Negligence

Front 1

Unreasonable conduct that creates a foreseeable risk of harm; evaluated against a social norm, based on what a reasonable person would have forseen and done under the circumstances. (objective test)

Back 1

NEGLIGENCE

Front 2

Duty.Breach.Causation.Damages

Back 2

4 Elements of Negligence

Front 3

(required standard)to use reasonable care (what a reasonable person would do) standard of care for a ordinary person NONFEASANCE-don’t have to do anything if you weren’t doing anything-(not required to help someone if you didn’t get them there)

Back 3

1- Duty

Front 4

-(failure to confirm to required standard) did not act as a reasonably prudent person would. Was there a breach of that duty? What should you have done under the circumstances? What did you do? If you didn’t do what you should have done there is a breach and proceed to causation

Back 4

2- Breach

Front 5

the breach of duty must have caused the injury-
-CAUSATION IN FACT-established when the evidence shows that the Ds act or omission was a necessary outcome of Ps injury. “BUT FOR” CAUSATION- P would not have been injured but for the act or omission on the part of D
-Legal (proximate) Causation-Addresses issue of how far Ds action/omission can be treated as a cause of Ps injury. (public policy makes us draw the line)
***IF IT WAS ESTABLISHED THAT THE ACTIONS OF D CAUSED THE INJURY THEN PROCEED TO THE AMOUNT OF DAMAGES (jury question)

Back 5

3- Causation

Front 6

Actual Loss or Damage is required! If no damages there is no tort- If D acts unreasonably and in a way that produces a very high probability of harm there is still no case unless P is injured in some way-
Statute of limitations does not start to run until the victim suffers damages- (judged objectively)

Back 6

4- Damages

Front 7

1- The Probability of Damage/Harm (P)
a- how likely is the injury to occur-
b- has it happened before?

2- The Severity of the Resulting Injury (S)
a- will the resulting damage be serious injury to Plaintiff?
b- will it only lead to minor harm?

3- The Burden of Adequate Precaution (B) (what D did not do &should have done to avoid harm)
a- how much would it take to make this thing safe so society is protected-benefit all society
b-all the reasons why you don’t do something told/make something safe-it is too much of a bother

Back 7

NEGLIGENCE-DUTY FORMULA
What is the standard of care for a reasonable and ordinary person?

Front 8

Probability x Severity > (greater than) Burden = negligence -not socially acceptable risk

Probability x Severity < (less than) Burden = NO negligence -socially acceptable risk-no duty to act

IF UNREASONABLE RISK ---> NEGLIGENT

Back 8

FORMULA:

Front 9

is used to find if a person owes a duty to another person and if there has been a breach- if we find you are in breach of your duty then we know that your duty should have been higher-
AS THE THREATENED HARM BECOMES MORE SEVERE, YOU SHOULD TAKE MORE PRECAUTIONS
RISK-UTILITY-measures the risk v. the social utility or benefit of an act- if the risk is greater than the utility then the D will be found liable.
The reasonable man standard is no longer socially acceptable. We will refer to it as the reasonable person standard in torts.

Back 9

Negligence Formula

Front 10

Subjective knowledge (not knowing) or intent (making a mistake) DOESN’T matter (not an excuse for conduct) and still possible to be found guilty of negligence from the act
THE LAW DOESN NOT TAKE INTO CONSIDERATION IF THE PERSON IS CLUMSY STUPID INCOMPETENT ETC.
The jury decides what a reasonable and prudent person thinks- CUSTOMS ARE NOT DETERMINATIVE OF WHAT A RPP WOULD DO BUT THEY ARE ADMISSIABLE IN COURT.
If RPP is in an emergency then the standard is a RPP in an emergency would be compared. (Standard of care is lowered)
You hold a certain professional (blue or white collar) to their own standard of care for their “group/profession”

Back 10

THE REASONABLE & PRUDENT PERSON STANDARD- (BREACH)

Front 11

(Blind, deaf, missing limbs etc) – what would a RPP with a similar disability do?

Back 11

Physical Disabilities

Front 12

held to a reasonable standard of a child of like age, intelligence, maturity and experience.
**EXCEPTION: If a child is engaged in an inherently dangerous activity/adult activity the child should be held to an adult standard of care/reasonable person standard of care.

Back 12

Children Care Standard

Front 13

Will be held to the same Reasonable Prudent Person standard.
**EXCEPTION: Sudden onset of mental illness; NEVER HAD IT BEFORE AND DIDN’T SEE IT COMING.

Back 13

Mentally Disabled/Ill person

Front 14

People who hold themselves out as having special knowledge or skill.
-Regardless of a written contract- you can sue for BREACH OF DUTY
Anyone in the yellow pages is held to that specific reasonable profession standard (plumbers)

Back 14

THE PROFESSIONAL REASONABLE & PRUDENT PERSON STANDARD

Front 15

What other doctors in the community would do is the STANDARD OF CARE – the Medical field is very sophisticated and the jury won’t know what they are talking about – (need expert testimony)

Back 15

WITH PHYSICANS THE UNLIKE ANY OTHER PERSON OR PROFESSIONAL THE CUSTOM IS ADMISSIBLE AND THE STANDARD *MUST* BE PROVEN

Front 16

1- Local Community Standard of Care- local (same city/state) Physicians/doctors
2- National Community Standard of Care- Specialists (Board Certified)
3- Similar Community Standard of Care- (if you can’t get specialists from your area so you get similar area)

Conspiracy of Science is an issue courts may have to find a local expert doctor to testify against another doctor

Back 16

3 Types of Community Standards to determine Standard of Care

Front 17

A physician MUST tell a patient (1)-info about the procedure (2) - material risk (3)- Alternative treatments
1- Physician standard (objective)- what do other physicians in the same community disclose?
2- Patient Based Standard (subjective)- What does the ordinary patient need to know in order to make up their mind
**If patient is incompetent (unconscious) there is a privilege to proceed if serious harm is a threat**

Issues- (1)- What should the physician have told the patient? AND (2)- Would the info have changed their mind?

Back 17

INFORMED CONSENT

Front 18

a- Objective Standard- Would the reasonable person have changed their mind? MAJORIITY
b- Subjective Standard- Would this specific patient have changed their mind? **if not specified talk about both**
Personal Interest- If the doctor has some interest in the patient he must disclose it or it is LACK OF INFORMED CONSENT (Doctor removed organ and made a commercial and made a lot of money- he did not disclose interest to patiend and the court ruled LACK OF INFORMED CONSENT

****Establishment of lack of informed consent is a prima facie negligence cause not a defense for the physician****

Back 18

Causation- 2 possible approaches-

Front 19

The rules of both common law and statutory law can sometimes serve as the standard of care in a particular situation-
MAIN IDEA (Rationale)- A reasonably prudent person obeys the law-
*Judge decides whether to bring in the Law or NOT then instructs the jury of the Standard of Care- this can predict the outcome of a case and adjust the way they try the case.

Back 19

The “Common Law” & “Statutory Law” Standard of Care ***THE RULES OF LAW STANDARD OF CARE***

Front 20

1- Advantages-
a-Imposes duty on all people in a given situation
b- Standardizes the Standard of care THEN simplifies or prevents suit
c- “As a matter of law, this conduct constitutes negligence”

2- Disadvantages-
a- Too many extraordinary circumstances to apply the rigid rule
b- Makes courts decide: “use statute or give to jury”

Back 20

***Courts decide to either APPLY THE STATUTE as the STANDARD OF CARE or the jury determines the STANDARD OF CARE in that particular situation***

Front 21

1- Violation of Statute----Should we use the law/statute? When?
a- the injured party is a member of the group of people that the stature was meant to protect
b-the harm that occurred is the kind of harm that the statute was meant to protect
c-the statute is an appropriate standard of care(reasonable or possible to use)

Back 21

***Applying the Law/Statute as the Standard of Care*** VIOLATION OF STATUTE

Front 22

*** If the nature of the claim/statute fails this test the standard is the “reasonable prudent person” ***
Ney v. Yellow Cab- D left keys in car and doors unlocked-thief stole car and hit 3rd party- existing statute imposes duty to lock car and take keys-
Was innocent bystander in protected group? YES - Was this type of injury protected? YES - Was statute appropriate to apply? YES - then statute can be used

Back 22

If these are all satisfied then the STATUTORILY IMPOSED DUTY can be used in deciding Standard of Care- and so go to #2 “how to use the statute?”

Front 23

How should we use the law/statute?

EXCUSES INCLUDE: Sudden incapacity/Emergency/Uncontrollable event where compliance of statute would cause greater risk

Back 23

2- Violation of Statute

Front 24

a- Negligence Per Se

b- Presumption of Negligence

c- Evidence of Negligence

Back 24

THREE Rules When Using the Law/Statute as Negligence: (how to handle excuses)

Front 25

(Majority Rule) – violation of a statute is negligence in itself
UNLESS there is a valid excuse (incapability, emergency, compliance)
JUDGE DECIDES IF THE EXCUSE IS VALID.

Back 25

a- Negligence Per Se

Front 26

) Violation of Statute Creates presumption of negligence that D must disprove (burden of proof shifts to D)
If presumption is NOT rebutted, there is negligence as a matter of law (found from violating statute) -Unless there is a valid excuse (excusable action) – jury will decide if the excuse is valid or not.
Hypo: no driving without taillights- D claims that the taillights went out while he was driving-judge tells jury to apply statute-UNLESS they feel D has an adequate excuse-up to the jury

Back 26

b- Presumption of Negligence (Michigan)

Front 27

Judge tells the jury it is up to them to decide what a reasonable person would do under the same circumstances; Can consider the violation of the statute as evidence when deciding or don’t apply it again left up to the jury.

Back 27

c- Evidence of Negligence

Front 28

1- Direct Evidence- eyewitness to testify as to what they saw

2- Circumstantial Evidence- facts or circumstances from which other reasonable facts can be inferred
(2 issues with circumstantial evidence- (1) will the circumstances convince the jury that D had notice and was negligent & (2) will the judge allow the case to go to a jury & if they can conclude that it is more likely than not D had notice)

Back 28

Proof of Negligence

Front 29

“action speaks for itself” – another type of circumstantial evidence- proof of what the defendant did.
APPLIED WHEN P CANNOT PROVE NEGLIGENCE BUT HAS A RESULT ---Makes Inference of Negligence Permissible regardless of little or no evidence (gets you past motion to dismiss)
Applies where there is no direct evidence of negligence or causation and limited to no circumstantial evidence; look for where P cannot prove negligence but only has the effect/result ---- (hypo-flour barrel falling from window--things like this don’t happen usually unless there is negligence—NO ONE BUT THE STORE COULD HAVE BEEN IN CONTROL OF BARREL → EXCLUSIVE CONTROL---we CANNOT rule out innocent causes- only say that it more likely than not occurred from negligence) IF NO EXCLUSIVE CONTROL → NOT RESPONSIBLE/NOT NEGLIGENT

Back 29

Res Ipsa Loquitor

Front 30

1- Defendant had EXCLUSIVE CONTROL of instrument that caused the injury

2- The accident/injury is of the nature that it could NOT have occurred BUT FOR negligent conduct on the part of the controller of the instrument.

You do not need to rule out the other possibilities that may have caused injury- you just NEED to prove that the defendant’s conduct/negligence is the MOST LIKELY reason

Back 30

TWO Requirements: ***NEED BOTH***

Front 31

“Common Sense” of jury decides of what happened is because of negligence
In “sophisticated” areas, an expert witness is called to tell us if what happened can occur without negligence and how-

**Ybarra v. Spangard** --- P was operated on and woke up with serious injury unrelated to the surgery→ negligence The problem is that the P could not identify the dr/nurse responsible- P sues ALL of the drs/nurses and the court says to Ds EITHER YOU WERE NEGLIGENT OR YOU KNOW WHO WAS NEGLIGENT- therefore we are holding you all responsible—BURDEN OF PROOF SWITCHED TO Ds-
ONLY WAY FOR D TO BE FOUND NOT GUILTY IS TO PROVE WHY THEY DIDN’T DO IT OR RAT ON ANOTHER DR/NURSE
**YOU EITHER DID IT OR KNOW WHO DID**

Back 31

RIL ***NOTES***

Front 32

Examples- Car driving down the road- sunny no rain and no other cars/objects around- car swerves off read and both driver and passenger are killed---- YES!! MUST PROVE THAT IT WAS MORE LIKELY THAN NOT THE CAR SWERVED BECAUSE OF NEGLIGENCE OF THE DRIVER-

Father suing man driving truck that overturned and killed his son- YES!! MUST PROVE THAT IT WAS MORE LIKELY THAN NOT THE TRUCK OVERTURNED BECAUSE OF NEGLIGENCE OF THE DRIVER-

Back 32

Is it Res Ipsa Loquitor ????

Front 33

Did the breach of duty cause the injury? This is proven by the preponderance of the evidence

Back 33

CAUSATION

Front 34

– Was this negligence an actual cause of the injury? Injury would NOT have occurred “BUT-FOR” negligence (breach of duty) on the part of the D

*Must prove that the Ds Breach of Duty caused the accident*

*If injury would have occurred without the BREACH OF DUTY of the D then there is no cause of action*

Maj-P MUST PROVE THAT IT IS “MORE LIKELY THAN NOT” THAT D CAUSED HARM *GREATER THAN 51%*

Min-P can recover for a “lost chance” even if it was less than 51%

Back 34

Causation- In Fact (Actual Cause)

Front 35

Perkins v. Texas Railroad- train hit car (P) the engineer(driver) D was speeding going 37mph when the limit was 25 mph this shows breach. Was the cause of the accident because of the 12 mph over the speed limit?? OR Would it have occurred if he was going 25mph? The court determined that even if the driver went 25mph there still would have been a collision → NO CAUSE-IN FACT of accident & NOT liable

WITH DOCTORS IF NOT DIAGNOSED/MISDIAGNOSED unless it is a 50% chance of survival there is no cause of action

Back 35

Examples of Causation- In Fact

Front 36

P has the burden to prove causation.

P must prove the breach/negligence more likely than not caused the injury—DON’T have to exclude other possible causes of the injury, just have to show that it’s the most likely cause

-MERE POSSIBILITY THE INJURY WAS CAUSED BY THE NEGLIGENCE IS NOT ENOUGH

If the D had done what you wanted him to do (the right thing) would the accident still have occurred? If YES then there is NO causation.

Back 36

Proving Causation in Fact- (the actual cause)

Front 37

3rd force (cancer-heart attacks-natural causes like tsunamis etc) is coming to cause the death of P- This is when D negligently failed to stop the outside force from killing the P

**SOME 3RD FORCE IS MORE LIKELY THAN NOT GOING TO KILL P and D FAILS TO NOTIFY P**

Back 37

Reduced Chance Liability

Front 38

a- Some jurisdictions (mich) if you DON’T have 50% chance of survival then there is no cause of action-There is only a cause of action for people who are more likely to life- (50% survival or greater).

b- Some jurisdictions give full damages for death if negligence caused reduction in chances for survival.

c- Some jurisdictions will give proportional recovery depending on the reduction of chance of survival. (14% reduction → 14% of wrongful death claim)
Ex. P diagnosed with cancer and given a 40% chance of survival and dr. negligently failed to diagnose the cancer early & Ps chance of survival was reduced to 25%

***When you have an unknown cause combined with a negligence cause the question is whether the negligence is a substantial factor of the harm.***

Back 38

Damages

Front 39

TWO or more- proved acts of negligence that put together caused one indivisible result AND if the acts were taken apart would NOT have occurred. Ex. D1 left his truck in the middle of a dark road without his lights on- D2 was the driver of car who saw truck in the middle of road last minute but couldn’t stop in time- P was a passenger with D2 and injured—Court ruled that BOTH Ds were held liable

Back 39

Concurrent Causes

Front 40

TWO or more- proved acts of negligence that put together caused one indivisible result and if the acts were taken apart still WOULD HAVE occurred- Everyone who COULD have done it is equally negligent and the shift of burden of proof is to the Ds -

Ex. Company A and Company B both start fires- both combine and burn down Ps house – either fire alone would have caused the same action BUT BOTH will be held liable-

Back 40

Substantial factor test

Front 41

In other cases it is possible to have 2 causes BUT one of them is of an unknown oragin—like the above case however Company A set a fire and an unknown party also set a fire, or a natural fire started- Company A would be found fully negligent and entirely liable. The SUBSTANTIAL FACTOR TEST is done- if the KNOWN party negligent (less than the preponderance of the evidence standard) if YES→ D is responsible for the injury-

All possible Ds are held liable and it is up to them to prove they did not cause harm. If liability is joint or several the P can seek the entire amount of the damages from any one defendant- That D usually will then have a contribution action against the other co-defendants-

Back 41

Uncertain Ds

Front 42

Alternative Liability and Market Shared Liability

Back 42

Problems in Determining Party Who Caused Harm

Front 43

one injury, evidently caused by only one of the parties, both whom were negligent, but the reasonable party cannot be determined or it is too difficult to do so. ***2 Negligent forces, 1 caused it the other DIDN’T but we don’t know who did*** The burden of proof shifts to the D to prove they didn’t cause the injury.

Summers v. Tice- 2 Ds were hunting and shot a bird at the same time—P was shot but we do not know which D shot him. **both Ds are liable unless they can individually prove why they were NOT the cause**

Back 43

1- Alternative Liability

Front 44

Burden of proof shifts to D and if they cant prove- they are held for their market share-NEED a-c then Ds are held liable.
a- If there are a number of different manufacturers/distributers of a certain product (making EVERY producer liable for negligence)
b- The actual manufacturer/distributer from which the product came cannot be determined.
c- The plaintiff has sued a SUBSTANTIAL portion of the relevant producers from the relevant time

THEN EACH DEFENDANT WILL BE HELD LIABLE FOR THE FRACTIONAL SHARE OF THE DAMAGES BASED ON THAT DEFENDANTS SHARE OF THE TOTAL MARKET

Back 44

2- Market Shared Liability

Front 45

to what extent can an actor be held liable for his negligent conduct
*The law will decide at what point D will not be liable(legal cause)* Need a sense of justice or fairness between cause of harm and its consequences-

*NY Fire Rule- responsible for fire but it has to end somewhere; liability ends one property out (1st injury/loss)

Ryan v. NY Central R.R.- RR engine set fire to a shed, shed →house to burn → caused several other houses to burn- the shed is where the liability ends.

Back 45

Legal Causation (Proximate Cause)

Front 46

conduct is negligent if it involves foreseeable and unreasonable risk (TWO TESTS)
*The harm incurred was foreseeable, it doesn’t matter “how” it occurred*
If the damages were not foreseeable there is NO duty- If a certain act is negligent but the resulting harm which occurred is different than that which should have been foreseen by the defendant → Under the foreseeability rule D is NOT liable.

Back 46

Unforeseeable Consequences

Front 47

Ex: Palgraff- D’s were employees of a train station—they were helping a passenger get on the train while it was moving and while doing this they negligently caused a package to fall, the package was filled with fireworks and they went off and as a result some scales located a great distance away were tipped and fell on P

a- The majority held that negligence towards someone is not enough—the question is one of breach of duty to the P which does not exist UNLESS the harm to P was foreseeable (which it wasn’t)

b- The minority held that a duty to exercise care is owed to ALL; one is liable for the cons

Back 47

Unforeseeable Consequences (Palsgraff Example)

Front 48

the D takes the P as he finds him – D will be held liable for all the physical consequences of the injury he causes P regardless of whether they are unusual, improbable or UNFORESEEABLE- If P has a special vulnerability and suffers a more serious injury than most people, D will be held liable regardless- Can be applied to mental weakness, It overrides Foreseeability; this is an exemption that runs right through; you will still be liable for the special susceptibility of the P— you are liable for aggravating injuries that were pre-existing- MUST BE PHYSICAL SUSCEPTIBILITY-

Majority-this applies to unforeseeable results stemming from pre-existing physical conditions AND mental conditions-

Minority- limits reach of doctrine to only pre-existing physical conditions.

Back 48

Thin Skulled Rule (eggshell theory)

Front 49

P was a bodybuilder who had a pre existing mental condition that made him sensitive to the wellness of his body- D got into a minor car accident with P and injured him- P was now unable to do physical things and went crazy- D was held liable**
(another example is if a waiter drops a knife on the food of a customer that is a hemophiliac and because of it she dies- D will be held liable)

Back 49

***Bartolone v. Jeckovich*** EXAM QUESTION- foreseeability test is on the exam

Front 50

the harm was from the direct result of the negligent act; the negligent act was the actual cause of harm- *regardless of whether the harm was foreseeable or not*
*****Polemis v. Withy*****Possible exam Q (polemis test—everything that comes about directly as a result of the tort (passes the “but for” causation test) are damages that must be assessed.

D was working on the deck of a ship they rented from P – D negligently dropped a plank to the bottom of the ship- the foreseeable injury would be minor damage to the ship or serious harm to another person. The plank actually fell into where the gas was stored and the whole ship went up in flames. Court said D was liable regardless of the fact that these results were unforeseeable.

Back 50

Direct Cause Test- (minority)

Front 51

when there are 2 causes in fact of the Ps injury;D is liable-

1- The defendant’s negligent conduct AND
2- The act of a third party or force/event that intervene D’s conduct and the injury-
Can be a human conduct/act – a natural force or event – MUST occur subsequent (after) negligence of D (or its concurrent cause)

Main idea- the intervening cause changes the situation (facts) from when D acted, thus if D is to be liable, D must have been able to foresee the intervening cause.

Back 51

Intervening Causes

Front 52

acts/forces must be unforeseeable AND they must produce unforeseeable results.
1- The manner of the intervening cause IS RELEVENT.
2- If intervening cause was negligence of another → not superseding
3- If intervening cause was a natural event/force that is not abnormal → not superseding
4- If intervening cause was CRIMINAL or INTENTIONAL on the part of a third person, this is strong argument AGAINST foreseeability and for superseding cause but NOT determinative.

Back 52

Superseding Cause

Front 53

Superseding Cause- is a defense for the D NOT to be responsible for something; they will be excused from liability.

***D will be excused from liability if the Intervening Cause is a Superseding Cause***

Back 53

Superseding Cause NOTES***

Front 54

Intervening –reasonably foreseeable- do NOT release D from liability

Superseding- extraordinary- CAN release the D from liability-Acts of God

Back 54

INTERVENING V. SUPERCEDING CAUSES

Front 55

if the IC was foreseeable then the IC is NOT a superseding cause- D will remain liable if the risk of the IC is the reason why Ds conduct is negligent- D spills gas, the probable consequence is that fire may break out→ D will NOT be relieved of liability if an independent cause ignites the fire.
Foreseeable consequences are often proved by saying that they are NOT unforeseeable or abnormal. Ex: negligent treatment by a doctor after D injures P is NOT foreseeable. --- Ex: D hits P who is knocked out in the road and someone else then hits and kills him → not unforeseeable so NOT superseding cause.

Back 55

Intervening v. Superseding Causes (Foreseeability)

Front 56

rescuers to be expected when someone is put in danger—if D causes an accident, D is responsible for the rescuers and check enforces (all the backup to help prevent more damage) -Initial tortfeasor responsible for initial harm & check enforces (drs) harm to rescuer-

If D injures P (rescuers); P goes to dr and dr makes it worse (dr is a check enforcer); D is liable for drs affravation of the injury (as will the doctor) Negligent “check enforcers” are liable for their harm only

Back 56

Danger Invites Rescue

Front 57

(applies to all first responders) D will NOT be held liable for firefighter/policeman injured in protecting/rescuing someone from their negligence.

Back 57

Firefighters Rule

Front 58

- D can be liable for suicide; if the suicide was the result of insanity and that insanity was because of Ds negligence →D is liable (NOT superseding cause)

Back 58

Suicide

Front 59

Liability of a Social Host for Distributing Alcohol-
1- D will NOT be liable for serving alcohol to ADULTS; unless they are serving someone who is visibly intoxicated. (in NJ can be liable for serving to adults)

2- D WILL be held liable for serving alcohol to MINORS.

Drug Cases- Only liable for 1st generations-----
Not liable for 2nd generations (grandchildren) Granddaughters of DES when grandmother ingested DES CANNOT win

Back 59

Public Policy

Front 60

legal obligation when danger is foreseeable-WHERE TORTS & CONTRACTS MERGE

Back 60

Duty part 2--- Duty of Care

Front 61

1- Misfeasance- doing something and doing it improperly (sue in contract and tort)
Ex: Someone enters into a duty to contract, a real contract. Bring car to shop to be repaired for $100 and they agree- Take car out and get in accident because car was repaired improperly.
**Doing something but doing it WRONG**

2- Nonfeasance-NOT doing anything; only preparation (sue in contract only) *No duty- not doing anything but should have done something*
Ex: Person takes car in and says repair car for $100, person picks up car and gets into an accident- Auto shop says he forgot to do the repair.

Back 61

Privity of Contract

Front 62

1- D→K→Person “x” – and someone gets injured “P”
P cannot sue D since they didn’t have a K with them.

Exception: when D produces/repairs something that is inherently dangerous if negligently made/repaired, since D knows 3rd parties may be harmed there WOULD be a duty to 3rd parties.

2- Defendants lawyer… K→Client (to make a Will) --- Beneficiary injured- Beneficiary can sue**

Back 62

Duty of Defendants to 3rd Parties (Misfeasance)

Front 63

Defendant didn’t do anything-
D has NO duty to act- starts off with NOT being responsible if they don’t act- NO obligation to come to the aid of anyone- UNLESS it is one of the exceptions

Back 63

Failure to Act (Nonfeasance)

Front 64

When the D has a duty to act

Back 64

EXCEPTIONS

Front 65

individual put in danger/harmed by something in Ds control- negligently or not- when harm occurs, there becomes a duty for D to come to the aid of any persons injured

Back 65

1- D controlled the Instrumentality of harm

Front 66

once you start helping you MUST continue- *preparing to give assistance is NOT giving assistance-so no duty imposed for just preparation. If D began to assist P, a duty is created for D to act as a reasonable person by continuing to assist*

Back 66

2- Commencement of Assistance (Undertaking)

Front 67

a- Special Relationship of Control over Victim- D has a special relationship with P (parent+child- employer+employee- husband+wife-doctor+patient-etc) A duty to act is imposed on the D to aid P (victim).

b- Special Relationship of Control over Perpetrator- D has a special relationship with the perpetrator—a duty to take reasonable affirmative action to prevent negligence or warn those in peril is imposed on D if he has a special relationship w the Perpetrator—IF the D knows or has reason to know that the perpetrator is going to commit tortuous conduct*

Back 67

3- Special Relationships of Control

Front 68

Lawyers have NO duty to tell about violent threats- there is no course in law school about psychology- **Past violence is the only thing that creates duty for lawyers to tell about threats of violence.

Psychologists/Psychiatrists have a duty to use Reasonable Care to protect 3rd parties- patient is a foreseeable risk and threat is specific (person can be warned) Therapist does in fact determine or under applicable professional standards reasonably should have determined that if a patient poses a serious danger of violence to others he bears a duty to exercise reasonable care to protect the foreseeable (specific) victim of that danger.

Back 68

Lawyers/Psychiatrists

Front 69

1- Tort Law- people should not intentionally harm others and one should not put another in danger through unreasonable conduct.

2- Property Law- a property owner should have exclusive control of his property;he should be able to do what he wants with it. (Goal is to balance property rights with the right not to be harmed.

3- Artificial Conditions- Any structures or other conditions that were not created naturally- (buildings/landscaping,etc)
a- Generally there is duty to make sure artificial conditions are safe
b- Shifts scale toward “misfeasance” rather than “nonfeasance”

4- Natural Conditions- Anything not manmade- (oceans,lakes,mountains etc)
a- Generally, no duty is owed to make natural conditions safer
b- Resembles more “nonfeasance” than “misfeasance”→ less (maybe no) duty

Back 69

Owners and occupiers of Land- General Principles/Terminology

Front 70

1- Natural Conditions- the LO owes no duty to those that are off the premises with regards to natural conditions.

a- LO owes no duty to others like to make a cliff or an ocean safer to protect others from harm-however foreseeable-
b- EXCEPTION: Adjacent Public Ways- the LO has a duty to exercise reasonable care (standard negligence) with natural conditions next to or nearby public ways- Ex: if D knows about ice or tree in the middle of a walkway they can be held liable for not exercising reasonable care
Taylor v. Olsen- D owned land on which there were a bunch of trees along the read- D never altered or tampered with the trees(natural conditions)- a branch fell on Ps car while driving and injured her; the condition was not obvious neither knew that would happen → not liable
c- D may be held liable even if it is found that he altered the natural conditions(shifts towards misfeasance)
d- Reasonable Care Standard applies only to adjacent public ways; no duty to exist on rest of property-

Back 70

Liability of landowner Outside the Premises

Front 71

1- D will be held liable for injury/damage off of the premises that results from either artificial conditions or human activity→ as a result of misfeasance

Ex: Salevan v. Wilmington Parks Inc- D built a baseball park- it often happened that baseballs would fly out of the park into adjacent streets; P was walking by one day and was hit by ball: court imposed duty on D to use reasonable care in preventing injury to those off the premises- meaning D must build a way that does not injure others → D was held liable

Back 71

Artificial Conditions

Front 72

2 Conditions- Natural and Artificial

Back 72

Liability of LO on the Premises

Front 73

LO does not have duty to protect those who come on the property from natural conditions

Back 73

1- Natural Conditions

Front 74

Duty owed will vary based on the type of individual on the premises → depends on notice and permission

Back 74

2- Artificial Conditions

Front 75

One who has neither right not permission to be on the premises-
1- No duty to make premises safe for trespasser (or warn of hidden dangers) AND no duty to protect them once they are there UNTIL

2- The LO has notice of the trespasser at which they have the duty to exercise reasonable care to avoid injury to the trespasser.

3- Sheehan v St. Paul & Duluth- P was a trespasser and was on Ds railroad track where he got his leg stuck and got ran over – D had no affirmative duty to take any measures to protect P- UNTIL they become aware that he was in danger at which time they should do everything in their power to avoid harm to P --- D was NOT liable

Back 75

a- Adult Trespasser

Front 76

due to children’s place in society, there is often greater duty to protect them from harm. ***Doctrine ONLY applies to ARTIFICIAL CONDITIONS***
1- If the injury occurs in a place the LO knows or has reason to know that children are likely to trespass AND

2- The LO knows or has reason to know that the conditions poses an unreasonable risk of death or serious harm to such children (older children less likely to fall in this category- being able to read warning may be enough AND

3- The children because of their youth do not discover the condition or realize the danger
involved with the condition (child didn’t recognize risk due to inexperience AND

4- The utility/burden of the LO maintaining the condition is slight compared to the risk to the children involved AND

5- The LO fails to exercise reasonable care to eliminate the danger or protect children

Back 76

b- Child Trespassers (Attractive Nuisance)

Front 77

Those who have permission/consent to be on the premises; social guests,door to door salesmen,jehovas wit.
1- LO is under no general duty to anticipate/make safe the premises as there is often no notice → P takes premises as he finds them
2- LO must not willfully or wantonly inflict harm
3- Once presence is discovered, LO owes reasonable care to WARN licensee of HIDDEN (concealed) dangers that LO knows about that licensee doesn’t and is unlikely to become aware BUT there is NO duty to warn of things that are obvious or that P would observe if exercising due care.
Ex: Barmore v. Elmore- D was LO and his son was mentally ill—he has a licensee social guest over and son stabbed licensee, P said D should have warned him of dangerous son; court held that this wasn’t foreseeable to D and he should not have the duty to warn →not liable

Back 77

Licensee

Front 78

“Business guests”- those who come primarily for the benefit of the LO – Include store customers, mailmen, others who come to do business and who LO should know is coming.
1- LO knows that invitees are coming →LO has duty to anticipate and make the premises reasonably safe.

2- Generally LO has duty to exercise reasonable care for the invitees safety

3- LO must take reasonable care to fix dangerous conditions and if they are unfixable then duty to warn of conditions

4- LO is responsible for any negligence of employees and even independent contractors

Back 78

Invitees

Front 79

Some courts hold that LO would NOT be liable (mich) and some leave question to jury as to whether LO exercised reasonable care to prevent

Back 79

Third Party Criminal Activity

Front 80

One can enter as an invitee- has been given permission to go but has no business (isn’t a licensee) then moves to a trespasser (no right or permission to go)
1- LO’s liability will change as entrant’s status will change

Ex: Whelan v. Van Natta- P came into store to buy cigarettes, P wanted more cigarettes and D’s employee told P to go to the back where only employees go—making P a licensee now, P fell into a stairwell which he did not see- the court held that D did not owe him protection because he was no longer an invitee but now a licensee (should have been warned but good defense)

Back 80

Entrant Status can Change

Front 81

those who come upon the property without invitation or consent BUT with some other privilege

1- Policemen, firemen, generally held as licensees because they come and go at random and may go all over the place

2- Mailmen, garbage collectors, safety inspectors- generally held as invitees because they come for economic benefit of the LO

Back 81

Public Employees

Front 82

1- General Rule- a lessor (landlord) is NOT liable to a lessee or anyone else for physical harm sustained during the lease term as a condition of the premises even if that condition existed at the time or before lessee took possession

Back 82

Lessee/Landlord Liability

Front 83

A lease transfers right or exclusive possession to lessee thus the lessor should not be held liable for repair of premises—there is trend toward more liability for landlord (exceptions)

Back 83

Rationale

Front 84

Undisclosed/concealed hazardous conditions known to lessor but not to lessee – lessor liable to lessee and guests (anyone else).

Conditions Dangerous to persons outside the premises- Lessor will be liable for a condition AT TIME OF TRANSFER that they realize or should realize involves an unreasonable risk of harm to others as if he had remained in possession.

Back 84

Exceptions

Front 85

Lessor has duty to exercise reasonable care to inspect and repair prior to transfer to prevent unreasonable risk to public who may enter

Back 85

Premises Leased for Public Administration

Front 86

Lessor has affirmative duty to inspect and keep in reasonably good repair those areas which the lessee and anyone else can use but remain in control of lessor (common areas/basements appliances)

Back 86

Parts of Property Retained in Lessor’s Control

Front 87

Either express agreement of duty of lessor to repair property OR implied due to municipal housing codes that require premises to be in specified state of repair so if someone is injured as a result of breach of agreement, lessor will be held liable.

Back 87

Agreement to repair

Front 88

if lessor attempts to make repairs (whether he is bound to or not) and fails to exercise reasonable care (repair is ineffective) he is liable to tenant and any others on the premises if the lessee neither knows nor should know that the repairs had been made negligently

Back 88

Negligence by Lessor in making repairs

Front 89

The lessor (landlord/owner) has the power to take preventative measures, court will impose duty to exercise reasonable care in measures to prevent crime in high crime areas

Back 89

Duty to protect against crime

Front 90

in order for a plaintiff to recover for Economic Loss (business losses or lost profits) from negligence by the defendant, the MUST show personal injury or physical damage also NO DAMAGE=NO RECOVERY.
Parastitic damages: if there are damages to a person or property then court will reward for economic loss but without those there is NO recovery-

Ex: State of Louisiana ex rel Guste v M/V Testbak- 2 ships collided, containers fell overboard and went in water- Us cost guard closed waters and suspended the waters for 400 square miles, some plaintiffs did NOT incur any physical damage, just lost profits because they couldn’t enter waters to fish and run their business--- PLAINTIFFS WERE REWARDED NO DAMAGES FOR THEIR LOSS OF INCOME; NO PHYSICAL DAMAGE.

Back 90

Pure Economic Loss

Front 91

recovery for emotional distress caused by negligence of defendant varies on jurisdiction.
If there is physical contact (injury to person) caused by negligence of D → P can recover for Emotional Distress.

If there is NO physical contact (injury to person), if there is a physical objective manifestation (definite and objective physical injury is produced) of the distress, then we will allow the P to recover for emotional distress.
*must claim a physical manifestation of the harm.
*Must have evidence of emotional Distress AND it resulted from the negligence of D

Back 91

Emotional Distress

Front 92

people who see the accident/negligence and are afraid. If you are a bystander and you are touched, you can recover for emotional distress.

1- Zone of Danger Test- if you were NOT touched but in the Zone of Danger → you recover

2- Dillion Rule- foreseeable someone who would be affected

3- Thing Rule-
a- Closely related to injured party
b- Present at scene of accident
c- Suffer serious emotional distress

Back 92

Bystanders

Front 93

IIED-
1- D must be aware of the 3rd party (bystander)
2- D must intend to inflict severe emotional distress OR the defendants conduct was reckless

Negligent Emotional Distress- I DIDN’T MEAN TO CAUSE DAMAGE TO YOU BUT I DID NEGLIGENTLY (HIT TOUCHED YOU GOT IT—IF NO PHYSICAL INJURYYOUR PROPERTY
1- Negligent D need NOT be aware of the 3rd party (bystander)
2- Negligent actors conduct is ONLY NEGLIGENT

Back 93

Intentional Infliction of Emotional Distress v Emotional Distress in Negligence

EXAM QUESTION & MUST ARGUE BOTH SIDES- AND COMPARE

Front 94

Viable- more than 22 weeks old.

1- Prenatal Injures

2- Wrongful Death

3- Wrongful Birth

4- Wrongful Life

5- Preconception Torts

Back 94

Unborn Children- 5 causes of action

Viable- more than 22 weeks old.

Front 95

ALL courts hold that if D causes injury to unborn child that’s VIABLE, that results in a birth defect, D will be liable. Most of the time if the unborn child was NOT viable at the time there will be no cause of action. (depends on jurisdiction)

Back 95

1- Prenatal Injuries

Front 96

Someone negligently does something to mother that causes fetus to die/terminate pregnancy.

a- Majority- if the fetus was viable at the time on negligent Ds conduct and dies then wrongful claim is valid

b- Minority- there can be no cause of action for wrongful death until the child has been born alive; if the child is stillborn there is no claim

Back 96

2- Wrongful Death

Front 97

parents bringing case because they didn’t want to have child but the negligence od D caused them to
a- Healthy Children- The parents did not want to have child due to some circumstance but they did and the child was healthy-
1- Claim is that Ds negligence caused them to have a child when they didn’t want on AT ALL
2- Usually due to financial circumstances

3- Often parents get contraceptive measures from doctor and they fail but child is OK

4- Damages are limited to the cost relating to the pregnancy and birth NOT the cost of raising child.
b- Unhealthy Children- D’s negligence DOES NOT cause birth defect BUT Ds negligent action denies parents the knowledge or ability to terminate pregnancy- (measles in the 1st trimester → parents can sue)
1-the parents say had they known of the defects they would have terminated the pregnancy THAT would be the right upon which they are suing.

Back 97

3- Wrongful Birth (tubes tied improperly)-

Front 98

D does NOT cause the birth defect/disease BUT fails to diagnose defect denying the parents to abort → CHILD BRINGS SUIT

P is the child- and is saying “I should not have been born” – will not recover on emotional damages BUT will recover EXTRAORDINARY MEDICAL EXPENSES due to defect

Back 98

4- Wrongful life

Front 99

D negligently did something prior to conception that causes the mother to have defect that affects the development of the fetus. (miscarriages)

Back 99

5- Preconception Torts

Front 100

Defendant can defend a suit against negligence

Back 100

Defenses to Negligence

Front 101

Contributory Negligence and Comparative Negligence

Back 101

2 Defenses to Negligence

Front 102

P is barred by his negligence from suing therefore can recover NOTHING. Plaintiff was negligent and his negligence was a substantial factor in causing his injury. Not a defense to an intentional tort (IIED, battery, assault, etc)

**Failure to wear a seatbelt is NOT Contributory Negligence** (just limits damages)
This is an Affirmative Defense (burden of proof on D by preponderance of the evidence) Raised in 1st pleading and if successfully defended → Plaintiff loses.

Back 102

Contributory Negligence

Front 103

-P committed negligence and puts himself in position of peril

-P hs stopped committing the harm

-D committed harm/negligence when it was avoidable-

**Plaintiff may recover in Contributory Negligence** Burden of proof transfers to the Plaintiff in LAST CLEAR CHANCE

Back 103

Exception: Last Clear Chance

Front 104

compare the fault of the P with the fault of the D
-Pure- D will pay for their percentage of fault in the incident-

Total Damages=100k Plaintiff 90% at fault & Defendant 10% at fault ….
Damages awarded that defendant must pay = 10k
-Modified- defendant must be MORE at fault than the P
Plaintiff- 60% at fault & Defendant is 40% at fault- P will NOT recover!

Back 104

B- Comparative Negligence (Majority)

Front 105

1- Not greater than- P can recover only if Ps responsibility was less than or equal to D (50/50 fault →P can recover anything less P-51/D-49 CANT RECOVER)

2- Not as great as- P can recover only if Ps responsibility is less than that of D (50/50 fault→P recovers NOTHING, but if P-49/D-51 → can recover)

Back 105

What do we do with 50/50 verdict of fault?

Front 106

DOES NOT APPLY TO PURE Comparative Negligence

1- Unit rule- each negligent Ds responsibility is compared to that of the Ps individually.
Damages=100k P-30% D1-50%- 50k D2-20%-$0 --- unfair to plaintiff

Back 106

More than 1 Negligent Defendants

Front 107

responsibility of the P will be compared to the Ds as a group/one entity

Damages=100k P-30% D1-50% =50k D2-20% =20k D1+D2=Ds 70% > P-30%

Seatbelt defense- applies where P has NOT taken measure to reduce the magnitude of the injury SHOULD injury happen BUT—Ps actions DO NOT contribute to the occurance of the accident/injury so DO NOT confuse with contributory or comparative negligence.

Back 107

Group Rule

Front 108

- P allows the D to be negligent by “assuming the risk” making the D NOT liable for breaching a duty owed—P consents to the injury received.

(Going to nascar knowing its dangerous-assuming risk)

An Affirmative Defense- Must be pleased and proven by D

Back 108

Assumption of the Risk

Front 109

signing a written document saying you assume the risk- release form saying you assume the risk- NOT a defense to willful or reckless conduct-
Express Releases (issues): 1- Was the risk that injured P fall within the terms of the release?

2- If the release covers what happened..Does it violate Public Policy?

Releases for Dangerous activities (optional activities) are Enforced- If you have a choice to do the activity then the release should be enforced.

****These releases make the D NOT liable/responsible for negligence****

Back 109

Express and Implied A of R

Front 110

NEVER signed a document but P assumed the risk by actions/conduct.
Person Must Have:
1- knowledge of the risk

2- aware of the possible harm that comes with the risk

3- conduct that shows P was confronting the risk

Back 110

2- Implied Assumption of Risk

Front 111

2 Kinds: Primary and Secondary

Back 111

Implied A of R

Front 112

by engaging in the activity you know whats going to happen.

Ex: turbulence on airplane, person teaching someone else how to drive, amusement parks, getting in a car with a drunk driver

Back 112

Primary Implied assumption of the risk

Front 113

a- Pure- plaintiff does something for the greater good while putting himself into what he knows is a dangerous position and voluntarily assumes the risk (ex: hero-P saves baby from burning car) D will still be held liable in case of a Pure Secondary assumption of the risk

b- Qualified- person who does something unreasonable for himself while putting himself in a dangerous position.

P runs to the car on fire to save belongings or cat and is injured—(stupid to do!! Negligence)
Only thing that is a problem is IMPLIED SECONDARY QUALIFIED ASSUMPTION OF THE RISK--- IT IS NEGLIGENCE.

Back 113

Secondary Implied Assumption of the Risk