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58 Cards in this Set
- Front
- Back
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Elements of Negligence
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To be negligent we must find the defendant 1) owed a duty to conform to a specific standard of conduct for Plaintiff's protection against unreasonable risk of injury. 2) That the defendant breached that duty. 3) The breach was the actual and proximate cause of Plaintiff's injury; and 4) damages.
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Negligency: Duty
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Under the Cardozo Majority Rule, a duty is owed only to a plaintiff in the foreseeable zone of danger. Under the andrews rules, a duty is owed to all.
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What to ask in duty
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Was this Plaintiff foreseeable? And What is the applicable standard of care?
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Who is a foreseeable Plaintiff?
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A Plaintiff can only recover if she can establish that a reasonable person would have foreseen her risk of injury and she was located in the foreseeable zone of danger
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Foreseeable Plaintiff: Specific Situations?
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Rescuers are foreseeable Plaintiffs (absent firefighters and police officers) because danger invites resuce. Also a duty is owed to a viable fetus for prenatal injuries. No wrongful life recovery but parents may get wrongful birth damages
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Duty: Standard of Care
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Conduct must rise to the level of a reasonable prudent person. It is an objective standard. Mental deficiences are not taken into account.
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Two departures from prudent person standard
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Same physical characteristics as the Defendant (reasonable person of the same physical characteristics). If D has superior skill or knowledge on relevant matters.
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6 Special Duty scenarios
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Children, professionals, premises liability, Negligence Per Se, Duty to Act affirmatively, Negligent Infliction of Emotional Distress
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Duty: Children
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Held to the standard of a child of like age, education, intelligence, and experience. Subjective test. Under 4 usually without capacity. Children engaged in adult activities may be required to conform to an adult standard
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Duty: Professionals
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A professional is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities
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Duty: Professionals-similar communities
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Family doctors - size of community with modern trend for national standard of care. Specialist - National standard of care
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Other standards of conduct:
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Common Carriers and Innkeepers - liable for slight negligence (must be a guest). Auto driver to guest - owed a duty of ordinary care.
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Bailment duty
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Duties owed by Bailee - for sole benefit of bailor (low standard). Sole benefit of bailee (high standard). For a mutual benefit (ordinary care).
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Duty: Emergency Situations
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Must act as a reasonable person would under the same emergency conditions. Not to be considered if Defendant made the emergency condition.
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Premises Liability: Duty to those off premises
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There is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.
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Presmises Liability: Unknown Trespassers
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An unknown trespasser is one that comes on the property w/o permission and the possessor is unaware. There is no duty to unknown trespassers
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Premises Liability: Known/anticipated trespassers
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Anticipated trespassers: Possessor should know about trespassers if there has been trespassers in the past (railway sees footprints and/or cigarette butts). The possessor owes a duty to protect from 1) artificial hazards 2) that are highly dangerous 3) that are concealed from the trespassor 4) that the possessor knew about in advance (known, manmade deathtraps)
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Premises Liability: Attractive Nuisance Doctrine
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Possessor owes a duty to exercise ordinary care to avoid foreseeable risk to children caused by artificial conditions on his property. Applies when owner knows or should have known 1) about the condition 2)that children frequent the vicinity of the condition 3) the condition is likely to cause injury and 4) the expense of remedying the situation is slight compared with the magnitude of risk
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Premises Liability: Licensees
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A person who enters the land with permission but does not confer economic benefit. Possessor has a duty to 1) warn of all dangerous conditions known(prior knowledge) to the owner that the licensee is unlikely to discover(concealed) and 2) exercise reasonable care in the conduct of "active operations" on the property.
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Premises Liability: Who is a licensee
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Social guests, People who come to your house unsolicited (gave permission by custom of community unless you have a gate with "no soliciting"
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Premises Liability: Invitee
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A person who enters with permission and either confers an economic benefit, or the property is open to the public.
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Presmises Liability: Duty to Invitees
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Same duties as licensee + a duty to make reasonable inspections to discover dangerous conditons and also to make them safe.
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Premises Liability: Duty owed to Users of Recreational Land
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A landowner who permits the general public to use his land for recreations purposes for no fee is not liable for injuries suffered by a recreational user unless the landlord willfully failed to guard against the condition.
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Premises Liability: Duties of Lessor/Lessee
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A lessor must warn of existing defect of which he is aware or has reason to know and which he knows the lessee is not likely to discover on a reasonable inspection. Lessee has a general duty to maintain the premises.
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Premises Liability: Firefighter/Police officer
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Firefighters/police officers can never recover negligence damages for injuries from an inherent risk of employment
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Premises Liability: Child Trespassers
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Children are owed a duty of all reasonable prudence under ALL circumstances with regard to artificial conditions. 2 keys: How foreseeable was it that children would trespass? Whether or not the child would appreciate the duty for himself.
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Premises Liability: Fixing the hazards
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To fix the duty, the possessor can satisfy the duty in two ways. 1) fix the hazard and 2) give a warning
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Negligency Per Se
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A statute's duty may replace the common law duty if 1) the statute provides for a criminal penalty, 2) the statute clearly defines the standard of conduct, 3) plaintiff is within the protected class, and 4) the statute was designed to prevent the type of harm suffered by P.
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Negligence Per Se: Excuse for violation of statute
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Violation os statutes may be excused where complaince would cause more danger than violation or where complaince was impossible under the circumstancesl.
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Effect of Negligence Per Se
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A violation of statute established the first two requirements of Duty and Breach of Duty
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Negligent Infliction of Emotional Distress
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Duty may be breaced when D creates a foresseable risk of [hysical injury to P.
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Negligent Infliction of Emotional Distress: The near miss (Zone of Danger)
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To satisfy P must be within the zone of danger (threat of phyiscal impact) and must suffer physical symptoms of distress.
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Negligent Infliction of Emotional Distress: The Bystander
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A bystander outside the zone of danger who sees D injuring another can recover for distress as long as 1) plaintiff and the person injured are closely related and P was present at the scene.
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Negligent Infliction of Emotional Distress: Other situations
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The plaintiff may be able to recover without proving these requirements in cases of erroneous report of a relative's death or mishandling of a relative's corpse.
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Duty to act affirmatively:
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There are no duties to act affirmatively and NO DUTY TO RESCUE.
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Exceptions to No duty to act rule
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1)Duty to continue rescue 2) When D put P in peril 3) Special relationship between parties (parent-child, common carriers, innkeepers, shopkeepers). Third persons when you have authority and control of that person.
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Breach of Duty
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When D's conduct falls below the applicable standard of care. ) Identify specific behavior that was harmful 2) offer a theory of why conduct fell below (violation of statute or custom/usage)
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Breach of Duty: Res Ipsa Loquitur
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The very occurence of an event tends to establish a breach of duty when 1) the accident causing the injury is a type that would not normally occur unless someone was negligent, and 2) the negligence is attributable to someone in D's position (exclusive control over the injury causing instrumentality
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Causation
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Once a breach of the standard of care is show, P must show that the conduct was the actual and proximate cuase of his injury.
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Actual Causation
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1) But For Test 2) Substantial Factor Test (multiple Ds) and 3) alternative causes approach
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But for Test
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The act or omission is the cause in fact of an injury when the injury would not have occured but for the act. Can apply when multiple acts combine to cause injury
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Substantial Factor Test
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When multiple causes bring about injury and any one alone would be sufficien, it is a substantial factor in causing the injury.
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Alternative causes
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When there are two acts, one of which causes injury, but it is not known whih one, the burden shifts to Ds to show that his negligence was not the cause.
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Proximate Causation
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A defendant is genrally liable for all harmful results that are a foreseeable consequence of the breach.
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Proxmate Cause: Direct Cause
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Where there is an uninterrupted chain of events between D's act and P's injury, defendant is liable for all foreseeable harmful results. Most will be foreseeable. IF OUTCOME IS FAR FETCHED, FREAKISH OR BIZARRE then no proximate cause
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Proximate Cause: Indirect Cause
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In an indirect cause case, an affirmative intervening force comes into motion after D's negligent act and combines with it to cause injury.
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Indirect Proximate Cause: Intervening forces
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4 types of cases and rules: 1) Car accident then negligent doctor (driver liable for enhanced damages) 2) Intevening negligent rescue (injury invites rescue), 3) Intervening reaction or protection forces (liable for all injuries, people in immediate vicinity will act in haste, 4) subsequent disease of accident (liable for subsequent disease or accident). All others are case by case analysis
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Damages:
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Damages will not be presumed. 1) injury 2) property, 3) punitive if conduct "wanton and willful"
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Damages: Nonrecoverables
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1) interest from the date of damage in personal injury 2) attorney's fees
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Damages: Duty to Mitigate
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Self explanatory
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Collateral Source Rule
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We know this crap
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Negligence: Defenses
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Contributory Negligence, Assumption of the Risk, Comparative Negligence
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Contributory Negligence
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This is a defense to Negligence Per Se but not Intentional Torts. It is a complete bar to recovery. Most jurisdictions now favor Comparative negligence
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Contributory Negligence: Last Clear Chance
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The person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
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Eggshell Plaintiff rule
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When a D has committed the other elements of a claim he is liable for all injuries suffered by P, even if surprinsingly great in nature.
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Assumption of the Risk
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If Plaintiff knew of the risk and voluntarily proceeded in the face of the risk, she is barred recovery
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Implied Assumption of the Risk:
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Knowledge may be implied where the risk is one that an average person would clearly appreciate (does not apply when no available alternative, or fraud, force or emergency
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Comparative Negligence
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Pure Comparative Negligence = go by percentages. Modified or partial comparative fault - over 50% reduces P's recovery
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