Torts: Negligence and Defenses

Negligence

The failure to use reasonable care, which is the care that a reasonably careful person would use under like circumstances.

Elements of negligence:

(1) Duty

(2) Breach

(3) Causation (actual and proximate)

(4) Damages

Duty

Addresses whether ∆ has an obligation to π to conform to a standard of care.

Default: Reasonably prudent person (RPP)

Seven standards of care under case law:

(1) RPP

(2) Professionals

(3) Adults in emergencies

(4) Children

(5) Custom

(6) Disability

(7) Insanity

Lubitz rule

If there is no duty there can be no breach; if the act is reasonable, there can be no breach even if there is a duty.

Chicago rule

The duty of care requires balancing the risk of harm against the burden of taking precautions to prevent injury.

Vaughan rule

RPP is objective, and ∆ is deemed to know everything a reasonable person would know.

General rule (Professionals)

Professionals have a higher standard of care, they are held to the standard of a reasonably prudent person in the same profession.

Heath rule

The standard regards the average professional of the job.

Morrison rule

A national standard is used rather than local standards for medical professionals.

Helling rule

It is reasonable to not do a test until a person is a certain age, but it is not reasonable to deny people under that age the test when they are presenting signs.

Scott rule

A doctor is liable for lack of informed consent.

Moore rule

Doctors have a duty to disclose what a reasonable patient would want to know.

Medical malpractice negligence analysis:

(1) The missing information is what a reasonable patient would have wanted to know;

(2) But-for the doctor's breach, they would not have had the medical procedure.

Lack of informed consent

Failure of the doctor to inform the patients of the risks associated with their procedure, medication, etc.

Medical battery

A lack of π’s consent to do the procedure itself.

Legal malpractice analysis:

(1) The attorney’s employment;

(2) The attorney’s neglect of a reasonable duty;

(3) Such negligence resulted in and was the proximate cause of loss to the client.

Cordas rule

If there is an emergency, the courts look at what a RPP would do in the emergent situation.

Dellwo rule

Children are held to a standard of RPP of like age, intelligence, and experience under the same or similar circumstances.

Exception to the Dellwo rule

Children engaging in adult activities will be held to an adult RPP standard.

Roberts rule

If ∆ has a disability, courts look at what a RPP under like disability and circumstances would have done or how they would have reacted.

Breunig rule

An insane person is held to a RPP standard unless sudden insanity overcomes ∆ which requires absence of notice or forewarning that ∆ would become subject to it.

Negligence per se analysis:

(1) ∆ broke the law;

(2) π a member of the class of persons the law was designed to protect;

(3) the injury is of the kind the law was meant to prevent.

Five negligence per se excuses:

(1) ∆ incapacitated;

(2) ∆ neither knew nor should have known for the occasion of compliance;

(3) ∆ was unable to comply after reasonable diligence;

(4) ∆ confronted by emergency not due to his own misconduct;

(5) ∆’s compliance would have resulted in greater harm to himself or others.

Osborn rule

NPS establishes duty and breach

A well argued excuse could potentially relieve ∆ of liability for NPS.

Perry rule

Criminal statutes do not automatically create NPS.

π must look for a statute that establishes civil liability and has common law duty ingrained within it.

Majority rule (NPS)

NPS cannot be rebutted once it has been established.

Zeni rule (NPS minority)

Violation of a statute is evidence of negligence, or creates a rebuttable presumption.

Direct evidence

Testimony by a witness about a matter within his personal knowledge and so does not require drawing an inference from the evidence.

Circumstantial evidence

Draws inferences from inexplicit evidence.

Res ipsa loquitur analysis:

(1) Accident was one that ordinarily doesn’t occur without negligence;

(2) Harm was caused by an instrumentality within ∆’s control;

(3) No voluntary act or contribution made by π.

Ybarra rule

Exclusive control of the instrument or agency is no longer a requirement for proving res ipsa loquitur, just mere control.

Breach

Addresses if ∆ acted in accordance with the standard of care he owes to others.

B < PL = negligence

B = Burden of taking adequate precautions to prevent harm.

P = Probability of harm occurring if precautions are not taken.

L = Magnitude of harm/injury if precautions are not taken.

Two types of causation:

(1) Causation-in-fact;

(2) Proximate causation.

Causation-in-fact analysis:

(1) But for ∆’s negligence, would the damage have occurred? OR

(2) Were the ∆s actions a substantial factor contributing to the harm?

Which causation-in-fact test?

(1) But-for = one cause

(2) Substantial factor = multiple, commingled causes

(3) Alternative liability/concert of action/enterprise/market-share = multiple causes and unknown causes.

Substantial factor elements test

(1) Duplicative concurrent causation;

(2) ∆ breached a duty and created risk of harming π or his stuff;

(3) π or π’s stuff was harmed;

(4) Harm was neither worse nor different from the harm that would have been suffered if no other cause apart from the ∆ existed.

Kramer rule

Merely showing one thing caused another is not enough to establish actual causation, the event must be a substantial factor.

Parrott rule

Loss of chance doctrine applies when π’s decreased chance to live is due to the doctor’s negligence.

Even if the chance to live is less than 50% it does not change the outcome.

Alternative liability

π does not have to prove which ∆ was the cause-in-fact if both of them were negligent.

Burden switches to ∆s to show which caused the harm.

Concert of action

π must demonstrate that ∆’s conduct was a necessary condition of the harm.

Enterprise liability

π can go after all groups or an industry that cause harm by their activities or products for liability.

Market share liability

Each manufacturer is liable in proportion to their market share due to π’s inability to attribute harm to a specific actor.

π will only sue some in the industry, rather than the entirety.

Proximate causation

Is ∆ the legal cause of the injury.

Proximate causation analysis:

(1) π’s injuries were foreseeable;

(2) A reasonable person in ∆’s position anticipate the injury as a likely result of their actions.

Three areas of proximate causation:

(1) Unforeseeable consequences;

(2) Intervening causes;

(3) Public policy

Unforeseeable consequences

A result of ∆’s action that was not reasonably predictable.

Egg shell rule

Tortfeasor takes π as he finds him.

Intervening cause

Any event that occurs after a ∆’s negligent act and contributes to π’s injury.

Two ways to determine if intervention was present:

(1) Direct causation;

(2) Indirect causation.

Direct causation

There is no intervening cause, and there is an uninterrupted chain of events from ∆’s act to π’s injury.

Indirect causation

There is an interrupted chain of events from act to injury.

Superseding cause

A type of intervening cause that is so unforeseeable and independent that it completely relieves the original ∆ of liability for the harm caused.

La Quinta rule

Suicide is deemed an unforeseeable intervening cause that absolves ∆s of liability.

Exception to the La Quinta rule

If evidence shows that ∆’s actions directly contributed to the person’s suicide, it is not a superseding cause.

Kelly rule

A social host who negligently furnishes alcohol to a visibly intoxicated adult guest is a proximate cause for a subsequent death caused when the intoxicated adult is involved in a car accident.

Damages

The injuries, or harm, incurred by π.

Contributory negligence analysis:

(1) ∆ committed a negligent act that caused his own harm.

Butterfield rule

If π has contributed to the harm, he is barred from recovery.

Davies rule (counterdefense to con. neg.)

Last clear chance doctrine states that a π who may have engaged in negligent conduct could still prevail and recover where the ∆, exercising ordinary care, could have avoided the accident.

If ∆ had the last clear opportunity to avoid the harm, π’s negligence is not the proximate cause of the harm.

Four states that use contributory negligence:

Alabama, Maryland, North Carolina, Virginia.

Comparative fault analysis:

(1) Jurisdiction uses pure comparative fault or modified comparative fault;

(2) π’s negligence is less than ∆’s negligence;

(3) What is the percentage of recovery π receives?

(4) Recovery is reduced by the π's percentage of fault.

McIntrye rule

So long as π’s negligence remains less than ∆’s negligence, π may recover.

Comparative fault does not bar recovery, but instead reduces π’s recovery by the percentage of causation attributed to π.

Two types of comparative fault schemes:

(1) Pure comparative fault;

(2) Modified comparative fault.

Pure comparative fault

π’s damages are reduced in proportion to π’s percentage fault.

Modified comparative fault

π may recover as long as π’s negligence does not exceed ∆’s negligence (50% jurisdictions).

Assumption of risk

A defense that bars a π from recovering damages for an injury sustained when π voluntarily exposed himself to a known danger.

Express assumption of risk

A contract, and occurs when parties agree beforehand, either orally or in writing, that π will relieve ∆ of his legal duty.

McCune assumption of risk analysis:

(1) π had actual knowledge of the risk of ∆’s actions;

(2) π appreciated the magnitude of the risk;

(3) π voluntarily encountered the risk.

Exception to McCune rule

∆’s intentional or reckless misconduct of gross negligence will not be assumed by π, unless the circumstances clearly indicate that such was π’s intention.

Gross negligence

The willful, wanton, and reckless conduct affecting the life or property of another.

Implied assumption of risk analysis:

(1) π had actual knowledge of the particular risk of ∆’s actions;

(2) π appreciated the magnitude of the risk;

(3) π voluntarily encountered the risk.

Implied primary assumption of the risk

Arises when π impliedly assumes the risks that are inherent in a particular activity.

Implied secondary assumption of the risk

Arises when π knowingly encounters a risk created by ∆’s negligence.

Statute of limitations

Bar claims brought after a specified time based on the date when the claim accrued.

Clock begins once π discovers the injury.

Statute of repose

Bar any suit that is brought after a specified time since the ∆ acted, even if the period ends before π has suffered the resulting injury.

Clock begins once ∆ acted.

Accrual

All elements of the cause of action have materialized.

Restatement discovery rule

(1) π knew, or had reason to know, or should have known of the injury;

(2) The injury was caused by a specific ∆’s conduct or product.