Negligence

Question 1

Negligence Prima Facie Case

Answer 1

(1) a duty on the part of D to conform to a specific standard of conduct to protect P against unreasonable risk of injury, (2) breach of that duty by defendant, (3) breach is the actual and proximate cause of P’s injury, and (4) damage

Question 2

Foreseeable Plaintiff

Answer 2

Duty of care owed ONLY to foreseeable Ps

Cardozo (majority) view: Zone of Danger – P can recover if a REASONABLE PERSON would have foreseen a risk of injury to her under the circumstances (foreseeable zone of danger)

Andrews view (minority): EVERYONE IS FORESEEABLE. P2 only need to show breach of duty to P1

Question 3

Rescuers

Answer 3

Foreseeable plaintiff when D negligently put himself or a third person in peril (danger invites rescue)

Breach occurs by the fact that D NEGLIGENTLY put themselves in position of danger

Rescuer must still act reasonably though. Reckless attempt to rescue will not suffice for a cause of action

Question 4

Firefighter’s Rule

Answer 4

this rule bars firefighters and police officers from recovering for injuries caused by the risks of a rescue

Question 5

Standard of Care generally

Answer 5

Reasonable person standard. Objective.

Subjective mental deficiencies and inexperience are not taken into account

Note: law does consider physical characteristics on the part of D (but one should know their own handicaps and exercise care of a similar reasonable person)

Question 6

Professional standard of care

Answer 6

required to posses knowledge and skill of a member of the profession or occupation in good standing in similar COMMUNITIES

NTOE: doctors are held to national standard of care though

Question 7

Doctor’s Duty to Disclose Risks

Answer 7

Doctor has duty to disclose risks of treatment to enable patient to give informed consent

breached if an undisclosed risk was serious enough that reasonable person would have withheld consent on learning the risk

Question 8

Children standard of care

Answer 8

Held to standard of like age, education, intelligence, and experience. SUBJECTIVE.

Under 4 generally lacks capacity to be negligent

EXCEPTION: children engaged in ADULT ACTIVITIES are required to conform to an adult standard of care

Question 9

Duty of Common Carriers and Innkeepers

Answer 9

Very high degree of care – liable for slight negligence.

NOTE: for standards to apply, P MUST be a passenger or guest

Question 10

Bailment Duties

Answer 10

Bailor transfers possession of chattel to bailee, but not title

Duties owed by bailee: (1) if SOLE BENEFIT OF BAILOR bailment, low standard of care; (2) if SOLE BENEFIT OF BAILEE, high standard of care; and (3) for MUTUAL BENEFIT bailment (typically for hire), there is ordinary standard of care

Duties owed by Bailor: (1) SOLE BENEFIT OF BAILEE, bailor must inform bailee of KNOWN, DANGEROUS defects in the chattel, (2) BAILMENT FOR HIRE, bailor must infomr bailee of chattel defects of which he is or should be aware

Question 11

Duty of landowner to those off premises

Answer 11

No duty to protect one off the premises from NATURAL CONDITIONS on the premises

Duty for UNREASONABLY DANGEROUS ARTIFICIAL CONDITIONS

One must carry on activities on the premises to avoid unreasonable risk of harm to others off premises

MBE: in urban areas, landowner is liable for damage caused off premises by falling branches on trees

Question 12

Duty owed to Trespassers

Answer 12

No duty owed to UNDISCOVERED trespassers

DISCOVERED OR ANTICIPATED trespassers: Landowner must (1) warn or make safe concealed, unsafe ARTIFICIAL CONDITIONS KNOWN to the landowner involving risk of death or serious bodily harm, and (2) use REASONABLE CARE in exercise of “active operations” on the property

NOTE: no duty owed for natural conditions or less dangerous artificial conditions

Question 13

Attractive Nusiance

Answer 13

P must show (1) dangerous condition on the land that the owner is or should be aware of, (2) owner knows or should know children frequent the vicinity, (3) condition is likely to cause injury (inability for children to appreciate the risk), (4) expense of remedying the situation is slight compared with the magnitude of the risk

NOTE: child DOES NOT have to be attracted onto the land by the dangerous condition

Question 14

Duty owed to licensees

Answer 14

Licensee: one who enters onto land with possessor’s permission for her own purpose or business, rather than possessor’s benefit (social guest)

Duty to (1) warn of or make safe dangerous conditions (natural and artificial) KNOWN to the owner that create an unreasonable risk of harm and that licensee is unlikely to discover, and (2) exercise reasonable care in the conduct of “active operations” on the property

NO DUTY TO INSPECT OR REPAIR

Question 15

Duty owed to invitees

Answer 15

Invitee: invited onto land by landowner, connected with biz of landowner. Also includes the public who enter for a purpose for which the land is held open to the public

Duty to: (1) same as licensees; plus (2) duty to make REASONABLE INSPECTIONS to discover nonobvious dangerous conditions and warn or make safe those conditions

One loses invitee status if she exceeds scope of invitation!

Question 16

Duties of Lessor and Lessee

Answer 16

Lessee has general duty to maintain premises

Lessor must WARN of existing defects of which he is AWARE or has REASON TO KNOW, and which lessee is NOT likely to discover on a reasonable inspection

Also if lessor volunteers to repair and does so negligent, liable

Question 17

Negligence Per Se

Answer 17

violation of statute may replace common law duty of care if (1) P is within the protected class, and (2) statute was designed to prevent the type of harm suffered by P

violation may be EXCUSED if compliance would cause more danger than violation or where compliance was beyond D’s control

Effect: conclusively establishes duty and breach

Question 18

NIED

Answer 18

P must be WITHIN THE ZONE OF DANGER and suffer PHYSICAL SYMPTOMS from the distress

NOTE: Erroneous report of death or mishandling of corpse has been sufficient for NIED even if outside zone of danger and no physical symptoms

Question 19

Bystander NIED

Answer 19

bystander outside zone of danger can recover if (1) P and person injured are CLOSELY RELATED, (2) P was PRESENT at the scene of the injury, and (3) P PERSONALLY OBSERVED OR PERCEIVED the event

Most states still require PHYSICAL INJURY

Question 20

Good Samaritan Statute

Answer 20

exempts doctors, nurses, and rescuers etc. from liability for ordinary, but not gross, negligence when assuming a duty by acting (e.g. aiding someone)

Question 21

Res Ipsa Loquitur

Answer 21

P must show (1) accident causing injury is a type that would not normally occur unless someone was negligent, an d(2) the negligence is attributable to D

usually can be shown by evidence that instrumentality causing injury was in EXCLUSIVE CONTROL OF D

Effect: prima facie case made and NO DIRECTED VERDICT may be given for D.

MBE: deny D’s motion for directed verdict if P establishes res ipsa loquitur or presents evidence of a breach of duty (NPS); grant D’s motion if P has failed to establish one of these things

P’s motion for directed verdict should always be denied, except in the rare case where P has established NPS and no issues of proximate cause

Question 22

But For Cause

Answer 22

Type of actual cause.

Injury would not have occurred but for the act

Applies when several acts (each insufficient to cause the injury) COMBINE to cause the injury

Question 23

Joint cause

Answer 23

When several causes bring about injury, and only one would have been sufficient to cause the injury

D’s cause was actual cause if it was a SUBSTANTIAL FACTOR in causing the injury

Question 24

Alternative Cause

Answer 24

when there are two acts, only one of which causes injury, but not possible to tell which one.

Burden of proof shifts to each D to show that his negligence is NOT the actual cause

Question 25

Proximate Cause

Answer 25

Must be actual cause and proximate cause to meet causation requirement.

Generally, D is liable for harmful results that are FORESEEABLE

MBE: If asked about summary judgment, should be denied if there is ANY ISSUE of foreseeability for the jury. Otherwise, will be so clear that common sense will tell you whether harm was foreseeable

Question 26

Direct Cause Liability

Answer 26

Uninterrupted chain of events from negligence to P’s injury, D liable for ALL FORESEEABLE HARMFUL RESULTS, regardless of manner or timing of cause and effect

Not liable for unforeseeable harmful results

Question 27

Dependent Intervening Force

Answer 27

D remains liable if negligence causes harmful response or reaction from a dependent intervening force

Following are almost always foreseeable: (1) subsequent malpractice, (2) negligence of rescuers, (3) efforts to protect person or property of oneself or another, (4) injuries caused by third party reacting to D’s actions, (5) subsequent diseases caused by weakened condition, (6) subsequent accident substantially caused by the original injury

Question 28

Independent Intervening Force

Answer 28

not natural response or reaction to situation created by D

Still may be foreseeable if D’s negligence increased the RISK OF HARM from these forces

Ex: (1) negligent acts of third persons, (2) crimes and intentional torts of third persons, (3) acts of god

Question 29

Superseding Force

Answer 29

Break the causal connection between D’s negligence and P’s ultimate injury, thus no liability

An unforeseeable intervening force that produces unforeseeable results

Question 30

Damages

Answer 30

WILL NOT BE PRESUMED since it is an essential element of negligence

Punitive damages not available unless wanton, willful, reckless, or malicious conduct

P entitled to compensation for past, present, and prospective damages, but economic and non (pain and suffering

Question 31

Contributory Negligence

Answer 31

Defense to negligence, NOT intentional torts

completely bars P’s right to recovery

NOTE: if NPS, contributory negligence is not a defense if the statute violated was designed to protect the P from their incapacity and lack of judgment (e.g. child injured after darting into street and hit by speeding car in school zone)

NOTE: can be imputed through vicarious liability

Question 32

Last Clear Chance

Answer 32

When D was able, but failed, to avoid harming P at the time of the accident

permits P to recover despite contributory negligence. essentially P’s rebuttal to defense of contributory negligence.

Helpless peril: if P is in helpless peril, D will be liable if he knew or should have known of P’s predicament

Inattentive peril: When P could have saved herself if attentive, D must actually have known of P’s predicament

Question 33

Assumption of Risk

Answer 33

Complete Defense to negligence, NOT intentional torts.

P must have (1) known the risk, and (2) voluntarily proceeded in the face of the risk

Can be implied (knowledge component implied) or express

Exceptions: common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk

Question 34

Comparative negligence

Answer 34

Not complete bar. Court weighs P’s negligence and reduces damages accordingly

Partial – bars P’s recovery if negligence was MORE SERIOUS (or at least as serious) than D’s negligence

Pure – allows recovery no matter how great P’s negligence was

MBE: assume Pure, unless question states otherwise

NOTE: last clear chance doctrine does not apply