Torts- Negligence

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Elements of Negligence

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(1) duty to use reasonable care
(2) breach of duty
(3) causation
(4) harm

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Negligence

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Failure to do something that a reasonable person would do; doing something that a reasonable person would not do

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Standard of Care in Negligence

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what an ordinary reasonable person of ordinary prudence would/would not do under same or similar circumstances

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Negligence standard of care for children

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reasonable child of same age/experience

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Negligence Standard for Mentally incompetent

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Held to reasonable ordinary man standard, however, exception is when there is no prior notice of mental incompetence

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Negligence Standard of care for professional

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what ordinary reasonable person in same field would do

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Informed Consent Doctrine, exceptions

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physician must disclose adequate info about the material risks of operation and alternatives; some ct hold material risk to be one that is material to reasonable person, some say what is material to that patient; exceptions to necessary informed consent is when risks ought to be known by everyone, risks are known by that patient, when there is an emergency

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Negligence per se

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If D violates statute, and
(1) P is w/in class of persons statute designed to protect, (2) harm P suffered is harm statute designed to protect against, then violation of statute seen as proof of negligence

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Exceptions to negligence per se, when D is not required to follow statute

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(1) when D has no reason to know of violation
(2) when it is more dangerous to follow statute than violate it
(3) unable after reasonable diligence to comply
(4) emergency situation not of his own making

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Res ipsa Loquitur

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"the thing speaks for itself"; used when
(1) P has no knowledge of D's behavior
(2) seldom occurs w/out negligence
(3) item is under exclusive control of D,
(4) injury not due to P

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Causation in fact

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(1) But for test of causation; if that fails, use
(2) substantial factor test (concurrent causes)
Multiple Defendants:
(1) alternative liability, market share liability

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But-for test

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But for the negligence of the D, the accident would not have occurred

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Alternative Liability

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Join all possible defendants, all equally likely to have caused harm, put burden on each D to absolve themselves of liability

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Market Share Liability

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If all defendants joined,
(1) substantial share of market represented
(2) all used same formula
(3)all must be negligent

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Proximate Cause

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was consequence reasonably foreseeable? 1st, ask if there was an intervening cause

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Intervening Cause

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independent force which takes effect after D's negligence, and which contributes to that negligence in producing P's injury

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Superseding Cause

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Kind of intervening cause cutting off liability; if it is a different kind of intervention than D risks, it is a superseding cause

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Types of intervening causes

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(1) independent intervening cause
(2) Intentional, deliberate, malicious, criminal
(3) Rescuer, subsequent accident/illness/medical treatment- dependent intervenint cause

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Independent Intervening Cause

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D is liable if the type of harm is foreseeable, OR if unforeseeable intervening cause produces a foreseeable harm

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Intentional, deliberate, malicious, criminal

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D is not liable unless criminal intervening cause/conduct was foreseeable; must foresee crime in order to be held liable

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Dependent intervening cause

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Rescuer, subsequent accident/illness/medical treatment; ct likely to impose liability

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What test to use if no intervening cause?

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(1) Foreseeability
(2) Andrews Hindsight
(3) Direct Result (use but-for test)

In addition, some jurisdictions require that D must owe a duty to P, meaning P must be a foreseeable victim

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Joint and Several Liability

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if more than one person is a proximate cause of P's harm, and harm is indivisible, then each D is liable for the entire harm

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Zone of Danger rule

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If P was in zone of danger (risk of impact), P can recover for emotional distress due to worry over another person's injury IF other person was close relative and P can establish concern over 3rd person

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Wrongful Death of Unborn Child- Recover?

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Majority of states uphold a civil claim for wrongful death of unborn child, if you can prove person injured viable fetus and prove damages

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Wrongful Life- Recover?

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Most cts don't recognize a cause of action; however, parents may recover for their medical expenses