Negligence Flashcards
(23 cards)
Negligence Elements
- ∆ owed duty to π
- ∆ breached duty
- Actual and proximate cause
- Damages
Negligence Duty - General
One owes general duty of care to all foreseeable π’s to act as a reasonably prudent person under similar circumstances
- Forseeable π: Zone of Danger, Cardozo (vs. to all, Cardozo)
- Duty to Act: none unless (1) created peril, (2) pre-existing relationship, (3) gratuitous actor once started
Negligence Duty - Children
< 5: None
5-17: One owes duty to act as a child of similar age, experience and IQ under similar circumstances
Adult Activities: general standard
Negligence Duty - Professionals
- One owes duty to act as an average member of the profession providing similar services (conform to custom)
- Dr also owes duty to want of material risks
Negligence Duty - Bailment
Bailor transfers possession, not title
- Sole Benefit of Bailee: high std. care (bailor must tell of known dangerous defects)
- Sole Benefit of Bailor: low std. care
- Mutual Benefit: ordinary std. care (bailor must tell of known dangerous defects + should be aware)
Negligence Duty - Negligence Per Se
Use violation of statutory duty as conclusive E of duty + breach
- Req’s: (1) statutory standards clearly defined, (2) π in class designed to be protected, (3) harm of type intended to be protected against
- Exceptions: compliance impossible or more dangerous than violation
Negligence Duty - Landowner (4 Types)
Satisfy by making safe or warning
- UK Tres: no duty
- Ant. Tres: known, art., dangerous cond’s (if land open for recreation users w/ no fee, only liable if willful/malicious)
- Lic: known dangerous conditions
- Invitee: known dangerous conditions + those discoverable upon reasonable inspection
Negligence Duty - Leased Premise
- Goes by who owns/occupies
- Lessor duty to lessee for dangerous conditions lessee unlikely to discover
Negligence Duty - Off Landowners’ Premises
-Duty to take due precautions re artificial dangerous conditions abutting adjacent land
Negligence Duty - Attractive Nuisance Doctrine
Duty to exercise reasonable care to prevent foreseeable harm caused by artificial conditions
π must show (1) ∆ should’ve known of artificial dangerous condition, (2) ∆ should’ve known kids frequent vicinity, (3) condition is dangerous because of kid’s inability to appreciate risk, (4) cost of remedying slight compared to magnitude of risk [don’t need to show kid attracted onto property by nuisance]
NIED (3 Types)
∆ negligence + other factors
- Near Miss: π in zone of physical danger + π physical manifestations caused by ED
- Bystander: π a close family member + π perceived injury in real time (sight or sound)
- Biz Relation: biz relation between π and ∆ + foreseeable that ∆’s neg. will cause ED (funeral home, lab results, etc.)
Negligence - Breach
∆’s conduct fell below level required by the appropriate standard of care (event + why)
Negligence - Res Ipsa Loquitor
Absent direct E, π can establish prima facie case of duty + breach
Req’s: (1) type of harm normally associated w/ neg., (2) instrumentality of neg. in ∆’s control and (3) π not cause of injury
Negligence - Factual Causation
π’s injury would not have occurred by for ∆’s breach
- Joint/Merged: sub. factor liable
- Alt./Unascertainable: shift burden to ∆’s
Negligence - Proximate Causation
∆ liable for harm that is normal incident of ∆’s breach (or w/in the increased risk caused by ∆’s breach) - FORESEEABLE
Superseding Cause: occurs after ∆ conduct and contributes to injury, but so unforeseeable as to cut off ∆’s liability
Not Superseding: neg. medical treatment, neg. rescue, protective/reaction forces, subsequent disease or accident
Negligence - Damages
Eggshell π: ∆ liable for all π’s injury, even if extent or severity of harm unforeseeable
Collateral Source Rule: damages not reduce because π got benefit from other source
Limits: (1) π duty to mitigate; (2) No punitive, interest or attorney fees.
Negligence Defenses - Contributory Neg.
π recovery barred by own failure to exercise due care unless (1) ∆ conduct more egregious or (2) ∆ last clear chance
Last Clear Chance: ∆ had last clear chance to avoid harm and failed
- -Helpless peril: ∆ should’ve known of peril
- -Inattentive peril: ∆ knew of peril
Negligence Defenses - Comparative Neg.
Pure: π damages reduced by own failure to exercise due care by % of responsibility
Partial: π recovery barred if π > 50% at fault
Negligence Defenses - Assumption of Risk
π knew risk + voluntarily assumed it (not just neg. or ignoring the risk)
-Innkeepers and Common Carriers cannot claim this
Strict Liability - 3 Categories
Absolute duty of care for harms proximately caused to π [aka foreseeable π’s]
∆ fits category + dangerous aspect was cause of π injury + damages
Categories: (1) animals, (2) abnormally dangerous activities, (3) product liability
Strict Liability - Animals
SL for wild animals and domestic animals w/ known vicious propensity
[Trespasser can’t claim SL, but still can’t use wild animal to solely defend property]
Strict Liability - Abnormally Dangerous Activities
Foreseeable risk of harm even when reasonable care exercised + activity uncommon in community
Explosives, Toxic, Nuclear
Strict Liability - Product Liability
(1) Commercial Supplier, (2) ∆ made/sold defective product, (3) defect caused injury and existed when left ∆’s control (rebuttable presumption for ord. stream of commerce), (4) damages to π’s person or property
Defects:
- Manf: departs from intended design
- Design: cost > benefit so not reasonable to market product (π shows safer, practical, economically feasible alternative)
- Info: non-obvious risk can’t be designed away may require adequate warning
Cause:
-Info Defect: π gets presumption that warning would’ve been heeded
Defenses: (1) Ass. of Risk; (2) improper unforeseeable use
