Negligence

What are the prima facie elements of negligence?

(1) duty;
(2) breach;

(3) factual cause and proximate cause;

(4) damages.

What are the two inquiries in determining duty?

(1) whether the plaintiff was a foreseeable plaintiff'?

(2) what applicable standard of care is owed?

What plaintiff’s is a duty owed?

Duty is only owed to foreseeable plaintiffs,

What is the rescuer and firefighter rule for duty?

A rescuer is a foreseeable plaintiff when the defendant negligently put himself or a third party in peril. Under the firefighter rule, firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their jobs.

What is the ordinary standard of care?

As a general rule, all persons owe a duty to act reasonably under the circumstances.

When are physical attributes considered in the standard of care?

The reasonably prudent person is considered to have the same physical characteristics as the defendant, if those characteristics are relevant to the claim.

What is the standard of care for children?

Children are held to the standard of care of a child of like age, intelligence, and experience. However, if the child is engaging in adult activities, the general adult standard applies.

What is the standard of care for professionals?

Professionals are held to the standard of care of an average member of the profession in good standing.

What is a doctor’s duty to disclose?

A doctor has a duty to disclose the risks of treatment to enable a patient to give informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.

What are the traditional standard of care rules for possessors of land?

Under the traditional rules, a possessor’s standard of care depends on the status of the plaintiff: (1) unknown trespasser; (2) known trespasser; (3) licensee; or (4) invitee.

What is the standard of care owed to an unknown trespasser?

No duty is owed to an unknown trespasser.

What is the standard of care owed to a known trespasser?

The possessor must warn or make safe any: (1) known; (2) artificial condition; (3) that is highly dangerous; and (4) concealed.

What is a licensee? And what standard of care is owed to licensees?

A licensee is someone who enters on the land with permission, but the defendant receives no economic benefit. Possessor must warn or make safe any: (1) known; (2) hazardous condition; (3) that is concealed.

What type of entrant is a social guest?

Social guests are considered licensees because the enter with permission but confer not economic benefit on defendant.

What is an invitee? What standard of care is owed to invitees?

An invitee is someone who enters the land with permission and confer an economic benefit on the defendant. Possessor owe a duty to warn or make safe any: (1) known or reasonably discoverable; (2) hazardous conditions; (3) that are concealed.

Members of the public are considered what type of entrant?

People who enter as members of the public for purposes of which that land was held open to the public is considered an invitee.

When will an invitee lose his status?

An invitee will lose his status if he exceeds the scope of his invitation.

What is the attractive nuisance doctrine?

For liability to attach under the attractive nuisance doctrine, plaintiff must show: (1) defendant knew or should have known of a dangerous condition; (2) defendant knew or should knew that children might trespass on the land; (3) the condition is likely to cause injury; and (4) the expense of remedying the situation is slight compared with the magnitude of the risk. The child does not have to be attracted onto the land by the dangerous condition.

What is negligence per se?

Duty and breach may be established if the defendant violated a criminal statute unless compliance would cause more danger or compliance is beyond defendant’s control. Negligence per se applies if: (1) the plaintiff is within the protected class; and (2) the statute was designed to protect the type of harm suffered.

What is the general affirmative duty rule?

As a general rule, one does not have a legal duty to act.

What are the exceptions to the affirmative duty rule?

An affirmative duty to rescue is owed when: (1) a special relationship exists between the parties (parent-child, innkeepers, common carrier, shopkeeper); (2) defendant placed plaintiff in peril; or (3) defendant assumed a duty by acting.

What are the types of NIED cases?

(1) near miss;

(2) bystander;

(3) special relationship

How is NIED established in a near miss case?

In a near miss case, defendant breaches a duty owed to the plaintiff if: (1) defendant created a foreseeable risk of physical injury; (2) plaintiff was in the zone of danger; and (4) plaintiff suffered physical symptoms from the distress.

How is NIED established in bystander cases?

In a bystander case, a defendant breaches a duty owed to a bystander not in the zone of danger if: (1) plaintiff is closely related to the injured person; (2) plaintiff was present at the scene of the injury; and (3) plaintiff personally observed and perceived the events.

What type of NIED cases is physical symptoms required?

Near miss cases.

How is NIED established in special relationship cases?

In special relationship cases, NIED is established if the parties have such a special relationship under which defendant’s negligence has a great potential to directly cause emotional distress.

What is the general rule for breach?

Defendant breaches his duty if his conduct falls short of the applicable standard of care.

What is res ipsa loquitor? And when does it apply?

If res ipsa loquitor apples, there is an inference of prima facie negligence; however, the jury could reject it. Res ipsa loquitor applies if: (1) the accident causing the injury is a type that is normally associated with negligence; and (2) the negligence is probably attributable to the defendant (exclusive control of the instrumentality).

What are the requirements for causation?

Plaintiff must show both: (1) factual causation; and (2) proximate causation.

What should be considered in factual causation?

Merged Causes and Unascertainable Causes

What is the general factual causation test?

A defendant’s act or omission is the factual causation of plaintiff’s injury if the injury would not have occurred but for defendant’s act or omission.

What is the factual causation test for merged causes?

Where several causes bring about an injury, and any alone would have been a sufficient cause, the defendant’s conduct is the factual cause if it was a substantial factor in causing the injury.

What is the factual cause test for unascertainable causes?

When two acts were negligent but it is not clear which causes the injury, the burden shifts to the defendants to show that their negligent act was not an actual cause.

(Hint: Both acts must be negligent).

What is the general proximate cause rule?

As a general rule, defendant’s act or omission is the proximate cause of plaintiff’s injury if plaintiff’s injury was a foreseeable consequence of defendant’s act or omission. Injury is foreseeable when it is the normal incident of or within the increased risk caused by the negligent act.

What should be considered when assessing proximate causation?

Intervening Forces and Superseding Forces

What intervening forces are almost always foreseeable?

(1) medical malpractice;

(2) negligence of rescuers;

(3) protection or reaction forces to the defendant’s conduct, including efforts to protect oneself or ones property; and

(4) disease or accident substantially caused by the original injury.

What is the eggshell plaintiff rule?

The eggshell plaintiff rule means that defendant takes plaintiff as he finds him for purposes of damages. In other words, defendant is responsible for all damages, including aggravation of preexisting injuries.

What are the potential defenses to negligence?

(1) attack an element of the prima facie case;

(2) contributory negligence;

(3) comparative negligence - pure or partial

(4) assumption of the risk.

What is contributory negligence?

In contributory negligence jurisdictions, any finding that the plaintiff was at all negligent will be a complete bar to recovery unless defendant had the last clear chance to avoid the accident.

When is assumption of the risk available?

Under the assumption of the risk defense, a plaintiff may be denied recovery if: (1) plaintiff knew of the risk; and (2) voluntarily proceeded anyway.

How are damages measured in pure comparative negligence states?

A negligent plaintiff may recover damages reduced by the percentage of their fault, no matter the amount.

How are damages measured in a partial comparative negligence state?

In a partial comparative negligence jurisdiction, plaintiff may recover damages reduced by the percentage of their fault so long as they were less negligent than the defendants combined.