Torts - Negligence

Front 1

Elements of Establishing Per Se Negligence

Back 1

1) Duty
2) Breach
3) Causation
4) Damages

Front 2

Duty - General Rule

Back 2

An obligation recognized by law requiring the Δ to conform to a certain standard of conduct for the protection of others against unreasonable risk.

Front 3

Foreseeable Plaintiff

Back 3

A Δ owes a duty of care only to foreseeable plaintiffs.
(Palsgraf v. Long Island R.R. Co. (N.Y. 1928)

Front 4

Duty to Rescuers

Back 4

A rescuer is a per se forseeable plaintiff, and is owed a duty.

Front 5

Duty of Care - traditional rule

Back 5

No affirmative to duty to take action to aid or protect a plaintiff who is at risk of injury, unless such an act is taken.

Front 6

Exceptions to the No Affirmative Duty Rule

Back 6

1) Where the Δ's negligent conduct has placed the P in a position where he requires aid. 2) Special relationships. 3) Negligent creation of risk.

Front 7

Negligent Omission

Back 7

When the Δ fails to do something that a reasonable person would have done a duty to any who are injured is typically created.

Front 8

Non-negligent Injury

Back 8

The traditional rule is that there is only a duty to act when a Δ's conduct which created the peril is itself negligent.

Front 9

Duty of a Rescuer

Back 9

Once a person takes an action to render aid they have a duty to exercise due care. Some jurisdictions state that if a person undertakes an act to rescue he is liable if he leaves the plaintiff in a worse position.

Front 10

Good Samaritan Laws

Back 10

Limit the liability of rescuers who provide emergency aid, even if they may have failed to exercise due care.

Front 11

Gratuitous Promises

Back 11

A Δ who gratuitiously promises to aid has no duty to actually take the promised action, treated as nonfeasance. Once an action is taken the Δ has a duty to exercise reasonable care.

Front 12

Misfeasance

Back 12

An act that is legal but performed improperly, May give rise to liability.

Front 13

Nonfeasance

Back 13

A failure to act that results in a harm to a third party. Traditionally has been held to not give rise to liability.

Front 14

Gratutious Promises - minority rule

Back 14

The Δ is liable for a complete failure to perform a gratuitous promise of aid if the P relied on the promise to his detriment.

Front 15

Special Relationships

Back 15

The Δ has an affirmative duty to aid.
1) Common carrier - passengers. 2) Inkeeper - guests. 3) Employer - employees. 4) Parent - child. 5) School - students. 6) Landlord - tenant. 7) Custodian - those in custody (such as jailer - prisoner).

Front 16

Duty to Control Third Parties

Back 16

No duty to control the conduct of a third person to prevent harm to others unless: 1) special relationship of control or protection, 2) parent with minor child, 3) master and servant, 4) employer and employee, 5) where a Δ permits the use of his personal property, 6) (some jurisdictions) duty to warn

Front 17

Duty to Control Third Parties - Special Relationship

Back 17

If the Δ and third party have a special relationship which imposes either a duty to contol the third party's conduct or a right of protection the Δ has a duty to control the third party.

Front 18

Duty to Control Third Parties - Parent with Minor Child

Back 18

A parent is under a duty to exercise reasonable care to control his minor child so as to preven the child from intentionally harming others or creating an unreasonable risk of bodily harm if the parent 1) knows or has reason to know that he has the ability to control the child, and 2) knows or should know of the necessity and opportunity for exercising such control.

Front 19

Duty to Control Third Parties - Employers with Employees (negligent hiring)

Back 19

An employer has a duty to exercise reasonable care in hiring employees such that they may be liable if an employee injures a plaintiff.

Front 20

Duty to Control Third Parties - Masters with Servants

Back 20

A master is under a duty to exercise reasonable care to control his servant while acting outside the scope of employment in order to prevent the servant from intentionally harming others or creating unreasonable risk of bodily harm to them if: 1) The servant a) is upon the master's premises or premises upon which the servant is privilged to enter only as his servant; or b) is using the chattel of the master; AND 2) the master a) knows or has reason to know that he has the ability to control his servant; and b) knows or should know of the necessity and opportunity for exercising such control.

Front 21

Duty to Control Third Parties - Use of Personal Property

Back 21

When a Δ permits a third person to use his personal property the Δ has a dut to control such use and to exercise due care in permitting the use.

Front 22

Duty to Control Third Persons - Duty to Warn

Back 22

SOME JURISDICTIONS
Where a special relationship exists a Δ who becomes aware that the third person intends to do specific harm to an identified P has a duty to warn. Two relationships have been recognized: 1) psychotherapist - patient; and 2) custodian - prisoner.

Front 23

Duty to Licensee

Back 23

Δ has a duty to 1) inflict no willful, wanton, or intentional injuries; 2) no 'traps'; 3) warn or make safe dangers which Δ has actual knowledge and entrant is unaware of.

If Δ should expect them to be unaware of a risk and they are reasonably unaware - DUE CARE

Front 24

Duty to Trespasser

Back 24

Δ has a duty to 1) inflict no willful, wanton, or intentional injuries; and 2) no 'traps'.

If actual or constructive knowledge of frequent intrusion on a limited area - DUE CARE

Front 25

Duty to Invitee

Back 25

Δ has a duty to 1) inflict no willful, wanton, or intentional injuries; 2) no 'traps'; 3) warn or make safe dangers which Δ has actual or constructive knowledge.

If Δ shoudl expect them to be unaware of the risk - DUE CARE

Front 26

Duty to Protect a Person From Third Party Criminal Conduct

Back 26

No duty unless there is a special relationship, however jurisdictions vary on th eamount of foreseeability that must exist before a court will find a duty to protect. 1) Prior similar incidents; 2) Totality of the circumstances test; or 3) Balancing test of the degree of foreseeability against the burden on the Δ.

Front 27

Duty of Care - Government Entities

Back 27

Duty will be different depending on the function the government is fulfilling when it committs the tortious action: 1) Miniserial Function; 2) Proprietary Function; or 3) Discretionary Function.

Front 28

Duty of Care - Government Entities Acting in a Ministerial Function

Back 28

A government action performed according to legal authority, established procedures, or instructions from a superior without the exercise of individual judgment. Duty to act non-negligently.

Front 29

Duty of Care - Government Entities Acting in a Proprietary Function

Back 29

A government action performed under the duties or capacity to enter into business ventures or other areas traditionally occupied by private entities. The government will be treated as any other Δ for the purpose of determining duty.

Front 30

Duty of Care - Government Entities Acting in a Discretionary Function

Back 30

Where the government entity is using its judgment and allocating resources. No duty.

Front 31

Duty of Care - Government Entities Public Duty Doctrine

Back 31

When a government agency is sued for failing to provide an adequate response, no duty unless: 1) reliance on the response, 2) special relationship between the P and the agency, or 3) the agency has increased the danger beyond what it would have been.

Front 32

Duty of Care - Government Entites - Utilities

Back 32

No duty beyond those who are in privity with the utility.

Front 33

Negligent Infliction of Emotional Distress

Back 33

If the P's injury is not PI or property damage a duty issue can arise. Courts have traditionally been reluctant to impose liability for emotional distress. P, in most jurisdictions, must: 1) have been in the zone of danger, and 2) have suffered some accompanying physical manifestation of the emotional distress.

Front 34

NIED - Exceptions to the Zone of Danger & Physical Manifestations Requirement

Back 34

1) If the Δ negligently transmits a telegram announcing the death of a loved one.
2) If Δ negligently mishandles a corpse.

Front 35

NIED - Preexisting Duties (minority)

Back 35

In a minority of jurisdictions a P may recover for NIED against a Δ who has a preexisting duty.

Front 36

NIED - Severe Emotional Distress

Back 36

Some jurisdictions have eliminated the requirement of a physical manifestation and allow recovery based on a showing of severe emotional distress.

Front 37

NIED - Bystander Actions

Back 37

The physical harm occurred to a loved one, and the P sues for the ED. A derivative action which will be reduced proportionately if the injured party is found to be comparatively negligent.

Front 38

NIED - Bystander Theory (majority)

Back 38

A P may recover for NIED under the bystander theory if 1) located near the scene of the accident
2) suffered a severe emotional distress ("shock") resulting from the sensory and contemporaneous observance of the accident; and
3) had a close relationship with the victim

Front 39

Intentional Infliction of Emotional Distress Elements

Back 39

Theory 1: 1) Presence, 2) Close Relative of Victim, 3) Δ is aware of P's Presence, and 4) P suffers severe emotional distress.
Theory 2: 1) Presence, and 2) Actual bodily harm (physical manifestation of the emotional distress)

Front 40

Wrongful Conception

Back 40

Injury is the birth of a healthy child. Arises where the P has had negligently performed birth control. Damages typically involve the cost of the birth and the cost to rectify the ineffective measure. Courts are reluctant to award costs of raising a child to majority.

Front 41

Wrongful Birth

Back 41

Injury is the birth of an unhealthy child. Stem from a physician's failure to diagnore a disability in the fetus which the P claims would have led her to not give birth to the child. MANY COURTS DO NOT RECOGNIZE THIS CLAIM

Front 42

Wrongful Life

Back 42

Child's action for being born unhealthy. MOST COURTS WILL NOT AWARD DAMAGES. Some courts have awarded damages for the costs of special needs after the age of majority.

Front 43

Invitee - Definition

Back 43

A person who enters onto the Δ's land at the Δ's express or implied invitation, and who enters for a purpose relating to the Δ's interests or activities.

Front 44

Business Invitee - Definition

Back 44

An invitee who enters onto Δ's land for a purpose related to the Δ's business activities or interests.

Front 45

Public Invitee - Definition

Back 45

Member of the public who enters onto Δ's land for a purpose as to which the land is held open to the public. (Minority) Does not recognize.