Negligence

Question 1

Elements of a Negligence Claim

Answer 1

1) Duty
2) Breach
3) Causation
4) Damages

Question 2

To whom is a duty owed?

Answer 2

You owe a duty to all people who are foreseeable victims of your failure to take precautions (but, you generally only owe a duty of care to people in or around the area you are acting)

Question 3

Plaintiffs who are foreseeable as a matter of law

Answer 3

1) Rescuers
2) Viable Fetuses - always owe a duty of care to a child in the womb, even if D had no knowledge that woman was pregnant at the time of the accident

Question 4

How much care must you exercise?

Answer 4

You must exercise the amount of care that would be taken by a reasonably prudent person under the same or similar circumstances.

1) D is expected to use superior skill or expertise for P’s benefit
2) D’s physical abilities are attributed to the reasonably prudent person (“reasonably prudent blind person”)
3) The reasonably prudent person standard is a fixed constant in negligence law

Question 5

Special Duty Standards

Answer 5

1) Children
2) Professionals
3) Owners and Occupiers of land

Question 6

Duty owed by children

Answer 6

Majority Rule: A child must exercise the degree of care that a reasonable child of like age, intelligence, and experience would exercise under the circumstances (minimum cut off at 4 yrs old)

Minority (Traditional) Rule: Rule of Sevens

1) Children under the age of 7, incapable of negligence
2) Children from age 7-13, presume a child is incapable of negligence, but this presumption is rebuttable
3) Children 14 years of age and older, a rebuttable presumption that child is capable of negligence.

BUT, a child engaged in a adult activity is held to the adult standard.

Question 7

Duty owed by professions

Answer 7

A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.

1) Medical malpractice: Without consent, patient can bring battery claim; without informed consent, patient can bring negligence claim
2) Legal malpractice: plaintiff must prove causation. Violation of duty standard does not automatically lead to liability. Must also prove causation and damages

Question 8

Duty owed by owners and occupiers of land

Answer 8

Did the injury result from the conduct of activity or did the injury result from an encounter with a static condition.

1) Undiscovered trespasser: no duty for activity or condition
2) Discovered trespasser: reasonable care for activity, and duty to protect against man-made death traps for condition
3) Licensee (social guest): reasonable care for activity, and duty to protect against concealed condition known to owner/occupier of land
4) Invitee (anyone who comes onto premises open to the public at large): reasonable care as to activity, and duty to protect if condition is concealed and know about it or should have known about it through reasonable inspection.

Question 9

In a static condition question, a land possessor can satisfy her legal obligation by:

Answer 9

1) making the condition safe, OR

2) giving a warning

Question 10

If an entrant is injured by an open and notorious condition, the entrant will . . .

Answer 10

almost always lose the negligence lawsuit.

Question 11

Negligence per se

Answer 11

Implies a statutory standard of care, instead of negligence.
Test: the statute covers a class of person, and class of risk

Question 12

Exceptions to negligence per se

Answer 12

1) Compliance with the statute is more dangerous than violating the statute
2) Compliance is impossible under the circumstances

Question 13

The Affirmative Duty to Act Rule

Answer 13

General Rule: There is no duty to rescue!
Exceptions:
1) Defendant put the plaintiff in peril
2) Relationships between parties (close family relationship, common carrier or innkeeper relationship, relationship between invitee/invitor)
3) Duty to control third persons - defendant must have actual ability and authority to control (parent and toddler in grocery store)

Question 14

Negligent Infliction of Emotional Distress

Answer 14

General rule: no duty!
Exceptions:
1) Zone of danger rule - If D exposes P to physical risk, and P suffers some physical manifestations from emotional distress. P must be in zone of danger: very close to the accident
2) Bystander Recovery - even if P is outside the zone of danger, if P was at the scene of the accident and if P had a strong relationship with the victim of the accident and P suffers some physical manifestations from emotional distress

Question 15

Special Situations for Negligent Infliction of Emotional Distress

Answer 15

Where Defendant’s negligence creates a great likelihood of severe emotional distress:

1) Erroneous reports of relative’s death
2) Mishandling of relative’s corpse
3) A doctor incorrectly and negligently tells someone that she is suffering from a fatal disease

Question 16

Breach of Duty

Answer 16

General Rule: Plaintiff must point to specific conduct

Question 17

Proving “specific conduct” for breach of duty

Answer 17

1) Evidence of custom: always admissible, never conclusive.

2) Res Ipsa Loquitur

Question 18

Res Ipsa Loquitur

Answer 18

Used by plaintiffs who don’t know what happened. Plaintiff must prove two facts:

1) The event is one that does not normally occur in the absence of negligence (usually requires expert testimony)
2) Any negligence would be attributable to the Defendant.

Consequence: Plaintiff gets to the jury. Does not mean that P automatically wins the case

Question 19

Causation

Answer 19

Need BOTH 1) cause in fact AND 2) proximate cause

Question 20

Cause in Fact

Answer 20

Actual causation

1) “But for” test: a D’s conduct is the cause in fact of an injury when the injury would not have occurred but for D’s conduct.
2) Substantial Factor Test is used in cases with multiple defendants and a commingled cause (two Ds set two fires that merged)
3) Burden shifting test used in cases with multiple Ds and an unknown cause (a person was injured when two people shot guns but don’t know which D actually hit P)

Question 21

Proximate Cause

Answer 21

Legal causation. Proximate cause is a limitation on a defendant’s liability. A person is only liable for those harms that are within the risk of his activity

Question 22

Directs vs. Indirect Cause

Answer 22

1) Direct: if the result of the defendant’s negligent conduct is foreseeable, the defendant will be liable. Focus on the result.
2) Indirect: D acts and then someone/something acts, then P gets hurt

Question 23

Cases in which an intervening cause will almost NEVER cut off liability:

Answer 23

1) Subsequent medical malpractice
2) Negligent rescue
3) Reaction forces: other people react to D’s negligence, causing some sort of injury to P (stampede)
4) Subsequent diseases or accidents (contracted bacterial infection from hospital after D broke P’s leg)

Question 24

Cases in which an intervening cause will not cut off liability IF Defendant can anticipate the intervening cause:

Answer 24

1) Negligence of third party
2) Criminal conduct of third party
3) Acts of God

Question 25

Damages

Answer 25

A plaintiff must prove damages as part of her prima facie negligence case. Elements of a typical personal injury award: 1) past and future medical expenses 2) past and future lost income 3) plaintiff's pain and suffering

Question 26

Eggshell Skull Plaintiff Rule

Answer 26

A defendant is liable for the full extent of the damage he causes, even if the extent was unforeseeable. You take your plaintiff as you find your plaintiff.

Question 27

Defenses to Negligence

Answer 27

1) Contributory Negligence 2) Assumption of the Risk 3) Comparative Negligence

Question 28

Contributory Negligence

Answer 28

A plaintiff's failure to use the relevant degree of care for his or own safety. Abolished in all but a handful of states. Consequence: If the plaintiff is contributorily negligent, the plaintiff will lose the law suit and recover nothing.

Question 29

Doctrine of Last Clear Chance

Answer 29

Allows a P to recover despite her contributory negligence if D had last clear chance to avoid accident but failed to do so.

Question 30

Express Assumption of the Risk

Answer 30

Consequence: Completely bars recovery in a negligence action Exception: Sometimes disregarded by the courts if applying the rule would violate notions of public policy

Question 31

Implied Assumption of the Risk

Answer 31

Will only be found if there are two things: 1) The P must have knowledge of the risk 2) There has to be evidence that the encounter with the risk was a voluntary encounter Consequence: traditionally, absolute bar to recovery. Modern approach looks to comparative negligence Exceptions: 1) the absence of an alternative destroys voluntariness 2) Emergency situations destroy voluntariness

Question 32

Comparative Negligence

Answer 32

Will reduce recovery in some cases, rather than leading to absolute bar (like contributory negligence) Types: 1) Pure comparative negligence 2) Modified comparative negligence Comparative negligence supplants all other affirmative defenses EXCEPT express assumption of the risk

Question 33

Pure Comparative Negligence

Answer 33

P will always recover something even if P was majority/predominantly negligent actor in case. This is the default unless told otherwise. Example: Jury finds P 70% at fault, D 30% at fault. Consequence: P recovers 30% of damages

Question 34

Modified Comparative Negligence

Answer 34

Where P's recovery is reduced up to the point of 49/50% at fault depending on state and then after P's fault level exceeds that threshold, P is barred from recovery. Example: Jury finds P 70% at fault, D 30% at fault. Consequence: P recovers nothing.