Negligence

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Negligence

A D is liable for negligence when they fall below the SOC set by law to protect others from unreasonable risk of harm, and the elements P must prove for a prima facie case of negligence are: duty, breach, evidence, actual cause, proximate cause, and damages.

Duty

Duty is based on the SOC that requires one to act reasonably under the same or similar circumstances.

REDCCPL:

1. RPP

2. RPP in an emergency

3. RPP with a disability

4. Reasonable Child

5. Custom and Usage

6. Professionals

7. Landowners & Occupiers

RPP

A RPP exercises those qualities of attention, knowledge, intelligence, and judgement which society requires of its members to protect themselves and others

RPP in an Emergency

Burden of care is reduced when facing an emergency not of one’s own making

RPP with a Disability

Measured by a RPP with the same disability

Resonable Child

Measured by a child of like:

ITEAM:

1. Intelligence

2. Training

3. Experience

4. Age

5. Maturity

Exception: when child is engaged in an adult or inherently dangerous activity (likely to cause harm by its very nature).

Custom and Usage

Commonly accepted practices which provide evidence of a minimum standard of due care

Factors:

1. Is there a custom?

2. Is it reasonable?

3. Was it reasonable to follow in the day in question?

4. Was it reasonable not to follow it?

Professionals

Those in professional occupations (doctors, lawyers, engineers, etc.) must exercise the requisite degree of knowledge, training, and skill of that calling with reasonable care

Doctor:

• P must show by ET: (1) deviation from national standard, and (2) proximate cause

• Informed consent: must disclose what a reasonable physician would disclose: (1) treatment, (2) risks, and (3) alternatives

• P must show by ET: (1) failure to inform, (2) would not have consented if informed, and (3) proximate cause

  • Exception: (1) if commonly known, or (2) would harm P, or (3) in an emergency

Lawyer: P must show by ET but-for D’s negligence, P would have succeeded

Landowners and Occupiers

Have a duty to prevent an unreasonable risk of harm from conditions on premises considering location, use, and custom

1. Outside the premises

   • no duty to protect against natural conditions

     • exception: trees creating foreseeable hazard

2. On the premises

   1. Trespassers

   2. Licensees

   3. Invitees

   4. Children

   5. Landlords

Trespassers

Owed no general duty, must not act willfully or recklessly

• Exception, duty to protect from known/knowable dangers:

  • trespassers so frequent that they should be expected

  • known trespassers

  • tolerated intruders – becomes LICENSEES

Licensees

When one enters the premises for his own purposes and not in furtherance of the owner’s business

• must take premises as found

• owner must warn of known/knowable dangers

• owner must not act willfully or recklessly

Invitees

Those on owner’s land in furtherance of the owner’s business, expressly or impliedly

• owner must use reasonable care to keep premises safe by inspection and remedy dangerous conditions

• owner must protect from foreseeable criminal acts

Children

Duty to protect children from artificial conditions posing serious foreseeable risk when children are likely to trespass

• N = B<PxL

• Risk/Utility

• children do not have to be lured by the particular risk

Landlords

Generally, no duty to tenants except for CCCNUP:

1. Conditions affecting outsiders

2. Common areas

3. Contracts to repair

4. Negligent repairs

5. Undisclosed known dangers

6. Premises leased for public use

NIED

Where a definite & objective physical injury results from emotional distress proximately caused by D’s negligence, recovery may be had even w/o physical impact

1. P is closely related to the victim

2. P is present at the scene of the injury when it occurs and contemporaneously experiences the injury

   • Corpses

3. P suffers severe ED beyond that of a disinterested witness

Breach

Falling below the reasonable SOC

1. Intrinsically dangerous activities

2. Average circumstances

3. Foreseeability

4. Risk/Utility

5. Cost/Benefit

6. Learned Hand – N = B<PxL

Intrinsically Dangerous Activities

An intrinsically or activity which causes harm by its very nature

Average Circumstances

Doing/not doing what a RPP would/wouldn’t do

Foreseeability

An objective measurement of whether a reasonable person in the defendant’s position would have recognized a risk of harm

Risk/Utility

Evaluates reasonableness of conduct by weighing the utility if the act against the risk of harm (CPPPR):

1. character and location of the premises

2. purposes for which premises/instrumentality used

3. probability of injury resulting from activity

4. precautions necessary to prevent injury

5. relationship of those precautions to the beneficial use of the premises or activity

Cost/Benefit

Where the cost/burden of avoiding a certain conduct outweighs the risks, no liability attaches

Learned Hand N=B<PxL

Negligence occurs where the burden of taking adequate precautions is outweighed by the probability of harm occurring and magnitude of potential loss

Negligence Per Se

A statutory violation can substitute for duty and breach when the statute clearly defines a standard of conduct

1. there must be a statute

2. P must be in the class intended to protect

3. injury must be of the kind intended to prevent

4. must be appropriate to apply the statute to the scenario

Exceptions:

1. Compliance was impossible or more dangerous under the circumstances.

2. Defendant exercised reasonable care in attempting compliance.

3. Emergency or necessity justified the violation.

4. Plaintiff’s injury was not within the risk the statute sought to prevent.

Evidence

To establish negligence, the P must plead, produce, and persuade the jury through evidence, which can be either direct or circumstantial. Where neither is available, the P may rely on the doctrine of Res Ipsa Loquitur

Direct Evidence

Evidence which is determined by the senses, like what one saw, heard, or recorded

Circumstantial Evidence

Inferences which may arise from a series of proven facts which would lead a jury to draw conclusions of negligence

Res Ipsa Loquitur

A rule of evidence whereby the negligence of an alleged wrongdoer can be inferred solely from the fact that the accident occurred

1. The accident is of a kind that ordinarily does not occur in the absence of negligence

2. the instrumentality causing the injury was in the exclusive control of the D (or all other causes eliminated)

3. The injury was not due to any voluntary action or contribution by the P

Actual Cause

The “sine qua non,” or “without which the thing cannot be.”

1. But-for (including dependent concurrent causes)

2. Substantial factor

3. Alternative liability

4. Market share liability

5. Loss of chance

6. Enterprise liability

But-For

Were it not for the D’s negligence, the harm would not have occurred. Can be dependent or independent

Substantial Factor

When multiple independent causes, each sufficient alone, combine to produce a single harm

Alternative Liability

When multiple D’s acted negligently, but only one could have caused the injury, the burden shifts to each D to prove their conduct did not cause the harm.

Market Share Liability

When each D is a manufacturer or an indistinguishable harmful product, and a substantial share of the market’s players are before the court, each must pay damages proportional to its market share, unless it proves its product could not have caused the injury

Loss of Chance

Where P can show a cognizable loss of chance at a better outcome caused by D’s negligence, D is liable for for the harm proportional to the % proven by a preponderance of the evidence

Enterprise Liability

In a small, definable industry jointly controlled by D’s and where all are before the court, all D’s and jointly and severally liable for harm caused by their practice

Joint and Several Liability

When two or more negligent acts combine to produce a single injury, each is liable for the entire harm, even if neither alone could have caused it

Proximate Cause

Proximate cause is a cause which sets off a foreseeable sequence of consequences, unbroken by any superseding cause, and which is a substantial factor in producing the result complained of.

Intervening Cause

A cause that comes into operation after D’s breach and contributes to P’s injury

Supervening Cuase

An intervening cause so extraordinary and independent that it breaks the casual chain of prior actors.

Intentional criminal acts breach the chain of causation unless reasonably foreseeable.

Suicide does not break the chain of causation unless resulting from an instant frenzy with no awareness from P.

Rescue Doctrine

D is responsible for injuries caused to rescuers who come to aid those harmed by D’s negligence

Factors:

1. D was negligent to the person being rescues, creating actual or apparent peril

2. The peril was imminent

3. A reasonable person would perceive the peril

4. Rescuer acted with reasonable care

5. The type of injury was a foreseeable result of the rescue

Public Policy

Public policy may serve as a means to limit liability, even where there is a duty, breach, and actual cause

Bullseye

The five theories of Proximate Cause would address liability here as follows:

1. Cardozo argues that D owes a duty only to those in the foreseeable zone of danger

2. Wagon Mound No. 1 argues Direct Foreseeability, where D is liable only when the exact type of foreseen damage occurs

3. Wagon Mound No. 2 argues Remote Foreseeability, where D is liable for any damages resulting from their breach if B<P x L

4. Polemis argues that D is liable for all foreseeable damages resulting from their breach, even if the extent is unforeseeable

5. Andrews argues that D owes a duty to the world at large, and is liable for all damages resulting from their breach, absent a supervening cause