CARLYS TORTS

Negligence: definition

A breach of a duty to avoid causing injury to another through careless conduct.

Elements of negligence (prima facie case)

Duty, breach, causation, damages.

Who decides duty, breach, and causation?

Duty: judge/court. Breach: jury. Causation: jury.

Duty: ordinary care

An individual must exercise ordinary care to avoid causing physical harm (to person and property) to reasonably foreseeable victims when acting. Obligation exists whether under contract or not.

MacPherson v. Buick Motor Co.

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is a thing of danger and the maker owes a duty of care.

Foreseeability test (duty)

Whether a reasonably prudent person would have anticipated that the victim would be injured as a result of the defendant's negligence.

Mussivand v. David

Affair partner gave an STD to the wife he was sleeping with, and it passed to her husband. Held: there was a duty to the husband.

Qualified duties of care (affirmative duties)

Duty to protect/rescue; premises liability categories; duty to prevent pure economic loss.

Professional standard of care

A professional must possess and apply the knowledge, skill, and care ordinarily used by a reasonably well-qualified professional under similar circumstances.

Who is a professional?

A person who belongs to a learned profession or whose occupation requires a high level of training and proficiency (doctor, dentist, lawyer, accountant, surgeon, engineer, architect).

Strict liability (duty context)

Liable no matter the duty because the legislature says so. Example: owning a dog and being responsible if it bites someone (Pignaro v. Rossi).

Common carrier duty

Traditionally owes the highest duty of care to fare-paying passengers. Many jurisdictions now apply only ordinary care to common carriers (Jones v. Port Authority of Allegheny County).

Duty to rescue/protect: general rule

Generally NO duty to rescue or protect, even when it would be safe and easy, EXCEPT in certain special relationships or circumstances.

Exception 1 to no duty to rescue

If the defendant had some hand in placing the plaintiff at risk of harm, the defendant may owe a duty to take reasonable steps to warn, protect, or rescue. Reasonable efforts suffice (call 911, scream for a doctor).

Negligent entrustment

Giving a dangerous article to an individual who is obviously incompetent to use it safely.

Osterlind v. Hill

Old man drowned in a canoe. Case on duty/negligent entrustment when someone helps create the danger.

Exception 2 to no duty to rescue

A voluntary undertaking to warn, protect, or rescue can create a duty to do so with ordinary care.

Good Samaritan statutes

Insulate the rescuer from negligence liability. Tend to be limited to off-duty professionals (firefighter, police officer).

Exception 3 to no duty to rescue: special relationships

Common carrier-passenger; innkeeper/hotel-guest; business/store-invitee (includes restaurants, bars); school-student (at least minors); employer-employee; prison-prisoner (those in your custody); hospital-patient.

Baker v. Fenneman & Brown Properties (Taco Bell)

Taco Bell had a duty to an invitee to rescue when it knew or had reason to know he needed assistance on the premises, even though Taco Bell did not create the need.

Premises liability

Duty to maintain safe conditions and a certain level of safety on land. It is about conditions, NOT activities.

Invitee

Enters at the possessor's invitation in furtherance of the possessor's business or mission (mutual benefit, win/win).

Licensee

Enters with the possessor's permission but not in furtherance of the possessor's business or mission (e.g., using a hotel lobby bathroom off the street without buying a room).

Trespasser

Enters without permission.

Traditional premises rules (about 30% of states)

Retain the common law categories. Invitees: care to provide reasonably safe premises (inspect, make safe, warn). Licensees: warn of hidden dangers the possessor knows or should know. Trespassers: must not wantonly or willfully injure.

Traditional rule exceptions for trespassers

(1) Known trespassers; (2) children: do not maintain an attractive nuisance or foreseeably dangerous conditions.

Rowland rules (about 20% of states, incl. CA and NY)

Abandon the common law categories. Duty to everyone EXCEPT flagrant or felonious trespassers (e.g., someone there to rob you or burn your house down).

Other rules (about 50% of states)

Abandon the invitee/licensee distinction but keep the trespasser category. Invitees and licensees: care to provide reasonably safe premises.

Lefters v. Sharp

Plaintiff's status changed from invitee to trespasser when he went through the window.

Exception for trespassers in non-Rowland jurisdictions

If the possessor knows or should know trespassers constantly intrude on a limited area and are exposed to an artificial (man-made) danger, the possessor must at least warn. Some jurisdictions require reasonable care to make the premises safe.

Attractive nuisance doctrine

Protects minor (under 18) trespassers from a condition that would attract children who would not realize the danger because of their age (e.g., swimming pool).

Attractive nuisance: modern rule

Requires only that the possessor have reason to foresee that children might (1) enter the property and (2) be endangered by the condition.

Duty to non-entrants

Possessor owes a duty that artificial things on the property will not harm people not on the property. Example: a statue on your property breaks and hits someone walking by.

Recreational use statutes

Possessor owes permitted (but uninvited, unpaid) users only a duty not to wantonly or willfully injure them. Example: frozen pond you let people skate on for free.

Pure economic loss: general rule

Generally NO duty to avoid pure economic loss. Exceptions: (1) special relationship, or (2) nexus involving a narrow, highly foreseeable group of plaintiffs.

Aikens v. Debow

No liability for pure economic loss to a hotel resulting from a bridge being down.

Pure economic loss exception: special relationships

Attorney (third-party beneficiary in estate planning); accountant (third party known to be relying on the audit); surveyors, engineers, architects.

Pure economic loss exception: nexus

Court MIGHT allow recovery if (1) the injury was relatively foreseeable, (2) there are relatively few plaintiffs, and (3) the defendant's conduct is relatively blameworthy or risky.

People Express v. Consolidated Rail

Gas leak from a rail car; airport sued for lost bookings, revenue, and canceled flights. Nexus exception to the pure economic loss rule.

Pure economic loss examples

Oil spill harming a fishing area: people depending on that industry can sue. A car crashes into a bar: the bar owner can claim lost revenue, but the fast-food spot next door cannot.

Physical harm and economic loss

If there is physical harm to you or your property, you can recover for economic loss.

Breach: four methods of analysis

1) Reasonably prudent person standard; 2) industry practice/custom; 3) cost-benefit analysis (Hand formula); 4) negligence per se.

Reasonably prudent person standard

Did the defendant act as a reasonably prudent person would in those circumstances? The jury uses its own wisdom, common sense, and judgment, and may also hear expert testimony.

Four considerations for reasonably prudent person

1) Risk of injury the conduct imposes and its utility; 2) magnitude of potential injury; 3) likelihood the risk results in injury; 4) alternatives to the conduct that would have less risk.

Campbell v. Kovich

Kid with a lawn mower. No breach of duty because the defendant did not do anything unusual.

Reasonable person standard: nature

Conduct-based test (not internal); a generalized, non-individualized norm (the average reasonable person). Do not consider mental challenges, intoxication, or clumsiness.

Tender years doctrine: traditional rule (Illinois)

Until age 7: no negligence. Age 7 to 14: standard of a child of like age, intelligence, and experience. Age 14 and up: adult standard.

Tender years doctrine: modern rule (Massachusetts)

Under 14 (to about 4): child of like age, intelligence, and experience. 14 and up: adult standard. Children doing adult activities (driving, chainsaw, tractor) are held to the adult standard.

Negligent supervision (parents)

Requires (1) parents aware of instances of the same prior conduct AND (2) parents had the opportunity to control the child.

Modifications to the reasonable person standard

Physical disabilities; special competence (superior knowledge held to a higher standard); sudden and unexpected physical incapacity.

Industry practice/custom

Compliance with industry custom is probative of ordinary care but NOT dispositive. A defendant can comply and still be negligent if a reasonably prudent person would have acted differently. Custom = widespread or common adoption.

T.J. Hooper

Tugboats lacked radios to receive weather reports. Industry custom does not set the standard if a reasonably prudent person would have used the precaution.

Professional standard of care: breach analysis

Did the defendant act contrary to the professional standard? The jury MUST rely on expert testimony only (one expert or more) and cannot use its own judgment. Industry custom = professional standard in a professional context.

Myers v. Heritage Enterprises

Two CNAs dropped an elderly woman using a Hoyer lift. CNAs are not professionals, so the professional standard did not apply.

Professional standard: national standard and specialists

A national standard applies. Specialists are held to the standard of their specialty.

Informed consent exception

Professional standard is NOT used. Ask what a reasonably prudent patient would deem material in deciding whether to undergo the treatment.

Largey v. Rothman

Mass in breast. Informed consent case using the reasonably prudent patient (materiality) standard.

Condra rule

You can ask a testifying expert what they do in their own practice because it (1) helps the jury decide if it is part of the professional standard and a breach, and (2) lets you impeach the expert's credibility.

Condra v. Atlanta Orthopaedic

Medication that needed blood pressure monitored. Source of the Condra rule.

Cost-benefit analysis (Hand formula): variables

P = probability harm occurs; L = loss (cost of harm); B = burden (cost of taking precautions).

Hand formula: when is there breach?

Liability depends on B vs. PxL. If B < PxL (expected harm exceeds cost of precautions), taking the risk is negligent. If B > PxL, no breach.

United States v. Carroll Towing Co.

No bargee on a boat. Origin of the Hand formula (B < PL).

Negligence per se: five conditions

1) A statute sets a standard of safe conduct; 2) D violated it; 3) P is among those the legislature intended to protect; 4) injury is of the type the statute intended to prevent; 5) D has no excuse for the violation.

Negligence per se: compliance with statute

Compliance is evidence of reasonableness but not dispositive.

Dalal

Not wearing glasses while driving. Negligence per se case.

Negligence per se: agency rules and voluntary standards

In some states agency rules (not just statutes) can support NPS. Violating a voluntary trade association standard cannot support NPS but can be evidence of industry custom/breach.

Bayne v. Todd Shipyards

Guard rail on a raised loading platform. Negligence per se: right kind of plaintiff.

Negligence per se: right kind of injury

The plaintiff must be hurt in the way the statute was trying to prevent.

Victor v. Hedges

Car jumped over a parked car and hit a man behind it. Injury was not the type the statute was meant to prevent.

Negligence per se excuses

Any one suffices: (A) youth or physical incapacity; (B) reasonable efforts to comply; (C) justified ignorance of facts making the statute applicable; (D) vagueness or ambiguity in the statute; (E) compliance posing a greater danger than non-compliance.

Causation: two parts

Actual cause + proximate cause. Burden of persuasion: preponderance of the evidence (more likely than not). Jury decides.

Actual cause: but-for test

But for the defendant's breach, would the plaintiff have been injured? If no, the breach WAS a cause. If yes, it was NOT a cause.

"A cause" not "the cause"

The question is whether defendant's negligence was A but-for cause, not THE cause. It is no defense that someone else's negligence also caused the injury.

Res ipsa loquitur: elements

1) Event of a kind that ordinarily does not occur without someone's negligence; 2) caused by an agency or instrumentality within the defendant's exclusive control; 3) not due to any voluntary action or contribution by the plaintiff (today just comparative fault).

Res ipsa loquitur: effect

Flips the burden of proof: once established, the defendant must prove by a preponderance that she did NOT breach her duty of care.

Res ipsa loquitur examples

Brick falling on you near a construction site; plane crashing in good weather; babies switched by a nurse.

Three variations on actual cause

Multiple necessary causes (MNC), multiple sufficient causes (MSC), and alternative causation.

Joint and several liability (JSL)

Plaintiff can sue any or all defendants and recover the full amount from any of them, or any amount from each (up to 100% of the award). Available for MNC and MSC; in some jurisdictions for alternative causation.

Multiple necessary causes (MNC)

Independent negligent conduct of two or more actors each is an actual (but-for) cause; each cause is NECESSARY, so without each one there would be no accident. Can be consecutive or concurrent. Comparative negligence is a special case.

Multiple sufficient causes (MSC)

Simultaneous separate forces, each of which alone would have been sufficient to produce the loss. Each act is treated as a but-for cause even though neither satisfies the but-for test alone.

MSC example

Two fires would each have reached the plaintiff's house at about the same time and burned it down; the fires merged. Both are deemed but-for causes.

Substantial factor test

Jury makes an intuitive judgment on what degree of causation is substantial and whether the defendant's negligence reaches that level (used for MSC).

Alternative causation

Only one defendant caused the injury but the plaintiff cannot tell which. Burden shifts to defendants to prove their carelessness was not the cause if: (1) two or more defendants negligent, (2) only one caused the injury, AND (3) plaintiff, through no fault of his own, cannot know which.

Proximate cause: what is it?

A judgment/policy call about when we are willing to hold the defendant liable. You are responsible for what you could foresee or expect.

Proximate cause test

1) Was the injury a reasonably foreseeable consequence of the breach? (Wagon Mound) 2) Was the injury within the scope of the risk? (Jolley)

Foreseeability in proximate cause

The kind, class, or nature of injury (sequence of events) must be foreseeable, NOT the precise injury (manner or extent).

Scope of the risk

The injury is the realization of one of the risks that made the defendant's conduct careless.

Jolley v. Sutton London Borough Council

Abandoned rotting boat left in a housing area for two years; boy propped it up, it fell, and he was paralyzed. Defendant liable: foreseeable that kids will play on it; a warning sticker is not enough. Would not be proximate cause if the kids took the boat 100 miles away and drowned.

Ventricelli v. Kinney System Rent A Car

Rental car had a defective trunk; while plaintiff closed it, another car hopped over a parked car and crushed him. Not proximate cause: not foreseeable and not within the scope of the risk.

Ventricelli: what WOULD be proximate cause

Something flying out of the trunk while driving and hitting another car; plaintiff getting out at a red light to close the trunk and being hit; or the trunk opening and hitting him.

Palsgraf v. LIRR

Man carrying firecrackers in a package was helped onto a moving train by employees; he dropped it, it exploded, a scale fell and hurt plaintiff far away. Ruled for defendant: plaintiff was not a foreseeable victim / outside the scope of risk.

Palsgraf: duty vs. proximate cause

We address reasonably foreseeable victims at the level of duty, then ask whether the injury was reasonably foreseeable.

Superseding cause

A cause that cuts off the liability of the first defendant even if D1's negligence was an actual cause. Only D1 can make this argument.

Superseding cause: requirements

Two defendants acting independently; wrongs committed consecutively with some time between them; D2's intervening act is not the realization of a risk inherent in or reasonably foreseeable from D1's carelessness.

What D1 must allege for superseding cause

(1) The nature of D2's wrongful conduct; (2) the time it took place (after D1's wrongful conduct); and (3) that D2's wrongful conduct was not foreseeable.

Criminal acts as superseding cause

If the criminal act was foreseeable from D1's perspective, it is NOT a superseding cause and does not cut off the liability of the defendant who negligently exposed the plaintiff to that risk.

Medical malpractice as superseding cause

Ordinary med mal committed while treating injuries caused by D's negligence is a foreseeable consequence, NOT a superseding cause.

Graves v. Warner Bros.

Plaintiff was shot off production, so not liable. Would have been liable if it happened in the studio or during production (affirmative duty for special relationships).

Dram shop act

Victim of a drunk driver can sue and prevail against a bar if her injuries occurred partly because the bar served a driver who was (1) not of drinking age or (2) already visibly intoxicated. Creates an affirmative duty so the drinking and driving is not a superseding cause.

Social host liability

Dram shop laws do NOT apply to private party hosts, except when the person served is a minor. Some jurisdictions impose liability for serving visibly drunk adults.