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40 Cards in this Set
- Front
- Back
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4 Elements of Negligence
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The prima facie case:
1. Injury 2. Duty 3. Breach 4. Cause a. Actual b. Proximate |
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What is an "injury"?
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You must show that P has suffered an injury. Without one the case has nothing. It’s the most fundamental element.
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What is a legally cognizable harm?
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Physical harm such as injury to the body or property damages, loss of wealth, and emotional suffering.
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What is "duty"?
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- A viable claim of negligence must show that the defendant had an obligation to the plaintiff not to cause the injury that the plaintiff has suffered.
- It is a question of law for the judge to define. The jury will never get to decide this. |
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Heaven v. Pender
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Reasonable foreseeability that whatever you’re doing could injure someone if you don’t use ordinary care and skill to avoid that danger.
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Winterbottom v. Wright
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Denied that anyone had a duty of care to anyone you were not in a privity of contract with. A libertarian view would support this type of rule. Driver couldn’t sue the carriage maker because he wasn’t in a contract with the carriage maker, his employer was.
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Privity rule
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unless you have a contract with someone you owe them no duty
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Thomas v. Winchester
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if product at center of contract is imminently dangerous, they liability will be found
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Imminently Dangerous Products
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This is an exception to the privity rule and moves toward the reasonable foreseeability rule
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Nonfeasance v. Misfeasance
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Nonfeasance involves no action and misfeasance involves an action
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3 exceptions to nonfeasance no duty
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If D played some role in placing the defendant in peril.
Voluntarily starting a rescue may generate a duty to complete the rescue you might have deprived the person in need from other reasonable chances of rescue Certain pre-tort relationships generate a duty of care |
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3 statuses of premises liability
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Invitee
Trespassor Licensee |
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Invitee
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Someone who is on another person’s premises in furtherance of the material or institutional goals of the owner of the premises.
An invitee is owed a reasonable duty of care by the owner. The owner has to make an inspection of the premises and warn people of any dangers on the premises. |
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Licensee
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Someone who is on someone else’s premises with their permission but not in furtherance of that persons material or institutional goals
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Trespassor
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Someone who is on another’s premises without permission
You have a duty not to willfully or wantonly injure a trespassor. Must take reasonable care to prevent child trespassers from being injured on their property. Attractive nuisances like a pool |
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Pure Economic Loss
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Tort law is reluctant to protect the wealth of others. There is no unqualified duty to take care to not cause economic loss to another person.
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Tarasoff v. Regents of University of California
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Extended the duty of care beyond the patient even though there was no special relationship between the doctor and the victim.
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Breach
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Question of fact for the jury
You are not automatically in breach if someone gets injured. |
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2 separate standards for breach
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Ordinary standard of care- really means just ordinary care
Professional standard of care- Expert testimony is required to prove professional negligence. |
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Myers v. Heritage
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The old woman who got dropped at the nursing home; professional standard of care
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Martin v. Evans
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Ordinary standard of care- The trucker who exercised reasonable care before backing up but still hit someone. He wasn’t being unreasonable
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Strict liability
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liable no matter how careful you are
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Vaughn v. Menlove
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reasonable man standard
Neighbors have a duty of care to each other. You have a duty that if you do things on your property that if things you do or have on your property then you must exercise reasonable care for their wellbeing and for their property also. |
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reasonable man standard
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Objective standard of reasonable which is based on conduct and not the state of mind. Also because we’re talking about the standard of the ordinary prudent person.
People with disabilities have different standards. |
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Tender Years Doctrine
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Kids under 7 can't be sued
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Appelhans v. McFall
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Tender Years Doctrine
P tried to sue for negligent parental supervision- must prove both that 1) the parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur and 2) the parents had the opportunity to control the child |
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Fault Standard
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Asks whether the actor behaved as would an ordinarily constituted person acting reasonably under the same circumstances; not changed for ordinary person with less or more of a capacity than normal
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Exceptions and qualifications of the fault standard
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Ratcheted down for people with discreet and documentable disabilities
Rarely if ever ratcheted down for mental disabilities, but sometimes for discrete mental abilities (discrete here means separate and distinct) A child is typically held to the standard that is calibrated to the capacities of a similar child of the same age and experience. Unless the child is engaged in an adult activity, like driving a car, when they will be held to an adult standard. The tender years doctrine which holds that children of a certain age are not held liable at all. Standard of care is ratcheted up for conduct of certain professionals for actions in the domain of their professional competence |
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Industry and Professional Custom
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Compliance with custom is probative of ordinary care but it doesn’t establish that you are not within breach
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TJ Hooper
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custom of not having radios on board did not protect from liability
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Largey v. Rothman
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The standard is not what a reasonable doctor would say but what a patient in the same position would need to know in making an informed decision. Disclosure of material risks is necessary for a reasonable patient.
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TJ Hooper Rule
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custom is not probative of reasonable level of care
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Judge Learned Hand rule
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Burden > Probability x Liability = no breach
Burden < Probability x Liability = breach! |
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Res Ipsa Loquitur
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P doesn’t have to explain how D was careless because its so obvious that they were careless
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Anti TJ Hooper rule
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TJ Hooper rule does not apply to medical malpractice
protecting physicians to keep insurance/practicing costs down and keep people in the profession In suits of medical malpractice custom is essential to the standard of care given to the patient. Ps must introduce expert testimony to show that the defendant failed to meet the standard of care |
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3 rationales of res ipsa
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Evidentiary: it doesn’t change the cause of action and it doesn’t change the substantive theory for a negligence case. It allows careless conduct causing injury to suffice for carelessness.
Obligation based- if what injured the P was within the D’s exclusive control then it was the D’s responsibility to control whatever it was that caused the incident. Strict liability rationale |
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Requirements of res ipsa
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X bespeaks negligence
X bespeaks D’s carelessness X does not bespeak the plaintiff’s carelessness |
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Byrne v. Boadle
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res ipsa-
the barrel of flour that rolled off the building and hit the pedestrian on the head. He didn’t know how it happened but it was obvious that the D was negligent |
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Kambat v. St. Francis Hospital
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res ipsa-
A surgical pad are left in the decedent. Someone finds it in an xray and it is then removed. She dies like a month later. The trial and first appellate court reject the res ipsa loquitur. Cases requiring expert testimony cant be used under the res ipsa reasoning |
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Causation
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Actual or proximate
can't prove through coincidence |
