Negligence Flashcards
(38 cards)
Elements of Negligence
- Duty
- Breach
- Causation — actual and proximate
- Damages
To whom is a duty owed?
All people who are foreseeable victims of your failure to take precautions
Plaintiffs who are foreseeable as a matter of law
- Rescuers
2. Viable fetuses
What duty is owed?
The amount of care that would be taken by a reasonably prudent person under the same or similar circumstances
Special Duty of Care:
Children
- Majority Rule:* The degree of care that a reasonable child of like age, intelligence, and experience would exercise in the same or similar circumstances.
- X:* Adult activities = adult standard of care
Special Duty of Care:
Professionals
The knowledge and skill of an ordinary member of that profession in good standing
Owners and Occupiers:
Types of plaintiffs
- Undiscovered trespasser
- Discovered trespasser
- Licensee
- Invitee
Owners and Occupiers:
Duty of Care to Undiscovered Trespassers
- Activities on land:* No duty
* Static conditions on land:* No duty
Owners and Occupiers:
Duty of Care to Discovered Trespassers
- Activities on land:* Reasonable care
- Static conditions on land:* No duty (exception = conditions that are artificial, highly dangerous, concealed, and known to owner—i.e., man-made death traps)
Owners and Occupiers:
Duty of Care to Licensees
- Activities on land:* Reasonable care
- Static conditions on land:* Duty to warn or make safe an unreasonably dangerous condition that is concealed + known to owner
Owners and Occupiers:
licensee vs. invitee
- Licensee:* one who comes onto land with the owner’s permission for his/her own purposes (includes social guests)
- Invitee:* one who comes on property who is held open to the public at large (don’t have to plan to engage in a business transaction)
Owners and Occupiers:
Duty of Care to Invitees
- Activities on land:* Reasonable care
- Static conditions on land:* Duty to use reasonable care in keeping the property reasonably safe (includes a duty to inspect)
When is reasonable care replaced with a statutory duty (negligence per se)?
Class of person, class of risk
P must show (1) he is within the class of persons the statute was designed to protect; and (2) the statute was designed to protect against the type or harm/risk that P suffered.
Excuse: Compliance would have been more dangerous or was impossible under the circumstances
Is there an affirmative duty to act?
No, subject to three exceptions:
- D put the P in peril
- Special relationship (close family, innkeeper/common carrier, invitee/invitor, DOCTOR DOES NOT A HAVE SPECIAL DUTY TO ACT)
- Duty to control 3d person where D has actual ability and authority to control
Negligent Infliction of Emotional Distress:
General Rule
Plaintiff must show:
1) P was in the zone of danger (from the negligent conduct)
2) Physical symptoms from the distress
Negligent Infliction of Emotional Distress:
Bystanders
A bystander can recover for NIED caused by seeing the D negligently injure someone else if the bystander:
1) Was at scene and personally observed or perceived the event
2) Had a close relationship with the victim
3) Physical symptoms (most states, modern trend drops this requirement)
Proving Breach of Duty
Must point to specific conduct
- Can offer evidence of custom (but not conclusive)
- Res ipsa loquitur
Res ipsa loquitur
Allows trier of fact to infer a breach of duty based on the fact that an injury occurred (but jury doesn’t have to find in favor of P)
P must show:
- the event was one that does not normally occur in the absence of negligence
- Any negligence would be attributable to the D (ask: Did D have exclusive control of the instrumentality?)
Causation:
Alternatives to the but-for test
- Substantial Factor* - use with multiple Ds WHO ARE ALL NEGLIGENT and commingled causes (“joint causes”)
- Alternative Causes/BOP shift* - Use with multiple Ds WHO ARE ALL NEGLIGENT and an uncertain cause (“Doctrine of Summers v. Tice”). If Ds can’t exonerate themselves, there’s J&S liability.
Proximate Cause:
Definition
D is only liable for those harms that are within the risk of his activity
Proximate Cause:
Direct vs. Indirect
- Direct Cause:* If result was foreseeable —> PC
- Indirect Cause:* D’s act is followed by some other act.
- Ask: Was the intervening act foreseeable?
- Ask: Was the ultimate result foreseeable?
Proximate Cause:
General rules for Indirect Cause Cases
If both act + result were foreseeable —> PC
If neither act + result was foreseeable —> No PC
There is generally liability for:
- Subsequent medical malpractice
- Negligent rescue efforts
- Reaction forces
- Subsequent diseases or accidents
- Negligence of a third party (if D can anticipate)
- Criminal conduct (if D can anticipate)
- Act of God (if foreseeable—e.g., weather forecast)
Condition vs. Superseding cause
An intervening force is superseding if it is:
(i) independent of the original act;
(ii) adequate of itself to bring about the result; and
(iii) not reasonably foreseeable.
Eggshell Skull Rule
D is liable for full extent of damages he causes, even if the extent was unforeseeable (eggshell skull P)