Torts - Negligence

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Negligence

Back 1

Failure to exercise the degree of care that a reasonably prudent person would use in the same or similar situation. To prevail the plaintiff must prove Duty, Breach, Actual Causation, Proximate Causation and Damages.

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Duty - SCRAP

Back 2

As a general rule people do not have a duty to act in any way to protect others unreasonable risk of from harm. A duty to act to protect others from harm only arises under five situations; Statute, Contractual obligation, Relationship, Assumption of Risk and a Peril to the Plaintiff caused by the defendant.

Generally no duty for nonfeasance (omission to act)

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Duty Based on Peril - Zone of Danger

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In the majority opinion in Palsgraf, Cardozo argued that a duty based on peril is only owed to people in the zone of danger created by the defendants acts. The zone of danger is the area where the acts of the defendant created reasonably foreseeable dangers to others. In the minority opinion Andrews argued that if a defendant owes a duty to anyone and breaches that duty then he should be held liable to all plaintiffs actually and proximately harmed by the breach, even if they are outside the zone of danger.

In the analysis only use if applicable to the facts at hand and then make sure to state why, i.e. why was the plaintiff in the zone of danger?

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Duty Base on Premise Liability

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An occupier of land has a duty to both those who come onto the land and those off the land.

Licensee - someone who is on the property with the land possessors consent but without any business purpose. Most licensees are social guests (Note fire and police officers are generally held to be licensees

Trespassor - a person who enters or remains upon the land in possession of another without a privilege.

Invitee - Business visitors or those invited on the land for the purpose of doing business (stores, banks, restaurants, movies, etc.), and also includes public invitees, or those invited as part of the general public for the same purpose for which the land is held open to the public (church, municipal parks, libraries, airports, etc). Meter readers, garbage collectors, etc are invitees.

Lessee - treated as a possessor of property.

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Duty by Statute - Negligence Per Se

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Duty may be created by a statute or rule, and violation of the statute is a breach of duty making the defendant negligent per se if the purpose of the statute was to protect the class of people to which the plaintiff belongs by preventing the type of injury that the plaintiff suffered.

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Duty of Lessor

Back 6

Generally, where the owner leases property he transfers possession and thus, is relieved of liability for both dangerous conditions existing prior to the lease and for those arising subsequently, but there are some exceptions.


Dangers unknown to Lessee - if the lessor knew or should have known about a dangerous condition he will be liable for injuries as a result of the danger.

Premise open to the public - Common areas such as halls, and stairways, usually remain in the lessor's control and he has duty to keep areas safe.

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Duty - Product Liability

Back 7

Defendant has a duty not to place unreasonably dangerous goods into the stream of commerce.

Negligence is only one theory for product liability also have breach of warranty both implied and expressed and strict liability. Refer to cards on Strict liability for details.

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Standard of Care

Back 8

Standard of care is the measure of the duty owed. The general standard of care is to act as a reasonable and prudent person would in the same or similar situation.

Standard of care may be more than the general duty based on the situations and surrounding factors such as age (child under 7), professionals, possessors of land, product manufacturers, guests in automobiles, rescuers, etc.

Common carriers, inn keepers must exercise a greater amount of care than is ordinarily required by the usual reasonable standard (may be liable for only slight negligence).

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Standard of Care - Possessor of Land

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1) No duty to unknown trespassers
2) Duty to warn and protect known trespassers and licensees from know hidden dangers and artificial conditions.
3) Duty to reasonably inspect the land and warn and protect invitees from known hidden dangers and artificial conditions.
4) Attractive nuisance - if a land occupier knows or has reason to believe that children have or may in the future trespass on his land he has strict duty to inspect for and eliminate any condition posing dangers that children may not fully appreciate.
4) Duty to conduct activities on the land with due care to prevent injury to people off the land.

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Standard of Care - Professional

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Must exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.

This includes members of the medical profession and malpractice claims.

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Standard of Care - Children

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Held to the standard of a child with similar age, education, intelligence, and experience.

Note: if child is engaged in an adult activity (driving a motor vehicle, tractor) they will be held to an adult negligence standard of care.

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Standard of Care - Mental Deficiency or Physical Disability

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Unless the actor is a child, is insanity or other mental deficiency does not relieve him from liability for conduct that does not confirm to the standard of a reasonable person under the circumstances.
If the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to is that of a reasonable man under like disability.

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Breach - Failure to Exercise Standard of Care

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Breach occurs when the defendant did not exercise the degree of care a reasonable person would use in the same circumstances (or the level of care required by an occupier of land, child, a professional, a medical professional, etc.) Refer back to the standard of care.

Note: The plaintiff has the burden of proof of providing by a preponderance of evidence.

Where injury is caused by negligence of 2 or more individuals and the plaintiff cannot determine which one caused the harm, the burden of proof shifts to the defendants (refer to Summers v. Tice)

Hint 13

Here the possessor of land breached his duty because he knew of the trespasser's presence ....and he failed to warn of the hidden danger of.....

Front 14

Breach - Res Ipsa Loquitur

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Under the doctrine of res ipsa loquitur and inference of breach exists if 1) negligence by someone else is implied by the facts, 2) the defendant had control of the instrumentality that caused the injury and 3) the plaintiff had not control over the even or instrument causing the injury

Hint 14

Here negligence by someone is implied because ... and the defendant had control over....

Front 15

Breach - Hand Rule - B<PxL

Back 15

If the probability of loss times the consequences of the loss is greater than the burden of taking action then there is a negligent COA for breach of duty.

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Actual Cause - But For Test

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If the injury sustained by the plaintiff would not have occurred but for the acts of the defendant, then the defendant's actions are the actual cause of plaintiff's injuries.

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Actual Cause - Substantial Factor

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If a single injury occurs from multiple causes each of which alone would have been sufficient to cause the injury, each defendant's conduct will be deemed to be a cause-in-fact if it was a substantial factor in bringing about the injuries.

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Proximate Cause

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Proximate cause means the injury suffered by the plaintiff was the direct natural and foreseeable results of the defendants actions.

Defendant will be liable where his negligence caused a harmful response or created risk of an independent intervening force.

Hint 18

Direct Causation - foreseeable results with any intervening causes.

Indirect Causation - foreseeable results with intervening forces such as subsequent medical malpractice, negligence of rescuers, efforts to protect persons or property, subsequent injury caused by original injury, injuries caused by reactions, subsequent diseases.

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Foreseeable Intervening Forces

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As a general rule a Defendant will be liable for harm caused by foreseeable intervening forces (subsequent medical malpractice, negligence of rescuers, efforts to protect persons or property, subsequent injury caused by original injury, injuries caused by reactions, subsequent diseases.

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Superseding Events

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A superseding event is an unforeseeable intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury and thus relieves the original defendant from any further liability.

Types of superseding events: 1) acts of God, 2) criminal acts by 3rd parties (must be unforeseeable), intentional torts of third parties, and extraordinary forms of negligent conduct.

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Damages

Back 21

Plaintiff must show actual damages (personal injury and/or property damage resulting from the acts of the defendant.

Nominal damages not available in negligence COA.

Punitive Damages may be awarded if the acts were deliberate and malicious.

Egg Shell doctrine defendant must take the plaintiff as they find them.

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Joint and Severable Liability

Back 22

Where there is two defendants and both are the cause in fact each is jointly and severally liable for all plaintiff's injuries (each is liable for the entire amount of the plaintiff's damages).

Contribution - when one tortfeasor pays more than his equitable share of the common liability, he has a right of contribution against the other tortfeasor.

Indemnity -

Front 23

Collateral Source Rule

Back 23

Plaintiff's damages are not reduced because he received benefits from other sources such as health insurance.

Front 24

Imputed Negligence - Vicarious Liability

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The conduct of one person may be imputed to another who is held liable even if her own conduct was entirely blameless. This liability is transferred out of a sense of fairness since the courts recognized some sort of relationship between the parties.

Examples or vicarious liability are: Respondeat Superior, Joint Enterprise liability, Independent Contractors (involved in inherently dangerous activities, non-delegable duties, negligence on part of employer).

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Respondeat Superior

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Under doctrine of respondent superior an employer, master or principal is vicariously liable for all torts committed by an employee, servant, or agent respectively, if the act is committed within the scope of the employment relationship.

Distinguish between frolic and detour.

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Joint Enterprise Liability

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Each party of a joint enterprise is vicariously liable for all torts committed by other members of the joint enterprise if the tort is committed within the scope of the enterprise relationship.

A joint enterprise is one in which two or more parties agree to work together for mutual benefit and each shares equal rights of control over the assets and activities.

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Employers Liability for Contractors

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Generally employers are not liable for the actions of independent contractors unless; 1) contractor involved in inherently dangerous activities, 2) employer exercised complete control over the contract, or 3) involved non-delegable duties (protection of public safety).

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Defenses

Back 28

Defenses to negligence include: 1) contributory negligence, 2) Comparative negligence and 3) Assumption of risk

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Contributory Negligence

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Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection.

Contributory negligence is a complete bar to plaintiff's recovery. i

Exception - Last Clear Chance Doctrine, allows the plaintiff to still recover when negligent if the defendant had the last clear chance/opportunity to avoid the accident.

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Comparative Negligence

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Comparative negligent does not bar complete recovery but reduces the plaintiff's recovery to reflect the degree of fault shared by the plaintiff.

Pure comparative - can recovery regardless of percent of plaintiff's negligence.

Modified Comparative - plaintiff's negligence must be 50% or less to recover.

Note: Last clear chance doctrine not available in comparative negligence.

Front 31

Assumption of Risk

Back 31

Generally a plaintiff who voluntarily assumes the risk of harm arising from the negligent or reckless conduct of the defendant cannot recover from such harm.

Assumption of risk is a complete bar to recovery for negligence when 1) the plaintiff had actual knowledge of the risk (subjective standard), 2) understood the consequences of the risk, and 3) voluntarily assumed acceptance of the risk in spite of this knowledge.

Note: must have had a choice in order for the assumption of risk to have been voluntarily.