Torts - Negligence

Front 1

Negligence (defined)

Back 1

D is liable when she has breached a duty of care which is the actual and proximate cause of P's injuries.

Front 2

Negligence Req. #1:
DUTY

Back 2

1. Duty of Care: Owe a duty of care to FORESEEABLE VICTIMS located in the "zone of danger."
2. Standard of Care: must be as careful as the REASONABLY PRUDENT PERSON ACTING UNDER SIMILAR CIRCUMSTANCES.

Front 3

DUTY: Two situations when the reasonably prudent person standard may be modified:

Back 3

1. If D had superior knowledge/skill = reasonably prudent person acting under similar circumstances W/ THAT KNOWLEDGE OR SKILL.
2. Reasonably prudent person always has the SAME PHYSICAL CHARACTERISTICS AS THE D in the case (blind, wheelchair, L-handed, short, tall etc.)

Front 4

DUTY: Special Duties of Care:

Back 4

1. Children
2. Professionals
3. Possessors of Real Estate to Entrants on the Land (trespassers, licensees, invitees)

Front 5

DUTY: Special Duty of Care: CHILDREN

Back 5

- Under the age 4 are legally incapable of exercising duty of care
- Ages 4-18 owe the same duty of care as a HYPOTHETICAL CHILD of similar age, exper. & intelligence acting under sim. conditions.
- Subjective standard, varies from child to child
- If that child (4-18) is engaged in an ADULT ACTIVITY (= operating a vehicle with a motor), child will be judged by OBJECTIVE standard of care – reasonably prudent (adult) person.

Front 6

DUTY: Special Duty of Care: PROFESSIONALS

Back 6

Professional actor (particularly a doctor) owes clients/patients the care of an average member of that profession practicing in a similar community.

Front 7

DUTY: Special Duty of Care: Possessors of Real Estate to Entrants on the Land
- Steps in Analysis

Back 7

#1: Categorize cause of injury:
- Hurt by activities?
- Hurt by encountering a dangerous condition?
#2: What kind of entrant:
- Trespasser (undiscovered or discovered)?
- Licensee?
- Invitee?

Front 8

DUTY: TRESPASSERS

- Undiscovered

Back 8

Owed no duty of care

Front 9

DUTY: TRESPASSERS

- Discovered and Anticipated

Back 9

1. For ACTIVITIES – owes reasonably prudent person acting under same circumstances (to warn or make safe).
2. For CONDITIONS – reasonably prudent person standard to warn or make safe when:
a. Condition is ARTIFICIAL
b. HIGHLY DANGEROUS, capable of killing or maiming (not for moderately dang. conditions)
c. CONCEALED from entrant (not open or obvious), and
d. Possessor KNEW ABOUT CONDITION IN ADVANCE.

Front 10

DUTY: Child Trespassers
ATTRACTIVE NUISANCE DOCTRINE

Back 10

Duty on landowner to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions. Elements:
1. Dangerous condition on land that owner is aware of; 2. Owner knows/should know that children are in the vicinity (FORESEEABLE that child would trespass); 3. Condition is dangerous b/c of child's inability to appreciate the risk; 4. EXPENSE to remedy the condition is SLIGHT compared to the magnitude of risk.
(Warnings satisfy duties w/ regard to dangerous conditions. Owed reasonably prudent person care).

Front 11

DUTY: LICENSEES (social guests)

Back 11

1. ACTIVITIES – reasonably prudent person standard of care
2. CONDITIONS – protect licensees from all KNOWN traps on the land
- Conditions must be (1) CONCEALED from the licensee and (2) KNOWN IN ADVANCE by possessor.
(NO DUTY TO INSPECT/REPAIR)

Front 12

DUTY: INVITEES
(enter land to confer business to posessor or enter land open to public at large)

Back 12

1. ACTIVITIES: reasonably prudent person standard of care
2. CONDITIONS: (1) CONCEALED from invitee or (2) possessor knew about it or could have discovered by reasonable inspection (DUTY TO INSPECT).

Front 13

DUTY: Firefighter or Police Officers

Back 13

Can never recover for injuries acquired in the inherent risk of their job. Based on notion of assumption of risk

Front 14

DUTY: Statutory Standards of Care - P wants to borrow a statute, substitute its words as the standard of care, then find negligence per se when statute violated. 2 PRONG TEST:

Back 14

1. P is a member of that class of persons that the statute seeks to protect.
2. Risk that materialized is in the class of risks that the statute was trying to prevent.
- Even if test is met, do not borrow statute if compliance would’ve been impossible or more dangerous than violation.

Front 15

No Duty to Act Affirmatively – No Duty to Rescue
- Exceptions:

Back 15

1. If the parties had a PREEXISTING RELATIONSHIP (employer-employee, common carrier-patron, land possessor-business invitee)
2. If D put P in peril (cause of peril)
- Reasonably prudent person standard of care – but never have to put own life at jeopardy.
- If neither exception applies but someone engages in gratuitous rescue – liable if botch rescue

Front 16

Negligent Infliction of Emotional Distress

Back 16

P must show:
i. D was negligent.
ii. Although P did not sustain physical injury, must show NEAR MISS or close call in zone of danger.
iii. Subsequent physical manifestations of the distress (i.e., heart attack, miscarriage).
Bystander Claim: Substitute for near-miss element: P was a contemporaneous witness to a negligent inflicted injury on a close family member.

Front 17

BREACH
(elements)

Back 17

P must:
1. Identify wrongful conduct.
2. Explain why it's wrongful.

Front 18

Res Ipsa Loquitor

Back 18

Arises when P cannot know what D did wrong. Accident that occurred is
1. One normally associated with negligence.
b. Would normally have been due to the negligence of someone in D’s position (D had control over instrument which caused the injury).

Front 19

CAUSATION - Actual

Back 19

1. “BUT FOR" Test: But for the breach, P would be healthy today.
- P must demonstrate a linkage or a connection between the breach and the ultimate damages suffered.

Front 20

CAUSATION - Actual
- Multiple Defendant Scenarios

Back 20

1. MERGED CAUSE CASE:
Substantial Factor Test: if each breach capable of causing full harm itself, then = substantial factor. If both defendants yes, then both held liable.
2. UNASCERTAINABLE CAUSES: Shift burden of proof – D must exonerate himself and if he can’t, then Ds held jointly liable.

Front 21

CAUSATION - Proximate

Back 21

1. Foreseeability/Fairness: P must demonstrate that it would be fair to hold D liable.
2. Direct Cause Case: D commits breach and P suffers immediately. Injuries are almost always foreseeable.
3. Indirect Cause Case: D commits breach, other stuff happens in middle, after which P suffers harm. Time betw breach & injury & new forces introduced.
- D is NOT liable when an INDEPENDENT INTERVENING force causes P's injury (unless it's foreseeable)

Front 22

CAUSATION - Proximate
- Indirect Cause Case

Back 22

(Time lag between breach & injury & new forces introduced)
- Well-Settled Quartet (in all, liability found to be foreseeable)
i. Intervening medical malpractice (driver of car liable, doctor usually liable too)
ii. Intervening negligent rescue (driver liable for both harm and negligent rescue that made things worse)
iii. Intervening protection or reaction forces (injury caused to people reacting to problem, i.e. crowd freaking out)
iv. Subsequent disease or accident (driver liable for leg and arm both – foreseeable that victim could hurt himself further)

Front 23

DAMAGES

Back 23

“Eggshell Skull” Rule
- Once P establishes all other elements of prima facie case, P recovers for all damages suffered no matter how great in scope.

“You take your P as your find your P.”

Front 24

Negligence: Affirmative Defenses

Back 24

1. Contributory Negligence (minority)
2. Comparative Negligence (majority)
3. Assumption of the Risk

Front 25

Contributory Negligence

Back 25

- P's contributory negligence completely bars her right to recover.

Front 26

Pure Comparative Negligence
(strictly by numbers and P always recovers something)

Back 26

Allows recovery no matter how great P's negligence is (i.e., if P 90% at fault and D 10%, may recover 10% of her damages)

Front 27

Modified or Partial Comparative Fault
(P may have no recovery)

Back 27

Most comparative negligence jurisdictions will bar P's recovery if his negligence was MORE SERIOUS than that of D.
(P's fault UNDER 50% reduces recovery in accordance with those % fault numbers assigned by the jury;
but P fault OVER 50% bars all recovery entirely)

Front 28

Assumption of Risk (defense)

Back 28

P may be denied recovery if he assumes the risk of harm caused by D's acts.
- P must: (1) know of risk and (2) have voluntarily assumed it.