Torts - Negligence

Restatement definition of negligence per se

An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident that the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.

test for negligence per se

• Was P in a protected group?

• Was the statute protecting against the type of harm here?

*licensing statutes not relevant

Objective Standard for negligence

In light of foreseeable risks, did D (or P in a comparative negligence case), behave as a reasonably prudent person would under the same circumstances?

Rule from Matlock

There is no negligence per se when the statute is not designed to protect against the type of harm in the case.

Rule from Stachiniewiscz

Negligence as a matter of law happens when there was injury to a member of a class that a statute was designed to protect. This can happen when a statute forbids serving booze to visibly intoxicated patrons as part of the class that regs against saloon brawls reference.

Duty inquiry

Does D have an obligation to exercise some level of care to avoid the risk?

Is P in the general category to which harm is foreseeable? Is the harm in the general category foreseeable from the action?

• Foreseeability under scope

Misfeasance

There was a negligent ACT.

• An actor owes a duty of reasonable care under the circumstances to those person who are foreseeably exposed to foreseeable risks arising from their conduct. By doing NEG ACT, actor created a risk in the world in the form of THING, which is an affirmative act and they must act reasonably towards such a risk.

Nonfeasance

There was a negligent FAILURE TO ACT.

• but no/limited duty rule

• Generally, there is no duty to act affirmatively or control the actions of a third party/other exception. In this case, the D may argue that ____ is nonfeasance, and that they therefore have no duty. However, there are several exceptions to the limited duty rule such as____. Further, duty often serves as a gatekeeping function to categories of cases, which judges determine for policy reasons.

General Duty Principle

If you ACT, you have a DUTY of CARE to foreseeable victims against foreseeable harms from your conduct.

If your conduct creates a risk of physical harm, there is a duty unless there is a policy reason against it.

Rule from Pitre

Negligence requires that precautions were not taken to mitigate the risks arising from foreseeable dangers. Use for duty and breach.

Because the fair acted, it had a reasonable duty of care to foreseeable Ps against foreseeable risks, like being hurt in a concession. Protect against the foreseeable risks.

Don’t have to prevent all harm - just the foreseeable and likely harm.

Rule from Palsgraf

**not current law

P only owes a duty of care to would-be victims in the zone of reasonably foreseeable harm.

invitee (trichotomy)

On land with express/implied permission from owner.

• doesn’t have to pay

• can be business or personal invite

• implies assurance property is safe to enter - possessor to conduct all activities with reasonable care

• take steps to remedy or warn where there is a hazardous condition (no duty re: open, obvious dangers)

licensee (trichotomy)

• social guest, public safety officer (some overriding duty), someone w/ necessity defense

• possessor owes a duty of care re: activities on land and hazardous conditions on land

• avoid creating unreasonable risk of harm if licensee will not discover/realize danger (e.g. hidden trap)

trespassers (trichotomy)

• no permission to be on land

• no duty other than not willfully injure

• unless child trespasser, attractive nuisance

Rule from Rowold

BYE trichotomy! Replaced with a general duty to those foreseeably on your land.

When landowner doesn’t use ordinary skill and care in own conduct and causes danger to another, they have a duty to use ordinary care and skill to avoid that.

Rowold - factors for new duty

• certainty that P suffered injury

• foreseeability of harm

• closeness of nexus between conduct and harm

• moral blame

• harm prevention

• burden to D to prevent the harm

• community consequences for imposing new duty

• insurance

Rule from Younce

No heightened standard of care for licensees (social guest, high school farm rager).

Restatement - child trespasser factors

• Because youth, the kids don’t discover the condition or realize the danger

• There is an artificial condition

  • that the possessor knows about or has reason to know about it

  • the possessor knows kids are likely to trespass

  • the possessor knows condition poses unreasonable risk of bodily harm to kids

• utility and burden slight compared to risk

• possessor fails to exercise reasonable care to protect kids

Attractive Nuisance - elements

• artificial condition

• unfenced

• hazardous

• attracts kids from off of the land

• unhidden

Rule from United Zinc

Exception to no landowner duty - attractive nuisance that draws the child onto the property from afar.

No general duty for landowners to keep land safe (even from hidden dangers) for kids when they are not invited otherwise.

When is there a landowner duty to protect against crime?

Only when invitee + enhanced forseeability (4 tests)

Tests for enhanced foreseeability

1. specific harm (minority)

2. prior similar incidents

3. totality of circumstances

   1. location and condition of land

   2. prior similar incidents

   3. potential knowledge of specific crime

4. balancing: foreseeability VS burden to fix

Rule from DTD

Landowners have a duty of reasonable care to protect a foreseeable plaintiff from criminal acts on the land.

• protect invitee from crimes where there is heightened foreseeability (same as licensee for this state)

Exceptions list for no duty to act, assist, or rescue

• special relationship (power/dependency)

• D’s prior conduct created the risk

• D started helping and left worse off

• assumption of duty

• instrumentality under D’s total control

• intentional prevention of aid by others

• Tarasoff duty

• duty to protect, private actors

• reliance on promise to protect by public agency

Rule from Miller v. Arnal Corp.

Gratuitously starting to aid and then leaving worse off means that you are liable for physical harm from failing to exercise reasonable care to perform the undertaking, because the rescuee relied on it.

If you’re not making worse, then can stop.

CO 14’er ski patrol

Rule from Kuciemba v. Victory Woodworks

No employer duty to take steps to prevent disease spread from employees to family members even where employer created the risk of harm. Normally there would be a duty where the employer created the risks, but the Rowland factors limit (foreseeability of harm to P, nexus, certainty of injury, moral blame, burden of creating new duty for community, insurance)

Duty to control - broadly

There is generally no duty to control the actions of a third person and to prevent him from causing physical harm to another unless:

• special relationship between the actor and the 3rd person

  • which imposed duty on actor to control 3rd person’s conduct

• special relationship between actor and other, which gives other right to protection

When is there a parental duty to control minor child?

Exception to no duty to control third person rule.

There is a parental duty to control your minor child when you should know that injury to another person is possible:

• victim is reasonably foreseeable

• harm is reasonably foreseeable

When is a parent who had a duty to control liable for harm committed by a minor child?

• parent gave instrumentality which may become a source of danger for others

• parent failed to control kid whilst they knew injury to others was possible

• (basically: parent had notice)

Rule from Hickman

Parent has a duty to control a minor kid when they (should) know that harm to another is possible

1. victim is reasonably foreseeable

2. harm is reasonably foreseeable

3. narrowly applied

When is there a cop duty to protect?

A general duty of care to the public is generally not a specific duty to any one person.

• special relationship

• promise - voluntary assumption of duty

  • victim must justifiably rely on that promise

• police created the risk

• police actively start to aid - stop - leave victim worse off

Rule from Davidson v. City of Westminster

Generally, cops have no duty to warn or prevent a third person from harming someone. but, there are exceptions

• special relationship: perp/victim?

• start to help and stop?

• promise?

• Rowland

  • foreseeability of harm

  • nexus between actor’s conduct & harm

  • perp’s moral blame

  • likelihood of stopping future harm

  • community consequences

Duty of reasonable care to warn

When serious danger + special relationship

Generally, whenever one person by circumstances is placed in a position with regard to another that if he did not use ordinary care and skill in his own conduct, it would case danger to the person or property of another, a duty arises to use ordinary skill and care to avoid.

Duty to warn balancing factors

• foreseeability of harm to victim

• perp’s moral blame

• closeness of connection between D’s conduct and P’s injury

• preventing future harm

• burden to D and cost to community of imposing a duty

• availability, cost, and prevalence of insurance

Tarasoff duty

Duty of reasonable care to warn where there is a

• special relationship (psych) to perp

• D determined (should’ve) danger

• danger is serious

• foreseeable or clearly ID’able victim

CA civil code - psychotherapist

No liability for failure to wan unless patient communicated:

• serious threat of physical violence

• against a reasonably identifiable victim

then, duty to warn LEO

Exceptions to no duty to avoid emotional harm

1. exposure to physical risk

   1. near-miss: okay to recover for emotional distress because P was in the zone of danger from D’s actions

2. bystander - relatives watching relatives die can get NIED

   1. Amaya: relative in the zone of danger

   2. Dillon: case-by-case inquiry, need foreseeability

      1. nearness

      2. direct sensory observation

      3. close relationship to victim

   3. Thing: close relative @ scene

      1. closely related to victim

      2. present at scene

         1. can be phone call/video

      3. suffers severe emotional distress

         1. that is not abnormal in the circumstances

3. independent duty

4. fear of future disease

near miss

Exception to no duty to avoid emotional harm.

P can recover for emotional distress when they were in the zone of physical danger caused by D’s actions.

Historical rule

Amaya

Exception to no duty to avoid emotional harm.

Allows relatives to recover when they were in the zone of danger.

Dillon

Exception to no duty to avoid emotional harm.

Allows relatives to recover on a case-by-case basis if there was foreseeability, based on:

• close relative

• nearness

• direct sensory observation

Thing exception

Exception to general rule that there is no duty to avoid causing emotional harm to others.

Allows recovery for emotional harm (NIED) when:

• closely related to victim

• present at scene

  • phone call/video call suffice

• suffers severe emotional disturbance

  • that is not abnormal for the circumstances

Breach Inquiry Outline

1. Did D’s conduct fall below the standard of care?

   1. Based on the reasonable person

      1. exceptions to the reasonable person standard?

   2. Pick likely breaches

   3. Hand Formula for each breach

2. Was D’s conduct unreasonable in the circumstances?

3. Custom

   1. not controlling (unless pro neg)

   2. but helpful if there is one

   3. can be unreasonable

what does the ideal precaution look like

Feasible

no Impairment of utility of activity

Cost effective

Safe[r] (effective)

the Hand Formula

Way to measure the reasonable person.

B < P*L

B = burden of the precaution: costs, unintended consequences, reduced utility

P = probability of the loss

L = severity of the loss

Rule from Plovidba

Creation of the Hand Formula.

Tortfeasor is liable for the accident if the burden of precautions that were not taken is less than the harm that would have resulted if the accident had occurred, multiplied by the probability that it would occur.

A reasonable jury could find Plovidba not negligent because while the severity of the loss (RIP) would be high and the burden of precautions was low, the probability it would happen was very low.

Custom in the hand formula

Not controlling, but a material consideration.

Exceptions to the reasonable person standard (breach)

• emergency D did not create

• child

• physical disabilities

• mental disabilities

• professional negligence

emergency exception to the reasonable person standard

Emergency that D did not create is always relevant.

Test is a reasonable person in a like emergency.

Child exception to the reasonable person standard

Standard for kids 5-18 is the reasonable child of the same age, intelligence, and experience.

Kids younger than five not held to negligence in many jurisdictions.

Exception to exception: dangerous activities usually done by adults

dangerous adult activity

Exception to the child exception to the reasonable person standard.

When a child is engaged in a dangerous activity usually done by adults, they are held to an adult standard of care. They have a duty to use reasonable care to avoid causing harm to others.

Other jurisdictions say “inherently dangerous activities [that are dangerous to others]”

Rule from Roth

9 year old frozen in fear of a train is held to the standard of a reasonable 9 year old in the same circumstances with the same intelligence.

Rule from Schlansky

Participation in dangerous activities usually done by adults is an exception to the child exception to the reasonable person standard. Golf is a dangerous adult activity, so kid golfers have a reasonable person standard duty to use reasonable care to avoid causing harm to others.

Physical disability exception

Exception to the reasonable person standard.

Standard is a reasonable person with the same disability in the same situation.

Mental illness - general tort liability

Usually, mentally ill are liable like a reasonable person for both intentional torts and negligence. Between two innocents, someone must pay.

Mental illness exception

MINORITY APPROACH, judge made doctrine

mental illness can be an exception to the reasonable person standard of care if there was a sudden onset.

• sudden onset mental illness that affects a person’s ability to understand and appreciate their duty

• if not that, then it has to affect their ability to behave in a reasonably prudent manner

• like a heart attack

Causation Inquiry

1. Did D’s breach of duty cause the harm alleged by P?

   1. question of fact - preponderance of the evidence

      1. burdens of production & persuasion

2. tests

   1. but for

   2. substantial factor

But-for causation test

If D had done X/had not done Y, P’s harm would not have occurred.

Use for multiple actor/chain situations, and generally.

Substantial factor causation test

Show that D’s negligence was a substantial factor in bringing about P’s harm

• a reasonable person would think it contributed to the harm

burden of production

• More likely than not—but for D’s negligence—the harm to P would not have transpired

• Evidence

  • testimony

    • direct

    • circumstantial

  • evidence

    • docs

    • records

  • statistics

burden of persuasion

1. suggest a theory of causation

2. disprove probable alternatives (not all possible)

   1. if one or more alternatives are just as likely, the party loses

Rule from East Texas Theaters

A P must show that her injury would not have occurred but for the Defendant’s negligent conduct

in order to prove that the conduct was the cause in fact of her injury

CAUSE IN FACT [causation] + FORESEEABILITY [scope]

redundant causes

When two forces are actively operating

• one because of the actor’s negligence

• the other not because of any misconduct on his part

& each is itself sufficient to bring about the harm to another,

—> the actor’s negligence may be found to be a substantial factor in bringing it about

Rule from Ingersoll

Causation requires that D’s omission or misconduct actually caused P’s injury. P does not have to disprove all causes of injury, just needs to show that negligence by D can be reasonably inferred from the facts.

P’s theory was more plausible than D’s theory to infer cause of husband’s death from facts, so P satisfied causation.

Rule from Anderson v. St. Paul Rail

D is liable for negligence when he is a sufficient cause of P’s injury.

Two fires converge, one started by RR, other unknown origin. Liable:

• if either fire would have damaged the property independent of the other

• if the negligently-started fire was a material or substantial factor in the destruction

Two fire starters are jointly & severally liable.

Rule from Northington v. Marin

When there are multiple causes of P’s injury and D’s negligence is just one, it is a substantial factor in bringing about the harm.

When multiple people concurrently cause an indivisible injury, they are each jointly and severally liable.

Res Ipsa Loquitur - Test

1. cause of injury is known

2. the instrumentality was under D’s total control

3. instrumentality unlikely to cause harm without negligence by the controller

   1. P’s harm is the proof of D’s negligence

Rule from Byrne

Use RIL to show P’s harm due to D’s negligence where there could be no other cause. Like barrels falling out of window onto a dude.

Rule from Ybarra

RIL EXTENSION.

Alternative liability applies even when not all of the Ds can be shown to be guilty of tortious conduct. P unconscious during medical treatment and many Ds had control over body and instrumentalities that might have caused the injury.

Otherwise, unconscious patients would get no recovery.

types of causation for toxic torts

general: the thing can cause this type of harm

specific: this thing caused P’s specific harm

expert admission in toxic torts

Is the scientific evidence relevant enough to be given to the jury?

• methodology generally accepted in scientific community

• or, judge is gatekeeper

Rule from Stubbs

Several possible causes for P’s injury but D is only responsible for one of them. P can recover using facts to show with reasonable certainty that the injury resulted from something D was responsible for.

In toxic torts, can use studies/experts. Don’t have to eliminate every other possible cause when the whole city is drinking the water and getting typhoid.

Rule from Ayers v. Township of Jackson

Where there is toxic exposure but no actual injury yet, P can maybe demand check up costs. For more, P has to be able to actually show a sufficient nexus between D’s conduct and P’s real injury.

Rule from Celebrity Cruises

an use expert testimony to meet a preponderance of the evidence, like to say a cruise ship didn’t have great procedures to stop people from getting the rona.

Scope of Liability Inquiry

SHOULD D BE LIABLE FOR THIS HARM?

1. Was P foreseeable?

   1. reasonable person

   2. harm was a direct and natural consequence of the act

2. Was the injury/harm foreseeable?

   1. the type of harm has to be foreseeable

   2. the way it happened/specific act does not

   3. Does this particular injury fall within the scope of injuries that a reasonably prudent person should have foreseen?

3. Were there superseding (unforeseeable) intervening causes?

   1. Harm too remote?

   2. Freakish?

   3. someone else’s fault?

ARGUMENTS:

• predictability

• actual foreseeing

• downplay links in chain

• policy

What is foreseeable harm

As long as D’s negligence created a risk of reasonably foreseeable harm of the general kind that befell P, the exact manner by which that harm occurs does not matter.

What is scope

Scope is the analysis of the foreseeability element to determine the extent to which duty extends.

Where duty is a general duty of care for activities that create a risk of foreseeable harm to foreseeable Ps.

Intervening forces

Usually don’t cut off scope of liability. UNLESS an unforeseeable intervening event (“superseding force”) - then cuts off liability.

What does a reasonably foreseeable 3rd party intervening act do to the chain of causation?

Chain of causation remains unbroken.

BUT!

• if there was an unforeseeable criminal/tortious intervening event, it can break the chain of causation

Rule from United Soccer Federation

When P’s Van Gogh Event is not a reasonably foreseeable result of negligence, it is not proximately caused by that negligence. Such as, if there was an unforeseeable intervening event.

Rule from Bigbee

Foreseeability is always a question of fact that normally goes to the jury. Unless there is no room for a reasonable difference of opinion (then can be established as a matter of law without being submitted to the jury).

D can be liable for failing to protect P from foreseeable and harmful conduct of a third party where the phone company but a phone booth close to a busy street where drivers are likely to speed

Exceptions to the foresight rule

1. medical exception

2. eggshell plaintiffs

3. rescuer rule

What is the medical exception to the foresight rule?

Subsequent negligence by medical personnel doesn’t cut out scope. And, neither does a car accident on the way to the hospital.

eggshell plaintiffs

D is still liable for resulting harm, even if P was especially vulnerable due to a pre-existing condition.

Rule from Steinhauser v. Hertz

Where a teenager developed chronic schizophrenia after a minor car accident, the at-fault driver is liable for the entire harm even though she was especially vulnerable and could have developed it at any time. This is because the predisposition was set off by the event that D caused.

Rescuer rule

Where or not it is foreseeable in practice, rescue is foreseeable as a matter of law.

• D is liable for the rescuer’s damages

• The rescuer is never liable for contributory/comparative negligence

  • gross negligence? maybe.

Damages Inquiry

1. What is the legally cognizable harm?

   1. wrongful death?

   2. pain and suffering?

   3. harm to property or person?

2. Is there a case for punitive damages, or just compensatory?

Alternative Liability

When there are multiple concurrent tortfeasors and it is unclear who exactly caused the harm, P can sue all of them. Then they each have to prove that they did not cause it.

Rule from Summers v. Tice

Under alternative liability, two independent tortfeasors can be held jointly liable if it is not possible to tell which one of them caused P’s injury.

• the burden of proof will shift to Ds

  • absolve themselves of liability

  • apportion damages between them

Whether Ds are working concurrently or accidentally/independently, each are liable for the whole damages.

concerted action

tacit/explicit agreement to do a tort

market share liability

Ds are liable for their market share %, to be held liable proportionately.

• D can try to show that it could not have been them that made the thing that caused P’s injuries

• some jurs - D has to have a certain % as a threshold to be liable

Rule from Sindell v. abbot

Market share liability is appropriate when there are multiple manufacturers

• If there are multiple manufacturers named as Ds in a negligence action and it can’t be determined which one caused P’s harm, they will be liable proportionately to their market share of the goods that caused the injury