Torts: Negligence

Front 1

Negligence

Back 1

Duty
Breach
Actual cause
Proximate cause
Damages
Defenses

Front 2

Everyone has duty not to affirmatively act to create an unreasonable risk of harm to others.

No duty to take precautions against events that are not reasonably foreseeable.

Back 2

A duty is only owed to foreseeable plaintiffs.

Majority: Cardoza- foreseeable zone of danger
Minority Approach: duty translates

Front 3

No duty to aid someone

Exceptions: Duty to help if special relationship; common carrier-passenger; business person- customer; social host- guest; if someone causes another's injury or places another in peril

Back 3

Good Samaritan: person who begins to help must complete the help with reasonable care. Some states have statutes limiting liability to gross negligence.

Doctors have no duty.

Front 4

No duty to prevent 3d person from committing a tort.

Back 4

Exceptions:

- Parents have duty to control kids
- Employer duty to control employees
- Statute may impose duty to control third persons.

Front 5

Objective standard of reasonable care: ordinary, prudent person.

- Less bright, less experienced adults are not held to lower standard; insanity not a defense.
- Greater knowledge and greater experience of adult D will be considered in deciding reasonableness.
- Physical disabilities considered.

Back 5

Child standard: what's reasonable for someone of like age, knowledge, education, intelligence, experience.

If child engaged in adult activity, use adult standard.

Front 6

Professionals' Standard: malpractice; what's reasonable for average member of profession in good standing.

Standard for Specialist: Extra knowledge considered. National standard.

Back 6

Guest statutes: Driver owes non-paying rider less than reasonable care. Driver liable only for gross negligence or reckless conduct.

Front 7

Duty Owed By Owners & Occupiers of Land

Back 7

1) Was P injured while on D's land or off land?

2) Was P injured by an artifical condition, natural condition, or activity?

Front 8

If P was injured off land:

1) By a natural condition: no duty owed to P except if P was injured by decaying tree next to city sidewalk
2) By an artificial condition: no duty owed to P except if P injured by dangerous condition on property edge
3) By activity: P owed duty reasonable care

Back 8

If P. injured on D's land --> label P as trespasser, licensee, invitee

** Modern trends doesn't distinguish and focuses on D's reasonableness based on relevant factors

Front 9

Trespasser: Person on D's land w/o D's permission

1) Undiscovered: No duty owed if P injured by artif/nat cond or activ.
2) Discovered trespasser: No duty owed if injured by nat cond. or non dangerous art. cond. Duty to warn/make safe if injured by highly dangerous art. cond. Duty of reasonable care if inured by activity

Anticipated trespasser: same rules as discovered trespasser

Back 9

Child trespasser & Attractive Nuisances: Owner/occupier of land owes child duty of reasonable care if 1) dangerous, art. cond; 2) knew or should've known children likely to come; P incapable of appreciating danger; cost of making condition slight compared to danger

[BABE-C]

Front 10

Licensee: social guest or person on D's property for her own economic benefit (salesperson). Includes police/firefighters.

Back 10

If licensee injured by activity, D owes P duty of reasonable care. If injured by condition (art or nat), D owes P duty to warn or make safe non-obvious dangerous conditions of which D knows. No duty to inspect.

Front 11

2 types of invitees

Business: on D's property for economic benefit to D (customers, persons accompaying customers, repair ppl)

Public: on D's property for public purpose (tourists, church attendees)

Back 11

If invitee injured by an activity, D owes P duty of reasonable care. If invitee injured by condition (natural or artificial), D owes P same duty as licensee plus duty make reasonable inspection.

Front 12

P has burden to prove D's breach of duty: direct evidence of unreasonable conduct or circumstantial evidence (res ipsa loquitur)

If res ipsa established, P avoids directed verdict. Does not create presumption of negligence and doesn't shift burden to D.

Back 12

To establish res ipsa, show that what happened ordinarily occurs only if someone was negligent, and that more probable than not, it was this D who committed the negligent act because of this D's exclusive control of the injury producing instrumentality.

Front 13

Evidence of custom is admisslbe to prove breach of duty.

Compliance with custom doesn't lead to verdict for D as matter of law; jury could find that custom itself is unreasonable.

Back 13

Expert testimony: Expert will testify on what is the custom; and whether in expert's opinion the D violated the custom.

Front 14

P may rely on D's violation of a statute to prove negligence.

* Majority: negligence per se
* Minority: evidence of negligence

D's compliance with statute is relevant, not conclusive- reasonable person may have to go beyond statute's requirements

Back 14

3 things must be true:
1) Unexcused violation of statute (balance harm of complying vs. harm if violated)
2) Harm must be same type of harm statute was aimed at preventing;
3) P must be member of class of persons statute intended to protect

Front 15

Actual Causation

1) "But-for" test when 1 tortfeasor
2) "Substantial factor" test If >1 tortfeasor

If 2 D's jointly acting, all D's are actual cause of entire injury.
If 2 D's are not acting jointly, if negligence of either would've caused entire injury, each is actual cause of entire jury.

Back 15

If 2 D's not acting jointly and P injured by negligence of one, not both, and impossible to determine which one, both are viewed as actual cause unless one D can prove that other was actual cause (burden is on D).

Front 16

Proximate Cause

1) P's harm must have been reasonably foreseeable to D at time of D's negligent act.
2) Type of harm must be foreseeable, but not extent of harm. "Take victim as you find him."
3) Doesn't extend to economic harm suffered by 3d party.

Intervening Causes: third person conduct or event subsequent to tort which causes additional harm. If foreseeable, D's liable for additional harm. Unforeseeable cause is superceding and D's not liable.

Back 16

Foreseeable intervening events:
- med malpractice
- negligence of rescuers
- negligent acts of third persons
- nonextraordinary weather changes

Crimes/intentional torts generally unforeseeable. (But a specific crime may be foreseeable)

Front 17

Actual damages required for negligence:

- pain and suffering (past/future)
- diminished earning capacity
- med expenses (past/future); med insurance not deducted
- loss of consortium (companionship, household services, sex; married)
- future med/pain & suffering, expert testimony required

Back 17

Emotional distress

Majority: some physical injury; P impacted or w/in danger zone
Modern: covers P at scene who views close fam member impacted

Poss trend: damages for neg. infliction of emotional distress may be available by act which by itself is likely to result in physical symptoms even absent physical impact (negligent false diagnosis)

Front 18

Defenses:
- assumption of risk
- contributory negligence
- last clear chance doctrine (trumps contrib)
- *comparative negligence

Back 18

Assumption of risk: P collects zero. Must subjectively know/understand risk, and accept. N/A to rescuers.

Contrib Neg: P's unreasonable conduct is actual and prox cause of P's actual damages. Even if only slightly contrib neg, P collects zero.

Last clear chance doctrine trumps contrib neg. If D hadn't acted subsequent to P's contrib neg, P would not have been injured, and thus P can collect. (Look for helpless contrib neg P)

Front 19

Majority: Comparative negligence. P's recovery reduced by % of fault attributable to P.

Partial/modified comaprative negligence: If P more than 50% responsible for injury, P gets nothing.

On MBE, use this unless q says otherwise.

Back 19

Last clear doctrine is irrelevant.

Most comparative negligence states, assumption of risk is viewed in terms of comparative fault which reduces, but doesn't bar recovery.