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102 Cards in this Set
- Front
- Back
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What are the elements of negligence?
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Duty (D must conform to a specific standard of care), breach (of the duty), causation (both actual and proximate), damage
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To whom does P owe a duty of care?
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Foreseeable victims – in the foreseeable zone of danger
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To whom does P not owe a duty of care?
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Unforeseeable victims - outside the zone of danger
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How will unforeseeable victims do on a negligence claim?
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They will usually lose, because they are not owed a duty.
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How does the zone of danger change for plaintiffs who are rescuers?
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Rescuers are always foreseeable victims, where D negligently put himself or a 3d person in peril
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How does the zone of danger relate to prenatal injuries (injuries to fetus)?
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A duty of care is owed to a viable fetus. If there is a failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may not recover for “wrongful life,” BUT the parents may recover for “wrongful birth” for any additional medical expenses and for pain and suffering from labor, but not ordinary child rearing expenses.
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How careful must D be to avoid harming foreseeable Ps?
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Basic standard is Reasonable Care - as careful as the hypothetical reasonably prudent person would be under similar circumstances. An objective standard
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In applying the reasonably prudent person standard, are D’s physical characteristics (handicaps) taken into account?
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Yes
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In applying the reasonably prudent person standard, are D’s mental deficiencies and inexperience taken into account?
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No
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What are the other characteristics of a reasonably prudent person?
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Careful, aware, etc.
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How is the RPP standard harsh?
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It makes no allowances for D's personal mental deficiencies (e.g., stupidity), or the fact that D is a novice/amateur - but sets higher standards for professionals/experts)
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What is the RPP standard for children?
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A child of like age, education, intelligence and experience - subjective test
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What is the standard of negligence for common carriers and innkeepers
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(Very high standard of care) Liable for slight negligence - IF P is a passenger or guest
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What are the six exceptions to objective RPP standard for negligence torts?
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Children (under 4, 5-17), professionals, land possessors to entrants on land, statutory standards of care (negligence per se), affirmative duties to act, negligent inflection of emotional distress
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RPP standard for children < 4
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No liability
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RPP standard of care for children over 4 under 18
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Care of a hypothetical child of like age, education, intelligence, and experience - subjective, flexible, pro-defendant
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Why is the RPP standard for children pro-defendant
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It's so customized to their personal situations that it's an uphill struggle for P
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RPP standard for children over 4 under 18 engaged in adult activity
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RPP objective standard
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What is an adult activity?
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Operating any vehicle with a motor (e.g., car, plane, boat)
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What is the standard of care for professionals?
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Required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. E.g., compare big city doctor to other big city doctors. Medical specialists will be held to a national standard of care.
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What is a doctor's duty to disclose?
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Doctors must disclose risks of treatment to enable person to make informed consent
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How does P educate jury on the professional standard of care?
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Expert witness
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How is "community" define for primary care physicians?
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It means geographic community - e.g., small town docs to small town docs, etc.
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How is "community" defined for specialists?
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It means the community of comparable specialists nationwide
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What duty of care is owed to undiscovered trespassers?
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None - they can never recover on negligence claim against landowner/possessor
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Is an landowner/possessor liable for damages caused off-premises by trees on the premises?
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Yes
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Why is an undiscovered trespasser owed no duty?
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He is an unforeseeable plaintiff - see Palsgraff
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What duty of care is owed to anticipated/discovered trespassers?
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Conditions - warn or make safe known, concealed ARTIFICIAL conditions involving risk of death or serious bodily harm; Activities - RPP standard
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If people typically shortcut through field, what type of trespasser would an unknown trespasser be?
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Anticipated
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What is a licensee?
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A person who enters land w/ permission but doesn't confer an economic benefit on landowner - e.g., social guest
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What duty of care is owed to licensee?
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Conditions - warn of/make safe all known, concealed, dangerous conditions (natural or artificial), but no duty to inspect or repair; Activities - RPP
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What is the Attractive Nuisance Doctrine?
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Landowners must exercise reasonable care (RPP) to avoid a reasonably foreseeable risk of harm to children caused by ARTIFICIAL conditions on his property
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What must P show to establish that the Attractive Nuisance Doctrine applies? (4)
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Dangerous condition that owner knows or should know of; owner knows or should know children frequent the area; condition likely to cause injury (because child won't appreciate the risk); balance - expense of remedying the situation is slight compared to the magnitude of the risk
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For the attractive nuisance doctrine to apply, does a child have to be attracted onto land by the dangerous condition?
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No
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What duty of care is owed to invitees?
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Conditions - warn of/make safe all known, concealed dangerous conditions (natural or artificial) (same duties owed to licensees), plus duty to make reasonable inspections to discover nonobvious dangerous conditions and then make them safe; Activities - RPP
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What is an invitee?
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A person who comes on property to confer economic benefit, or because property is open to the public
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When does an invitee lose that status?
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When the invitee exceeds the scope of the invitation
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What is the firefighters rule?
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They can never recover for inherent risks of a rescue (their job).
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What duty is owed to users of recreational land (i.e., landowner who permits general public to use land for recreational purposes)?
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No liability for injuries suffered by recreational user, so long as landowner does not charge fee and did not willfully and maliciously fail to warn of a dangerous condition
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What to consider re child trespassers (2)?
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Will children likely trespass? Can children appreciate danger themselves?
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How to satisfy duty to people who come on land?
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Adequate warning or repair - either works
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Duties of lessor and lessee of Realty (property law)?
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Lessee has a general duty to maintain the premises. Lessor must warn of existing defects that he is knows about or has reason to known about.
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When can a statutory standard of care substitute for a general duty of care?
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IF statute provides for criminal penalty, clearly defines standard of conduct, P is within class intended to be protected by the statute, and statute was designed to prevent the type of harm suffered by P (class of persons, class of risk test)
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When is violation of statute excused in negligence torts?
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When compliance would cause more danger than violation, or when compliance is beyond D's control (E.g., D driving on curvy road. Sign says ‘no passing.’ Passes to avoid hitting child & P gets hit. P member of protected class & accident meant to be protected but bc compliance more dangerous, no negligence per se)
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A statutory violation is …
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Negligence per se (but only 2 of 4 elements), meaning a conclusive presumption of duty and breach of duty
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Does compliance with a statute establish due care?
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Not necessarily
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What are the duties to act affirmatively?
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General rule: no duty to act
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What is the duty to rescue a person in peril?
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There is none
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What are the exceptions triggering duty to rescue?
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Assumption of duty by acting (but see good Samaritan law), peril due to defendant's conduct, special relationship between parties (parent-child, common carriers, innkeeper, shopkeeper, places of public accommodation), duty to control/prevent 3d person from injuring another ONLY if one has actual authority to control, and knows or should know that 3d p is likely to commit acts that would require exercise of control
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Does a landowner have a duty to rescue an invitee?
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Yes, because they have a previously existing legal relationship that benefits the landowner
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What is the limit of the duty to rescue, assuming there is one?
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Need not put own life in peril
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What must a P show to recover for negligent infliction of emotional distress?
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Negligent D: duty breached by creating foreseeable risk of injury to P by (i) causing threat of physical impact (has to be in the zone of danger) that leads to emotional distress, OR (ii) directly causing severe emotional distress that is likely to result in physical manifestations of the distress (limited to case where a duty arises from a special relationship between P and D, doctor-patient)
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When can bystander outside the "zone of danger" recover for negligent infliction of emotional distress?
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P and person negligently injured are closely related, P was at scene, and P perceived injury
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When can P recover for negligent infliction of emotional distress without physical manifestations?
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General rule: D's conduct caused some physical symptoms from the distress. Exceptions: Erroneous report of relative's death, mishandling of relative's corpse
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How should I handle the breach element of a negligence tort question?
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Identify the wrongful conduct and say why it's wrong. “D breached his duty of reasonable care by <facts>. This was unreasonable because a reasonable person (or, e.g., driver) in these circumstances use would <standard> (keep constant watch on the road).”
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What must a plaintiff show for res ipsa loquitur to apply?
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(1) Accident causing the injury is of a type that normally wouldn't occur unless someone was negligent; (2) the negligence is attributable to D - often by evidence that the instrumentality causing the injury was in the exclusive control of D; (3) P was not negligent
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Does Res Ipsa ensure a guilty verdict for D?
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No, P has only made a prima facie case
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What is the standard for actual causation in a negligence tort?
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But for D's act, P's injury would not have occurred
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What is the standard for actual causation when several causes bring about injury?
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Substantial factor test - if several factors bring about P's injury + any cause alone would have been sufficient to cause the injury, D's conduct IS the cause in fact if it was a substantial factor in causing P's injury
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What is the case of alternative causes?
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There are two or more negligent acts, but only one causes injury and it is not known which one
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What is the standard for actual causation when there are alternative causes?
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The burden of proof shifts to Ds, and each must show that his negligence is not the actual cause (Summers v. Tice)
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What is the burden of proof in a torts case?
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Preponderance of the evidence
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What is the standard for proximate causation in a negligence tort?
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Foreseeability – (1) a reasonably foreseeable result or type of harm, and (2) no superseding intervening force
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What is the standard for proximate causation in direct cause cases?
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In direct cause cases (uninterrupted chain of events from the negligent act to P’s injury), D is liable for foreseeable harmful results of his negligent act
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What is the standard for proximate causation in indirect cause cases?
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In indirect cause cases (subsequent intervening force combines with D’s negligent act to cause P’s injury), D is liable all foreseeable results caused by foreseeable intervening forces
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What essentially is proximate causation trying to show?
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That it's fair to make D pay for P's injury
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What common dependent intervening forces are almost always foreseeable? (6)
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Subsequent medical malpractice, negligence of rescuers, efforts to protect person/another/property , injuries caused by another "reacting" to D's actions (e.g., shooting causes stampede), subsequent diseases caused by a weakened condition, subsequent accident substantially caused by the original injury (e.g., D's car hits P, other peds panic & trip over his face)
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Table of indirect cause cases
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foreseeable intervening force and foreseeable harmful result (D liable); foreseeable intervening force and unforeseeable harmful result (not liable); unforeseeable force but foreseeable harm (laible unless intervening force is crime or intentional tort); unforeseeable force and unforeseeable harm (not liable, force is superseding)
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Is the doctor who committed medical malpractice also liable, when another actor's breach was the proximate cause?
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Yes
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Is D liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force?
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Yes, unless the unforeseeable intervening force was a crime or intentional tort of a 3d party
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Is D liable where a totally unforeseeable result was caused by a foreseeable intervening force?
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Generally no
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Is D liable when unforeseeable intervening forces cause unforeseeable results?
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No - these are superseding causes, relieving D of liability
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Is D liable when the harm resulting from his breach is unforeseeably severe?
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Yes. Eggshell skull plaintiff
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How to analyze an indirect cause case?
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Is what I'm afraid of (from breach) what happened?
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Does bad shrimp foreseeably break people's arms?
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No
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Once you have made a case, you get…
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All your damages, no matter how great in scope
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What are the types of damages?
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personal injury damages, property damages, punitive damages
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You take your P
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as you find him
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Which torts does the eggshell plaintiff rule apply to?
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All torts
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What is the measure of damages in a personal injury case?
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All damages (past, present and prospective), both special and general
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What is the measure of property damages?
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Reasonable cost of repair, or if property nearly destroyed the FMV at time of accident
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When may P recover punitive damages?
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When D's conduct is "wanton and willful," reckless or malicious
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What is contributory negligence?
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Negligence on the part of P that contributes to her injuries.
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What is the standard of care for contributory negligence?
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Same as for ordinary negligence.
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What is the effect of contributory negligence?
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At common law, completely barred P’s right to recovery, unless last clear chance applies
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Is there an exception to contributory negligence?
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Yes – last clear chance permits P to recover despite her contributory negligence, if person (D) had the last clear chance to avoid an accident but fails to do so.
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Is last clear chance used in comparative negligence jurisdictions?
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No
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How does P assume the risk of any damage caused by D’s act?
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P must (i) know of the risk, and (ii) voluntarily proceed in the face of the risk. If P assumes risk, may be denied recovery.
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What is implied assumption of risk?
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Knowledge of the risk may be implied where the risk is one that an average person would clearly appreciate.
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When is there not implied assumption of risk?
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Where there is no available alternative to proceeding in the face of the risk, or in situations involving fraud, force, or emergency.
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What is express assumption of risk?
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Risk assumed by an express agreement.
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Is contributory negligence, and assumption of risk, defenses to intentional torts?
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No and no
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How are damages determined in a pure comparative negligence system?
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Strictly by the #s, P recovers no matter how great P’s negligence
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How are damages determined in a modified comparative negligence system?
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P's negligence > D's = bars recovery entirely.
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What are nonrecovery items?
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Interest from date of damage in a PI action, attorney's fees
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Does P have a duty to mitigate?
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Yes, P has a duty to take reasonable steps to mitigate damages
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How are damages affected if P receives benefits from other sources, such as health insurance?
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Damages are not reduced, under the collateral source rule
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When is an employer liable for act of independent contractor?
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When duty is nondelegable on public policy grounds (e.g., making premises safe for invitees); also, from other lecture (ultrahazardous activity or estoppel)
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Is a parent vicariously liable for the torts of her children?
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No, but parent liable for own negligence in allowing child to do something/negligent supervision
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How is a hotel's duty measured vis a vis guests - as innkeeper or land occupier/invitees?
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Analyze both - innkeeper's high duty of care toward guests; land occupier's duty to make premises safe for invitees
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What can create a legal duty to affirmatively act for the benefit of others?
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The existence of a special relationship
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Does an employer owe an employee a duty to protect him from unreasonable risk of injury when the employee was acting within the scope of his employment?
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Yes, because of the special relationship between the employer and the employee.
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