Negligence Flashcards
(27 cards)
What are the elements of negligence
- Duty
- Breach
- Actual Cause
- Proximate Cause
- Damages
To whom does D owe a duty of care?
To all foreseeable plaintiffs
IOW the class of persons who were foreseeably endangered by the defendant’s negligent conduct.
Is a rescuer a foreseeable plaintiff?
Yes, when D negligently put themselves or a 3P in peril (danger invites rescue)
What is the basic standard of care? Is this an objective or subjective standard?
All persons owe a duty to act with the same care as a hypothetical REASONABLY PRUDENT PERSON to avoid injuring people
OBJECTIVE STANDARD
D’s deficiencies and inexperience are not considered
Exception = superior skill or knowledge
What are the main types of special negligence duties based on the TYPE OF DEFENDANT?
- Children
- Professionals
- Possessors of Land
What is the duty of care that a child defendant must exercise? Is this subjective or objective?
Children are held to the standard of a child of like age, intelligence, and experience.
Subjective
Exception 1: children under 5 lack the capacity to be negligent
Exception 2: children doing adult activities (e.g., driving) may have to comport with the adult standard
What is the duty of care that a professional must exercise? Is this subjective or objective?
A professional is required to possess the knowledge and skill of an average member of the profession or occupation
What is the duty of care that a land possessor must exercise?
The duty to a P on the premises for dangerous conditions on the land depends on P’s status:
- Unknown Trespasser
- Known Trespasser
- Licensee
- Invitee
What duty of care does a land possessor owe an unknown trespasser for dangerous conditions on the premises?
No duty
What duty of care does a land possessor owe a known trespasser for dangerous conditions on the premises?
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
- Known to the land possessor in advance
Who is a licensee? What duty of care does a land possessor owe a licensee for dangerous conditions on the premises?
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 (e.g., social guest)
The land possessor has a duty to warn of or make safe hazardous conditions that are:
- Concealed
- Known to the land possessor in advance
Who is an invitee? What duty of care does a land possessor owe an invitee for dangerous conditions on the premises?
Invitees enter onto the land in response to an invitation by the possessor of the land (enter for purposes related to biz of land or held open to public)
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
What duty of care does a land possessor owe trespassing children for dangerous conditions on the premises?
Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property.
What is negligence per se? If it is established? How does it relate to a prima facie case?
A specific duty imposed by a statute providing for criminal penalties may replace the regular DoC IF:
* P is within the protected class
* Statute was designed to prevent the type of harm suffered by P
Effect on Prima Facie Case = establishes duty and breach
When is there a duty to act or rescue?
- Special relationship between the parties
- Peril due to one’s own conduct
- Assumption of duty by acting
What does P need to show to establish NIED?
(1) P must be within the “zone of danger”
(2) P must suffer physical symptoms from the distress
What is res ipsa loquitur? What must P show to use it?
When the very occurrence of an event may tend to establish a breach of duty
P must show that:
* The accident causing the injury is a type that is normally associated with negligence
- The negligence is probably attributable to D (IOW, this accident usually only happens due to negligence of someone in D’s position)
(often be shown by evidence that the instrumentality causing the injury was in D’s exclusive control)
What is the “but-for” test for actual cause? When is it applicable?
An act or omission is an actual cause of an injury when the injury would not have occurred “but for” the act or omission
Applies when several acts (each insufficient to cause the injury alone) combine to cause the injury
What is the substantial factor test for actual cause? When is it applied?
D’s conduct is the actual cause if it was a substantial factor in causing the injury
Applied when several causes bring about injury, and any one alone would have been sufficient to cause the injury (multiple sufficient causes)
What is the ascertainable causes approach to actual cause? When does it apply?
The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause. [Summers v. Tice]
Applies when there are two acts, only one of which causes injury, but it is not known which one (ONLY ONE CAUSED THE HARM)
What is the general rule for proximate cause?
D generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts
(FORESEEABILITY OF INCIDENT FROM ACT)
What intervening forces are almost always considered foreseeable for proximate cause?
Examples:
* Medical malpractice
- Negligence of rescuers
- Protection or reaction forces to the defendant’s conduct, including efforts to protect person or property
- Disease or accident substantially caused by the original injury
When is D liable for intervening forces? (generally)
D 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
What intervening forces might be foreseeable for proximate cause if the D’s negligence increased the risk of harm from these forces?
- Negligence of 3Ps
- Crimes / Intentional Torts of 3Ps
- Acts of God
