Torts - Negligence

Front 1

Negligence

Back 1

In an action for negligence a P must show:
1. Duty
2. Breach
3. Actual Cause
4. Proximate Cause
5. Damages

Front 2

General Duty of Care

Back 2

GDC is imposed on all human activity, meaning a person is under a legal duty to act as a Reasonably Prudent Person in similar circumstances.

Means obligation to take risk-reducing precautions to lower the chance in that you might hurt someone in the days activities.

Front 3

Cardozo vs. Andrews view

Back 3

Cardozo - holds that D owes a duty of care ONLY to forseeable plaintiffs within the zone of danger. rescuers are always forseeable because "danger invites rescue"

Andrews - Duty of care to everyone

Front 4

2 situations where characteristics are taken into account for GDC

Back 4

a. If the D has superior knowledge
b. If D's physical characteristics are relevant to his actions. We take physical disability into account. We don't care about mental disability.

Front 5

Professionals Standard of Care

Back 5

Owe clients duty of care of an average professional in good standing practicing in that community.

- GP must act like other GPs in similar geographic communities. A reasonbly prident physician would warn patient of known risks associated with treatment.

-Specialist are held to the national standard of care

Front 6

Children SOC

Back 6

Children are held to the SOC of a child of similar age, experience and intelligence.

- Children under 4 lack capacity to be negligent

- Children engaged in Adult Activities must conform to the general SOC. (i.e. operating a motor vehicle)

Front 7

Automobile Driver to Guest SOC

Back 7

A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious misconduct.

Front 8

Bailor to Bailee SOC

Back 8

For a gratuitous bailment, bailor must inform must inform the bailee of known defects of the chattel. For bailment for hire the bailor must inform the bailee of defects he knows of or should know of in the chattel.

- Bailee SOC depends on who benefits from the bailment

a. Benefit to bailor: Low SOC
b. Benefit to Bailee: High SOC
c. Mutual benefit: Ordinary SOC

Front 9

Emergency Situations

Back 9

A defendant must act as a reasonable person would under the same emergency conditions.

Front 10

Lessor/ Lessee Realty

Back 10

General duty to maintain and must warn of existing defects which Lessor is aware of or has reason to know of and which the lesee is not likely to discover.

Front 11

Users of Recreational Land

Back 11

land owner that does not charge a fee is not liable for injuries suffered unless the landowner maliciously and willfully failed to guard against or warn of a dangerous condition or activity.

Front 12

Premises Liability

Back 12

A landowner owes a special duty to those who come upon his premises. The SOC depends on the status of the plaintiff and how the injury occurred.

Front 13

Persons off the Premises

Back 13

A landowner has no duty to protect those off the premises from natural or artificial conditions. Unless the artificial condition is unreasonably dangerous.

- In urban areas landowner has the duty to protect those off the premises from hanging trees on the premises.

Front 14

Trespassers

Back 14

Unknown Trespasser - A person on the premises without the landonwers permission or knowledge. Landowner owes no duty to Unknown trespassers because they are not foreseeable.

Known Trespasser - Landowner owes a general duty of care to those that the LO did not give permission to enter the land but has knowledge of(due to past trespass), to warn of hazardous conditions of the premises if 4 elements are met:
1. The condition is artificial
2. Known to the land possessor
3. likely to cause SBH
4. Hidden from trespasser. Non-obvious. (if obvious owner no duty)

Front 15

Licensee

Back 15

Is a person who comes on the premises with permission from the landowner but the LO does not confer an economic benefit.

- LO owes general duty of care to Lincesees and has duty to warn against hazardous conditions if 2 elements are met:

1. The LO has knowledge of the condition and
2. Its is hidden to the Lincessee (nonobvious)

Front 16

Invitee

Back 16

Someone who comes on the premises with LO permission and LO confers an economic benefit or the premises is used by the public at large.

- LO owes a general duty of care
- With respect to hazardous conditions the LO owes a general duty of care to protect ONLY if 2 elements are present:

1. The condition is concealed from invitee
2. The LO knows or should have know of the hazardous condition. Should have known through reasonable inspection does not have to be meticulous (engage in a cost/benefit analysis)

Front 17

Attractive Nuisance

Back 17

Holds that the landowner owes a duty of care to avoid forseeable injury to children caused by artificial conditions on the land IF:

1. Landowner knows or should have known of thecondition
2. LO knows or should know that children are likely to enter land
3. The condition is likely to cause injury because children can not appreciate the risk.
4. The expense of remedying the condition is slight compared to the risk

Note: Children do not actually have to be "attracted" to the condition. Can discover it once on the land.

Front 18

Fire Fighter Rule

Back 18

FF and Police may not recover for injury due to inherent risk of their job. They are treated as a licensee.

Front 19

Land Owner Discharge of Duties

Back 19

A LO may discharge his duties if:

1. Fixes the condition
2. Gives adequate warning

Front 20

Negligence Per Se

Back 20

allows the P to establish the duty and breach elements by showing that the D violated a criminal statute.

2 prong requirements to use:

1. The statute must be designed to protect that class of persons
2. From that type of harm

- 2 Exceptions where P cannot use this even if it applies:
1. Where it would be more dangerous and cause greater injury to adhere to the statute OR
2. Where compliance would have been impossible

Front 21

Duty to Act

Back 21

No legal duty to act affirmatively for the benefit of others UNLESS:

1. Special relationship between the P and D (i.e. parent/child)
2. If D's conduct created the peril. basically if you are the reason that the person is hurt you have a duty to help
3. If D has already started to help/rescue, must do so with reasonable care.

Note: A rescuer is does nt have a duty to put their own life at risk. A gratuitous rescuer can be liable for a negligent rescue that caused unreasonable risk to himself.

Front 22

NIED

Back 22

occurs when D subjects the P to threat of physical impact or severe emotional distress that is likely to cause physical symptoms.

Duty to avoid NIED is breached when:

1. The P is in the ZONE OF DANGER. Where the P is subjected to threat of physical impact but does not actually injure. P must show physical manifestation distress.

2. Bystander Rule - If the P witness the physical injury and is a close family member. P must show physical manifestation of distress

3. Special relationship - where you have a special relationship with P and carelessness is likely to lead to emotional distress. (i.e. handling of corpse at funeral home). P must also show physical manifestation of distress.

Front 23

Breach of Duty

Back 23

Breach occurs if the D falls short of the applicable SOC.

2 sentence Analysis:

1. Here the P will argue that the D breached his duty of care by....

2. This was unreasonable because...

Proof of breach may be established by:

1. Custom
2. Violation of Statute (Neg Per Se)
3. Direct or circumstantial evidence

Front 24

Res ipsa loquitor

Back 24

(means the negligence speaks for itself)

2 Elements:


1. The accident that occurred does not normally occur in the absence of negligence

2. The instrument that caused the injury was under the D exclusive control.

Front 25

Actual Cause

Back 25

May be established in 3 different ways:

1. "But-for" test - the injury would not have occurred but for the D negligence in...

2. Substantial factor rule - holds that if several causes concur to bring about an injury - and anyone of them alone would be enough to cause the jury - then D conduct was a substantial factor in causing the injury. Multiple Ds are joint and severally liable.

3. Alternative causes approach - requires P to prove that 1 of multiple D caused injury. The burden then shifts to each D to prove that they were not the actual cause of the harm. This is where multiple D are negligent but only one actually caused the harm.

Front 26

Proximate Cause

Back 26

The general rule for causation is that the D is only liable for harms that are reasonably forseeable.

1. Direct cause cases - D is liable for all foreseeable harm if there is an uninterrupted chain of events for Ds negligence to Ps harm.

2. Indirect cause cases - occur if there are intervening forces between the Ds negligence and the P injury. D is only liable for dependent intervening forces:

- Subsequent Medical Malpractice
-Negligent rescuer
-Subsequent accident
Basically where the Ds conduct put the P in danger and the danger continued to happen.

D is NOT liable for Independent intervening Causes:

- Criminal Acts of another
- Intentional Torts of Another
- Acts of God

Front 27

Damages

Back 27

Personal Injury - Economic and non-economic

Property Damage - cost of reasonable repair or if property is destroyed, fair market value at time of accident.

Punitive Damages - If Ds conduct is willful or wanton, reckless or dangerous D can recover.

Duty to Mitigate - The P has a duty to take reasonable steps to mitigate damages/ seek appropriate treatement (Avoidable Consequences Theory)

Collateral Source Rule - Damages are not reduced just because P received benefits from other sources.

Front 28

Defenses to Negligence

Back 28

1. Assumption of the Risk

2. Contributory Negligence

3. Comparative Negligence

Front 29

Assumption of Risk

Back 29

Denies P recovery of damage caused by the D if P know of the risk and voluntarily assumed it.

1. Express AOR - occurs when risk is assumed by express agreement

2. Implied AOR - occurs when inferred by circumstances. Knowledge may be implied if a reasonable person would have assumed the risk.

Some Risks May not be Assumed:

1. Common carriers and public utilities may NOT limit their liability by disclaimer
2. If statute enacted to protect a class, members of that class may not assume the risk

Front 30

Contributory Negligence

Back 30

Negligence on the part of the P that contributes to his injuries. At common law this would completely bar P from any recovery. (UNLESS Last Clear Chance) BUT if you can prove that the Ds conduct was reckless or wanton then P can still recover.

Last Clear Chance Doctrine- allows P to recover despite their negligence by holding the person with last clear chance to avoid the accident and failed to do so, liable.

Imputed Contributory Negligence - only if the P and D have a relationship that its proper to charge P with Ds negligence. (P would be vicariously liable)

Front 31

Comparative Negligence

Back 31

Where the Ps negligence contributed to his injuries, this allows for the Ps negligence to be weighed against the Ds negligence and reduce Ps damages accordingly.

Pure Comparative Negligence - Allows P to recover even a small percentage (if P 90% liable can still recover 10% damages)

Front 32

Strict Liability

Back 32

1. Absolute duty due to abnormally dangerous activity
2. Actual Cause
3. Proximate cause
4. Damages

Types of strict liability

1. If you own a domestic animal that you know has a vicious propensity or has bitten before. Does not count if animal bites trespassers.

2. If own a wild animal SL no matter what precautions are taken

3. A party who engages in abnormally dangerous activity. Abnormally dangerous activity is characterized by a 2 part test:

a. Involve a risk of harm to person/property EVEN IF reasonable care exercised

b. not commonly performed in the community

c. Risk outweighs social utility.