Torts#2, Negligence

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Neg is

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conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Act or omission

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Elements of neg

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Duty
Breach
Cause in fact
Proximate cause
Damages

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Duty + Neg

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Generally one has the duty to act as a reasonable person would under similar circumstances + avoid unreasoanble risk of harm to others

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Breach + Neg

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Failure to conform to the reasonable person standard of care in a way that creates an unreasonable risk of harm to others.

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Causation + Neg

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Must be a causal connection between D's act or omission + P's injuries

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Damages + causation

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P has to suffer actual damages.

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P's burden of proof in neg action

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preponderance of evidence

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Balancing test to determine whether D violated the reasonable person standard

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Courts weigh the burden on D to avoid risk + utility of D's conduct against the probability of + likely GRAVITY of the harm D's conduct may cause

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Reasonable person standard of care & mental attributes

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ordinary abilities & intenigence. D does NOT get lowered standard of care if he has mental defects

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Reasonable person standard & knowledge or skills

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Standard of care will be raised for people who are experts or professionals--i.e. standard of care for reasonable professionals in similar circumstances.

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Reasonable person standard & physical attributes

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D's own physical attributes are considered. i.e. if blind held to standard aof care for like blind people in similar circumstances--also held to know about his own physical characteristics, Except: intoxication--drunk is held to standard of care of sober person.

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Reasonable person standard & children

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Children are held to standard of care of a reasonable child of the same age, intelligence & experiences for most activities--adult activities excepted

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Neg. per se

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Statutory standard of care which can establish neg. In order for crim statute to apply in civ case, P has to prove statute was designed to prevent the kind of harm that befell P + P must be a member of the class statute was designed to protect.

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Malpractice is

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failure of one rendering prof services to exercise the level of skill commonly possessed by minimally qualifed members of the profession in good standing.

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Informed consent

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Disclosing risks of treatment to pt before consent. Lack of informed consent constitutes prof neg

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When can D's lack of compliance w/ statute be excused?

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1. D reasonably unaware of particular occasion for compliance w/ statute
2. D reasonably attempted to comply
3. D face emergency
4. Compliance would have been more dangerous than violation.

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Does compliance with a criminal statute establish due care?

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Not necessarily. Only a minimum. In some situations,
due care requires additional precautions.

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Duty of care owed to foreseeable Ps. Palsgraf case re: 2 approaches to ? of who are foreseeable Ps.

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Cardoza--D owes duty to Ps w/in zone of danger--MAJ
Andrews--D owes duty to anyone who suffers injuries as a result of D's neg. regardless of whether injury to him was foreseeable or not.--MIN

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Andrews/Cardozo views + modern tort law

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Modern courts use combination--i.e. require proximate cause (per Andrews) but use Cardoza'a reasoning to conclude proximate cause does not exist if P was outside the scope of foreseeable danger.

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Generally there is no affirmative duty to act except

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1. D has created the peril
2. Special relationship
3. D has undertaken to act & P had reliance
4. K

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Types of evidence to prove neg claim

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1. Direct
2. Circumstantial
3. Res ipsa loquitur

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Requirements for res ipsa loquitrus (the thing speaks for itself)

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1. There is no direct evidence of how D behaved
2. Event is the kind that would not normally occur in the absence of neg
3. D was inexclusive control of the instrumentality causing injury.
4. P did not voluntarily contribute to event that caused injury.

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Res ipsa loquitor--MIN rule--re: professional colleagues + probability injury caused by one of them

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Some court apply res ipsa if P can demonstrate probability that injury was caused by neg of at least one of the Ds and Ds were all professional colleagues rather than strangers. (i.e surgery in which unwanted foreign body left in abdomen)

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Causation--2 elements

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1. CAUSATION IN FACT
2. PROXIMATE Causation

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Causation in fact--tests for

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1. "But for"
2. Substantial factors

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But for cause

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Cause w/o which the event would not have occurred.
Actual cause, factual cause, cause in fact

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Proximate cause

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Cause that is legally sufficient to result in liability--involves policy considerations limiting the scope of liability--determined primarily on the concept of foreseeability of risks and consequenses.

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Intervening cause

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1. comes into active operation
2. in producing the results
3. after D's neg
4. from a source independent of D's neg

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Foreseeable intervening causes

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those subsequent forces which
1. objectively one should reasonably anticipate OR
2. those which D should reasonably anticipate under the particular circumstances.

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Superseding intervening cause

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An intervening cause strong enough to relieve the wrongdoer of liability--comes in after D's neg act which cancels D's liability by breaking the chain of causation from D's act to P's injury--considered not "w/in the risk" created by D's original act.

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Concurrent cause

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1 of 2 or more causes that create a condition simultaneous that no single cause could have brought about

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What one factor generally determines whether an interventing cause should be considered superseding--thus relieving original tortfeasor of liability?

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Foreseeability

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Frequest examples of superseding intervening causes

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Criminal acts or intentional torts of 3rd parties, extraordinarily neg conduct, Acts of God

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Is D's liabile for injury to rescurer?

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Yes Neg Ds are liable for intervening acts as long as these acts are reasonably foreseeable. Rescuers are reasonably foreseeable. This encompasses injuries to rescuers even when rescue turns out to be unnecessicary or neg.

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Are neg D's liable for interventing acts whcih cause prop damage

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MAJ-yes. MIN few courts have maintaned defense of prop is inadequate reason to risk serious personal injury

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Is neg by MD treating injured patient foreseeable?

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yes

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In neg actions, actual damages must be proven. Types of damages recoverable

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General & special, not nominal, not punitive

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General damages cover

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non economic losses such as pain & suffering (both past + future)

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special damages are

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economic losses P suffers--e.g. medical bills, lost pay (both past + future)

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Major defenses to neg

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Contributory neg
Comparative neg
Assumption of the risk

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2 elements of assumption of the risk

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1. Ind must know + appreciate the risk (subjective--but generally knowlege of obvious risks will be assumed)
2. He must freely + vol. assume it

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Must assumption of the risk be express

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no can be implied by conduct

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Standard of conduct required in an emergency

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that of a reasonable person under the circumstances. Courts take into consideration the fact of an emergency.

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Contributory neg.

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1. P's conduct
2. which falls below the standard of care
3. for his own protection
4. + is a cause (but for or substantial factor) of P's harm

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Effect of success of comparative neg defense

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complete bar to recovery

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Comparative neg

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doctrine which rejects the all or nothing approach of contributory neg. and divides liability between the P + D in proportion to their fault.

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2 tyopes of comparative neg

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Pure
Modified

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Pure comparative neg

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P can recover damages from D no matter to what extent his own neg contributed to his injuries (MIN of comparative neg states follow)

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Modified comparative neg

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P can only recover damages if his own fault caused less than a set fraction of his own ijuries. Most states following comparactive neg hav a 50% rule. I.e. is P surpases 51%, he is not entitled to recover,

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Doctrine of last clear chance

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used in contributory neg jurisdictions. It is a defense P could raise if D had the last clear opportunity to avoid the accident

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When statute enacted to protect a particular class of Ps from their own neg, will contributory neg be recognized as a defense

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No--examples child labor law, workplace safety statutes, etc.

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Doctrine of avoidable consequences or mitigation of damages doctrine

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D is not liable for damages that P could have reasonably avoided. Comes into play after D's neg. Principal requiring P after injury or breach of K to use ordinary care to alleviate effects or breach or injury.

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Can person use self defense in response to another's neg? (i.e. not just in response to another intentional tort)

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Yes person can be entitled to use self defense in response to another neg--not just in response to another's int tort. Must show he had a reaonable belief that a harmful or offensive contact or confinement was imminent.

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Land owners + occupiers liability depends on what 3 categories of danger?

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1. activities on the land
2. artificial conditions
3. Natural conditions

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Land owners' + occupiers' standard of care depends on what 3 categories of P who claim injury?

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1. Invitees
2. Licensees
3. Trespassers

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Invitees are

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Person who enters onto D's land at D's express or implied invitation for a purpose relationg to D's interests or activites. Invitees are either business or public.

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Business invitee

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enters for purpose related to D's business activities or interests. Customers + persons accompanying them, delivery personson, job applicants.

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Public invitee

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member of public who enters onto D's land for a purpose as to which the land is held open to the public. e.g. churches, airports.

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Duty of land owners occupiers to invitees

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D has duty of reasonable care to prevent injuries due to activities on the land.
D has duty to reaonably inspect and discover dangerous natural + artifical conditions, to warn invitees of danger + to make safe.

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Licensee is

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person who enters onto land w/ D's express or implied permission + who does not enter for a purpose benefitting D or D's activities. Eg, visiting relative, social guests.

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Duty of land owners occupiers to licensees

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Duty to exercise reasonable care to protect licensees from injury from activities on land. Duty to exercise reasonable care to warn of any artificial or natural conditions of which landowner is aware, which present an unreasonable danger and of which the P/licensee is unaware + unlikely to discover. No duty to inspect for such dangerous conditions

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Classification of firefighters + police

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usually licensees --so land owner has no duty to inspect for defects nor to repair known defects. Only duty is to warn of known dangerous conditions (if there is time)

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Trespasser

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One who enters land w/o land owner occupier's permission.

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4 categories of trespassers

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1. unknown
2. known
3. children

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Landowner occupier's duty to unknown trespassers

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No duty

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Landowner occupier's duty to known trespassers

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Reasonable care to protect known trespasser from injuries due to activities on the land. D must exercise reasonable care to warn a known trespasser of hidden danger of which D is aware + known trespasser is unaware. D has not duty to prioect a known trespasser from injury deriving from obvious natural conditions on his land.

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Attractive nuisance Doctrine + child trespssers--5 factors

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1. D landowner knew or should have known of the unreasonably dangerous artificial condition
2. foreseeable that child would trepass
3. foreseeable that condition on land could cause serious injury
4. that children too young to appreciate the risk of danger +
5. the risk of injury outweighs the cost of making the condition safe.

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General rule re: duty of lessors of land

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Not liable to lessee or others on land for physical harm caused by dangerous (artificial or natural) conditions on the land

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Exceptions to general rule that lessor not laible

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1. situations where lessor Ks to repair
2. undisclosed dangerous conditions known to lessor
3. land leased fro purposes involving admission of the public
4. parts of land retained in the lessor's control which lessee is entitled to use
5. where lessor makes neg repairs

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Duty of lessee as possessor of property re: licenses

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Duty to exercise reasonable care to warn licensees about dangers known to the lessee.

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Vicarious liability

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Makes one liable for another's wrongful conduct due to a special relationship between them.

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Exceptions to general rule that lessors do not have liability for harm caused to others on the land (5)

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1. when lessor Ks to repair
2. for an undisclosed dangerous condition known to lessor
3. when land leased for ad,mission of general public
4. when part of land retained + lessee is entitled to use
5. when lessor makes neg repairs

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Doctrine of respondeant superior

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Employers are liable for tortious acts of employees when conduct occurs within the scope of employment. As long as employee's action has some flavor of buisness to it, it will likely be w/in the scope. When actions go outside of scope, called a frolic. When employee merely communting, not w/in scope.

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Neg entrustment

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D lent something (typically a car) to someone D should have known was likely to use the loaned object to harm others.

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Do instructions insulate the principal from vicarious liability?

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No careful instructions do not insulate principal from vicarious liability when employees violates them but will often be evidence (but non dispositve) that employee was acting outside scope of employment

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Joint Venture--4 elements

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1. Express or implied agreement among members of a group
2. common purpose
3. common pecuniary interest
4. equal rights of decision & control among the members

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Joint venturers + vicarious liablity

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Liable for torts committed within the scope of the venture.

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Is vicarious liability limited to neg?

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No if any intentional tort occurs w/in scope of employment, the empoyer will be liable

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When are employers vicarious liable for acts of independent contractors?

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1. ultra hazardous activities (i.e. blasting, using vicious animals)
2. non delagable duty due to public policy considerations
3. illegal activities

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Examples of non-delagable duties

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Duty of railroad to fence tracks, duty of car owner to maintain car, usually work performed in a public area where special precautions are needed.

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Is flying an airplane considered an ultrahazardous activity?

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Historically & 1st rstmt yes. 2nd rstmt reversed. Flying a plane not so common not considered ultrahazardous so strict liabilty not imposed.

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What is a dram shop act?

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Statute that imposes civil liability on a liquor vendor for torts caused by a purcaser's drunkenness. CL--no. Mod--MIN

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Imputed contriibutory neg

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bars P from recovery due to someone else's neg. usually personal injury, not apply to property damage

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3 principal situations in which imputed contributory neg applies

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principal-agent, joint venture, suit based on injury to someone else. (e.g. wrongful death or loss of consortium)

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What is an automobile guest statute?

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mandates that non-paying passengers cannot sue the driver of a vehicle unless their injuries resulted from conduct more serious than mere neg. (i.e. gross neg or recklessness)

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Family purpose doctrine

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car owner is liable for the neg of a family member driving the car as long as the family member is driving with the owner's express or implied permission.

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What is immunity?

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insulates D from liability due to his status, position or relationship to P. modern trend is to limit or abolish.

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Types of immunities which are largely abolished today (i.e. so you can sue each other)

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spousal immunity
parent child
charitable (i.e. charitable hospitals.

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Governmental immunity

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depends on whether fed, state, local

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Fed governmental immunity

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greatly diminished by Federal Torts Claims Act which allows neg claims against fed gov. as well as most intentional tort claims based on actions by fed investigative or law enforcement officers.

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State governmental immunity

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largely limited

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State officials' immunity

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States split--some distinguish between discretionary (decision making) + ministerial (following orders) + retain immunity for discretionary functions carried out honestly + in good faith.

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What is contribution in tort liability?

Back 93

sharing of payment for joint liabiity. applies where there are joint tortfeasors, each responsible for an indivisible portion of damages for neg. A d who has paid more than his pro rata share can seek a parital reimbursement or contribution fromt he other joint torfeasors, such that they each bear a fair share of the burden. In most states, rule of contribution does not apply to intentional torts.

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Indemnity

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Duty to pay for loss suffered because of a 3rd party's act. Shifts burden away from a secondary tortfeasor who has had a judgment against him and onto the primary tortfeasor.

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Active/passive neg doc

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Some states--a joint tortfeasor who is "passively neg" (i.e parking in a no parking zone + thereby blocking view) can be fully reimbursed through indemnification by the one who was actively neg (driver who hit ped)

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Wrongful death statutes

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compensate defined people (usually close family memebers) for the loss sustained as a result of tortiously caused death. Recovery allowed for lost economic support, companionship, sexual intercourse, etc.

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survivlal statutes

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lets decedent's estate sue (or be sued) for same harms that the decdent could have sued for (or been sued for) had he lived.

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What causes of action are states unlikely to allow in survival actions?

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those which involve intangible personal interests--defamation, malicious prosecution, invasions of privacy

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Negligent misrepresentation

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misrepresentation is based on information a reasonable person would have knwon was unreliable.--e.g. lawyers, accountants, other professionals have duty of due care to see that the information on which they based their opinions is reliable.

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Motion for summary judgment will be granted in neg case when

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pleadings show no genuine issue of material fact exists

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Motion for directed verdicted will be granted in neg case

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after evidence presented & viewed in light most favorable to the non-moving party, there is no reason to send the case to the jury.