1
Q
Negligence Elements
A
- Duty - P has to specify the duty
- Breach - P has to show the breach of the duty
- Causation
- Damage
2
Q
What is Duty?
A
In society we are obligated to take precautions to protect others, and that is where these duties arise
3
Q
2 Questions for Duty
A
- To whom do I owe of care to?
- How much care do I owe?
4
Q
To whom do I owe of care to?
A
Foreseeable Victims
- Don’t owe a duty to unforeseeable victims and thus unforeseeable victims always lose negligence cases
5
Q
Test to Determine Foreseeable Victims
A
“Zone of Danger” Test
- A foreseeable victim is one that is in the zone of danger
- You owe a duty to people who are near you
- The activity dictates that area near you
6
Q
Exception to “Zone of Danger” Test
A
Rescuers
- “Danger invites rescue”
7
Q
How much care do I owe? (Standard of Care)
A
As much care as a reasonably prudent person acting similar circumstances
8
Q
Reasonably Prudent Person (RPP) Standard
A
- We make no allowances for the Defendant’s shortcomings, even if the Defendant cannot live up to the reasonably prudent person standard (being stupid is no defense)
- Developmentally challenged people and people who are mentally retarded have to live up to the standard
- Doesn’t matter with levels of experience either - have to live up to the standard
- Doing the best you can is not enough
9
Q
Exceptions to Reasonably Prudent Person Standard?
A
- Superior Skill or Knowledge
- Physical Characteristics
10
Q
Superior Skill or Knowledge Exception to RPP Standard of Care
A
Standard becomes reasonably prudent person with similar superior skill or knowledge
- Superior Skill
- Ex: Racecar driver
- Superior Knowledge
- Someone who has an advanced knowledge of a danger
11
Q
Physical Characteristics Exception to the RPP Standard of Care
A
- Ex: a blind person will be held to a reasonably prudent blind person standard
- Height, hearing capacity, and vision are not exceptions
12
Q
Special Circumstances Regarding the Duty of Care
A
- Negligence claims against kids
- Negligence cases against professionals (Malpractice Claims)
- Premises Liability
- Statutory Standards of Care
- Duties to act affirmatively
- Negligent Infliction of Emotional Distress (NIED)
13
Q
Standards of Care for Kids
A
- Children under 5
- owe the world 0 duty of care, therefore children under 5 cannot be held for negligence
- Children Age 5-18
- Standard is: hypothetical child of similar age, experience and intelligence acting under similar circumstances
- Subjective standard - very defendant orientated
- Standard is: hypothetical child of similar age, experience and intelligence acting under similar circumstances
14
Q
Exception to the Standard of Care for Children
A
- If child is engaged in adult activity, use the normal standard of care - reasonably prudent person
- Ex: Any Motor Vehicle
15
Q
Standard for Professionals
A
- Standard applies to every professional:
- has to exercise the same care as average members of the same profession
- Comparing to real world colleagues - not imaginary reasonable prudent person colleague
- Professional should conform with customary practice
- The custom sets the standard
- Purpose is because the lay jury can’t understand professional standard of care
- has to exercise the same care as average members of the same profession
- Locality Rule (Minority Rule)
- P must call an expert witness to determine what the average member of the profession would do in the locality
- Majority - national standard
16
Q
Premises Liability Standard of Care
A
Somebody enters real estate and encounters a dangerous condition
- Parties: Entrant & Possessor
4 Standard of Care that can apply depending on type of entrant
- Unknown trespassers
- Known trespasser
- Licensee
- Invitee
17
Q
Standard of Care to Unknown Trespassers
A
- Possessor does not know entrant is there
- Possessor owes no duty of care and therefore unknown trespasser always loses
18
Q
What is a Known Trespasser
A
- This category also includes anticipated trespassers (you know or should have known the entrant would be there)
- If there was a pattern of trespassing in the past, it is anticipated they will be there in the future, therefore they are known trespassers
19
Q
Standard of Care to Known Trespassers
A
Duty Owed: The Possessor must protect a known trespasser from conditions that meet a 4 part test:
- There is only a duty when there is an artificial condition (no duty to protect from natural conditions)
- Ex: No duty to protect from Icy front steps, rock slides, or tree limbs fallings
- It also has to be highly dangerous
- Condition has to be concealed from the trespasser
- Must be open and obvious
- Possessor knew in advance about the condition
Compressed Standard:
- Possessor only owes a duty to Known Entrants to protect only from known man-made death traps
20
Q
What is a Liscensee?
A
Licensees enter with permission, but do not confer economic benefit from possessor
- Ex: Social Guest
A Liscensee enters for his own purpose or business, not the possessor’s
21
Q
Duty Owed to a Licensee
A
Duty owed: is to protect the licensee from any conditions, if they meet two part requirement
- Condition has to be concealed from licensee
- Possessor has to have advanced knowledge of the condition
Compressed Standard
- Protect from all known traps on the property
22
Q
What is an Invitee
A
Enter land with permission and do confer economic benefits; or they enter land generally open to the public (Ex: Free Museum , Grocery Store, Church, Airport)
23
Q
Duty Owed to an Invitee
A
Duty Owed: 2 part test
- Only a duty if the condition is concealed from the invitee
- The condition must be one the possessor either:
- Knew about in advance
- Or could have discovered through reasonable inspection
- (length of time condition has been there could be a factor)
Compressed Standard
- Duty owed for all reasonably knowable traps
24
Q
Exceptions to the Premises Liability Standard of Care
A
- Firefighter and Police Officers
- Infant/Child Trespassers (under 18)
25
Firefighter & Police Officer Exception to Premises Liability Standard of Care
* Never recover for injuries that are an inherent risk of their job
* This is because of assumption of the risk
26
Infant/Child Trespassers (under 18) Exception to Premises Liability Standard of Care
Child trespassers entitled to special standard:
* Possessor must exercise reasonable prudence to avoid injuring trespassing children on the land with regard to artificial conditions
In determining assess:
* Probability a child would trespass
1. Proximity to kids
2. Something on the property that lures kids - Attractive Nuisance Doctrine
27
Whenever a possessor owes a duty, 2 alternative ways the possessor can satisfy the duty:
1. Can fix the problem
2. Give a warning
* The warning has to be adequate and doesn't usually work with children
* A sign is sufficient and maybe some restraint from the thing
28
Statutory Standard of Care
* This is about Ps borrowing specific statutes to substitute the duty of care which eliminates evaluation by jury and the defendant's ability to make excuses
* 2 part test for when P can use this doctrine
1. The statute seeks to protect a class of persons to which the P belongs
2. The statute seeks to prevent a class of risk of the same kind
* Class of person/class of risk test
Litigate under reasonably prudent person standard of care if introduction of statutory standard is not accepted
29
Exceptions to the Statutory Standard of Care
1. We will not borrow the statute if statutory compliance would have been more dangerous than the violation
2. Statutory compliance impossible under the circumstances
If exception applies, litigate under RPP standard
30
Duty to Act Affirmatively
No duty to act affirmatively
Application: Do not have to rescue a person in peril
31
Exceptions - When You Do Have a Duty to Act Affirmatively
1. If D and party in peril have a pre-existing relationship
* Look for relationships that are legal in nature
1. Innkeeper/guest
2. Business/business invitee
2. If the D caused the peril
Under the exceptions, duty requires to act as a RPP under the circumstances, not necessarily rescue - do not have to put your own life at risk
32
If there is no duty, but someone decided to rescue, they will be liable if:
1. if they act unreasonably
2. and cause harm
33
Negligent Infliction of Emotional Distress (NIED)
* Negligent D who does not inflict bodily trauma on P, but leaves P with emotional trauma
* Need two tiers of analysis:
1. Establish you have a negligent D
* Articulate another standard of care
2. Show a breach
Once analysis is proven, then can get to NIED claim: 3 alternative scenarios
34
3 NIED Scenarios
1. A near miss case
2. Bystander Claim
3. The relationship cases
35
NIED: Near Miss
* D does not physically harm, but almost does (close call)
* 2 reqs to recover
1. P has to show Ds negligent act placed the P in a zone of physical danger
2. You also must suffer subsequent physical manifestations (not mental)
* Ex: Heart attack
36
NIED: Bystander Claim
* D will badly injure or kill a 3rd party - the P is emotionally distraught from witnessing
* P has to show
1. You and the injured/killed 3rd party are family members with a close relationship
* Spouse/parent/child
2. You must be a contemporaneous witness
* You have to see the injury to the 3rd party as it happens
37
NIED: Relationship Cases
* Arises with a business or commercial relationship
* There is a high probability that careless performance will produce emotional distress
* Ex: Medical patient/lab; customer/funeral parlor
38
Breach of Duty
* P has to show the breach of the duty
* P has to identify a conduct and give a reason why it falls below standard of care
* "P will argue the breach was (X) and this was unreasonable because…"
* Conduct can be an act or omission
* BLL with Breach: Res Ipsa Loquitor (happens when P lacks info about what the D did wrong)
39
Res Ipsa Loquitor
* happens when P lacks info about what the D did wrong
Have to Show
1. Accident is one of a type normally associated with negligent conduct
* Appeal to statistics
2. And an accident of this of type would normally be due to the negligence of someone in this Ds position
* Shown through D having control over the injury causing object
40
Causation Types that both need to be proved:
1. Actual Cause
2. Proximate Cause
41
What is Actual Causation and what is the Test for it:
* The P establishes a connection between breach and injury
* Writing tip:
* Defendants are not causes, breaches are causes
* Don’t use "the", use "a" since there are an infinite amount of causes
* Test:
* "but for" - P must convince jury that but for the breach, the P would be uninjured today
* Imagine a parallel universe where D did do the breach to show the breach was the essential cause
* Counterargument: "Even if" I had been careful, you still would have gotten hurt
42
2 Special Situations for Actual Causation as to Multiple Ds
1. Merged cause scenario
2. Unascertainable cause
43
What is the Merged Cause Scenario in Actual Causation and what is the Test?
2+ negligent Ds who each commit a breach, and those breaches release a harmful force into the world which combine with each other (merge) which hurts the P
* Ex: 2 negligently lit fires that merge and burn down Ps house
Test to use: Substantial Factor Test
* Ask: whether each breach could have caused the harm by itself?
* Yes for both - both Ds held jointly liable
44
What's the Unascertainable Cause Scenario to Actual Cause?
* Breach of 1 D caused harm, the other's breach did not cause harm - but no idea who was liable - left to 50/50 statistics
* P has BoP by preponderance of the evidence - can't do that under 50/50
* Shift BoP here
* If a D can talk his way out he can, if he can't both are held jointly liable
45
What is Proximate Cause and What is the Test for it?
* After having showed duty, breach and factual cause, P has to show liability is fair (last minute sanity check)
* Test: Foreseeability
* Was what happened foreseeable?
* D is liable for the foreseeable consequences of his actions
* Look to as hints:
1. Distance
2. # of intervening step
3. Time
* s
46
4 cases where we don't do a case-by-case proximate cause analysis of foreseeability, and it is just presumed
1. Intervening medical malpractice
2. Rescue that causes further injury
3. Intervening reaction and protection forces
4. A subsequent disease or accident
47
Why is Foreseeablility Presumed for Intervening medical malpractice
It is foreseeable that doctors may cause malpractice and thus you the driver should have to pay for it and not the doctor
48
Why is Foreseeablility Presumed for Rescue that causes further injury
Driver, not rescuer, is liable because it is foreseeable that a rescuer would be attracted
49
Why is Foreseeablility Presumed for Intervening reaction and protection forces
Driver is liable for causing a panic
50
Why is Foreseeablility Presumed for A subsequent disease or accident
Foreseeable that P would be left in a weakened and dehabilitative state even after the doctor
51
Main Doctrine for Damages
"Eggshell Skull" Doctrine
* Once all elements are established D is liable for all damage suffered by the P
* "you take your P as your find your P"
* Applies to every tort
52
Are Damages Presumed for Negligence?
Never
53
What Damages are available for negligence?
* Nominal Damages are NEVER available for negligence
* Personal Injury Ps can be compensated for all of his damages and Foreseeability is Irrelevant
* medical expenses
* noneconomic damages (pain & suffering)
* Property Damage P can recover cost of repair or FMV if total destroyed
54
Nonrecoverable Items for Negligence
1. interest from the date of damage in a paersonal injury action; and
2. attorney fees
55
Duty to Mitigate in Negligence
P has a duty to take reasonable steps to mitigate damages (such as appropriate treatment)
56
Defenses to Negligence
1. Contributory Negligence
2. Assumption of Risk
3. Comparative Negligence
57
Contributory Negligence Defense to Negligence
* Negligence on part of the P that contributes to her injuries
* Defense applies to statutory violations unless the statute was designed to protect the class of Ps from their incapacity and lack of judgment (kids running in crosswalk)
* This is not a defense to intentional torts
* Last clear chance is a defense to Contributory Negligence
58
Last Clear Chance Exception to Contributory Negligence
* Allows Ps to recover despite their negligence - it is a rebuttal to Ds claim of contributory negligence
* The person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
59
Last Clear Chance Esception to Contributory Negligence Scenarios:
1. Helpless Peril
* where P is in "helpless peril" D will be liable if he knew or should have known Ps predicament
2. Innatentitive Peril
* P could have extricated herself if attentitive
3. Prior Negligence Cases
* D must have been able to, but failed to, avoid harming P
60
Assumption of the Risk
* P may be denied recovery if P:
1. knew of the risk; and
2. voluntarily proceeded in the face of the risk
* Implied Assumption of the Risk applies where the average person would clearly appreciate the risk
* Common Carriers and public utilities cannot limit their liability by disclaimer
* members of a class protected by statute will not be deemed to have assumed any risk
* Express Assumption of the Risk
* The risk may be assumed by express agreement
* No defense to intentional torts
61
Comparative Negligence and Types of Comparative Negligence
Trier of fact weighs Ps negligence and reduces damages accordingly
2 types:
1. Pure Comparative Negligence
2. Partial Comparative Negligence
62
Pure Comparative Negligence
* On MBE, assume Pure applies unless question states otherwise
* Pure Comparative Negligence will allow recovery no matter how great the Ps negligence was
63
Partial Comparative Negligenc
Bars recovery if Ps negligence was more serious than Ds negligence
