of which children are likely to trespass and their youth and inexperience causes them to face unreasonable risk of serious injury
- possessor knows or has reason to know of children like to trespass
- possessor knows/has reason to know children likely trespass
- utility to possessor of maintaining condition & burden of eliminating danger are slight to compared to risk to children
- LO fails to exercise reasonable care to eliminate danger or otherwise protect children
open and obvious dangers
landowner is not liable to invitees injured by open and obvious dangerous
-
a condition is obvious when objectively both
- the condition itself and
- the risk it poses
** Must be apparent to a reasonable person **
waivers
waivers must be clear and unambiguous
agreement to shoulder a known risk, inherent; typically in the form of a contract, and parties can contract away to allocate risk; plaintiff by signing waiver theoretically agrees to shoulder the risk if anything happens**
pre injury releases in recreational settings are upheld as long as they meet contractual qualifications
- unenforceable if it offends public policy
- outside of scope of inherent danger
disallowing would impose unreasonable burden on businesses** who’s patrons want to engage the riskier activity
tunkl limits enforcabilites of waivers
- business is type suitable for public regulation
- defendants service is of “great importance to the public” and perhaps practical necessity
- defendant is holding himself out as performing service generally for public
- need for the service and the economic setting give defendant advantage of bargaining strength
waivers for children
- waivers signed by parents on behalf of children are generally invalid
- would like to encourage facilities to make them safe for kids as kids do not have the capacity to understand
