TORTS: Negligence

Question 1

Negligence

Answer 1

A prima facie case of negligence occurs when the defendant’s conduct imposes an unreasonable risk on others and results in injury to another person. To recover for negligence, the plaintiff must prove the elements of duty, breach of duty, actual cause, proximate cause, and damages.

Question 2

Duty of Care

Answer 2

Defendants owe a duty of care to behave as a reasonably prudent person under the the circumstances to all foreseeable plaintiffs. The reasonably prudent person standard is considered to be someone with defendant’s physical characteristics and special knowledge or skills. A foreseeable plaintiff is someone within the zone or danger, the area around defendant’s activities in which a person could foreseeably be injured. Defendant is also liable for injuries to third parties who attempt to rescue defendant or plaintiff.

Question 3

Specialized Standards of Care

Answer 3

Children
Common Carriers & Innkeepers
Custom and Trade Usage
Professionals
Statutory Standards
Landowners/Occupiers

Question 4

Children

Answer 4

Children under the age of 5 have not duty of care to others. Children over the age of 5 are held to the standard of care of a reasonable child of similar age, education, intelligence, and experience. Children engaged in adult activities, such as operating a motor vehicle, must conform to the adult standard of care in that activity.

Question 5

Common Carriers & Innkeepers

Answer 5

Are held to the “utmost care” standard which means they are liable for even slight negligence to passengers or guests.

Question 6

Custom & Trade Usage

Answer 6

Custom or usage in an industry can be used to establish a standard of care, but compliance does not establish a lack of negligence and failure to adhere does not automatically trigger a breach of duty.

Question 7

Professionals

Answer 7

Must act with the knowledge and skill of a member of their profession who is in good standing in similar communities. For medical professionals, the community is a national standard of care.

Question 8

Statutory Standards

Answer 8

An existing statute with a criminal penalty may establish a standard of care and replace the common law if plaintiff shows that (1) the statutes was intended to prevent the type of harm that the plaintiff suffered and (2) plaintiff was in the class of persons intended to be protected by the statute. The statutory standard does not apply if compliance is more dangerous than non-compliance or compliance is impossible under the circumstances.

Question 9

Unknown/Undiscovered Trespassers

Answer 9

No duty owed

Question 10

Anticipated Trespassers

Answer 10

Duty to warn of known dangers and artificial conditions that pose a risk of death or serious bodily injury.

Question 11

Firefighter’s Rule

Answer 11

First responders who are injured in the line of duty are prohibited from recovering on negligence theories for injuries within the scope of risks of the job.

Question 12

Affirmative Duty to Act

Answer 12

Defendant usually has no duty to take affirmative action exception where there is a special relationship between the defendant and plaintiff, the defendant’s conduct placed the plaintiff in danger, or the defendant voluntarily beings to render assistance, in which case defendant must use reasonable care. Special relationships include parent/child, employer/employee, landlord/tenant (CLAPS), or business/customer.

Question 13

Bailment Duties

Answer 13

If bailment is for bailor’s benefit only, the bailee’s standard of care is low; if bailment is mutually beneficially, then ordinary standard of care applies; and if bailment is for bailee’s benefit, then a higher standard of care is imposed. For gratuitous bailments, the bailor must inform the bailee of any known, dangerous defects; for bailments for hire, the bailor must inform bailee of any defects.

Question 14

Attractive Nuisance Doctrine

Answer 14

Must exercise ordinary care to avoid foreseeable injury to children if the owner knew or should have known that children might trespass in the area, that the conditions poses unreasonable risk of death or serious injury, that children cannot discover the risk or realize the danger, that the benefit to the owner and cost to remedy is small compared to the risk to the children, and the owner fails to use reasonable care to eliminate danger.

Question 15

Licensee

Answer 15

Plaintiff enter lands with consent for his own purpose (e.g., social guest). Owners has duty to warn of known dangerous conditions that create an unreasonable risk of harm that licensee cannot discover on their own and owner must use reasonable care in conducting active operations. No duty to inspect or repair.

Question 16

Invitee

Answer 16

Plaintiff enters land at owner’s invitation (businesses) or as a public invitee to land open to the public at large. Owner has duty to make reasonable inspections to find hidden dangers and to take affirmative action to remedy dangerous conditions.

Question 17

Breach of Duty

Answer 17

Defendant’s conduct fell short of the standard of care owed under the circumstances.

Question 18

Res Ipsa Loquitor

Answer 18

The fact that the accident occurred at all suggests negligence conduct. Plaintiff can plead res ipsa if the circumstances surrounding the incident are unknown to plaintiff, the harm would not have occurred absent negligence, the defendant had control over the injury-causing instrument, and the injury was not attributable to plaintiff.

Question 19

Actual Cause

Answer 19

Establishes the causal connection between the plaintiff’s injury and defendant’s breach. The “but for” test means that but for defendant’s conduct, the plaintiff would not have been injured. Where multiple defendants are at fault and their conduct combines to injure the plaintiff, all will be jointly and severally liable under the substantial factor test. If there were multiple defendants acting but only one was at fault, then burden shifts to defendants to prove actual cause.

Question 20

Proximate Cause

Answer 20

Defendant is generally liable for all harmful results that are reasonably foreseeable, including intervening causes such as subsequent medical malpractice and rescuer negligence. Defendant takes his plaintiff as he finds him, meaning defendant is liable for all physical consequences to plaintiff even if plaintiff is unusually sensitive. Defendant is not liable for superseding intervening causes that were not foreseeable and that break the chain of causation.

Question 21

Damages

Answer 21

Plaintiff must prove an actual injury, nominal damages are not available in negligence actions. Plaintiff may recover personal injury damages, including direct losses, economic losses, and non-economic losses. Plaintiff may recover property damages such as reasonable cost of repair or full market value at time of accident if property is irreparable. Plaintiff may also recover punitive damages if defendant’s conduct was wanton and willful. Damages must be foreseeable and plaintiff has a duty to mitigate.

Question 22

Negligent Infliction of Emotional Distress (NIED)

Answer 22

Plaintiff must show that the defendant engaged in negligence conduct that caused the plaintiff to suffer serious emotional distress. Plaintiff must suffer an actual physical injury or a threat of physical impact that directly causes emotional distress. If plaintiff is a bystander, then the majority rule requires that plaintiff be in the zone of danger to recover. California requires that plaintiffs directly observe the injury causing event and be related to the injured person.

Question 23

Defenses

Answer 23

Comparative Negligence
Contributory Negligence
Assumption of the Risk

Question 24

Comparative Negligence

Answer 24

Majority rule. Plaintiff’s recovery is reduced if defendant establishes that plaintiff’s injuries are partially the result of their own negligence. In pure comparative negligence jurix, plaintiff can recover damages even if they are more than 50% at fault. In modified comparative negligence jurx, plaintiff can only recover if they were 50% or less at fault.

Question 25

Contributory Negligence

Answer 25

Minority rule. Plaintiff is barred from recovering if plaintiff’s own negligence contributed any part to their injuries, even just 1%.

Question 26

Assumption of the Risk

Answer 26

Plaintiff may be denied recovery if he assumed the risk of any damages caused by defendant’s act where he knew of the risk and voluntarily consented despite the risk. Waivers are less likely to be enforced if it was an adhesion contract.