negligence + vicarious liability

what are the elements of negligence

duty, breach, causation, damages (DBCD)

duty definition

a legal obligation to conform to a specific standard of care to protect a person against an unreasonable risk of harm

what are the two questions under duty

Q1: is there a duty?

Q2: what is the standard of care?

what is the general duty rule

there is no duty to aid a third person  

what are the two jurisdictional approaches to duty

cardozo and restatement 3rd

what is the cardozo approach

zone of danger; duty to all foreseeable plaintiffs

what two questions must you ask under the cardozo approach

was the plaintiff foreseeable and was the type of harm foreseeable

what are the foreseeable plaintiff special rules (5)

unborn child
social hosts

mental health professional 

dr/patient when there is a contagious disease

rescuer 

what is the “unborn child” foreseeability rule and what causes of action are introduced (2)

a doctor has a duty to an unborn fetus; wrongful life (not actionable) and wrongful birth (actionable)

what is the “social host” foreseeability rule

common law = DBCD analysis
dram shop statute = gives rise to a private cause of action that entitles the plaintiff to damages, statute is evidentiary not conclusory 

what is the “mental health professional” foreseeability rule

a MHP could have a duty to 3rd parties if, according to MHP’s professional judgement, there is an identifiable victim at risk of serious and imminent harm 

what is the “dr/patient contagious disease” foreseeability rule

a doctor has a duty to warn immediate family members and other medical professionals of contagious diseases

what is the “rescuer” foreseeability rule

rescuers are foreseeable because danger invites rescue

what is the restatement 3rd approach to foreseeability

general duty to the entire world, must still discuss if harm was foreseeable

special “no duty” rules (3)

firefighter

contractor

mental health caregiver 

what is the general SOC rule

act as a reasonable person under the same or similar circumstances

what are the reasonable person knowledge special rules

superior knowledge = superior standard

average knowledge = average standard

below average knowledge = average standard

what are the exceptions to the general SOC rule (5)

minors = RP of same age/intelligence

physical disability = RP w/ same disability

mental disability = regular RP sucks to suck

emergency doctrine = RP under same emergent circumstances

medical professional = judged on national standard 

what question must you ask when discussing breach

did the actor’s conduct fall below the required SOC

what 3 things may be considered when determining if there was a breach

customs, statutes, res ipsa loquitor

explain how customs can be considered when determining a breach

customs are geographic expectations, building codes, or workplace regulations. they are evidentiary, not determinative (walmart case)

explain how statutes can be used to determine if there was a breach

statutes can (1) establish a SOC, (2) prohibit a specific action, or (3) provide for a private cause of action 

1- you must have warning flags on work trucks

2- speed limits

3- dram shop statutes 

what happens in a strict liability jurisdiction when plaintiff can prove the elements of NPS 

defendant is liable, excuses not considered

what happens in a rebuttable presumption jurisdiction when plaintiff can prove the elements of NPS

1) plaintiff proves NPS

2) defendant asserts defense

3) DBCD analysis to determine if defense is valid 

what are valid defenses to NPS (4)

emergency 

actor doesn’t know they need to comply with statute (ex. don’t see a speed limit sign)

compliance involves a greater risk of harm 

incapacity 

what are the elements of NPS (6)

directive statute

class of person harmed is class of person covered in the statute

type of harm suffered is the type of harm covered in the statute

statute was violated

causation

damages

what is res ipsa loquitor (definition)

the negligence speaks for itself- the harm could not have occurred had someone not been negligent 

what are the elements of res ipsa (5)

harm doesn’t occur without negligence

defendant had exclusive control/right to control the situation

no fault of 3rd party or plaintiff 

causation

damages

what is the procedural effect of res ipsa

1. plaintiff sues under res ipsa and proves all elements

2. burden shifts to defendant to prove he wasn’t negligent

3. if defendant is successful, continue with regular DBCD analysis

what is an example of res ipsa and how are the elements met

example: medical sponge left in someone after surgery

element 1: a medical sponge doesn’t just get left in someone without negligence

element 2: surgeon had exclusive control over the surgery and the instruments

element 3: no fault of the plaintiff or any third party

element 4: medical sponge causes issues later

element 5: damages assumed for purpose of example 

what are the two types of causation

actual and proximate

what is actual causation and what test does it employ

a direct link or substantial factor between the conduct and the injury, uses the “but for” test

what is the “but for” test as it results to actual cause

the injury would not have occurred “but for” the defendant’s negligence

what is proximate cause and what does it seek to do

proximate cause asserts that a defendant is liable for all foreseeable consequences of his negligent conduct, looks to cut off liability 

is the cardozo approach or the restatement 3rd approach more restrictive? why?

the cardozo approach is more restrictive because a judge can prevent you from getting to the jury by ruling that the plaintiff was not within the zone of danger 

what are the foreseeability special rules (3)

rescuers

eggshell plaintiff

subsequent negligent medical treatment 

what are the exceptions to the rescuer foreseeability rule (3)

not liable if the rescuer is grossly negligent, not liable for furtherance caused by unreasonable rescue, not liable for furtherance if the rescuer makes the plaintiff worse-off

what is the eggshell plaintiff foreseeability rule

the defendant is liable if their conduct worsens a pre-existing condition that they were unaware of 

what is the shabby millionaire rule

under eggshell plaintiff, states that you can’t claim someone is “too rich” for you to pay them damages

what is the subsequent negligent medical treatment foreseeability rule

you must assume that when the plaintiff gets treated for the injuries you caused, the doctors will do a bad job. treatment must be common, ordinary, and related to the original negligent act (odds of complication are not considered)

what are the causation special rules (3)

alternative liability

concurrent tortfeasors

acting in concert

what is alternative liability

occurs when there are multiple defendants and the plaintiff does not know who caused harm- burden of proof shifts to each of the defendants individually to prove they were not negligent 

what are concurrent tortfeasors

occurs when multiple defendants acted negligently and caused a single harm but with no prior plan (indivisible harm) (ex. a bus hits you then i run over you again)

what is acting in concert

occurs when there is a common scheme between actors, can either be 1 tortfeasor and 1 assistant or 2 tortfeasors 

what type of damages does negligence require

actual

what are the two types of modified comparative fault jurisdictions and what is the language associated with them

mod 49 = “not as great as” = plaintiff can collect as long as their negligence was not as great as that of the defendants

mod 50 = “not greater than” = plaintiff can collect as long as their negligence was not greater than that of the defendants 

what happens under joint & several liability

plaintiff can collect from any and all defendants

what happens in a several liability jurisdiction

defendant’s are liable according to their percentage of harm and cannot pay more than that 

what is vicarious liability

holding someone responsible because of their relationship with someone else (ex. employer/employee)

how is liability apportioned with independent contractors

employers are not liable for the acts of independent contractors unless they are partaking in inherently dangerous activities, or the employer’s land is open to the public (ex. repairs in a hotel lobby)