TORTS - Negligence


Front Back
Elements of Every Negligence Action (1) Duty of DF to conform to specific standard of care (2) Breach of that Duty (3) Causation - Actual + Proximate (4) Damages to PL's person or property
DUTY - Who Is Owed a Duty of Care? Only owe a duty to FORESEEABLE victims, so UNFORESEEABLE victims always lose a negligence claim. Foreseeable victims are within the "zone of danger" - i.e. near by the the negligent act (Cardozo - Majority View).
DUTY - Who is owed a duty of care: Specific situations (1) Rescuers are foreseeable - if DF puts himself/3rd party in peril he is liable to rescuer who is injured (2) Duty of care owed to a viable fetus - parents can recover for "wrongful pregnancy/birth" (no wrongful life actions) (3) third party for whose economic benefit is owed a duty of care if the DF could reasonable foresee harm
DUTY - What is the Basic Standard of Care? BASIC standard: DF's conduct measured against the reasonable, ordinary, prudent person - OBJECTIVE standard, we DON'T make allowances for a person's subjective characteristics. This is a mythical person with no set physical or mental characteristics.
DUTY - Exceptions to the Basic Standard of Care: Physical Characteristics. (1) PHYSICAL CHARACTERISTICS where relevant - ex. blind person judged against a reasonably prudent blind person under same circumstances (does not apply to mental handicaps)
DUTY - Exceptions to the Basic Standard of Care: SPECIALIZED KNOWLEDGE/SKILLS The reasonably prudent person becomes a reasonably prudent person WITH that superior knowledge. They are expected to USE that superior knowlege.
DUTY - Special Standards of Care, OTHERS: (1) Innkeeper/Common Carrier - very high degree of care - liable for slight negligence (2) Emergency situations: a reasonably prudent person under same circumstances
DUTY - Special Standards of Care: (3) Premises Liability cases --> (a) Those off Premises (b) Trespassers (1) To those OFF of premises: NO DUTY except for unreasonably dangerous artificial conditions abutting adjacent land & for passerbys (2) TRESPASSERS: Duty to DISCOVERED trespassers to warn OR make safe KNOWN, unreasonably (death/SBI) dangerous artificial conditions that would be concealed to the trespassers. NO duty owed to undiscovered trespassers.
DUTY - Special Standards of Care: (3) Premises Liability cases --> (c) LICENSEE LICENSEE is someone invited onto land that does NOT confer a economic benefit on land possessor; most common = social guests. DUTY: Duty to warn/protect against all KNOWN & CONCEALED traps on land (both natural/artificial), NO duty to inspect NOR to repair known defects .
DUTY - Special Standards of Care: (3) Premises Liability Cases --> Duty of a Lessor of Realty General Standard: Whoever occupies & controls the land has the duty to maintain the property to avoid unreasonable risk of harm to other. Exceptions (1) Lessor has to WARN lessee if existing known defects (2) If Lessor covenants to repair they are liable for unreasonably dangerous conditions (3) if lessor voluntarily repairs and does so negligent he is liable.
DUTY - Special Standards of Care: (4) Statutory Standards (Negligence Per Se) "Class of Person Class of Risk" Test. Violation of a statute will be a conclusive presumption of DUTY and BREACH OF DUTY if PL can show (1) PL is w/i protected class of statute (2) statute was designed to prevent the type of harm the PL suffered (3) Std is CLEARLY defined. If all elements NOT met use basic std. EXCEPTIONS: (a) compliance would cause MORE danger (b) compliance is BEYOND DF's control
DUTY - Special Standards of Care: (6) Negligent Infliction of Emotional Distress (NIED) To use NIED - 2 conditions MUST be present: (1) DF was negligent (2) PL didn't suffer ACTUAL physical trauma from accident - if he did can just tack emo distress damages to actual damage. 3 likely scenarios: (1) NEAR-MISS - PL was in "physical zone of danger" produced by DF's negligent act. PL must show physical manifestations of distress (heart attack, rash, etc) (2) BYSTANDER - PL was contemporaneous observer of a serious negligent injury & was a close family member (3)
DUTY - Special Standards of Care: (5) Affirmative Duties to Act General Rule: NO duty to act! EXCEPTIONS: (1) Assumption of duty by undertaking assistance (limited by good samaritan statutes) (2) Peril due to DF's conduct (3) Pre-existing Relationship b/w Parties - innkeepers, parent/child, employer/employee (note some jxs expand to informal relationship - ex. friends) (4) Contract (5) Duty to control third persons from harming others IF DF had actual ability & authority to control.
BREACH OF DUTY If DF's conduct falls short of the applicable standard of care - they have BREACHED their duty. Proof of Breach: (1) must be shown what in fact happened - direct or circumstantial evidence (2) shown that DF acted unreasonably. OR Negligence Per Se violation of statutes may est. breach
BREACH OF DUTY - Res Ipsa Loquitur The fact that a particular injury occurred may itself est. a breach of duty owed. REQUIREMENTS: (1) inference of negligence - accident causing injury wouldn't happen unless someone was negligent (2) Negligence was attributable to DF - if there are MORE than 1 possible DFs, RIL may NOT be used (3) Injury NOT attributable to PL.
CAUSATION = Actual Causation + Proximate Causation For Causation, BOTH actual & proximate causation must be present. NOTE: actual causation not likely to be tested - too easy.
CAUSATION - Actual Causation Tests: (1) BUT FOR TEST - injury wouldn't have occurred "but for" the act. Applies to concurrent causes where several acts combine to cause injury but none alone would be sufficient (2) SUBSTANTIAL FACTOR TEST - for situations w/ more than one cause, ea. standing alone would be sufficient - DF's act only has to be a substantial factor (3) ALTERNATIVE CAUSES - where 2 or more DF's liable, but unknown who caused injury. BOP shifts to PL to prove injury caused by one or more of DFs, BOP then back to DF to show his OWN negligence not cause
CAUSATION - Proximate (Legal) Causation This is a LIMITATION of liability. General Rule: DF is liable for all FORESEEABLE harmful results.
CAUSATION - Proximate (Legal) Causation --> Direct Causation Cases Direct Cause Cases: there is an UNINTERRUPTED chain of events from negligent act to PL's injury. DF liable for FORESEEABLE harmful results, NOT liable for UNFORESEEABLE results.
CAUSATION - Proximate (Legal) Causation --> Indirect Causation Cases Indirect Causation Cases: where there was intervening cause that COMBINED with negligent act to cause injury. (1) DF liable for foreseeable results caused by foreseeable intervening forces. Dependent intervening forces almost always foreseeable (ex. subsequent medical malprac; negligence of rescuers). Indepen intervening forces foreseeable if DF's act increased risk that these forces could cause harm to PL.
CAUSATION - Proximate (Legal) Causation --> Indirect Causation Cases (Continued) (2) DF usually liable for foreseeable results caused by unforeseeable intervening forces - cts give more weight to foreseeability of RESULT than the intervention. EXCEPTION - where it is a CRIME or INTENTIONAL TORT of 3rd party (3) DF NOT liable for UNforeseeable results caused by Foreseeable Intervening Forces (4) DF NOT liable for UNforeseeable results caused by UNforeseeable intervening forces
DAMAGES = actual harm or injury Damages NEVER presumed - Nominal damages are unavailable.
DUTY - Special Standards of Care: 6 Common Standards (1) Negligence actions against CHILDREN (2) Negligence claims against PROFESSIONALS (3) Premises Liability Cases (4) Statutory Standards - Negligence Per Se (5) Duties to Act Affirmatively (6) Negligence Infliction of Emotional Distress (NIED)
DUTY - Special Standards of Care: (1) Negligence Actions Against Children Kids under age of 4 owe NO std of care - can never be found negligent. Kids between 4-18 held to the std of a hypothetical child of similar age, experience, and intelligence, acting under similar circumstances. EXCEPTION - child doing adult activities held to reasonbly prudent ADULT std.
DUTY - Special Standards of Care: (3) Premises Liability cases - 4 classifications DUTY owed depends on PL's classification: (1) Those OFF of premises (2) Trespassers (3) Licensees (4) Invitees
DUTY - Special Standards of Care: (3) Premises Liability cases --> (d) INVITEE INVITEE is either someone who come onto land with permission to confer an economic benefit to possessor OR it is open to the ENTIRE public. DUTY: to warn/protect against all concealed dangerous conditions that were KNOWN or could've been discovered by REASONABLE inspection.
DUTY - Special Standards of Care: (3) Premises Liability cases --> Exceptions to 4 Classifications (1) Firefighters & Police can BARRED from recovering from risks inherent in their jobs (2) Child Trespassers - if it is foreseeable that child would be attracted to land, possessor must make safe as a reasonably prudent person would do. Kids don't have to be injured by what attracted them. (3) TWO WAYS to resolve hazardous condition: WARN or REPAIR.
DUTY - Special Standards of Care: (2) Negligence Claims Against Professionals STD: Professional owes her clients the care of the avg member of that professional practicing in a similar community (compared against REAL professionals, not a hypothetical reasonable person. Big city docs compared against big city, vice versa with small town. Est. in ct by an expert witness from the community.
BREACH OF DUTY - Legal effect of Res Ipsa Loquitur PL is allowed to go onto jury - DF's motion for directed verdict denied
CAUSATION - Proximate Causation - Indirect Cause Cases: DF liable for foreseeable results caused by foreseeable intervening forces 4 cases always foreseeable: (1) intervening medical treatment (2) intervening negligent rescuers (3) intervening reaction or protection forces (4) subsequent disease or accident. AND usually liable for foreseeable results by UNforeseen intervening forces b/c ct will give more emphasis to RESULTS than intevening force --> EXCEPTIONS: 3rd party criminal acts or intentional torts
Eggshell Skull Principle Applies to ALL torts!! DF is liable for ALL harm PL suffers - DF gets PL "as he is."
Affirmative Defenses - Traditional Defenses (1) Contributory Negligence: if PL is eve 1% at fault, he is barred from recovery. (2) Assumption of Risk: may be denied recovery if PL assumed the risk of any damage caused by the D’s acts – must’ve known about the risk and voluntarily assumed it.
Eggshell skull principle DF liable for ALL harm suffered by PL - gets PL as he comes. Applies to ALL torts not just negligence!!!
Affirmative Defenses - Traditional defenses (both mostly abolished) (1) contributory negligence - if PL is even 1% at fault, they are barred from recovery (2) assumption of risk - if PL knew of risk and voluntarily assumed it
Affirmative defenses - comparative negligence (majority rule) Take's PL's negligence into account- PL's recovery will be reduced by % of own fault
Affirmative defenses - comparative negligence --> 2 kinds (1) PURE - go strictly by percentages of fault (2) MODIFIED/PARTIAL - if PL is more than 50% at fault he gets NO damages if less than 50% damages are reduced