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36 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Negligence
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Negligence is the breach of a duty of due care, which is the actual and proximate cause of P’s injuries.
In order to raise a cause of action for negligence, P must show: (1) duty; (2) breach of duty; (3) causation; and (4) damages. |
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Duty of care
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1. To whom is the duty of care owed?
2. What is applicable standard of care? |
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To whom is the duty of care owed?
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A duty of care is owed only to FORESEEABLE victims.
Who are forseeable victims? Majority: Cardozo view: Zone of danger Minority: Andrews View |
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Cardozo view
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P can recover only if P can establish that a reasonable person would have foreseen a risk of injury to P in the circumstances, i.e., P was within a foreseeable "zone of danger."
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Andrews view
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D owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone.
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Resecuer exception
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A rescuer is a foreseeable plaintiff as long as the rescue is not wanton.
Thus, D is liable if D negligently puts himself or a third person in peril and P is injured in attempting a rescue. |
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Unforeseeable victim
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Since P was outside the zone of danger, P was unforeseeable victim. Thus, D did not owe a duty to P.
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Standard of care
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An objective standard
D is measured against a reasonably prudent person acting under the circumstances |
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Factors not considered in determining the duty of standard
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Mental disability (capacity), Experience
Age (except minors) Gender |
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Factors considered in determining the duty of standard
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Physical characteristics (physical disability)
Superior knowledge |
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Physical characteristics
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The reasonable person is considered to have the same physical characteristics as D
A person is expected to know his physical handicaps and is under a duty to exercise the care of a persion with such knowledge (it may be negligent for an epileptic to drive a car) |
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Superior knowledge
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D with a knowledge superior to that of the average persion is required to use that knowledge.
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Special duty standards
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Children
Professionals Negligence per se Duty to act affirmatively |
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Duty standard for children
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Children under the age of 4 owe no duty to the rest of the world.
Children from 4 to 18, owe a duty of a child of the same age, experience, and intellegence acting under the similar circumstances |
The standard of care for a child is very subjective.
It differs from one child to another. |
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Duty standard for professionals
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A professional owes to his customers or patients a duty of care of an average member of that profession who practices in the similar community.
The similar community (Majority rule): In general, this requires us to compare big city doctors to big city doctors, and small city doctors to small city doctors. Exception: Specialists are not held to the standard of doctors in their geographic community. They are held to the standard of others practicing in the same specialty nationwide |
Professionals are ones providing services to the public. They have special skill and training and they are usually licensed.
Certified public accounts Engineers and architects Laws Medical professionals (doctors) The standard is established via an expert testimony |
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Professional duty
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Duty to disclose risks of treatment
A doctor has a duty to disclose to the patient risks associated with the treatment in order for the patient to make intelligent decision on whether to undertake the treatment |
No obligation to disclose commonly known risks that are routinely appreciated by all patients or if the patient refuses
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Negligence per se
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Existence of duty and breach thereof may be established as a matter of law by proof that D violated an applicable statute.
Negligence per se is applicable when P is a member of the class the statute is trying to protect and (2) risk is within the class of risk that the statute is trying to provent. Two exceptions: If statutory compliance would have been more dangerous than violating the statute If compliance with the statute is impossible |
Class of person-class of risk
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Duty to act affirmatively
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There is no duty to act affirmatively (no duty to rescue).
Exception: If D put P in the position of peril, then D has the duty to rescue If there is a preexisting relationship between D and the individual in peril, then D has the duty to rescue When there is such a duty, the duty is to rescue reasonably under the circumstances Once D who has no duty to rescue chooses to rescue, D must rescue like a reasonably prudent person. |
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Breach
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Negligence per se
Res ipsa loquitor Negligent infliction of emotional distress |
In writing:
1. Identify a specific wrongful conduct 2. Explain why it is wrong |
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Res ipsa loquitor
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For this doctrine to apply, P must establish that (1) the accident causing the injury is the type that would not NORMALLY occur unless someone was negligent; (2) instrumentality that caused the injury was in the EXCLUSIVE CONTROL of D.
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Res ipsa loquitor applies when P does not know and cannot find out what D did wrong.
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Negligent infliction of emotional distress
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The duty to avoid emotional distress to another is breached when def (1) caused a threat of physical impact that lead to emotional distress or (2) directly caused severe emotional distress that is likely to result in physical symptoms.
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Causation
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Factual cause
Proximate cause |
Important Note:
Making sure do not talk about the D being the factual cause, but the breach being the cause in fact. |
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Cause in fact
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"But for" cause
Substantial factor test Unascertainable cause |
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"But for" cause
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But for driver's falling asleep , P would have not been injured
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Counter argument against "but for" cause
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Even if the driver did not fall asleep on the wheels, P would have been still injured
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Substantial factor test
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Substantial factor test: Wether each of Ds' breaches might cause the harm by itself, then it is deemed to be a substantial factor.
If both D are substantial factors, then they both are jointly liable |
Merged causes:
Two fires, two stream of polutions, two sources of load sound, etc. |
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Unascertainable cause
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The burden of proof shift to Ds for each D to show that his breach could not and did not lead to the harm
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Normally, P has the burden to prove all the elements required by propodenrance of evidence.
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Proximate cause
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Foreseeability
D is held responsible only for foreseeable consequences of his breach Direct cause question Indirect cause question |
For the purposes of understanding, this is related to fairness
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Eggshell skull doctrine
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"You take your victim as you find him."
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Eggshel skull doctrine applies to all torts.
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Indirect cause
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Courts held that D is liable for the whole:
Intervening medicial treatment (neligent doctor is alos liable for his wrong) Intervening rescue Intervening protection or reaction forces Subsequent disease or accident |
In all these cases, all are foreseeable.
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Damages
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Eggshell skull doctrine
Duty to mitigate Collateral source rule |
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Duty of care
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Standard of care
Heightened standard of care |
To whom did D own such a duty?
D owned a duty only to a foreseeable victim. |
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Exception of a reasonably prudent person standard
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D has superior knowledge relevant to the matter surrounding the accident, then the standard of care is a reasonably prudent person with that superior knowledge
Physical disability |
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Adult activity exception
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If a child engages in an adult activity, the standard of care is a reasonably prudent person standard.
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Vacarious liability
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Donctrine of respondeat-superior
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Vicarious liability Subtitle
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Whether is Com vacariously liable for the driver's negligence?
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