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111 Cards in this Set
- Front
- Back
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Elements of Negligence
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1. Duty
2. Breach 3. Causation a. Causation-in-fact (but for) b. Proximate cause 4. Damages |
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Duty (Reasonable Prudent Person):
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Objective. Fictional RPP. Would a RPP act that way under the circumstances? (Circumstances include physical disabilities, emergencies. e.g. If he were blind, if he was forced to make a split second decision to dive out of cab, etc.)
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RPP (take into account the experience of the D?)
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No, only held to minimum RPP standard unless hold self out as specialist, then it's reasonable care of a specialist. However Restatement disagrees: Never take into acct low experience (never driven before, but RPP has driven and knows a reasonable amt about tires), but sometimes consider much experience (20 yr truck driver should know about tires).
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children standard of care
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What would a reasonable person of the child's intelligence/experience do? unless it's an inherently dangerous activity. In that case, adult standard of care applies.
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Temporary insanity:
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Majority: not a defense. Minority: treat it as a spontaneous heart attack. Previous warnings?
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Insanity not a defense. Policies?
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2 innocent people, one who is harmed should be reimbursed by whoever caused it.
Motivates caretakers to use caution. Prevents false claims of insanity. |
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Custom:
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Evidences that reasonable care was used, but not conclusive. Is it commonly done and is it reasonable? Custom needn't be universally applied, just customarily.
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Professional malpractice:
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Pro acting in good faith/honest belief not liable for error of judgment or mistake in unsettled point of law.
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Professional malpractice liability possibilities:
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1. lack of knowledge/skill ordinarily possessed by others.
2.lack of reaosonable care/diligence (most suits fall here) 3. failure to exercise good faith in best judgment. |
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attorney malpractice
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usually must prove you would've won BUT FOR
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Med. malpractice
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Experts usually required to establish std of care. (However, std of care is not what expert would've done, rather it's whats commonly done)
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Majority opinion on whether local or national std of care applies:
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Similar locality. 3 options:
1. This locality 2. Similar locality 3. National |
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Informed Consent:
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Failure to obtain is a form of medical negligence. Patient must be informed about: 1. treatment 2. available alternatives 3. collateral risks (including personal interests, anything material). Also, causation in these cases is either (plurality)1. reasonable patient would think this is material 2. reasonable dr. 3. this patient wouldn't have had the surgery if they would've known=causation.(very few jdxns) Policy=right to decide about your body.
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Exceptions to informed consent:
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1. obvious 2. would be detrimental to P 3. Emergency.
Remember no consent=battery. Insufficient consent = negligence. |
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Duty to protect against any foreseeable injury?
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RPP protects against average, reasonably foreseeable things. Not liable for extreme circumstances (temperature, etc.)
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Duty formula:
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US v. Carroll Towing. No duty if b<pl. Burden less than probability x magnitude of injury. But doesn't acct for utility to society. (I have no duty if cost is more than magnitude of liability)
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Negligence per se:
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Violating a statute. Statute=duty.
1. P must be in the class of persons statute was designed to protect. 2. Injury must be type statute was designed to protect against. 3. Injury directly caused by violation. 4. Judge determines whether statute is appropriate as a measure of care in these circumstances. |
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Negligence per se excuses:
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1. Emergency not of own making
2. Violating was safer than complying (walking on path rather than dangerous sidewalk) 3. made a reasonable diligent attempt to comply. |
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Is statute an appropriate measure of care in this case? Consider:
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1. Disproportionate liability compared to criminal punishment?
2. Is there a similar common law duty? 3. Do citizens have adequate notice? 4. Compliance desirable for society? |
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Failure to Report statutes?
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Majority=not neg per se. Perhaps b/c injury is not a direct result of violation??
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Judge must determine:
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1. Applicability of statute
2. Effect a. neg per se - neg unless there is a valid (enumerated) excuse. Judge decides if excuse is valid. b. Rebuttable presumption - violation establishes prima facie neg, rebuttable w/ an excuse. Jury determines whehter excuse negates it. c. mere evidence - statute is merely a factor for jury to consider. ???do i even need to know this? |
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Storeowners:
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Storeowner must act reasonably to remove obstacles, but is not an insurer of safety. Must have reasonable time to discover/remove. Only banana peel case showing neg was when it was brown and flattened down, evidencing it had been there.
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Circumstantial evidence:
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Can be more persuasive at times (footprints v. testimony), but usually inferior. Banana peel cases - how long was it there? Brwn w/ dirt on it = can't determine = no neg.
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res ipsa loquitur (the thing speaks for itself):
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1. thing causing accident was under exclusive control of D at all times.
2. accident doesn't normally occur w/out neg. 3. not attributable to P (sometimes included) Don't have to eliminate all other possibilities, just show more likely than not D caused it. Burden of proof still on P. (REL merely gets you into court?) |
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Res ipsa with divided responsibility?
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P must bring all possible causors into the suit. If it's possible that an excluded party caused the injury (eg 1 of 2 causes and D is only responsible for one, P must fail) P must fail. P may recover if brings in 2 or more D's and shows at least one was responsible, especially if acting in concert.
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Unconscious medical treatment exception to R.E.L.:
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Burden shifts to each D to prove they were not neg.
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Effects test of r.e.l.:
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1. Inference (majority) - allows jury to make an inference of neg.
2. Presumption - jury presumes neg unless D presents evidence to bring it back to 50/50 3. Presumption AND shift of proof - D must now prove more likely than not he is not neg. |
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Causation in fact:
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Sine qua non- But for the negligence, would the accident have occured? Usually use this test unless there are redundant multiple causes that would preclude liablity w/ the but for test.
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Proof of causation:
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P must show that more likely than not (51%), D's neg was the cause. D need not disprove P's evidence, must produce evidence as to other causes. However, merely showing other possibilities is not a defense if D's conduct multiplied chance of accident and would naturally lead to similar incidents.
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post hoc ergo propter hoc
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after this, therefore b/c of this' is not good logic. (Correlation is not causation).
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Exceptions to 'but for': (Can still find causation in fact even though actions were not a 'but for' cause)
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1. D's actions increase likelihood of harm from another source (misdiagnosis reduced likelihood of survival by 14%).
2. concurrent causes - a.Anderson - each could have been sufficient, by itself, to cause substantially the same harm. (Fires). Substantial factor test b.Hill – both were at fault and combined to cause the injury ??????????? isn’t this just comparative neg? (notes say both tortfeasors are fully liable) 3. multiple fault - if P can show that both were at fault, but only one could cause the injury, burden shifts to D to prove innocence or else share the damages. a. summers v. tice b. market share theory |
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Market share theory:
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If P cannot show which of 3 or more caused his injury, but can show that each produced a defective product, each will be responsible to pay the % of damages equal to their % market share.
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Concurrent causes
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Each tortfeasor is responsible for the entire result. Either would have been sufficient to cause substantially the same harm. ???????isn't this comparative? maybe it's referring to multiple tortfeasing D's
Maybe better rule is that when neither is a 'but for' cause necessarily b/c it may have still occurred without the particular neg, use the substantial factor test |
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Multiple Fault:
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2 or more were at fault but only one could've caused the injury:
1. Summers v. Tice - Burden on D to show that they are not at fault, otherwise both are liable and they can determine amts among themselves. 2. Market share theory |
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Proximate Cause: Unforeseeable consequences Cases. (Narrow to Broad Liability)
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1. Ryan
2. Palsgraf (Cardozo) 3. WM1 4. WM2 5. Palsgraf (Andrews) 6. Bartolone 7. Polemis |
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Ryan
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You start fire and burns houses A-Z. Only liable to house A as ordinary and natural result of your neg.
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Palsgraf (Cardozo)
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Duty to reasonably foreseeable P's in the 'zone of apprehension.'
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WM1
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Injury must be reasonably foreseeable. Fire was not reasonably foreseeable.
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WM2
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Weigh the degree of foreseeability w/ the cost/ease of preventing the risk. Oil could've easily not been discharged. (Is this duty/breach analysis?)
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Palsgraf (Andrews)
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Everyone has a duty to not do acts that would unreasonably threaten the safety of others. Consider foreseeability and consider chain of events, not too many intervening causes.
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Bartolone
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Eggshell skull rule-you must take the P as you find them. If you commit a tort from which injury was reasonably foreseeable, you're liable for any injuries that follow.
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Polemis
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Unbroken chain rule: Anything directly traceable to the neg is an event for which you are liable.
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Concurrent causes
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Each tortfeasor is responsible for the entire result. Either would have been sufficient to cause substantially the same harm.
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Multiple Fault:
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2 or more were at fault but only one could've caused the injury:
1. Summers v. Tice - Burden on D to show that they are not at fault, otherwise both are liable and they can determine amts among themselves. 2. Market share theory (enterprise wide liab. - small industries, must join substantial amt of market) |
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Proximate Cause: Unforeseeable consequences Cases. (Narrow to Broad Liability)
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1. Ryan
2. Palsgraf (Cardozo) 3. WM1 4. WM2 5. Palsgraf (Andrews) 6. Bartolone 7. Polemis |
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Ryan
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You start fire and burns houses A-Z. Only liable to house A as ordinary and natural result of your neg.
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Palsgraf (Cardozo)
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Duty to reasonably foreseeable P's in the 'zone of apprehension.'
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WM1
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Injury must be reasonably foreseeable. Fire was not reasonably foreseeable.
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WM2
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Weigh the degree of foreseeability w/ the cost/ease of preventing the risk. Oil could've easily not been discharged. (Is this duty/breach analysis?)
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Palsgraf (Andrews)
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Everyone has a duty to not do acts that would unreasonably threaten the safety of others. Consider foreseeability and consider chain of events, not too many intervening causes.
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Bartolone
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Eggshell skull rule-you must take the P as you find them. If you commit a tort from which injury was reasonably foreseeable, you're liable for any injuries that follow.
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Polemis
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Unbroken chain rule: Anything directly traceable to the neg is an event for which you are liable. Foreseeability immaterial.
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Superseding cause
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Intervening cause sufficient to relieve the D of liability. Extraordinary, unforeseeable, far removed from D's conduct.
Put another way, if neither the intervening cause, nor the harm was foreseeable, the intervening cause will be a superseding cause and relieve D of liab. Also, intervening is not superseding if the risk of intervening act is very sam risk which renders the D negligent. (Derdiarian- didn't build a barrier and negligent D crashes into worksite) |
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Criminal Acts
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Unforeseeable. D not required to foresee malicious, criminal acts.
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Suicide
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Usually unforeseeable unless it's voluntary and there is a direct causal connection (Fuller v. Preis - seizures from car accident frustrated him to suicide)
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duty to rescue
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None, but if you start you have to follow through & not leave them in a worse position due to reliance. Also, if the instrument is in your control and you were the invitor, you have a duty to act reasonably to rescue. Also, you have a duty if you have a special relationship (common carrier/innkeeper, sometimes university)
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Economic loss rule
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To recover for economic loss there must be accompanying physical damage (Co.'s that lost business from twin towers can recover b/c they also had phys. damage. However, people who lost business due to flights being cancelled cannot.)
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University's Duty
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Hegel - No duty to regulate private lives and keep from going astray. (However, notes say uni was liable for rape/murder in dorms. Special relationship?)
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Duty to Warn?
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JS Factors Test? JS - Spouse has duty to warn when she has actual knowledge of child abuse against a particular person. and Tarasoff?? Duty when there is a specified victim and threat of serious bodily harm. Also, D had a special relationship and therefore had a duty to act reasonably.
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Duty to a 3rd party
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Special relationship (employee, parent), particularized info. Considerations:
1. Foreseeability/Severity (b<pl) 2. Opportunity and ability to prevent harm 3. Comparative interests of and relationships among the parties 4. Public policy/fairness/societal interest in the outcome |
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Negligent Infliction of emotional distress
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Daley expands the rule past phys. impact: No need for physical impact, but response must be reasonable, normal, natural, probable and PHYSICALLY MANIFESTED.
Eggshell skull rule only applies to physical abnormalities, not emotional hypersensitivity. |
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Bystander
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Seeks to limit the dillon rule: (Initially there was a zone of danger requirement, then Dillon got rid of it)
1. Closely related to victim 2. At scene and knew it was occuring 3. Reaction beyond that of an innocent bystander, not an abnormal reaction. (Shock due to sensory observance) Seeks to limit scope of NIED claims. |
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Duty of owner/occupier to: Trespasser
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Generally no duty. Exception: when discovered some say you must act w/ reasonable care, some say only you mustn't willfully or wantonly injure.
Also, reasonable care must be exercised when trespassers are frequent and may be anticipated. |
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Licensee
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social guest, on premises for licensee's own purposes.
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Duty to licensee
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Generally takes premises as they are. Owner must
1. warn of hidden dangers that owner is aware of. 2. refrain from willfully or wantonly injuring. Basic diff from trespasser is duty to warn of hidden dangers. |
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Invitee
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Invited onto land for benefit of the landowner.
Doesn't necessarily have to buy something to be an invitee unless they have no intention of present or future business. |
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Duty to invitee
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Must
1. warn of dangers 2. not injure by active operations. 3. keep premises reasonably safe Remember, when they go outside area of invitaion, they become either a trespasser or licensee (depending on permission). Stairwell wasn't a hidden danger to a licensee getting boxes. Toilet wasn't private, perhaps enticed customers, therefore duty was to an invitee. |
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Attractive Nuisance
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landholder sets before children a temptation he has reason to believe will lead them into danger, he must use ordinary care to protect them from harm.
Restatement discusses the ease with which it can be eliminated, utility, and the severity of the threat. Also whether children can discover it due to their age. |
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Attractive Nuisance (Restatement)
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1. knows or has reason to know that children likely to trespass
2. should know that it could involve unreasonable risk of death or serious harm 3. children can’t discover the risk b/c of their youth 4. utility of maintaining the condition and burden of eliminating are slight compared to risk to children 5. Possessor does not exercise reasonable care to eliminate danger or protect children. |
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Trend toward rejection/merger of categories
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Value of life/limb doesn't become less due to whether or not you were invited. Owner should exercise reasonable care toward all.
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Nominal Damages
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Just validates your rights. Haven't been any real damages.
This is only for intentional torts. Negligence/strict liability has to prove damages |
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Compensatory
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Tries to restore P, by financial means, to their original position. Categories:
General-pain, suffering, etc. VS. Special-med. bills, lost earnings,(easy to quantify)Economic-bills VS. non-economic-pain, suffering. |
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Compensatory Factors
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Med expenses (future and past), lost wages, lost potential for earning income.
Permanent disfigurement/disability Past/future physical/mental pain. |
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Punitive
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D's reprehensible actions could've been even worse. Punishment and deterrent. Over and above compensatory.
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Punitive - max award rule
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Judge reduces to his determination of maximum allowable if jury exceeds what he has determined to be the max
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Punitive- shocks the conscience
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judge determines whether it's so high or low that it shocks the conscience of the court
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Due Process Clause Constitutional Limits on Punitive Damages
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Generally should never exceed a single-digit ratio to compensatory (9-1).
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Punitive factors to consider
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1. Reprehensibility of D's conduct
2. disparity between actual harm suffered by P and punitive damages awarded 3. diff (usually single digit ratio) between punitive damages awarded and civil penalties in a comparable case. |
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Granddaughter sues for grandmother ingesting a drug that caused her injuries?
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Enright (DES) - Child has no cause of action for pre-conception torts. (Some cts disagree)
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Affirmative Defenses to Neg: (D has burden to prove)
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1. Comparative/Contributory Neg
2. Assumption of Risk 3. Government Immunity |
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Contributory Neg (only 4 states still use it)
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P's negligence is a complete bar to recovery
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Last Clear Chance Exception to Contrib.
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P was negligent but D could've avoided it so P cannot recover.
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Comparative
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Pure- Damages decreased by the % of neg attributed to P.
Modified- P recovers if P’s negligence either a) does not exceed D's neg (50% jdxns. P<=D) or 2) is less than the D’s negligence (49% jdxn. P<D). (Meaning that in 50% jdxns, if neg is equal, P recovers, but not in 49%). Slight - P does not recover is neg is more than slight |
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Comparative Neg gets rid of:
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Last clear chance and joint/several (b/c each is only liable for his own neg). Also, if there are multiple parties, P's neg should be compared to all of them. ?
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Express Assumption of the Risk: (Exculpatory clauses)
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2 steps:
1. Is it valid? Must be unambigous, absolve the conduct in question. 2. Is it enforceable or against public policy? Not if a) harm is intentional or reckless b)Unequal bargaining power (must be an essential service, otherwise you can choose some other gym) c)involves public interest-essential services provided to the public (utilities, etc. have unequal bargaining power) |
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Implied Assumption of risk:
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1. Voluntarily encounter
2. Knowing of this particular risk and magnitude. Usually implied assumption of risk is subsumed w/in category of contributory neg. |
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Implied Assumption vs. Contributory
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If you were an idiot and didn't read sign warning, you didn't have knowledge so you may have contrib. neg., but not assumption of risk.
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Immunity:
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Defense to liability for an entire class of persons based on their relationship w/ P, nature of occupation, status, etc. Many are starting to break down.
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Govt. Immunity (Municipal)
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No liability for govt. functions. Liab for proprietary (business/private)functions
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Assumption of Risk v. Comparative Neg
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AofR is basically gone in comparative neg states
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Govt. Immunity (State/Fed) State includes counties:
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No liability for discretionary (budget/judicial). Liab for ministerial (implementation).
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Govt. Immunity:
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Limited to neg and some intentional torts.
No tort liab for police to protect pub (allocation of resources). County was found liab for 911 operator's neg. |
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Respondeat Superior:
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Employer neg. for actions of employee even if employer wasn't neg.
Employee must be acting w/in scope of employment. |
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Policies for govt. immunity:
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Don't want to open flood of lit., don't want to spend tax $ on individuals.
Why impose liab on a single individual? Distribute it. Govt. can obtain insur. Encourage socially responsible behavior. |
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Scope of employment: (Slight deviation rule)
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1. Frolic – personal business, substantial deviation
2. Detour – slight, sufficient to fall w/in scope of employment |
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Slight deviation? 6 factors:
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1. employee’s intent
2. nature, time and place 3. time consumed 4. work for which employee was hired 5. incidental acts to be reasonably expected 6. freedom allowed the employee in performing his responsibilities. (clock in and out?) |
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Employer liab for intentional torts?
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Only if connected to his employment, (Bouncer, collections, officer, fan affecting my pitching) but not if employee just simply gets mad and throws ball at fan.
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Employee v. Indep. Contractor
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Ability to control details of the work, materials, etc.
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Indep. Contractors:
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No liability except:
Neg. in selecting contractor Gave bad materials/equip Failed to stop dangerous practices Can't delegate/discharge liability for inherently dangerous/illegal activities |
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Commuting
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Not w/in 'scope of employment' generally
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Respondeat Policies:
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Employer may not have been neg, but he did actually hire the neg employee. Encourages supervision. Business should be accountable for undertakings.
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Strict Liability
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Regardless of fault
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Wild animals
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Strict Liability
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Domestic animals w/ a known vicious propensity abnormal to it's class
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Strict Liability
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Domestic Animals
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No strict liability, one-free-bite rule. (no strict liab for trespass of dogs and cats)
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Trespassing animals
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Except for dogs/cats, owner liable for damage (livestock)
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Abnormally dangerous activities
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Strict Liability (eg explosives, crop dusting, nuclear reactor)
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6 factors to determine abnormally dangerous:
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1. high degree of risk
2.risk of serious harm 3. inability to eliminate risk by due care 4. not a matter of common usage 5. inappropriateness of the activity to the place 6. extent to which its value to the community is outweighed by its danger |
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2 exceptions to strict:
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1. Act of God
2. P did something to cause |
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Defenses to Strict:
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1. Assumption of Risk (e.g. knowledge of evil propensities of animal
3. Act of God (unforeseeable) 4. Only liable from kind of risk that makes it dangerous (not liable for blasting causing mink to eat her young) |
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Is immunity diff from privilege cuz it's a class of persons?
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