Master Set: Negligence Torts

In essence, what is negligence?

When a person doesn’t exercise reasonable care under all the circumstances

What does B < PL mean?

If burden is less than the probability of harm and the loss severity, Defendant is liable for negligence.

Ford recalled 100,000 Ford Fusions for defective door handles. After an accident, the door handles would freeze and would fail to open. It would cost Ford $5 per unit to fix the door handles.

100 in 100,000 cars experience frozen handles during a crash.

Per incident, $1M in liability occurs.

Calculate BPL.

$500K < 100*$1M =$100·m
Liability is established.

What is foreseeability?

Probability that the harm will occur.
In light of all circumstances, did the actor exercise reasonable care and diligence to guard against the danger?

In a Negligence claim, what burdens does the Plaintiff have?

Burden of proof
Plead cause of action
Come forward with a prima facie case

What are the elements of negligence?

Duty
Breach
Causation
Damages

List all ways duty is established and the Restatement sections.

§38-§44 (you need an acronym for this)

1. Actor’s conduct creates risk of physical harm

2. Putting Plaintiff in peril

3. Imposed by statute

4. A special relationship (parent to child, employer to employee, therapist to patient)

5. Special relationship (invitee-invitor, licensee-licensor)

6. Rendering services

7. Having a special relationship with a harmful person, and stopping them to benefit a third person

8. Taking custody of another

9. Duty expansion via criminal statute (negligence per se)

10. Within the zone/bubble of danger of the negligent act

If not through above, the Rowland factors.

What are the Rowland factors?

Creates a special relationship that otherwise did not exist. Goal is fairness.

1. Foreseeability of Harm resulting from D’s act/inaction
2. Certainty that P suffered injury because of the actions/inactions of D
3. Connection between what happened and D’s conduct
4. Moral Blame for D’s conduct
5. Policy of preventing future harm
6. Burden on D for imposing the duty
7. Availability of Insurance

Once a duty is established, a person must act as a…

Reasonably Prudent Person under the circumstances

How is breach established?

Court asks whether you acted as a Reasonably Prudent Person under the circumstances

How is causation established?

Step 1: Cause in Fact/Factual Causation: Use the but for test.
1a. If but for doesn’t work, use substantial factor test.

Step 2: Proximate Cause (Umbrella): If proximate cause fails, no causation.

Restatement 3rd: Risk Standard Theory: How foreseeable was the harm for Defendant?

Common Law: Proximate Cause: Is it fair to hold D liable for this harm?

Historical Theory: Direct Causation: Was there an unbroken sequence of actions with no intervening causes?

2a. Was proximate cause satisfied?
Superseding Act: Were there unforeseeable or extraordinary intervening events that cut off liability? e.g. criminal act. If yes, D is not liable.
Intervening Cause: Was there a foreseeable consequence from D’s negligence? If yes, chain is intact.

2a(i). Subsequent Medical Injury Doctrine: A later negligent actor (doctor, EMT, hospital, rescuer) does NOT break the chain. The original tortfeasor remains liable.
2a(ii): Rescue Doctrine: Danger invites rescue and rescuer was a foreseeable consequence. Chain is intact.

What is the But For test?

What is the Substantial Factor test?

What is the Standard of Care?

Reasonable and prudent person under similar circumstances

The reasonable person standard DOESN’T consider…

MOSI:

Mental illness
Old age
Substandard knowledge/judgement/skills
Intoxication

The reasonable person standard DOES consider…

Physical disability or illness
Special knowledge
Emergency
Custom

True or false: Specialized knowledge of a field, such as pilots, lawyers, doctors, etc. are held to a reasonable standard of their respective profession (e.g. a reasonably prudent lawyer).

True

Ms. A grew up in CA and has never witnessed snow. She traveled to Indiana while it was snowing and crashed while driving. Is she liable? Why?

Yes. Doesn’t matter that she lacked personal experience. The knowledge of an ordinary reasonable person can vary from community to community.

True or false: A general duty of care is owed to all foreseeable plaintiffs.

True

What is Circumstantial Evidence? Provide an example.

Evidence by inference. Crumbs on mouth or banana on ground.

True or false: Children are held to a Reasonably Prudent Child of the same age, intelligence, and experience under the circumstances.

True

A 10 year old child starts driving a car. What standard is he held to?

Reasonably prudent adult

A child less than years of age is incapable of negligence.

5 years

What needs to be established to win a Lawyer Malpractice case?

Need to prove that underlying case would have been won without the attorney’s errors

True or false: Duty can spread to third parties (e.g. negligence towards husband can impact wife).

True

What is informed consent?

Need to disclose material information that could result in person not consenting (e.g. doctor failing to inform patient of risky procedure)

What’s the reasonableness standard for informed consent?

What would a reasonable person need to know?

What is informed consent used for?

Generally medical malpractice, but all professional standards

There is no informed consent. What is the doctor liable for?

Negligence

Based on the circumstances, the duties of a Reasonably Prudent Commercial Enterprise are:

1. Duty to inspect, but not to continuously monitor aisles

2. Duty to make sure aisles are clean in a reasonably timely manner

3. Duty to exercise reasonable care in keeping premises reasonably safe

When does Slip & Fall Liability exist for Commercial Establishments?

1. Actual or constructive knowledge of a dangerous condition

2. Created a dangerous condition and didn’t do enough to reduce risk

While playing golf, Arnold carefully looks for others and observes no one before driving his ball. Immediately after Arnold hits the ball, Jack suddenly appears from behind a tree in the area toward which Arnold's drive is heading. Does Arnold have a duty of reasonable care to Jack? Why?

Yes, he created risk of physical harm

Bill takes his friend Mike to a basketball game. Mike, slips and falls down several rows of stairs and seriously injures himself. Does Bill have a duty of reasonable care? Why?

No, he didn’t create the risk of falling

Is friend a special relationship?

No

Bill slips on the stairs and runs into Mike, causing Mike, who is in front of him, to fall down the stairs. Is duty established? Why?

Yes, he created risk of physical harm

True or false: If the actor causes additional harm but acts in good faith, Good Samaritan Statutes stop liability.

True

List the elements for NIED Duty of Care to be established for the direct victim.

Two Pathways:

#1:

1. Direct victim must be within the zone of danger

2. Suffer severe emotional distress that a reasonable person would’ve

(No eggshell skull rule)

#2 (the backdoor)

1. There’s a certain category of special relationships (e.g. negligent death notification), where emotional harm is especially foreseeable, creating a duty to avoid causing severe emotional distress

Is NIED allowed for pets or personal property?

No

What are the 3 elements under NIED Bystander Rule?

Plaintiff must:

1. Experience severe emotional harm caused by…

2. perceiving the event contemporaneously (fine to see aftermath)

1. Close family member (marriage or blood)

True or false: You need a live birth for wrongful death; a fetus doesn’t count.

True

Who files for Wrongful Birth? What can be recovered? What damages are available?

The parents.
When a doctor’s negligence deprives them of the choice to avoid or terminate a pregnancy.
Emotional distress and medical expenses for the impaired child.

True or false: Wrongful Birth analyzed under negligence.

True

1. Who files for Wrongful Life?

2. What can be recovered?

3. What cannot be recovered? Why?

4. What damages are available?

1. The child.

2. Medical expenses.

3. Pain and suffering, emotional distress, impaired childhood. Non existence is a logical impossibility.

What are the elements to establish Duty of Reasonable Care for Injury Off Premises?

If the landowner POSSESSES an artificial condition that causes off-premises harm, DORC applies.

If not:

1. The property is commercial, OR

2. The owner knows of the risk, OR

3. The risk is obvious

Mr. A bought a house last week with a retaining wall (an artificial condition). He never touched it. It suddenly collapses onto the adjoining property and falls onto Ms. B's head. Mr. A had no idea it was in this condition; it looked brand new. Does DORC apply?

Yes

Different classes are treated differently in establishing Duty of Reasonable Care for Injury On Premises. List them. Discern the following:
Common Law
Restatement 3rd
CA law

Traditional Approach
Trespassers

• Undiscovered: No duty.

• Discovered: No willful harm; DORC during active operations (e.g. lawn mower); warn of known hidden dangers (e.g. dangerous tied up dog).

• Frequent / anticipated: DORC (footpath rule).
  ——-

Licensee: duty to warn of hidden dangers
Invitee: full duty of reasonable care under the circumstances

Restatement (Third) Approach
Abolishes categories - everyone gets DORC
Flagrant trespassers only get DORC if imperiled or helpless. Otherwise, they’re ONLY protected against intentional or willful harm

California Law
Everyone gets DORC, including flagrant trespassers

When is Duty of Reasonable Care for Injury On Premises owed?

What’s a licensee?

A social guest

What’s an invitee?

a person who is invited onto a property for a purpose directly connected to a business dealing with the property owner (e.g. grocery shoppers)

Discern the Landlord/Tenant Liability Duty of Care. Discern the following:
Old Common Law
Case Law

Old Common Law
Landlord doesn’t owes a DORC to tenant UNLESS the landlord:

1. Fails to disclose latent defects

2. Fails to maintain common areas under landlord’s control

3. Makes negligent repairs

Modern case law: Landlord ALSO owes a duty to:

1. Protect against foreseeable criminal acts

2. Guests of tenants injured due to the landlord’s negligence or retained control

True or false: Custom is never conclusive.

True

What is custom?

What does a reasonably prudent person normally do?

Examples:

• Local custom: Drivers typically take this blind curve slowly.

• Professional custom: Doctors in this speciality typically perform Procedure X instead of Y.

What is violation of statute/negligence per se?

Establish negligence through violation of criminal statute.
The plaintiff’s injury must be the type of harm the statute was designed to prevent.
The accident victim must be within the class of persons the statute is designed to protect.
If criteria met, negligence established.

When is violation of statute/negligence per se excused?

1. Reasonable for child age, physical disability, or physical incapacitation (e.g. child doesn’t understand importance of headlights on bike)

2. Actor exercises reasonable care in attempting to comply with statute (e.g. brake light burns out in rural area, two gas stations don’t have the correct part, actor drives slowly)

3. Violation is due to confusing statute

4. The actor’s compliance with statute would involve a greater risk of physical harm (e.g. large truck is tailgating dangerously close, driver passes stop sign)

What is Res Ipsa Loquitor?

The Thing Speaks for Itself - accidents like this never happen if driver wasn’t negligent

What concept is this?
A driver’s vehicle suddenly veers off a straight, dry road and hits a tree. Cars do not ordinarily run off the road absent negligence (e.g., inattention, speeding, mechanical neglect).

Res Ipsa Loquitor

Suppose duty is established. You are now able to use Res Ipsa Loquitor. After Res Ipsa Loquitor is established, what else is established?

Breach of duty and causation (cause-in-fact)

What is but-for causation?

Asks, “Was there more than a 51% chance that the harm would occur absent the conduct?”

What is the substantial factor causation test?

An alternative to substantial factor test. For cases involving multiple sufficient causes act independently.

You still can’t prove but for cause, so you go to Lost Chance Causation. What is the Lost Chance Causation test?

Plaintiff recovers for the substantial lost chance of a better medical outcome (substantial = 1-51% depending on jurisdiction)

Plaintiff seeks care at ABC Hospital. The hospital has employed a newly licensed doctor who diagnoses A with cancer. The doctor suggests the patient to “Just relax. It will go away on its own. Let me give you some Tylenol.” The patient agrees. 3 months later, she visits Golden Hospital and they tell her, “If you had done chemo 3 months ago, there was a 40% chance you would have fully recovered by now. Now, you may never recover.” Plaintiff’s full recovery damages amount is set at $1M. Plaintiff sues the hospital for Lost Chance Causation. How much in damages can she get?

$400K

What is Joint & Several Liability?

Indivisible injury caused by joint actions

Racer 1 is racing with Racer 2. Racer 1 loses control, swerves and hits P. Racer 1 is obviously liable. Racer 2 said, “I was racing but I didn’t hit P.” Joint and several liability? Why?

Yes. We want to maximize P’s chances of recovery.

What are these examples of?
1. Multiple Ds working in concert.
2. Group of Ds try to fight P but only one of them hits P.
3. Married couple owns land. Husband waxed the floors and guest falls.

Joint and Several Liability

What is Several Liability?

Each D is separately liable for P’s damages

What is Preemptive Causation?

Defendant 2’s conduct prevented Defendant 1’s intent to cause harm from occurring. Defendant 1 is not liable.

Defendant 1 poisons Mr. A’s tea. Mr. A would have died if they took a sip. Defendant 2 shoots Mr. A before they drink the tea, causing death via the gunshot wound. Was there causation? Is Defendant 1 liable? What concept is this?

No. Preemptive Causation.

When is the burden of proof shifted from P to D?

MOPA:
Multiple Ds were negligent;
Only one D caused the harm;
P cannot identify which D caused the harm;
All potential tortfeasors are before the court

Three people are quail hunting. Two defendants negligently fire their shotguns toward the plaintiff at the same time. One pellet strikes the plaintiff, but it's impossible to know whose gun fired that pellet. Plaintiff proves both defendants were negligent. Causation is uncertain but one definitely caused the harm.

1. Who has the burden of proof?
2. What must they prove?
3. What happens if neither can disprove causation?

1. Each of the Defendants

2. To prove the other D caused the injury

3. Both are held jointly and severally liable

What is Market Share Liability?

P sues a substantial share of the market.
Defendants can be dismissed if they can prove they didn’t cause P’s injury.
If it D cannot prove lack of liability, D is severally liable.

Ms. A took a pregnancy medication in 1980 when she was pregnant with Jack. The medication was produced by multiple identical-formula producers.
30 years later, it was discovered that if the medication is taken while pregnant, it can cause asthma for the baby later in life. Jack is experiencing asthma, but has no idea which medication his mom took 30 years ago. Jack sues the entire industry. What concept is this?

Market Share Liability

D negligently leaves his large, aggressive dog unleashed at a crowded park. The dog lunges at P. Startled, P steps back quickly and bumps into Q. Q falls into a cyclist, who swerves and knocks over a hot-dog cart. The cart rolls downhill and hits P 10 seconds later. Q sues D.
Direct causation?

Yes, no intervening events

D negligently leaves a large hole uncovered on a public sidewalk.
P is walking toward it but is still 20 feet away.
Before P gets near the hole, a stranger (X), angry at P over an unrelated argument, intentionally shoves P.
P falls into the hole and is injured.
Direct causation?

No, the guy who shoved him broke the causation chain

What is a superseding act?

Unforeseeable or extraordinary events that can cut off the defendant’s liability

“Do NOT treat medical malpractice as a superseding cause.”
“Do NOT treat rescuer negligence as a superseding cause.”
“Do NOT treat re-injury to a weakened body part as a superseding cause.”
What doctrine is this and where does it fit?

Subsequent Medical Injury Doctrine: Causation

D negligently starts a fie in his own house. A neighbor rushes to save D. Is D liable for neighbor’s injuries?

Yes. The Rescue Doctrine - danger invites rescue.