Negligence Cause of Action (Midterm) Flashcards
(61 cards)
Negligence elements
- duty
- breach
- causation
- damages (did P suffer harm)
- defenses
How do you breach?
A person breaches their duty when they fail to use ordinary or reasonable standard of care under the circumstances
Ordinary or reasonable care
Care which another person of ordinary prudence would use in order to avoid injury to themselves or others under similar circumstances
Reasonable person standard:
What wpuld a reasonable person have done under the circumstances?
1. would have noticed (actual/constructive); and
2. would have done something; or
3. would have warned
Constructive notice:
(1) defect must be visible and apparent; and
(2) it must exist for a sufficient length of time prior to the accident to allow D to discover and remedy it
Respondent Superior
“The Superior”/employer is responsible for the torts of an employee acting within the scope of employment:
1. Employee is about the employer’s business (generally the kind employee was hired to do)
2. Breach must occur within hours and ordinary spatial bounds of employment
3. Employee must be serving the employer’s interest
Apparent Authority
A principal is vicariously liable for a non-employee even if the agent doesn’t appear to be acting on the principal’s behalf if:
1. Representation by principal (that actor is principal’s agent)
2. Detrimental reliance by P
Hand’s Negligence Formula
if Burden (B) < Probability of harm (H) * Severity of harm (S) –> Negligence
Negligence Per se
Negligence in itself. You are considerd to have breached your duty of care when not complying with a public safety statute (except when not complying is actually safer)
Res Ipsa Loquiter (RIL)
Permits an inference of negligence if:
1. the accident is a type that would not ordinarily occur without negligence
2. the instrumentality that caused the injury was within exclusive control of D
Ybarra rule–> when multiple Ds, burden shifts to D to prove he was not negligent*
*Not all states follow Ybarra rule
Common Carriers
Traditional rule: extraordinary standard of care (NY)
Modern rule: regular standard of care (CA)
Common Carriers Policy Implications
Traditional rule:
1. potential for huge loss of life if not using extraordinary care
Modern rule:
1. RRs and other common carriers aren’t as dangerous as they were in the 19th/early 20th century
2. juries can recognize circumstances of moving people en masse and adjust their analyses accordingly
Business Practice Rule (exception to notice)
A customer need not establish actual or constructive notice when the business practice of the store provides a continuous and foreseeable risk of harm to customers
Custom and Usage Principle (Landlords)
Doesn’t set the standard of care, but deviation from it may be important in determining whether one acted reasonably
1. [popularity] Widely used (many people do it–> D should have known)
2. Feasibility (practical in operation and readiness with which it can be employed)
3. Reasonableness (Whether D should have done it)
Hospitals Standard of Care
[Ybarra rule] Minority rule: RIL applies to multiple Ds (Ybarra)
[Minority] Similar locality rule: Dr. must exercise same degree of care that is commonly exercised by other members of same profession in same practice when diagnosing or treating a patient.
[Majority] Uniform Knowledge rule: any Dr. with knowledge of or familiarity with the procedure, acquired through experience, education, observation, is competent to testify about the standard of care, and whether it was deviated from
(Get rid of similar locality rule bc info, education, training is nationwide in character)
Doctrine of Informed Consent: when treating a patient, a Dr. must disclose all info material to a reasonable patient’s informed decision
Minors
Standard of care for minors is the care that would be exercised by a reasonable child of similar age and experience, EXCEPT when a child is engaged in a dangerous activity usually done by adults. Standard is then that of any person conducting the activity.
Duty Default Position
Everybody owes everyone a duty of reasonable care (when you act, have to act reasonably)
Affirmative duty default
No duty. Generally can’t make someone do something.
Exceptions (affirmative duty):
No affirmative duty to act unless:
1. special relationship
a. innkeepers and guests
b. common carriers and passengers
c. possessors of land
d. person’s who have custody of another in circumstances in which the other is deprived of normal opportunities for self protection
e. co-adventurers on a hazardous undertaking
2. Voluntary undertaking
3. Negligent/non negligent injury of another
4. Negligent/non negligent creation of risk
Rowland Factors (when departure from default position is appropriate)
- foreseeability of harm (less foreseeable-no duty)
- certainty that P suffered injury
- Closeness of the connection between conduct and injury
- Moral blame attached to Ds conduct
- Policy of preventing future harm
- Burden to defendant in imposing a duty to exercise care
- Insurance for risk involved
Psychotherapist Rule
Psychotherapist owes a duty not only to patient, but to third party foreseeably in danger of harm by patient
Social Hosts
Generally no duty to a third party injured by the actions of their guests’ intoxication
Negligent entrustment
One who supplies a piece of personal property for the use of another whom the supplier knows is likely to use it in a manner involving unreasonable risk of harm to himself or others is subject to liability for resulting physical harm.
Broad rule: applies to anyone who supplies a chattel for use of another
Narrow rule: limited where D owns or has the right to control the chattel
Duties of landowners and occupiers, policy implications to get rid
- Outdated, less than 0.5% of Americans own estates of a comparable size (to those in England)
- arbitrary, why reasonableness only to invitees?
- unpredictable, so many exceptions
