Torts - Negligence

Front 1

Negligence
(Basic Elements)

Back 1

1. duty
2. breach
3. causation
(cause-in-fact & proximate cause)
4. injury

Front 2

Duty
(Basic)

Back 2

Law imposes D's obligation to P (risk-creating conduct or undertaking to act)

Duty is to foreseeable plaintiffs (zone of danger) and rescuers
Duty to act reasonably
Also applies in emergency situations

Front 3

Breach
(Basic)

Back 3

Failing to meet the standard of care.
(reasonably prudent person)

Objective standard

B < P x L
Burden of taking precautions < (probability x gravity of loss)

Front 4

Abnormally Dangerous Activity

Back 4

Puts you into the strict liability realm

1. if the act creates serous risk of injury to the plaintiff or plaintiff's land or chattel
2. cannot be eliminated with due care
3. generally not performed in that physical area

ex: explosives, crop dusting, hazardous waste

Front 5

Unforeseeable manner of harm & Superseding Cause
(Proximate Cause)

Back 5

Intervening forces are foreseeable and D still liable
(Ex: negligent rescue, subsequent med mal)

Superseding are not foreseeable thus breaking chain of causation --> no liability
(Ex: acts of God, third party intentional torts & crimes)

Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability

1. Look at passage of time (the more time that has gone by, the less likely there is liability)
2. Look at the general unforeseeability
3. Look at culpability

Front 6

Release

Back 6

Settling D's (then released from liability) percentage of fault is deducted from P's damages, regardless of D's actual payments.

Front 7

Joint Tortfeasors

Back 7

If multiple defendants' act cannot be apportioned, then joint and several liability

Ex: 2 hunters shoot into bush and person shot--don't know who the actual shooter was

(Tice v. Summers)

Front 8

Contributory Negligence

Back 8

If plaintiff contributes in negligence, then barred from recovery.

Minority rule so only use if facts say.

Last Clear Chance: negligent plaintiff can still recover if plaintiff can show defendant had the last clear chance to avoid injury and failed to do so.
(only works here)
Ex: cow case

Front 9

Comparative Negligence

Back 9

2 types:
Pure: default MBE type - P can recover even if P's negligence is greater than D's but the percentage is reduced by P's percentage of fault
(recover no matter what)

Modified: P can only recover if P's fault is less than D's

Front 10

Res ipsa loquitur

Back 10

-"the thing speaks for itself"
-creates an inference of breach of duty

Elements:
-this type of thing does not happen without someone being negligent
-the instrumentality that causes the accident is completely within the defendant's control
-plaintiff didn't contribute to the injury

Front 11

Negligence per se

Back 11

Negligence in violation of a statute (the statute creates a standard of care)
Elements:
1. the statute designed to prevent this type of injury
2. the statute designed to protect this class of plaintiffs

Does not apply when:
-dangerous to comply with statute
-emergency
-licensing statute (e.g. driving w/ expired license)

Front 12

Invitees

Back 12

An invitee is someone who comes onto the land with the consent of the land possessor AND
1) Is there to confer a potential economic benefit; or
2) The land is held open to the public at large

Duty to inspect and make safe.

"customers - invited to spend money"

Front 13

Licensee

Back 13

A licensee is someone on the land with the express or implied consent of the land possessor
1) The land is not held open to the public at large nor are they there to confer a potential economic benefit

Duty to warn licensee of known concealed dangers

"friends - we like licensees"

Front 14

Traspasser

Back 14

Known trespassers - warn of known artificial dangers

Unknown trespassers - no duty (except cannot willful injury, i.e. cannot go shooting at trespassers)

Minority: reasonable care duty to any land entrance, irrelevant of status

Front 15

Negligence Defenses

Back 15

1. Assumption of the Risk
2. contributory negligence
3. comparative fault
4. multi-party responsibility
5. foreseeable/unforeseeable & intervening forces

mitigate or eliminate liability

Front 16

Joint Venture

Back 16

Where two people partner-up for a project for a mutual economic benefit.

J & S liability?

Front 17

Assumption of the Risk

Back 17

Elements:
a. Plaintiff knew the risk
b. Plaintiff understood and comprehended the risk
c. Plaintiff confronted the risk voluntarily

Can be written or oral.
Only waives negligence.
Void against public policy when dealing with necessity.

Firefighter Rule

Front 18

Duty to rescue or aid

Back 18

Generally no duty to rescue.

Except: (duty)
1) Defendant’s tortuous conduct creates the need for rescue
2) When undertaking an act (must act reasonably; Good Samaritan statutes)
3) If defendant creates reliance
4) Special relationship

Front 19

Duty to warn and control third party

Back 19

Generally no duty to control third party
Exception:
1) If there is a special relationship and you have control over the person and knowledge of their dangerous propensity
2) Dram Shop Act
3) negligent entrustment

Front 20

Negligent entrustment

Back 20

The defendant gives something to someone the defendant knows or should know is incapable of handling the dangerous object given to them

Front 21

Duty to protect

Back 21

Generally no duty

Exception:
1) special relationship (ex: landlord/tenant)
a) Courts require a high level of foreseeability in order to find the existence of a duty
i. Many jurisdictions require plaintiff to put up proof of prior similar instances

Front 22

Duties of Government entities

Back 22

Depends on the function/role of the government
3 types:
1. proprietary
2. discretionary acts
3. ministerial

Front 23

Duty of Government
(Proprietary)

Back 23

1. Where the government is acting as a private actor
2. Treat them the same as private actors

Front 24

Duty of Government
(Discretionary acts)

Back 24

1. A decision that involves judgment and resource allocation on the part of the governmental defendant
2. Courts are very reluctant to impose a duty, second-guessing judgment and discretion

Ex: where stop sign should be placed at an intersection

Front 25

Duty of Government
(Ministerial)

Back 25

Once a decision has been made, they government has to do it right.

Public duty doctrine

Front 26

Public Duty Doctrine

Back 26

a. Where the police or fire department is being sued for the failure to come to the aid of a citizen
b. Absent an exception, since they owe a duty to everyone, there is no duty to a specific individual
c. Exceptions:
1) Creates a special relationship with specific reliance
2) Increases the danger

Front 27

Defendant - Utility
(Duty)

Back 27

1. Courts are worried about unlimited liability and affecting the cost of the utility
a. Limited the duty owed to people who have a contractual relationship with the utility

Front 28

Emotional Distress
(Duty--Direct Actions)

Back 28

Defendant engages in negligent conduct and plaintiff suffers emotional distress

To recover:
1) be in the “zone of danger” (the area where one is at risk of suffering physical injury--"near miss")
2) Have a physical manifestation

Exceptions:
i. Receiving a telegram informing of the death of a loved one
ii. The mishandling of a corpse

Front 29

Emotional Distress
(Duty--Bystander)

Back 29

Someone suffers emotional distress because they witness harm of someone else being injured.

Many jurisdictions require the bystander to have been in the zone of danger.

Most courts now: (1) was located near the scene of an accident; (2) suffered severe emotional distress; and (3) had a close relationship with the victim.

Front 30

Child Trespasser
(Attractive Nuisance Doctrine)

Back 30

Treated like an invitee.

Five factors:
1) Is the child too young to appreciate the danger
2) foreseeable kid trespassers
3) Does the defendant know of the dangerous condition on the property
4) Only applies to artificial conditions (in most jurisdictions)
5) Is the risk so great it outweighs the utility of what the defendant is doing (overly burdensome to defendant)

Front 31

Activities on the Land

Back 31

There is a duty of reasonable care owed to any land entry injured by defendant’s activity, regardless of plaintiff’s status.

Front 32

Plaintiff's not on land but adjacent to

Back 32

1. Artificial condition on the land: there is a duty of reasonable care

2. Natural condition on the land: there is no duty unless it is a tree in an urban area

Front 33

Landlord/Tenant Duty

Back 33

Landlords are not liable unless:
a. A common area (landlord has control)
b. Negligent repairs
c. A known hidden dangerous defect on the property (liable to tenant before tenant discovers condition)
d. Where the landlord knows the tenant is going to hold the property open to the public at large
1) Must exercise reasonable care to discover and repair dangerous conditions on the property

Front 34

Standard of Care
(4 variations)

Back 34

1. RPP under same or similar circumstances
2. children
3. statutory/negligence per se
4. professionals

Front 35

RPP Under Same or Similar Circumstances
(Standard of Care)

Back 35

the jury decided whether D met the community standard of care

Do consider:
-physical conditions
-emergency (becomes RPP in emergency)

Front 36

Children
(Standard of Care)

Back 36

Reasonable child of the same age, experience, and intelligence

Exception:
If the child is engaging in an adult activity or an inherently dangerous activity, we will treat that child as an adult.

Minority: kids under age 7 cannot be negligent

Front 37

Professionals

Back 37

The customary practice of the profession becomes the standard of care

Lawyers, accountants, doctors, architects

Professionals are required to possess and use the knowledge, skill, and training of other professionals in good standing in the relevant geographic community
1. Specialists: National focus
2. General practitioners: Same or similar locality focus

Front 38

Lack of Informed Consent
(Duty of Professional)

Back 38

Patient: standard of materiality: anything material to a RPP's decision. (TREND)

Professional rule: not liable if customary in that relevant locality not to divulge in

Front 39

Breach of Duty - Burden of proof

Back 39

preponderance of evidence

Front 40

Res ipsa loquitur
(Medical malpractice issues)

Back 40

Multiple defendants:
1) Where you have a medical team acting as a unit, in order to smoke out evidence (to find the actual culprit), we can hold all defendants jointly and severally liable unless they show they did not cause harm

Front 41

Case-in-Fact (Actual Cause)

Back 41

but-for test: more likely than not, but for D's negligence, P would not have been injured

preponderance of evidence

Front 42

Multiple Causes
(Cause-in-fact)

Back 42

E.g. multiple Ds or D and act of nature, etc

Substantial factor test (replaces but-for):
was D's act a substantial factor in P's harm

Use where multiple negligent defendants, each of who is a substantial factor in plaintiff’s injury (Ex: 2 fires)

J & S liability

Front 43

Loss of Chance

Back 43

P must show but for med mal, it is more likely than not P would survive

Front 44

Alternative Liability Theory vs. multiple defendants/substantial factor

Back 44

Multiple Ds: each D's negligence is a substantial factor in P's injury

ALT: multiple D negligence but only one D could have actually caused the injury

Front 45

Alternative Liability Theory (Summers v. Tice)

Back 45

Factors for application:
a. Small number of defendants
b. Each of whom is negligent
c. All have been sued

Burden of proof shifts to defendant to show they were not the cause.
a. If can’t show, they are jointly and severally liable.
(same as med mal)

Front 46

Market Share Liability

Back 46

Involves a generic product where the plaintiff cant show which of a large group of defendants is responsible for the harm

Several liability

Exception: D can show it could not have made the product at issue

Front 47

Proximate (Legal) Cause

Back 47

jury issue

3 things to address:
1. unforeseeable extent of harm
2. unforeseeable type of harm
3. unforeseeable manner of harm

D liable even if actions result in unforeseeable extent, type, or manner of harm

Front 48

Unforeseeable extend of harm
(Proximate Cause)

Back 48

Doesn’t matter if plaintiff suffers more harm than that was foreseeable
1. Defendant responsible for the full extent of the harm caused

Eggshell Skull Rule
1. Take your victim as you find them

Front 49

Unforeseeable type of harm
(Proximate Cause)

Back 49

Use a rule of foreseeability or the risk rule:
1. Look at what makes the defendant’s conduct unreasonable and then ask is the injury suffered the type of harm within the risk created by the defendant’s negligence

2. Decided by jury so there can be some debate

Front 50

Compensatory Damages

Back 50

return P to pre-injury position

Three rules:
1. The type of damages has to be foreseeable
2. The damages are reasonably certain (not allowed to be speculative)
3. The damages are not unavoidable

2 types:
1. special -- easier to measure, tangible (e.g. pecuniary, medical expenses, repairs, lost wages)
--> collateral source rule
2. general -- more intangible stuff (assume recoverable unless told otherwise)

Front 51

Avoidable Consequences Rule

Back 51

Plaintiff has an obligation to take reasonable steps after she has been injured not to exacerbate her injury.

Often arises where:
1. The plaintiff fails to wear a seatbelt or motorcycle helmet and receives more injuries

Front 52

Punitive Damages

Back 52

D must be more than negligent--need willfil, wanton, malicious, reckless

How to measure: the wealth of D is relevant but there is a limit (due process clause says >10% might be unconstitutional)

some states use a higher burden of proof

Front 53

Fire Fighter Rule
(Assumption of the Risk)

Back 53

1. Where the plaintiff professional rescuer is injured in doing his job, due to an inherent risk of that job, he will not be able to recover in negligence against the person who created the need for him to do his job.

2. This is true whether they are paid or not (still applies to volunteer firefighters)