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Negligence

Terms in this set (84)

Elements to establish prima facie case of Negligence
P must show that (1) D had duty to act with a certain standard of care, (2) D breached that duty, and (3) that breach caused (both actual and proximate) P's injuries
Duty - General Rule
D has a legal duty to foreseeable Plaintiff's act as an ordinary, prudent, reasonable person taking precautions against unreasonable risk of injury to others.
Duty - Rescuers
owed an independent duty (because per se foreseeable Plaintiff)
Duty - Nonprofessional Rescuers
Are foreseeable Plaintiff's as matter of police and can recover against negligent party creating need
No duty to rescue/aid, except when
(1) defendants tortious conduct creates need to rescue, (2) if person undertakes recuse (must act reasonable - but remember good samara tin statues), and (3) special relationship of dependency or mutual dependence (carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies)
Duty to Control Third Parties
Generally no duty as to prevent harm to others, except when a special relationship between Defendant and third party gives the third party a right of protection or imposes a duty on Defendant to control the third party's conduct
Providers of alcohol
not responsible for DUI injuries
Dram Shop Acts
Imposes Liability on establishments when they know, or should know, a patron is drunk, and that person drive while intoxicated and harms 3rd party (doesn't apply to social host, only those licensed to sell)
Negligent Entrustment
When Defendant gives something dangerous to someone Defendant knows or should know is not competent to handle it
Duty to Protect
Generally no day to protect another person from 3rd party conduct UNLESS special relationship - like LL/T or business/inviteee [BUT some require special relationship and prior similar incidents]
D government entity - Proprietary Function
When acting in private area, treated as any other Defendant for duty analysis
D government entity - Discretionary Activity
When using judgment and allocating resources (i.e., setting Polic) then no duty
D government entity - Ministerial Function
Duty once government has undertaken to act (ex: incorrectly installed stop sign leads to accident)
D government entity - Public Duty Doctrine
No duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, EXCEPT when:
(1) Special relationship between P and the agency; OR
(2) Agency has increased the danger beyond what would otherwise exist.
Negligent Infliction of Emotional Distress
Defendant engages in negligent conduct and, as a result, Plaintiff suffers emotional distress that has some sort of physical manifestation [Most require P be in zone of danger]
NIED - Exceptions
(1) Defendant negligently shares information about the death of a loved one, (2) Defendant negligently mishandles a corpose
NIED - Bystander Actions
Plaintiff must (1) be located near scene of accident, (2) suffer severe emotional distress, and (3) have close relationship with victim (immediate family member)
Wrongful Conception
Birth of a healthy child after the P took steps to avoid conception, often a negligently performed sterilization procedure.
(1) Can get damages related to surgery, etc., but not for having to raise kid
Wrongful Birth
Birth of a child with anomalies, disease, or disability when the physician failed to diagnose issues during the pregnancy.
(1) P must claim that she would have ended the pregnancy if the physician had not negligently failed to diagnose.
Wrongful Life
Child's claim for having been born with anomalies, disease, or disability because the physician failed to diagnose issues during the pregnancy.
[Almost no court will allow]
Invitee
Enters on Defendant land at Defendants express or implied invite and for purpose relating to Defendant's interest or activities
Invitee - Duty Owed
D has duty to exercise Reasonable Care to prevent injuries caused by activities conducted on Defendant's land
Licensee
Enters Defendants land with Defendants express or implied permission and is not there for a purpose benefiting Defendant or Defendant's activities, nor is the land held open to the public
Licensees - Duty Owed
Warn of known concealed dangers that are not obvious (just warn, not cure)
Trespassers
Enters DEfendant's land without express or implied consent of land possessor
Trespassers - Duty Owed
Generally no duty (except to avoid infliction of willful or wanton harm)
Know/frequent Trespasser
Duty to warn of known and concealed dangerous artificial conditions
Child Trespasser (Attractive Nuisance Doctrine)
Even if trespassing, Child treated as invitee if (1) too young to appreciate the danger, (2) Defendant knows or has reason to know f the trespass, (3) Defendant knows of the dangerous condition, (4) condition is artificial, and (5) the risk of danger of the artificial condition outweighs its utility and burden to fix t
P not on land but adjacent to it - Artificial condition on Land
Duty of reasonable care
P not on land but adjacent to it - Natural condition from land
No duty, except keep trees from causing harm in urban areas
Landlord Tenant - Rule
LL in not liable unless (1) common areas over which LL retains control, (2) negligent repairs, (3) at time of lease, LL knows of a concealed dangerous condition, or (4) LL knows that T is going to hold property open to public
Standard of Care - RPP
Reasonable Prudent person under same or similar circumstances
RPP - Objective Test
Defendants conduct is measured against expectation of conduct within community {doesn't account for mental ability, speed, reflect, or mental health]
RPP - Objective Test does account for
(1) physical conditions [blind, deaf, amputee] - RPP with that condition, (2) emergencies not of D own making - jury can consider to determine if D acted reasonably
RPP - Breach
Failure to act as RPP, analyzed under Hand Formula
RPP Breach - Hand Formula
(1) What is the probability of harm occurring from D's conduct?
(2) What is the likely magnitude of the harm going to be?
(3) What is the burden on D to avoid the harm?
Standard of Care - Children
Minor Defendant's conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence as Defendant would have done (BUT if engaged in adult inherently dangerous activity - adult standard of care)
Statutory Negligence
Statute that provides civil liability supersedes common law of torts
Negligence per se
Where Defendant's conduct also violates a statute that does not provide for civil liability (criminal statute) that statute can establish the standard of conduct for breach of duty purposes (ex: criminal traffic law)
Negligence per se - applies if
(1) Plaintiff is member of a class the law is designed to protect, and (2) Injury caused by Defendant's conduct is the type the statue sought to protect
Negligence per se - If statute applies
Unexcused violation of the law establishes that Defendant breach duty to Plaintiff, but Plaintiff still needs to prove causation and damages EXCEPTION (1) excused statutory violation [ex: emergency not D's own fault]; (2) licensing statues - no license
Negligence per se - If statute doesn't apply
Statute will not set standard of care, case proceeds under RPP, not negligence per se
Professional - Medical Malpractice
Physicians are required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic regions [Specialists - national standard; general practitioners - locality standard]
Professional - Lawyers, architects, accounts
Must comply with custom (deviation = breach)
Professionals - Lack of Informed Consent - Traditional (battery)
Physician liable for battery if no informed consent about risks; consent is negated by lack of disclosures
Professionals - Lack of Informed Consent - Traditional (negligence)
Physician must divulge risks that are customarily divulged by a physician in the same set of circumstances (professional rule).
Professionals - Lack of Informed Consent - Standard of Materially (new trend)
Physician must divulge all material risks, meaning risks that a reasonable patient would want to know in deciding whether to undergo the procedure or treatment (patient rule).
Breach of Duty
Failure to meet standard of care - Plaintiff must prove every element of the prima facie case by POTE
Breach of Duty - Direct evidence
(rare) an eyewitness or a recording of the accident while occurring
Breach of Duty - circumstantial evidence
Evidence from which one can draw a reasonable inference
Slip-and-Fall Cases
Plaintiff must show that Defendant was negligent for not discovering and requiring the dangerous condition (dangerous condition was present long enough that D should have noticed) [think banana peel cases]
Res Ipsa Loquitor
Allows jury to infer Defendant's breach based on nature of the accident and Defendant's relationship to it [arises in cases where can't say precisely what did wrong, but smells like it]
Res Ipsa Loquitor - Plaintiff needs to show:
(1) this sort of accident does not normally occur absent negligence; (2) Defendant is probably responsible party because D had control over instrumentality of the harm, and (3) Plaintiff did not contribute to injury
Cause-in Fact (Actual Cause)
Plaintiff shows that, it is more likely than not, that but for Defendant's negligence, Plaintiff would not have been injured [just needs to be more than 50%]
Cause-in-Fact - Multiple Causes - Substantial Factor Test
Each Defendant is a cause-in-fact if each was a substantial factor in causing the harm [Assume joint and several liability]
Cause-in-Fact -Loss of Chance (typically med Mal - not majority)
Plaintiff must show that but for med Mal, Plaintiff would not have lost chance/died [so if already had 60% chance to die no recovery] BUT modern rule simply reduces damages but doesn't extinguish
Cause-in-Fact - Alternative Liability theory - Applies when
(1) All Defendant's tortious/negligent, (2) All Defendant's are being sed together (can't use if one left out); (3) Small number of Ds
Cause-in-Fact - Alternative Liability theory - Rule
Burden shifts to Defendant's to show that they were not the cause. If they can't do so, they are jointly/severally liable.
Cause in Fact : Market Share Liability
Plaintiff cannot show which of a large group of negligent Ds was responsible for manufacturing the product that caused her harm.
Plaintiff can sue those who might have caused her harm and each D is responsible based on its share of the market, unless can show their product couldn't have harmed.
Proximate Legal Cause - Rule
In addiction to be a cause-in-fact of Plaintiff's harm, Defendants conduct must also be the proximate, or legal cause of the injury
Proximate Legal Cause - Foreseeable Plaintiffs
Defendant only owes a duty of care to foreseeable Plaintiffs who are within the zone of danger
Proximate Legal Cause - Unforeseeable Plaintiffs - Egg-Shell Rule
Defendant is liable for full consequences (extent) of Plaintiff's injury, even though, due to Plaintiff's peculiar susceptibility to harm (of which D was aware) those consequences were more severe that they would have been in normal person
Proximate Legal Cause - Superseding cause
Is an unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury, thus reliving the original tortfeasor from liability
Common Superseding Cause Examples
(1) Naturally occurring phenomena, (2) Criminal acts of third persons, (3) Intentional torts of third persons, or (4) Extraordinary forms of negligent conduct
Proximate Legal Cause - Intervening Force
One that actively operates in producing harm to another after the actor has already committed his negligent act or omission
Intervening Force - General Rule
Defendant is liable for harm caused by foreseeable intervening force
Foreseeable Intervening Forces
(1) Ordinary negligence of a rescuer; or (2) Plaintiff treating physician or nurse; (3) Disease contracted or subsequent injuries sustained because of impairment of P's health resulting from original injury caused by D's tortious conduct
Damages - Rule
Plaintiff must affirmatively prove damages. Must be a cognizable injury. Personal injury and property damage recoverable
Compensatory Damages
Return Plaintiff to pre-injury position
Compensatory Damages - Requirements
(1) Type of damage must be foreseeable (not the extent, but the type of damage);
(2) Must be reasonably certain (not speculative); and
(3) Not avoidable.
Avoidable Consequences Rule
Plaintiff must take reasonable steps after injury to not increase/exacerbate the injury.
Compensatory Damages - Special Damages
Pecuniary (medical costs), lost wages, and cost of repair [can recover past, present or future (reduced to PV) damages
Collateral Source Rule
Fact that P has insurance to cover some or all damages does not mean that D does not have to pay up. D should not benefit from P's foresight. Rule also applies to gratuitous services (e.g., spouse who provides caretaking for injured P).
Compensatory Damages - General Damages
Pain and suffering (but controversial)
Damages - Punitive Damages
Never recoverable for just negligent conduct. D's act must be more culpable than negligence, like willful, malicious, or reckless
Defense to Negligence - Contributory Negligence and Comparative Fault - Rule
Defendant has burden of proof to show Plaintiff's conduct was unreasonable and fellow below RPP standard
Defenses - Contributory Negligence [only apply if told too]
Any fault by Plaintiff bars recover.
Contributory Negligence - Last Clear Chance Doctrine (usually wrong answer)
If Defendant's negligence occurs after Plaintiff's negligence, so that Defendant had last opportunity to avoid the harm, Plaintiff is entitled to full recovery
Pure Comparative Fault [Default MBE Rule]
Plaintiff can recover no matter how much Plaintiff is at fault, recovery is the amount of damages minus the percentage that Plaintiff is at fault. [assume joint & several liability unless told otherwise]
Modified Comparative Fault
Plaintiff is barred from recovery if as much or more at fault than Defendant
Defenses - Assumption of Risk
Plaintiff orally or in writing, relieves D of responsibility to be non-negligent. Typically, waiver that accompanies athletic or recreational activities. NOT allowed for necessities
Implied Assumption of Risk
Recovery is barred or reduced if Defendant establishes that Plaintiff: (1) Knew of and appreciated the nature of the risk;
(2) Appreciated the specific danger that injured P; and
(3) Voluntarily chose to subject himself/herself to that danger.
Assumption of Risk - Professional Rescuers
Where P is a professional rescuer and is injured due to an inherent risk of that job, P cannot recover in negligence against the person who created the need for rescue.
Primary Assumption of Risk
In certain contexts, no duty to be non-negligent. Often arises in the context of sporting events.
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