Negligence Flashcards
(54 cards)
Negligence
Negligence is conduct (the commission of an act or failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against an unreasonable risk of harm.
Elements of Negligence
A prima facie case of negligence consists of four elements:
i) Duty – the obligation to protect another against unreasonable risk of injury;
ii) Breach – the failure to meet that obligation;
iii) Causation – a close causal connection between the action and the injury, which includes not only factual causation but also legal (proximate) causation; and
iv) Damages – the harm suffered
Duty
A duty of care is generally owed to all persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.
There is generally no duty to act affirmatively, even if the failure to act appears unreasonable.
Reasonably Prudent Person
Under the reasonably prudent person standard, a defendant is required to exercise the care that a reasonable person under the same circumstances (i.e., a person in the defendant’s position with like information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.
Children
Children are generally not immune from tort liability. The standard of care typically imposed on a child is that of a reasonable child of similar age, intelligence, and experience.
Bailors and Bailees
A bailment occurs when a person (the bailee) temporarily takes possession of another’s (the bailor’s) personal property, such as when a driver leaves his car with a valet.
Possessors of Land
Possessors of land include owners, tenants, persons in adverse possession, and persons in possession of land.
Trespasser
A trespasser is someone who enters or remains on another’s land without consent or privilege to do so.
Traditional Approach
A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.
Attractive Nuisance
Under the attractive nuisance doctrine, a land possessor may be liable for injuries to children trespassing on the land if:
i) An artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass;
ii) The land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children;
iii) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
iv) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm to children; and
v) The land possessor fails to exercise reasonable care to protect children from the harm
Invitees: Traditional Approach
Definition: An invitee is defined as either:
i) A public invitee—someone invited to enter or remain on the land for the purposes for which the land is held open to the public; or
ii) A business visitor—someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor.
Rule: A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them.
Licensees: Traditional Approach
Definition: A licensee is someone who enters another’s land with the express or implied permission of the land possessor or with a privilege.
Rule: The land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known or should be obvious to the land possessor. The land possessor does not have a duty to inspect for dangers. In addition, the land possessor must exercise reasonable care in conducting activities on the land.
Landlord’s Liability
The landlord remains liable for injuries to the tenant and others occurring:
i) In common areas such as parking lots, stairwells, lobbies, and hallways;
ii) As a result of hidden dangers about which the landlord fails to warn the tenant;
iii) On premises leased for public use;
iv) As a result of a hazard caused by the landlord’s negligent repair; or
v) Because of a hazard that the landlord has agreed to repair.
Sellers of Real Property
Sellers of real property owe a duty to disclose to buyers any concealed and unreasonably dangerous conditions known to the seller. The seller of real property is liable to persons on the land for harm caused by natural or artificial conditions if:
i) The seller knew or should have known that the condition existed at the time of the sale and that it posed an unreasonable risk;
ii) The buyer neither knew nor should have known of the condition or risk; and
iii) The seller had reason to believe that the buyer would not discover the condition or realize the risk.
The seller may also be liable to persons off the land for artificial conditions if (1) the condition existed at the time of the sale and (2) the seller knew or should have known of the condition and that it posed an unreasonable risk.
Breach of Duty
A breach of duty occurs when a defendant departs from the required standard of care (e.g., by failing to act as a reasonable person, by an unexcused violation of a statute, or, if there is no direct evidence, through res ipsa loquitur).
Professionals
A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.
Negligence Per Se
Negligence per se occurs when:
i) A criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a specific duty for the protection of others;
ii) The defendant violates the statute by failing to perform that duty;
iii) The plaintiff is in the class of people intended to be protected by the statute; and
iv) The harm is of the type the statute was intended to protect against.
Res Ipsa Loquitur
Res ipsa loquitur is the Latin term for “the thing speaks for itself.” Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of a defendant’s negligent conduct in the absence of direct evidence of such negligence. Res ipsa refers to circumstantial evidence of negligence that does not change the standard of care.
Traditional Requirements: Res Ipsa Loquitur
Under the traditional standard for res ipsa loquitur, still used in many jurisdictions, the plaintiff must prove that:
i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
ii) It was caused by an agent or instrumentality within the exclusive control of the defendant; and
iii) It was not due to any action on the part of the plaintiff.
Causation
A plaintiff must prove that the defendant’s actions were the direct cause of the plaintiff’s injury. Causation in negligence requires a showing of:
Actual cause – the factual cause or cause in fact
Proximate cause – the legal cause (referred to in the Restatement as “scope of liability”)
Actual Cause (Cause in Fact) But For Test
If the plaintiff’s injury would not have occurred but for the defendant’s negligent conduct, then the defendant’s conduct is a factual cause of the harm.
Substantial Factor
In cases in which a defendant’s conduct together with some other cause (e.g., another defendant or an independently occurring event) may have contributed to a plaintiff’s indivisible injury, each of which alone would have been a factual cause of that injury, the test is whether the defendant’s tortious conduct was a substantial factor in causing the plaintiff’s harm
Alternative Causation
If the plaintiff’s harm was caused by (1) one of a small number of defendants—usually two and almost never more than four or five, (2) each of whose conduct was tortious, and (3) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.
Concert of Action
If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all defendants are jointly and severally liable.
