Negligence Flashcards
What is theEggshell Skull Rule AND the Collateral Source Rule? NOTE: NY Distinction
Eggshell Skull Rule: the ∆ takes π as she finds him…if ∆ is negligent (i.e. duty, breach, causation), then Δ pays for ALL damages Collateral Source Rule: damages are not reduced just b/c π received benefits from other sources (i.e. health insurance)
NY DISTINCTION: NY has abolished the collateral source rule; π’s damages are REDUCED by collateral pmts
What is the duty obligation and to whom is it owed?
it is the obligation to take risk reducing precautions to prevent harm to foreseeable victims and ONLY to foreseeable victims
*Foreseeable Victims = persons w/in Zone of Danger. Unforeseeable victims always lose negligence cases!
How does π establishbut-for/factual causation?
For factual causation π has to establish a connection btwn the breach and the injury.
The “but for” test = π has to convince the jury that “but for the breach, there would be no injury”
We DON’T use “but for test” in 2 cases: 1) merged cause - 2 or more Δs operating individually each breaches a duty; the harms merge and then injures π (i.e. 2 forest fires). In these instances, we use a “Substantial Factor” test: a breach is a cause if it would have been capable of causing the injury all by itself.
2) unascertainablecause (e.g. Quail Hunting case) - Burden Shift: shift burden to each Δ to prove by a preponderance that they are NOT the cause; if can’t they are jointly liable
What are the 3affirmative defensesto prima facie neglience (duty, breach, causation, damages)? NOTE: NY Distinction
1) Contributory negligence: negl on part of π that contributes to her injury that COMPLETELY bars π’s recovery. Contributory negl. is a minority rule - n/a in NY. 2) Assumption of risk: π is denied recovery if she assumed the risk of any damage caused by ∆’s act. NOTE: Most comparative negl. jx have ABOLISHED the separate defense of “implied assumption of risk”→ would just analyse the π’s conduct under comparative negl. principles. NY DISTINCTION:assumption of the risk has been abolished, but cts still use label, “primary assumption of the risk”, which applies ONLY to participants or spectators in sporting/recreational activities
3) Comparative negl.: π’s negligence is not a complete bar to recovery, but her recovery is reduced to the extent (%) that she is negl. in causing the injury. NY DISTINCTION: the π may recover even if the π’s negligence % is greater than the ∆’s (BUT if π’s conduct was illegal, NO recovery)
What is the prima facie case for negligence?
1) duty ( π must show ∆ owed a duty of care and specify that duty) 2) breach (conduct falls short of duty) 3) causation: factual (but-for) & proximate cause (blameworthiness) 4) damages
NOTE: if you are given a negl. question in an essay, you must discuss EVERY element
How does π establishproximate/legal causation?
1) For direct causes:established if π’s injury a immediate foreseeable result of Δ’s breach ∆ is not liable for unforeseeable harmful results not within risk created by ∆’s negl.
2) For indirect causes: when there are intervening causes (increasing π’s injury),original Δ IS STILL liable for… intervening negligent medical treatment (e.g. malpractice); intervening negligent rescue; intervening reactions to protecting property/person; subsequent accident/disease to π
What are some exceptions to foreseeability wrt the duty rule? NY Distinctions
i) rescuers - a rescuer is not barred by the foreseeable concept (danger invites rescue) ii) fetuses - if the baby is born with deformities due to a car accident then the baby gets a c/a in their name; if the fetus is unborn then no c/a iii) doctor fails to diagnose a birth defect - In NY, parent can recover the incremental costs of caring for that disabled child BUT you cannot recover emotional distress damages iv) doctor botched sterilization - In NY, NO recovery if you end up with another child
What is the default duty std of care?
the reasonably prudent person std of care - the amount of care that would be given by a reasonably prudent person acting under similar circumstances.
- we make NO allowances for ∆’s individual attributes even when dealing with ∆’s for whom it is impossible to comply with the reasonably prudent person std. EXCEPTIONS: we inc. ∆’s superior knowledge into the standard.
Name 6 instances where RPP std is displaced?
- children
- negligence claims against professionals
- premises liability
- statutory standards of care
- duty to act affirmatively
- negligent infliction of emotional distress
In negligence cases, what is the child standard of care?
Children under 5 are incapable of negligence. Children 5 and older are held to the duty of car exercised by a hypothetical child of similar age, intelligence and experience acting under similar circumstances. EXCEPTION: a child engaging in adult activity (i.e. operating a motorized vehicle) is held to the RPP std.
In negligence cases, what is the profession std of care?
A professional must exercise the skill and knowledge normally possessed by other members of the same profession in good standing. ∆ std of care is compared to the real world pool of ppl in the profession
In negligence cases, what is the standard of care for premises liability?
4 separate duties dependent on type of entrant:
i) unknown trespasser - NO duty of care
ii) known trespasser - in order to trigger a duty there has to be i) an artificial condition ii) a highly dangerous condition capable of killing or maiming iii) a concealed condition and iv) the condition must be one the possessor knew of in advance
iii) licensees (enters property w/permission but does not confer an economic benefit to the possessor) - possessor must protect licensee from all hazards that are 1) concealed from the licensee and 2) the possessor knows about the hazard in advance
iv) invitee (enters property w/ permission and their is an economic benefit to the possessor or a general benefit to the public at large) - duty triggered if 1) the condition is concealed and 2) the possessor of the hazard in advance OR could have discovered it with a reasonable inspection
NY Distinction: NY has abolished the premise liability rules. In NY everyone is entitled to the RPP std of care under the circumstances BUT entrant status is evidence of forseeability
- EXCEPTION: No right of recovery for an injury that is an inherent risk of the job (i.e. firefighters and police officers) In NY the assumption of risk theory is ABOLISHED.
- Warnings satisfy the duty and defeat liability BUT remember, you are not entitled to use deadly forcer to protect property. Thus, a possessor is held liable if their vicious dog maims a trespasser EVEN IF there is a warning.
In negligence cases, what is the statutory std of care?
It is when the π borrows the words of a criminal statute and uses them as a one time standard of care. 2 part test: 1) π must demonstrate that he is a member of the class the statute seeks to protect 2) π has to show that the injury is in the class of risks that the statute is trying to prevent
- negligence per se - the failure to live up to the criminal statute is a breach
- the motor vehicle code always satisfies the 2 part test
EXCEPTIONS: (i) statutory compliance is more dangerous than violation (e.g. cross yellow lines to avoid hitting child); and (ii) impossibility of compliance (e.g. heart attack caused violation)
Is there a duty to act affirmatively?
NO! no duty to rescue
EXCEPTIONS: i) a formal legal relationship triggers a duty to act ii) if ∆ caused the peril
- A gratuitous rescuer will be liable if they botch up the rescue and injures the person in question. In NY, good samaritan laws insulate gratuitous rescuers from simple negligence
What is the no-fault insurance scheme? NY Distinction
If you are eligible, you get loss wages ($2k per month for up to 3yrs), medical expenses and a misc $25 per day pmt.
- car thieves, fleeing felons, drunk ppl and drag racers are NOT entitled to no fault benefits
- there is no pain and suffering compensation in a no-fault scheme
In NY, there are 2 situations where you’ll be allowed to litigate despite the existence of a no-fault scheme. 1) injuries in excess of basic economic loss or 2) you suffered a serious injury which the statute defines as death, dismemberment, significant disfigurement, a fracture, loss of a fetus, permanent loss or use of a bodily organ or a permanent limitation of the use of a body organ
