Negligence Flashcards
(15 cards)
Basic Definition of Negligence
- Duty
- Breach
- Causation
Damges.
Negligence Per Se
Res Ipsa Loquitur
Negligence
[Duty]
- The defendant owed a legal duty to the plaintiff to act with reasonable care.
- Somone only owes a duty to foressable plaintiffs. “In the Zone of Danger”
Every person has a duty to act like a reasonably prudent person under the circumstances to avoid foreseeable harm.
* If harm is foreseeable, a duty exists.
* If the plaintiff is an unforeseeable victim, the defendant owes no duty.
🔹 Foreseeable Plaintiff (Cardozo – Zone of Danger):
A person can only sue if they were in the zone of danger — meaning it was reasonably foreseeable that the defendant’s carelessness could harm them.
📘 Palsgraf v. Long Island Railroad — famous case: The railroad wasn’t liable to a woman far away from the danger because she wasn’t in the zone of foreseeable harm.
🔹 Special Duties of Care:
Some people owe extra duties because of their role:
* Professionals must act with the care of a typical member of their profession.
* Children are held to the standard of a child of similar age, intelligence, and experience — unless doing an adult activity, like driving.
* Landowners owe different duties depending on whether someone is a trespasser, licensee, or invitee (we’ll cover this separately).
* Common carriers (buses, airlines) owe a higher duty of utmost care.
Other levels of duty of Care
- **Professionals **must act with the care of a typical member of their profession.
- Children are held to the standard of a child of similar age, intelligence, and experience — unless doing an adult activity, like driving.
- Landowners owe different duties depending on whether someone is a trespasser, licensee, or invitee (we’ll cover this separately).
- Common carriers (buses, airlines) owe a higher duty of utmost care.
Landowner [Duty of Care]
**When someone is injured on someone else’s land, whether the landowner is legally responsible depends on:
* The status of the person who entered the land, and
* The duty of care owed to that person.
Under traditional common law, the duty depends on whether the person is an invitee, licensee, or trespasser.
Under the modern/Rowland approach (minority), a landowner owes a general duty of care to all entrants, regardless of status.
- 🔵 Invitee
Definition: A person invited onto the land for a business or public purpose.
Examples:
* Shoppers in a store
* Patients in a hospital
* Visitors to a public library or museum
Duty owed:
* Highest duty of care
* Must: - Inspect the premises for hidden dangers
- Make the property safe, or
- Warn the invitee of any non-obvious, dangerous conditions
Failure to inspect and warn = breach of duty.
Bar Tip: A landowner can be liable even if they didn’t know about the hazard if they should have discovered it through reasonable inspection. - 🟢 Licensee
Definition: A person who enters the land with permission, but not for the landowner’s benefit.
Examples:
* Social guests (like friends visiting your home)
* Door-to-door salespeople
* People entering for their own reasons (e.g., using your property to take a shortcut)
Duty owed:
* Duty to warn of known hidden dangers
* No duty to inspect for or fix unknown hazards
Bar Tip: If the landowner knows about the danger and doesn’t warn = breach. But if they didn’t know about it, not liable.
3🔴 Trespasser
Definition: A person who enters land without permission.
Duty owed:
* No duty of care to unknown trespassers
* Must not intentionally harm them (e.g., can’t set traps)
* For known or anticipated trespassers, must:
o Warn of known, hidden, artificial dangers (e.g., uncovered well, electric fence)
No duty to fix the danger, but must warn if there is time and awareness.
Duty of Care [Duty to Aid or Resue]
- No General Duty to Rescue: Omissions (failure to act) can also be negligent, but generally there is no legal duty to rescue or help someone in peril if you had no part in placing them in. There are exceptions: if you have a special relationship (parent/child, doctor/patient, common carriers, innkeepers, etc.), or if you created the danger, or voluntarily began to help (creating a duty to do so carefully), then you must act reasonably under those circumstances. For example, a lifeguard does have a duty to rescue swimmers (because it’s their job), and if they ignore someone drowning, that could be negligent.
Duty of A Care [Parents]
🔷 What’s the Rule?
A parent owes a legal duty of care to their child. This means a parent must act with reasonable care to protect their child from foreseeable harm, just like an ordinarily prudent parent would under similar circumstances.
However, parents are not liable for every accident. Courts give parents some flexibility (called “parental discretion”) because parenting styles differ. The key is whether the parent’s behavior was grossly careless or showed a lack of basic supervision or protection that caused the child to be injured.
🔹 Standard of Care
The standard is what a reasonable and prudent parent would do under the circumstances.
The law does not require perfect supervision, just reasonable care.
Factors include the child’s age, maturity, the risk of harm, and whether the parent knew or should’ve known about the danger.
💥 Example 1 – No Liability
A 14-year-old boy skateboards down the street and breaks his arm. The parent told him to wear a helmet and stay on the sidewalk, but the boy ignored them.
➡️ The parent likely isn’t liable. The child is older, and the parent gave reasonable instructions.
⚠️ Example 2 – Possible Liability
A 4-year-old child wanders outside at night and falls into a backyard pool because the parent was asleep and the gate was left open.
➡️ The parent might be liable. A reasonable parent would take steps to prevent a toddler from accessing a dangerous pool—especially unsupervised at night.
🧠 Bar Exam Tip
If you get a fact pattern about a child getting injured, ask:
Did the parent know about the danger?
Did they take reasonable steps to prevent harm?
Was the child old enough to be expected to follow instructions?
Parents aren’t automatically liable just because a child gets hurt. But if they were careless in watching or protecting the child, especially if the danger was foreseeable, they could be negligent.
Duty of Care [Special Relationship]
- Special Standards of Care: In some situations, the “reasonable person” standard is modified:
o Professionals (doctors, lawyers, pilots, etc.) must act as a reasonable professional in that field (the level of skill and knowledge normally possessed by members of that profession). This is often judged by industry standards or custom. (E.g., a doctor is expected to follow the medical standard of care for treatment.)
o Children are held to the standard of a reasonable child of similar age, intelligence, and experience unless they are engaged in adult or dangerous activities (e.g., driving a car), in which case they are held to the adult standardjdadvising.com.
o Common carriers and innkeepers (e.g. bus companies, hotels) historically owe a higher duty of care to passengers/guests (sometimes described as “utmost care”), though on the modern exam it can be phrased as just reasonable care under the circumstances – but effectively very careful.
o Landowners and occupiers have special duties to people on their land (invitees, licensees, trespassers – each category has different duties in traditional rules). For example, a store owner must inspect for and fix hazards to keep the premises reasonably safe for customers (invitees), whereas a social host (licensee) must at least warn of known dangers. (Premises liability is a whole sub-topic that can be tested, but the key is that duty can depend on the visitor’s status).
o Statutory duties: Sometimes a statute or law defines a duty. If a defendant violates a safety law that was meant to protect a class of people from a certain type of harm, this may establish the duty and breach – this is known as negligence per se (explained under Breach below).
Breach
Breach is the failure to meet the required standard of care. In other words, the defendant did not act as a reasonable person would have in the same situation, thereby “breaching” (violating) their duty. You determine breach by comparing the defendant’s conduct to what a prudent or careful person would have done.
* Basic Standard – Reasonable Person: The simplest way to identify a breach is to ask: did the defendant act unreasonably under the circumstances? If yes, that’s a breach of Duty.
For example, a reasonable driver would stop at a red light and pay attention to the road; if a driver was texting and ran a red light, that behavior falls below reasonable care – thus breaching the duty to drive safely. Another example: a grocery store knows a banana was dropped on the floor and doesn’t clean it up for an hour – a reasonable store owner would have cleaned it or put up a warning, so failing to do so is a breach of duty to customers.
Causation
Even if a duty was owed and breached, the plaintiff must show the breach caused the harm. Causation has two sub-elements: actual cause and proximate cause. Think of these as a factual cause link and a legal policy link, respectively. You need both for full causation in negligence.
- Actual Cause (Cause in Fact or But for Cause Test]
- Proximate Cause
**Both elements have to be there to have a claim for Negliegence.
** If you have one and not the other you DONT have Negliegence.
Causation [Actual Casue]
“But for test”
This is a factual determination: but for the defendant’s breach, would the injury have occurred? In other words, the breach must be a direct, factual cause of the harm. The common test is the “but-for” test: But for the defendant’s act (or omission), the plaintiff would not be injured. If the injury would have happened regardless of the defendant’s conduct, then the breach is not a but-for cause. For example, if a distracted driver runs a red light and hits a pedestrian, but-for the driver running the light, the pedestrian would not have been hit – so the driver’s breach is an actual cause of the injury. In a case with multiple potential causes, a defendant’s conduct is an actual cause if it was a substantial factor in producing the harm (this is an alternative test often used when multiple things together cause an injury). On the bar exam, usually but-for causation is straightforward: identify the chain of events. E.g., “But for the store owner’s failure to clean the spill, the customer would not have slipped and broken her arm.”
Proximate Cause
Proximate cause is about foreseeability and fairness – it limits liability to those consequences that have a reasonable connection to the breach. The basic question: Is the injury a foreseeable result of the defendant’s actions? If the harm is a direct and natural result of the breach, or within the scope of the risk created by the breach, then proximate cause is. If the harm is very remote or freakish (not within the expected risks of the defendant’s conduct), the defendant might not be held liable for that harm, even if they were the but-for cause.
o Example (foreseeable harm): If a driver speeds through a red light and hits a pedestrian, the type of harm (pedestrian injury) is exactly why speeding is dangerous – it’s clearly foreseeabletestmaxprep.com. The driver will be proximate cause of the pedestrian’s injuries.
o Example (unforeseeable harm): Suppose a factory negligently leaves a gate unlocked. A trespasser enters and accidentally knocks over a vat of chemicals, causing an explosion that injures someone a block away. One could argue the injury was not a foreseeable result of leaving a gate unlocked (the chain of events is unusual), so even though leaving the gate open was negligent and was an actual cause of harm, it might not be proximate cause for the distant injury. This goes to the idea that liability shouldn’t extend infinitely to every consequence, only those reasonably related to the risk.
o Intervening vs. Superseding Causes: In analyzing proximate cause, consider if any intervening events occurred after the defendant’s breach that contributed to the harm. If an intervening cause is unforeseeable or bizarre, it may be deemed superseding, meaning it breaks the chain of causation and relieves the defendant of liability for what happened after. Foreseeable intervening causes (like the negligent rescue efforts of someone trying to help, or a subsequent injury during medical treatment of the original injury) generally do not cut off liability – the original defendant is still liable for the ultimate harm because those events are within the realm of foreseeable responses to the initial act. However, an unforeseeable intentional tort or crime by a third party might be a superseding cause (e.g., if after a car accident, a rogue ambulance driver intentionally harms the victim, the original negligent driver likely isn’t liable for that new harm). In an essay, if a fact pattern includes a later event, discuss whether it was foreseeable. If it was not, argue that the later event is superseding (no proximate cause beyond that point); if it was foreseeable, the defendant remains liable through that event.
Damages
Negligence requires that the plaintiff suffered actual harm. Damages refer to a real, measurable injury – typically physical injury to the body, property damage, or financial loss. It’s not enough that the defendant was careless; that carelessness must result in injury or loss. In other words, no harm, no foul in negligence law.
- Actual Injury: The harm can be bodily injury (e.g. broken leg, concussion), property damage (e.g. car wrecked in a crash), or other tangible loss. Generally, pure economic loss (financial loss with no physical injury or property damage) is not recoverable in a negligence claim unless it’s accompanied by some physical/property harmlaw.cornell.edu. Also, emotional distress by itself is usually not enough in a regular negligence case, unless it falls under certain exceptions (like negligent infliction of emotional distress scenarios, which have their own rules).
- Proving Damages: The plaintiff should have evidence of their losses – medical bills, repair costs, lost wages, pain and suffering, etc., to claim in compensation. In an essay, it’s often clear from the facts (e.g., “Plaintiff suffered a broken arm and $10,000 in medical expenses”), so you would simply note that the plaintiff has actual damages from the injury.
- Eggshell Skull Rule: Importantly, a defendant takes the plaintiff “as is.” Under the eggshell skull rule, if the plaintiff has a hidden frailty or condition that makes an injury worse than one would expect, the defendant is still fully liable for the full extent of the harm cause. The unusual fragility of the plaintiff is not a defense. For example, if a minor fender-bender due to defendant’s negligence causes a normally healthy person only a minor bruise, but the plaintiff happens to have a rare bone disorder and suffers a severe fracture, the defendant must compensate for the severe injury. In short, as long as some physical harm was foreseeable, the defendant is liable for all consequences, even if the severity is unforeseeablelaw.cornell.edu. (The defendant doesn’t get to argue “I couldn’t have known they had a thin skull,” etc. – this rule is about the extent of damages.)
- **Collateral Source Rule: **(This is more a damages trial rule, but just for completeness) The fact that the plaintiff has insurance or other compensation does not reduce the defendant’s liability. On the bar, you usually won’t need to discuss this unless a fact suggests it.
Intervening Causes vs. Superseding Causes
🔷 I. What Is an Intervening Cause?
📘 Plain English Definition:
An intervening cause is a separate event or act of a third party that happens after the defendant’s negligent act, but before the plaintiff’s injury, and it contributes to or worsens the harm.
BUT—and this is key—if the intervening cause was reasonably foreseeable, the defendant is still liable. The chain of causation remains intact.
🔑 Rule:
A foreseeable intervening cause does not break the chain of proximate cause. The defendant’s negligence is still a legal cause of the harm.
💡 Bar Tip: Courts expect that accidents happen in real life with multiple causes. As long as the later cause is not so crazy or unusual, it won’t cut off liability.
🔍 Example 1 – Intervening Cause, Defendant Still Liable
Facts:
A grocery store leaves a wet floor without warning signs.
A customer slips but is caught by another shopper, who then drops her, injuring her more severely.
Analysis:
The second shopper’s attempt to help was normal and foreseeable.
It came after the store’s negligence but didn’t break the chain.
✅ Result: The store is still liable. The helping stranger’s action was an intervening (but foreseeable) cause.
❌ II. What Is a Superseding Cause?
📘 Plain English Definition:
A superseding cause is a special kind of intervening cause. It’s so unexpected, unforeseeable, or extraordinary that it breaks the chain of causation.
This means the defendant is no longer legally responsible for the final harm—even if they were negligent at first.
🔑 Rule:
A superseding cause is an unforeseeable intervening act that is so unusual or bizarre that it cuts off the defendant’s liability.
- Act of God
- Intrentional Tort
- Criminal Act
These three are superceeding Causes.
⚠️ Bar Exam Tip:
Courts look at whether the new event was:
1. Extraordinary or freakish?
2. Criminal or intentional in nature?
3. Unforeseeable to a reasonable person?
If yes, it’s probably superseding.
🔍 Example 1 – Superseding Natural Event
Facts:
* A negligent truck driver crashes into a ditch and injures a pedestrian.
* While waiting for an ambulance, the pedestrian is struck by a meteor and dies.
Analysis:
* The meteor is a freak, unforeseeable event.
* It’s not something a driver could predict.
❌ Result: The meteor is a superseding cause. The driver is not liable for the death.
