Torts: Negligence test: 4/16/26

Negligence

careless neglect, often resulting in injury

How do we measure carelessness

measured against the standard of the reasonable person

Elements of Negligence

1. Duty of care owed

2. Breach of duty

3. Directly / proximately causation

4. Damages sustained by plaintif

Duty of Care

A persons obligation to conform their conduct to a particular standard

foreseeablity

injury must have been predictable or within scope of the foreseeable risk

Premise Liability

Duty falls on the possessor of the land, not its owner

Levels of owed liability

Tresspassers: None

Licensee (lawn service / plumber etc..): Duty to warn

Invitee: Duty to warn and make premise safe

The attractive Nuisance doctrine

heightened level of protection for child trespassers.

Must prove:

. Defendant must have known it was likely for kids to trespass

. Defendant must know dangerous condtion on property would cause unreasonable risk to child

. Young child would not appreciate the risk associated

. Financial burden in fixing condtion is slight compared to danger of child

. Defendant failed to take reasonable precautions to prevent child treespassing

Res Ipsa

the thing speaks for itself

Negligence Per Se

negligence by itself

Res Ispa Loquitur

A doctrine under which negligence may be inferred simply because the event would have never occured without some negligent behvaior

Elements of RIL

• The event triggering the lawsuit is one that ordinarily would NOT occur without someone acting negligently

-Event was EXCLUSIVELY in the defendants control

• AND was not caused even in part by plaintiffs actions / in actions

Elements of Negligence Per Se

Plaintiff can prove a breach of duty by showing that the defendant violated a "safety statue"

1. Violated statue

2. Statue was designed with safety in mind

3. Defendants violation was a major factor in plaintiff's injury AND plaintiff was in a class of people that the statue was designed to protect.

Proximate Cause

Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.

Proximate cause components

1. proof

2. occured in natural contionius sequence

3. Uninterrupted by any intervening causes

4. produced plaintiffs injury

5. Without event, injury would not have occured

Intervening Action

actions that could cut off liability

Superseding Cause

an intervening act that relieves the defendant of liability

Intervening Cause v. Superseding Cause

Intervening = Defendant still liable

Superseeing = Defendant not liable

Intervening Cause

something that occurs AFTER the orignal breach that exacerbates or worsens the existing harm suffered by plaintiff

Superseding cause

Something that is so far removed from the original breach that it replaces the negligence of the original defendant

Acts of God / Nature

Cannot sue indidvidual defendants on behalf of natural disasters

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Four types of damages

Compensatory

Punitive

Nominal

Equitable

Compensatory Damages

Designed to bring the plaintiff back to how they were before the tortious act occured

Special Damages

Easily quantifiable losses

General Damages

pain, suffering (more abstract)

Special and general damages are ________

Two types of compensatory damages

Loss of consortium / Loss of companionship damages

Spouses of injured plaintiffs may also claim damages

Collateral Source Rule

Juries may not be told that the plaintiff has received damages from other sources (ex, insurance)

Punitive Damages

Awarded on top of compensatory damages (limited to 3x compensatory damages)

Nominal Damages

A small monetary award (often one dollar) granted to a plaintiff when no actual damage was suffered.

Equitable Remedies

Refers to a courts power to enfroce a penalty against a party ither than a financial one

What are the two major negliegence frameworks

Contributory negligence AND Comparative negligence

The majority of state negliegnce laws are ________

Comparative negligence

Contributory Negligence

If a plaintiff is any way negligent for their injuries, then they cannot recover

Elements of Contributory Negligence

• Plaintiff breaches duty imposed on them by law to protect theselves from injury

• Plaintiffs actions concur and cooperate with defendents negligence

• Plaintiffs actions contribute to their injuries as proximate cause

Exceptions to Contributory Negligence

Sudden emergency

Last clear chance doctrine: Defendant can still be held responsible if there was a last chance to avoid harm but didn't

Assumption of Risk

Occurs when plaintiff knowingly places themselves in a dangerous situation

Where does contributory negligence NOt apply

recues

willful / reckless conduct

Ultrahazardous activities

Comparative Negligence

A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party)

Three types of comparative negligence

Pure Comparative

Modified Comparative

slight gross (not needed to learn)

Pure Comparative Negligence

Plaintiff is entitled to recover no matter how negligent they are. Defendants percentage of fault dictates how much plaintiff recovers.

Modified Comparative Negligence

Plaintiff can still recover if they are negligent but only if perecnt is 50% or less.