Negligence Flashcards
(35 cards)
Negligence
In order to prevail on a claim for negligence, the plaintiff must prove that 1) the defendant owed him a duty of care 2) the defendant breached that duty 3) the breach was both the actual and proximate cause of the plaintiff’s 4) damages.
Duty
Each person has a duty to prevent foreseeable risks of harm to foreseeable plaintiffs. Under the broader Andrews view, the defendant owes a duty of care to anyone who suffers injuries as a result of his conduct. However, under the majority Cardozo view, the defendant owes a duty of care only to those who fall within the foreseeable zone of danger.
Standard of Care
Generally, each person has a duty to act as a reasonably prudent person under the same or similar circumstances. This is an objective test.
Negligence Per Se
Often times a criminal statute will be used in a negligence action to set the standard of care. In such cases, a violation of the statute will establish a breach of the duty of care.
1) To determine whether a statute should be adopted as the applicable standard of care, the court must find: 1) that the statute was designed to protect against the type of harm that the plaintiff suffered AND 2) that the plaintiff falls within the class of persons the statute was intended to protected.
2) The plaintiff does NOT automatically recover if the defendant violates the statute. The plaintiff must still establish the other elements of negligence i.e. actual cause, proximate cause, and damages.
Standard of Care for Children
A child is required to act like a reasonably prudent child of like age, intelligence, and experience. It is a subjective standard. But if the child is engaged in adult activity (driving a car, flying a plane, or operating a speedboat) she will be held to the same standard as an adult.
Standard of Care for Physicians
A physician must exercise the skill, knowledge, and care normally exercise by other members of the profession in the relevant medical community.
1) In medical cases, a physician has a duty to disclose all material information about the nature of any risks associated by using a prescription drug. Whether a risk is material depends upon its severity and its likelihood.
Child Trespassers (The Attractive Nuisance Doctrine)
Most jurisdictions have established a special rule for child trespassers. A landowner owes a child trespasser a duty of care if 1) the owner knows are has reason to know that children are likely to trespass 2) the condition involves an unreasonable risk of death or serious bodily harm 3) the child, because of his age, is unable to appreciate the risk involved AND 4) the cost of eliminating the harm is slight compared to the risks involved.
1) It is not necessary that the child be attracted onto the land for the doctrine to apply. The rationale for imposing a duty of care on a landowner of child trespasser is that children are almost always a more vulnerable to harm because they fail to understand the dangers involved.
Standard of Care for Landowners
At common law, the standard of care owed by a landowner depended on the status of the person entering the land. A trespasser is one who enter the land without the owner’s permission. Licensees are those on the land with the owner’s permission but who are there for their own purposes and not for any potential economic benefit to the landowner e.g. social guest or visiting relatives. Invitees are those who enter the land for potential financial benefit of the landowner.
Standard of Care for Landowners - Invitee
The duty owned to an invitee is the duty to use reasonable care in maintaining the premises, to take active steps to make the property safe and protect the invitee, and to discover any potential dangers on the property i.e. make reasonable inspections.
1) Some states, such as California, have abolishes the categories of trespasser, licensee, and invitee and have substitute the general reasonable standard of care to any entrant upon the land.
Breach
The defendant commits a breach when his conduct falls below the applicable standard of care. The plaintiff must prove that the defendant’s conduct created an unreasonable risk of harm. In other words, the defendant breaches his duty of care when he fails to act like a reasonably prudent person under the circumstances.
Actual Cause
The test for actual cause is the but for test. This means, the plaintiff must prove that but for the defendant’s conduct, the plaintiff would NOT have been injured.
Proximate Cause
Proximate cause is found if the injury to the plaintiff was the foreseeable result of the defendant’s conduct. If the actual consequences of the defendant’s conduct were so bizarre or out of the ordinary, then the defendant is NOT liable for the resulting harm. Thus, proximate cause is concerned with limiting or cutting off the defendant’s liability.
1) Similarly, the criminal acts of a third party will only cut off the defendant’s liability if such acts were unforeseeable.
Eggshell Skull Rule
Under the eggshell skull rule, the defendant is liable for all harms caused by his negligent conduct even though the extent of harm is unforeseeable. The rational is that the defendant takes the victim as he finds him. Therefore, the defendant is liable for all the injuries that he actually caused, although they may be greater than those suffered by a normal person.
Damages
Damages are an essential element of a negligence claim. As such, the plaintiff must allege personal injury or property damage.
Pure Economic Loss
The type of damages generally recoverable in a strict liability or negligence action is limited to personal injury and property damage. Pure economic loss is NOT recoverable. Economic damages refer to lost wages or the loss of a business opportunity. The rationale for the rule is the concern about liability being out of proportion to fault.
Parasitic Damages for Emotional Harm
When the P suffers physical harm, he may recover damages for emotional distress as part of the action for personal injury. Essentially, the P may tack on damages for emotional distress as a parasitic element for that injury.
Compensatory Damages
The goal of torts is to compensate the victim for the harms he suffered. Thus, the P is entitled to recover all expenses that he incurred as a result of the injury e.g. pain and suffering and medical expenses.
1) When the defendant has physically damaged the P’s property, the P may recover the cost of repair or replacement.
2) A tort of property may NOT only harm the property itself but may cause consequential losses because the property cannot be used during the repair period. Consequential damages such as lost profits or other forms of lost use are recoverable but must be proven with reasonable certainty.
Negligent Infliction of Emotional Distress
There are two type of allowable recoveries for claims of negligent infliction of emotional distress – the zone of danger rule and bystander cases.
Negligent Infliction of Emotional Distress - Zone of Danger (Near Miss)
Under the zone of danger test, a P can recover damages for emotional distress if he narrowly escaped harm and physical symptoms result. Physical symptoms include nervousness, shock, and fright. This test is also referred to as the near miss rule.
Bystander Recover
Most states, including California, permit a P to recover damages for emotional harm if 1) the P was present at the scene 2) witnessed a serious injury to a close family member AND 3) suffered physical symptoms as a result.
Survival Actions
Survival statutes provide for a cause of action for any damages suffered by the decedent between the time of injury and death. Such damages usually include pain and suffering, loss of wages, and medical expenses. A survival action is brought by the decedent’s estate and damages are often quite limited.
Wrongful Death
Wrongful death statutes create a cause of action in favor of certain beneficiaries who suffer harm as a result of another’s death. The beneficiaries are generally limited to spouses, children or parents. Damages recovered under wrongful death claims are payable to the beneficiaries and generally include loss of financial support and loss of consortium.
Loss of Consortium
Loss of Consortium permits a spouse to recover damages for injuries to her husband that deprive her of the benefits of the spousal relationship such as the loss of companionship, affection, advice, comfort, society, guidance, and sexual services.
Loss of Future Earnings
The victim may recover damages for the loss of any future earnings he would have made had he NOT been injured. In the event that the victim dies, the court will consider the P’s health, age, experience, and amount of years he was expected to work.
1) However, any damages awarded for lost future earnings will be reduced to present value. This means, the P will receive an amount that, if prudently invested, would produce the income that reflects the amount of the judgment.
