Negligence Flashcards
(34 cards)
Negligence Prima Facie Case
(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
Foreseeable Plaintiff
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
Rescuers
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
Firefighter’s Rule
this rule bars firefighters and police officers from recovering for injuries caused by the risks of a rescue
Standard of Care generally
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)
Professional standard of care
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
Doctor’s Duty to Disclose Risks
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
Children standard of care
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
Duty of Common Carriers and Innkeepers
Very high degree of care – liable for slight negligence.
NOTE: for standards to apply, P MUST be a passenger or guest
Bailment Duties
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
Duty of landowner to those off premises
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
Duty owed to Trespassers
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
Attractive Nusiance
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
Duty owed to licensees
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
Duty owed to invitees
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!
Duties of Lessor and Lessee
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
Negligence Per Se
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
NIED
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
Bystander NIED
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
Good Samaritan Statute
exempts doctors, nurses, and rescuers etc. from liability for ordinary, but not gross, negligence when assuming a duty by acting (e.g. aiding someone)
Res Ipsa Loquitur
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
But For Cause
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
Joint cause
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
Alternative Cause
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