NEGLIGENCE

Negligence – Prima Facie Case

(1) Duty to conform to a specific standard of conduct, (2) Breach of that duty, (3) Actual and proximate cause, (4) Harm to the plaintiff’s person or property

Duty of Care – Zone of Danger

A duty of care is only owed to plaintiffs who are in the foreseeable zone of danger

Duty of Care – Rescuers

A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril and the plaintiff is injured in attempting a rescue

Duty of Care – Firefighter’s Rule

Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their jobs

Standard of Care – Reasonably Prudent Person

All persons owe a duty to behave with the same care as a hypothetically reasonably prudent person in the same or similar circumstances

Does the RPP standard take into account physical characteristics of the defendant?

YES

Does the RPP standard take into account mental deficiencies and inexperiences of the defendant?

NO

RPP Standard – Superior Skill or Knowledge

A defendant who has knowledge or experience superior to that of an average person is required to exercise that experience

Reasonable Prudent Child – General Rule

A child is held to the standard of a child of like age, intelligence, and experience under the same or similar circumstances

Reasonable Prudent Child – Adult Activities

Children engaged in potentially dangerous adult activities may be required to conform to an adult standard of care

Reasonable Prudent Professional – General Rule

A professional is required to possess the knowledge and skill of an average member of the profession or occupation with ordinary and minimum competence

Reasonable Prudent Person – Standard for Doctors

Doctors are held to a national standard of care

Doctors – Duty to Disclose Risks of Treatment

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

Possessors of Land – Duty Owed to Unknown Trespassers

No duty is owed to an undiscovered trespasser

Does a landowner have a duty to inspect his property to ascertain whether people are trespassing onto the property?

NO

Possessors of Land – Duty Owed to Known Trespassers

If there is a discovered or anticipated trespasser, the land possessor must warn of or make safe any conditions that are (1) artificial, (2) highly dangerous, (3) concealed, and (4) known to the land possessor in advance

WHO owes a duty of reasonable care to protect trespassers?

People with an easement or license to use the land

Possessors of Land – Definition of Licensee

Someone who enters onto the land with the possessor’s permission for their own purpose or business rather than for the possessor’s benefit

Possessors of Land – Duty Owed to Licensees

The land possessor has a duty to warn of or make safe hazardous conditions that are (1) concealed and (2) known to the land possessor in advance

Possessors of Land – Active Operations

The land possessor must exercise reasonable care in the conduct of active operations on the property

Possessors of Land – Does the possessor have a duty to a licensee to inspect for defects or repair known defects?

NO

Possessors of Land – Definition of Invitee

Invitees enter onto the land in response to an invitation by the possessor of the land for a purpose connected with the business of the land possessor or as members of the public for a purpose for which the land is held open to the public

When does a person lose their status as an invitee?

When they exceed the scope of the invitation

Possessors of Land – Duty Owed to Invitees

The landowner or occupier owes a duty to invitees regarding hazardous conditions that are (1) concealed and (2) known to the land possessor in advance or could have been discovered by a reasonable inspection

Does a landowner owe a duty to invitees to make reasonable inspections?

YES

Possessors of Land – Attractive Nuisance Doctrine

A landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on their property. To prove the defendant’s actions were unreasonable, the plaintiff must prove (1) a dangerous condition on the land that the owner is or should be aware of, (2) the owner knows or should know 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 to the magnitude of the risk

For the attractive nuisance doctrine to apply, does the plaintiff have to prove that they were lured onto the property because of the dangerous condition?

NO

Possessors of Land – Duty Owed to Users of Recreational Land

A landowner who permits the general public to use their land for recreational purposes without charging a fee is NOT liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity

Possessors of Land – Duty of Possessor to Those Off Premises

There generally is no duty to protect someone off the premises from natural conditions on the premises, however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.

Possessors of Land – Duty to Protect Passersby from Artificial Conditions

A landowner has a duty to take due precautions to protect persons passing by from dangerous conditions

Possessors of Land – Conduct of Persons on Property

An owner of land has a duty to exercise reasonable care with respect to his own activities on the land and to control the conduct of others on his property to avoid unreasonable risk of harm to others outside the property

Possessors of Land – Duty of Lessor and Lessee of Realty

The tenant has a general duty to maintain the premises and the landlord must warn of existing defects of which they are aware or have reason to know, and which they know the tenant is not likely to discover on a reasonable inspection

Possessors of Land – Duties of Vendor of Realty

A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.

Statutory Standards of Care (Non-Tort Statutes)

A clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more general common law duty of care if (1) the plaintiff is within the protected class and (2) the statute was designed to prevent the type of harm suffered by the plaintiff

Statutory Standards of Care – Excuse for Violation

Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control

Statutory Standards of Care – Effect of Violation

An unexcused statutory violation is negligence per se and establishes the first two requirements by creating a conclusive presumption of duty and breach

Is there an affirmative duty to act or rescue?

NO

Affirmative Duty to Act – Special Relationship

A special relationship between parties may create a duty to act

Affirmative Duty to Act – CC, IK, SK

Common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons

Affirmative Duty to Act – Places of Public Accommodation

Places of public accommodation have a duty to prevent injury to guests by third persons

Affirmative Duty to Act – Peril Due to Own Conduct

One has a duty to assist someone they have negligently or innocently placed in peril

Affirmative Duty to Act – Assumption of Duty by Acting

One who gratuitously acts for the benefit of another is then under a duty to act with ordinary care and continue the assistance

Affirmative Duty to Act – Good Samaritan Statutes

Many states have enacted Good Samaritan statutes to exempt doctors or nurses from liability for ordinary, but not gross, negligence

Affirmative Duty to Act – Duty to Prevent Harm from Third Persons

There is no duty to prevent a third person from injuring another unless one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control

Affirmative Duty to Act – Mental Health Providers and Duty to Warn

The special relationship between a patient and a mental health provider imposes a duty on the provider to warn of credible violent threats that have been made by a patient when the potential victims are readily identifiable

Standards of Care – Common Carriers and Innkeepers

Common carriers and innkeepers are held to a very high degree of care and are liable for slight negligence so long as the plaintiff is a passenger or guest.

Standards of Care – Driver to Guest

A guest in an automobile is owed a duty of ordinary care

Standards of Care – What is a bailment relationship?

The bailor transfers to the bailee possession of chattel but not title

Standards of Care – Duties Owed by Bailee

(1) If the bailment is for the sole benefit of the bailor, there is a low standard of care, (2) If the bailment is for the sole benefit of the bailee, there is a high standard of care, and (3) If the bailment is for a mutual benefit, there is an ordinary standard of care

Standards of Care – Duties Owed by Bailor

(1) For the sole benefit of the bailee, the bailor must inform the bailee of known, dangerous defects in the chattel, and (2) For a bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware.

Standards of Care – Emergency Situations

A defendant must act as a reasonably prudent person would under the same emergency conditions unless the emergency is of the defendant’s own making.

NIED – Near Miss Cases (Zone of Physical Danger)

If the defendant creates a foreseeable risk of physical injury to the plaintiff, the plaintiff must prove (1) they were within the zone of danger and (2) they suffered physical symptoms from the distress

NIED – Bystander Cases

A bystander out of the zone of danger of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as (1) the plaintiff and the person injured by the defendant are closely related, (2) the plaintiff was present at the scene of the injury and, (3) personally observed or perceived the event

NIED – Special Relationship Between P & D

The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship between the plaintiff and defendant such that the defendant’s negligence has great potential to cause emotional distress

Breach – 3 Theories

Custom or usage, violation of statute, res ipsa loquitur

Breach – Custom or Usage

When the standard of care is reasonable prudence, evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstances

Breach – Violation of Statute

Where the duty of care is set by statute, proof of violation of the statute is conclusive evidence of breach of duty

Breach – Res Ipsa Loquitur

The very occurrence of an event may tend to establish a breach of duty if the plaintiff can show that (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 because the instrumentality causing the injury was in the exclusive control of the defendant

Breach – Effect of Res Ipsa Loquitur

Where res ipsa loquitur is established, the plaintiff has made a prima facie case of negligence and no directed verdict may be given for the defendant

Factual Causation – 3 Tests

But for, substantial factor, unascertainable causes

Factual Causation – But For Test

An act or omission is a factual cause of an injury when the injury would not have occurred but for the act or omission

Factual Causation – How to Refute But For Test

A defendant can refute the but for test by showing that the plaintiff would have still been injured even if the act or omission did not occur

Factual Causation – Merged Causes (Substantial Factor Test) (Multiple Sufficient Causes)

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

Factual Causation – Unascertainable Causes Approach

This test applies when there are two acts, only one of which causes injury, but it is not known which one, and the burden of proof shifts to the defendants to show that his negligence was not the actual cause

Proximate Causation – General Rule

Under the foreseeability test, a defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts

Proximate Cause – Foreseeable Intervening Forces

The defendant is liable when their negligence caused a foreseeable reaction from an intervening force or created a foreseeable risk that an intervening force would harm the plaintiff

Is the unusual manner in which an injury occurred or the unusual timing of the cause and effect relevant to proximate cause?

NO

Proximate Cause – Intervening Forces that are ALWAYS Foreseeable

Intervening forces that are normal responses or reactions to the situation created by the defendant’s negligent act, including medical malpractice, negligence of rescuers, protection or reaction forces to the defendant’s conduct, and disease or accidental substantially caused by the original injury

Proximate Cause – Independent Intervening Forces that MAY be Foreseeable

Intervening forces that are not a natural response or reaction to the situation created by the defendant’s conduct may be foreseeable if the defendant’s negligence increased the risk of harm from these forces, including (1) negligent acts of third persons, (2) crimes and intentional torts of third persons, and (3) acts of God

Proximate Cause – Foreseeable Result Caused by Unforeseeable Intervening Force

If a defendant acts negligently, and if the foreseeable result of the negligence is ultimately produced by an unforeseeable intervening force, then the defendant is liable UNLESS the intervening force is an unforeseeable crime or intentional tort

Proximate Cause – Unforeseeable Results Caused by Foreseeable Intervening Force

If a foreseeable intervening force produces a totally unforeseeable result, then the defendant is not liable

Proximate Cause – Unforeseeable Result Caused by Unforeseeable Intervening Force (Superseding)

Intervening forces that produce unforeseeable results will be deemed unreasonable and superseding

Proximate Cause – Effect of Superseding Forces

Superseding forces break the causal connection between the defendant’s initial negligent act and the plaintiff’s ultimate injury, thus relieving the defendant of liability

Are nominal damages available in negligence claims?

NO

Causation – Eggshell Skull Plaintiff Rule

The defendant takes the plaintiff as they find them and are liable for ALL damages, even if the extent or severity of the damages was unforeseeable

Negligence Damages for Personal Injury

(1) Economic damages, such as medical expenses and lost wages, and (2) Noneconomic damages, such as pain and suffering or emotional distress

Negligence Damages for Property Damage

(1) Reasonable cost of repair OR (2) Fair market value if they property has been almost or completely destroyed

Are emotional distress damages available for negligent harm to PROPERTY?

NO

When can a plaintiff recover punitive damages in negligence cases?

If the defendant’s conduct was wanton and willful, reckless, or malicious

Negligence Damages – Pure Economic Loss

Recovery is not allowed in a negligence claim when the plaintiff only suffers pure economic loss

Nonrecoverable Items Under Negligence Damages

Nonrecoverable items include (1) interest from the date of damage in a personal injury action and (2) attorneys’ fees

Negligence Damages – Duty to Mitigate

The plaintiff has a duty to take reasonable steps to mitigate damages

Negligence Damages – Collateral Source Rule

Damages are not reduced just because the plaintiff received benefits from other sources

Negligence Defenses – Contributory Negligence

When the plaintiff’s failure to exercise reasonable care is a factual cause to the plaintiff’s injury, then the plaintiff is barred from recovery

Contributory Negligence – Defense to Defendant’s Violation of a Statute

Contributory negligence is a defense to negligence proved by the defendant’s violation of an applicable statute UNLESS the statute was designed to protect the class of plaintiffs from their incapacity and lack of judgment, such as children

Contributory Negligence – Last Clear Chance Doctrine

If the defendant had the last opportunity to avoid the accident, then the plaintiff’s contributory negligence is NOT a complete bar to recovery

Last Clear Chance Doctrine – Helpless Peril

If the plaintiff’s contributory negligence is a result of a situation of actual peril that the plaintiff is helpless to, the defendant is liable if they had actual knowledge or should have known of the plaintiff’s situation

Last Clear Chance Doctrine – Inattentive Peril

If the plaintiff’s contributory negligence is a result of a situation of actual peril that the plaintiff is inattentive to, the defendant is liable if they had actual knowledge of the plaintiff’s situation

Negligence Defenses – Assumption of Risk

The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant’s act by (1) knowing of the risk and (2) voluntarily proceeding in the face of the risk

For assumption of the risk, is it relevant if the plaintiff’s choice was unreasonable?

NO

Implied Assumption of Risk

Knowledge may be implied where the risk is one that an average person would clearly appreciate

When is there NO assumption of the risk?

(1) There is no available alternative to proceeding in the face of the risk, (2) Situations involving disclaimers by common carriers and public utilities, (3) Members who are part of a class of persons a statute is designed to protect, and (4) Situations involving fraud, force, or an emergency

Can common carriers and public utilities limit their liability by disclaimer?

NO

Will members of a class protected by statute be deemed to have assumed any risk?

NO

Express Assumption of Risk

Risk may be assumed by an express agreement

Partial Comparative Negligence

A plaintiff’s recovery will be barred if their negligence was more serious OR at least as serious as that of the defendant

Pure Comparative Negligence (USE THIS ONE)

The plaintiff is allowed recovery no matter how great their negligence was, and their recovery is reduced by the percentage of fault attributable to the plaintiff

Is the Last Clear Chance Doctrine used in comparative negligence jurisdictions?

NO

Comparative Fault x Assumption of Risk – Primary

If the plaintiff knowingly encounters an inherent risk of an activity before the defendant has acted negligently, then the defendant owes no duty, and the plaintiff does not recover anything

Comparative Fault x Assumption of Risk – Secondary

If the defendant acted negligently, and if the plaintiff knowingly encounters the risk anyway, then normal pure comparative fault rules apply