Negligence Flashcards
(24 cards)
4 Traditional Elements of Negligence
The elements of a prima facie case of negligence are:
* A duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury
* A **breach **of that duty by the defendant
* The breach is the actual and proximate cause of the plaintiff’s injury
* Damages
A duty of care is owed to all foreseeable plaintiffs. If the defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. The extent of the duty is determined by the applicable standard of care. Therefore, when confronted with a negligence question, you should always ask:
* To whom do you owe a duty?
* What is the applicable standard of care?
Duty
- Owe a duty to foreseeable victims
- Victim needs to be in the “zone of danger”
- A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril (danger invites rescue).
Owe the same amount of a care as a reasonably prudent person acting under similar circumstances
* The reasonably prudent person standard is an objective standard.
* A defendant’s mental deficiencies and inexperience are not taken into account (in other words, low intelligence is no excuse).
* A defendant who has knowledge or experience superior to that of an average person is required to exercise that experience.
* The “reasonably prudent person” is considered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim
Children (Special Duties)*
Under age 5 = Can’t be held liable
Age 5-18: Hypothetical child of similar age, experience, and intelligence acting under similar circumstances (Subjective Standard; Pro-defendant Standard)
* If child is engaged in an adult activity = Reasonably prudent person standard
Professions (Special Duties)*
- Malpractice claim
- Same care as average memeber of profession providing similar professional services (Empirical standard)
- Conform to colleagues
- Custom of profession sets standard
- National standard of care = can use expert witness from anywhere
- A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.
Possessors or Real Estate/Land*
- Premise Liability
- Possessor not always owner
- Establishes rules for duty to protect from dangerous conditions
- Activities conducted on land use ordinary reasonably prudent person standard of care
- No duty is owed to an undiscovered trespasser
How to satify duty:
* Eliminate hazardous condition (repair, replace, remove)
* Warn about the condition
Known Trespasser (Land Duties)
As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are:
* Artificial;
* Highly dangerous (involving risk of death or serious bodily harm);
* Concealed; and
* Known to the land possessor in advance
Basically, need to protect from known man-made deathtraps
Licensees (Land Duties)
A licensee is one who enters onto the land with the possessor’s permission for their own purpose or business, rather than for the possessor’s benefit.
* Social guests are considered licensees.
* Although firefighters and police officers are typically licensees because they often enter property with implied consent, on public policy grounds, they are owed no duty of care regarding risks that are inherent in their job.
As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are:
* Concealed
* Known to the land possessor in advance
The land possessor must exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair.
Invitees (Land Duties)
Invitees enter onto the land in response to an invitation by the possessor of the land (meaning they enter for a purpose connected with the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public).
An invitee will lose invitee status if they exceed the scope of the invitation.
The landowner or occupier owes a duty to invitees regarding hazardous conditions that are:
* Concealed
* Known to the land possessor in advance or could have been discovered by a reasonable inspection
Firefighters & Police Officers (Land Duties)
- No duty owed for risks inherent to job
- “Firefighter’s rule”
Trespassing Children - Attractive Nuisance Doctrine (Land Duties)
Duty of reasonably prudent person under the circumstances to protect from artificial hazards
* Attractive Nuisance Doctrine
Statutory Standards of Care (Negligence per se)
A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines for regulatory offenses and ordinances, such as for speeding) may replace the more general common law duty of due care if:
* The plaintiff is within the protected class
* The statute was designed to prevent the type of harm suffered by the plaintiff
* Class of person/class of risk test
Plaintiff “borrows” staute as alternative standard of care to reasonably prudent person standard
* Violation of statute establishes duty & breach
Legal = Statute is legally appropriate
Factual = D violated statutory command
Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control.
Under the majority view, an unexcused statutory violation is negligence per se; in other words, it establishes the first two requirements in the prima facie case—a conclusive presumption of duty and breach of duty. In contrast, even though violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.
Affirmative Duties to Act (Special Duties)
- Generally no duty to act affirmatively
- If choose to act, must do so as reasonably prudent person under circumstances
- No duty to rescue
- Duty if D caused peril
- Special relationship between the parties (for example, parent-child) may create a duty to act.
- Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons.
- In addition, places of public accommodation have a duty to prevent injury to guests by third persons.
- Exception: Many states have enacted Good Samaritan statutes, which insulate negligent recuers from liability (assume this is not a law unless stated)
Near Miss Case (Negligent Inflication of Emotional Distress)
In addition to negligence, must show:
* The plaintiff must be within the “zone of danger”
* The plaintiff must suffer physical symptoms from the distress
Bystander Cases (Negligent Inflication of Emotional Distress)
D negligently injured 3rd party, causing P emotional distress
* P and 3rd party are closely related (spouse, parent, minor child)
* P was present at the scene and observed the event
Business Relationship Cases (Negligent Inflication of Emotional Distress)
P can recover if highly foreseeable that careless performance by D will produce emotional distress
* Patient/medical laboratory
* Customer/funeral parlor
* Not Customer/dry cleaner
Breach
Concrete, specific behavior by D that falls short of relevant standard of care
* Breach can be affirmative act or omission
Res Ipsa Loquitur (Breach)
Used by P without information about D’s breach:
* The accident causing the injury is a type that is normally associated with negligence
* The negligence is probably attributable to the defendant (meaning this type of accident ordinarily happens because of the negligence of someone in the defendant’s position)
This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.
Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant. The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.
Factual Cause (3 Tests)*
Link between breach & harm
But For Test:
* Injury would not have occured “but for” act or omission
* This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury.
* A defendant can refute this by showing that the plaintiff would have still been injured “even if” the act or omission did not occur.
Substantial Factor Test (Merger Causes):
* Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.
* 2 D’s + 2 Breaches + Merched causation = Substantial Factor Test
* D liable if breach contributed in significant/substantial way to ultimate injury (substantial if breach could have caused entire harm on its own)
* D’s will be held jointly and severally liable (can get full amount from either D)
Unasertainable Causes Approach:
* This test applies when there are two acts, only one of which causes injury, but it is not known which one.
* The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.
* If burden of proof cannot be satisfied, D’s will be held jointly and severally liable
Foreseeability Test (Proximate Causation)
A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts.
* Foreseeability Test: Was outcome foreseeable risk associated with breach?
Foreseeability Guidlines:
* Passage of Time
* Geographic Distance
* Prior Occurrence
4 Common Foreseeable Intervening Forces (Proximate Causation)*
The defendant is liable when their negligence caused a foreseeable reaction from an intervening force or created a foreseeable risk that an intervening force would harm the plaintiff.
* Medical Malpractice
* Negligence of rescuers
* Protection or reaction forces to the defendant’s conduct, including efforts to protect person or property
* Subsequent Disease or accident substantially caused by the original injury
Intervening Forces vs. Superseding Forces
- Intervening forces that produce unforeseeable results (results not within the increased risk created by the defendant’s negligence) are generally deemed unforeseeable and superseding.
- Superseding forces break the causal connection between the defendant’s initial negligent act and the plaintiff’s ultimate injury, thus relieving the defendant of liability.
- For example, if the defendant negligently blocks a road, forcing the plaintiff to take an alternate road, and then another driver negligently collides with the plaintiff on this road, the other driver’s conduct is an unforeseeable intervening force because the defendant’s negligence did not increase the risk of its occurrence. Thus, the other driver is a superseding force that cuts off the defendant’s liability for the original negligent act of blocking the road.
“Eggshell Skull” Doctrine (Damages)
Once a P has established all other elements of claim, P receives all damages suffered, even if surprisingly great in scope
* Not limited to negligence claims
Comparative Negligence (Defense)
D shows P failed to exercise proper care for own safety
* Need to exercise reasonably prudence to avoid injury
* Jury will be instructed to assign % of fault
* P recovery reduced based on P’s % of fault
Implied Assumption of the Risk (Defense)
- P must know and appreciate the risk created by D’s negligence
- P must Voluntarily proceeded in the face of the risk
- Total bar to recovery
- Does not apply to rescuers
