Negligence Flashcards
(31 cards)
The Duty Question
Duty
A duty is a legal obligation that is owed or due to another and that needs to be satisfied or an obligation for which somebody else has a corresponding right. In negligence actions, if there is no duty, negligence does not exist. Duty can arise by: voluntary assumption of duty on part of defendant, statute, or judicially determined under common law principles.
Duties Owed
Duty to Aid
A person who voluntarily aids another has a duty to act with reasonable ordinary care. However, there is generally no duty to come to the aid of another.
In rescue conduct, the rescuer is liable if the rescuer negligently worsens the victim’s condition.
Duties Owed
Undiscovered Trespasser
An undiscovered trespasser is a person the premises possessor does not or should not know of. No duty of care is owed to undiscovered trespassers. However, the premises possessor cannot act wantonly, recklessly, or willfully.
Duties Owed
Discovered Trespasser
A discovered trespasser is a person the premises possessor knows or should know is trespassing. The premises possessor must warn or make safe unreasonably dangerous artificial conditions that it knows of.
Duties Owed
Attractive Nuisance Doctrine
Under the Attractive Nuisance Doctrine, the premises possessor may be liable for injuries to children trespassing on the land if an artificial condition exists where the PP knows or has reason to know children are likely to trespass, the PP knows or has reason to know the condition poses an unreasonable risk of death or serious bodily injury, the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition, the condition’s utility to the PP and the burden of eliminating the danger are slight compared to the risk to the children, and the PP fails to exercise reasonable care to protect the children.
Duties Owed
Invitees
Open and Obvious Danger Included
An invitee is one that enters a public place or business. The premises possessor must warn of or make safe all dangers that it knows or should know of. This is the only case where a duty to inspect is imposed on the premises possessor. An exception to the general rule is if the danger the plaintiff encountered was open and obvious. The premises possessor would not owe a duty of care in such a circumstance. A danger is open and obvious when, objectively, both the condition and the risk would be apparent to a reasonable person in the same circumstances, when exercising knowledge, intelligence, and perception.
Duties Owed
Licensees
A licensee is a social guest (one that is invited onto the land and does not convey an economic benefit). The premises possessor must warn or make safe all concealed dangers that it knows of.
Standard of Care
Standard of Care
The standard of care in negligence cases is the duty to act reasonably so as to avoid harming others. Except in special cases prescribing a different standard of care, such as the standard for a minor or a skilled professional, the standard of care applicable in negligence actions is that the person must act as a reasonable adult in the circumstances.
The Standard of Care
Reasonably Prudent Person
The reasonably prudent person standard applies. Essentially, duty is defined as the duty of ordinary care to act as a reasonable and prudent person would under the same or similar circumstances.
The Standard of Care
Children
The standard of care imposed on a child is that of a reasonable child of similar age, intelligence, education, and experience. However, a child engaged in a high-risk activity (“adult activity”) that is normally undertaken by adults is held to the same standard as an adult.
The Standard of Care
Physically and Mentally Impaired Persons
A person laboring under a physical impairment is considered negligent only if their conduct does not conform to that of a reasonably careful person laboring under the same disability. A person with a menal disability is generally held to the same standard of care as that of a reasonably careful person with no disability. A mental disability does not relieve an actor from liability.
The Standard of Care
Professional People
A physician is held to a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practicioner.
The Standard of Care
Rules of Conduct Derived from Statutes and Custom (Negligence Per Se)
Rules of conduct are sometimes derived from statutes and custom. If a statutory standard of care applies, most courts consider violations of the statute as nelgigence per se. Negligence per se is negligence due to the violation of a statute that is intended to protect the class of people and against the class of harms at issue in the state. Rules of conduct derived from custom are also admissible as evidence of negligence. Custom of usage may be used to establish the standard of care, but does not control whether the conduct was negligent. Thus, proof of an industry-wide standard or custom is admissible on the issue of the appropriate standard of care, but it is not conclusive on that issue.
Problems Relating to Proof of Fault
Res Ispa Loquitur
Res ispa loquitur is a legal doctrine sometimes envoked in negligence actions to support liability. Res ipsa permits a plaintiff to offer proof that the defendant was negliegnt by circumstantial evidence. The injury suffered is presumed to have been caused by the negligence of the defendant when the following conditions are met: the injury to the plaintiff was the type that does not normally occur absent negligence, the instrumentality that caused the injury was under the exclusive control of the defendant, and the plaintiff is free from contributory negligence.
In these cases, courts allow juries to infer negligence if the plaintiff is hurt in an accident that does not normally occur in the absence of negligence by someone in a class of actors within which the defendant falls.
Problems Relating to Causation
Problems Relating to Causation
To succeed in a negligence case, the plaintiff must demonstrate duty, breach, causation, and injury. A person’s breach must be both the actual and proximate cause of the plainitff’s injury. To establish a prima facie case on the issue of causation, a plaintiff must show that the defendant’s act was a substantial act of the events which produced the injury.
Problems Relating to Causation
Actual Causation (But For)
Actual causation requires the plaintiff to show that but-for the defendant’s actions, plaintiff would not have been harmed.
Problems Relating to Causation
Proximate Cause
Proximate causation is established if the injury is reasonably foreseeable or alternatively because it was natural or necessary or probable. To establish proximate causation, this requires plaintiff to show that the type of consequence or damage was foreseeable. The general rule is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. In other words, if one of the reasons the act is negligent is a greater risk of a particular harmful result occurring, and that act does not occur, then the defendant is generally liable.
Problems Relating to Causation
Superseding Causes
A force deemed to be unforeseeable and superseding serves to break the causal connection and the defendant will be relieved of liability. A superseding cause is any intervening cause that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm, thereby preventing the original defendant from being liable to the plainitff. If the intervening act is foreseeable, however, the defendant will not be relieved form any liability.
Problems Relating to Causation
Harms Traceable to Multiple Causes (Substantial Factor Test and Alternative Liability)
The substantial factor test is appropriate for use when there are multiple defendants and the harm is indivisible. If a defendant’s breach was a substantial factor in causing the harm, the defendant is liable. The plaintiff must show that all potential defendants are joined in the lawsuit and all defendants are negligent. The burden then will shift to each defendant to show its breach of duty was not the actual cause of the harm.
Problems Relating to Causation
Questions of Apportionment of Responsibility Among Multiple Tortfeasors (Joint and Several Liability)
In a joint and several liability jurisdiction, the plaintiff may recover all of his damages from any single defendant and the defendant may seek contribution from a co-defendant. In a several liability jurisdiction, each defendant is liable only for his percentage of fault.
Apply Joint and Several Liability on the MBE unless told otherwise.
Limitations on Liabilty and Special Rules of Liability
Claims for Mental Distress Not Arising from Physical Harm
THIS IS NIED.
A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff can demonstrate that she was within the “zone of danger,” and the threat of physical impact caused emotional distress. Generally, the distress must exhibit some physical symptoms. In virtually all jurisdictions, emotional distress must result from sensory and contemporaneous observance of the accident itself, not the receipt of the news relating to the accident. To recover as a bystander, the plaintiff must be closely related to a person injured by the defendant, be present at the scene of the injury, and personally observe or perceive the injury.
Limitations on Liabilty and Special Rules of Liability
Claims for Pure Economic Loss
A plainitff is not permitted to recover in negligence or strict liability if he has suffered a pure economic loss (no injury to himself). In this case, the plaintiff may have a remedy in contract, but not tort.
Liability for Acts of Others
Vicarious Liability
Vicarious liability is a form of strict liability in which one person is liable for the negligent actions of another. Vicarious liability refers to situations in which the tort liability of the active tortfeasor will be imputed to the passive tortfeasor even though the passive tortfeasor is otherwise not at fault in actually causing the plainitff’s injury.
Liability for Acts of Others
Employees and Other Agents
Under the doctrine of respondeat superior, an employer is vicariously liable for an employee’s negligent acts if the employee was acting within the scope of the agency relationship. Thus, if an employee commits a tort during the scope of his employment, his employer can be liable under the doctrine of RS.
