Torts - Negligence

Front 1

Prima facie case:

Back 1

(i) A duty on the part of the D to conform to a specific standard of conduct for the protection for the P against an unreasonable risk of injury;
(ii) Breach of such duty by the D;
(iii) That such breach is the actual and proximate cause of the P’s injury; AND
(iv) Damage to the P’s person or property.

Front 2

Foreseeable risk

Back 2

No duty is imposed upon persons to take precautions against events that cannot reasonably foreseen. Absent such a duty there can be no liability for negligence.

Front 3

Breach of the duty

Back 3

Where an action is based on negligence, the P is alleging that the D has breached its duty of acting as an ordinary, prudent, reasonable person, and that such breach has actually and proximately caused injury to the P.

Front 4

Negligence / Duty to licensees

Back 4

A licensee is a person who enters the land with the owner's permission, for his own purpose or business rather than for the owner's benefit. The owner or occupier of land has a duty to (i) warn a licensee of a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover; and
(ii) exercise reasonable care in the conduct of "active operations" on the property.

However, the owner or occupier has no duty to a licensee to inspect for defects nor to repair known defects.

Front 5

Negligence / Damages

Back 5

Damages are not presumed in negligence cases; there must be actual harm or injury.

In cases involving property damages, the measure of damages is the reasonable cost of repair, or if the property is destroyed, the fair market value at the time of the injury.

Punitive damages are recoverable only if the conduct was reckless, malicious, or willful and wanton.

Front 6

Negligent infliction of emotional distress / Damages

Back 6

D breaches his duty when he creates a foreseeable risk of injury to the P through causing a threat of physical impact that leads to emotional distress.

Damages are recoverable only if the D's conduct causes some physical symptoms. If P's distress is caused by threat of physical impact to her, she must have been within the zone of danger.

Front 7

Negligent infliction of emotional distress / Exceptions to damages

Back 7

Physical injury is not required in cases of:

- Negligent transmission of a message: misinforming P that a family member has died.

- Negligent mishandling of corpses: negligent embalming, shipping of casket...

Front 8

Negligent infliction of emotional distress / 1/3 party recovery / zone of danger

Back 8

Rule: No recovery.

Exception: If the third party is personally in the zone of danger and is threatened with injury by D's negligence, P may recover

Front 9

Negligence / Standard of care / Children

Back 9

Standard: When the tortfeasor is a child, the applicable standard of care is that of a child of like age, education, intelligence, and experience. This permits a subjective evaluation of these factors.

Exceptions:
Children under 4: no liability
Adult activities: However, when a child is engaged in an activity that is normally one that only adults engage in, such as driving a car or flying an airplane, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity.

Front 10

Attractive nuisance

Back 10

When a trespasser of land is a child, the landowner owes a duty of ordinary care if:
(i) there is a dangerous condition present on the land of which the owner is or should be aware;
(ii) the owner knows or should know that children frequent the vicinity of the dangerous condition;
(iii) the condition is likely to cause injury because of the child's inability to appreciate the risk; and
(iv) the cost of remedying the situation is slight compared with the magnitude of the risk.