Crystal - Torts

What is the causation requirement for trespass to land?

Physical invasion of p's property must have been legally caused by d's act or something set in motion thereby

Does transferred intent doctrine apply to trespass of land?

yes

Are damages required for trespass of land?

No, damages are presumed. This means that actual injury to the land is not an essential element of the cause of action

What is the prima facie case for trespass to chattels?

Following elements must be proved:

1) an act by d interfering with p's right of possession in the chattel;

2) intent to perform the act bringing about the interference with p's right of possession;

3) causation; and

4) damages

What are the two general forms of interference when it comes to trespass to chattels?

Intermeddling and Dispossession

What is intermeddling?

Conduct by d that in some way serves to directly damage p's chattels

Dispossession

conduct on d's part serving to dispossess p of his lawful right of possession

Intent and trespass to chattels

Intent to trespass is not required; intent do do the act of interference with the chattel is sufficient

D's mistake as to the lawfulness of their actions = no defense

Who may bring a trespass to chattels action?

Anyone with possession or the immediate right to possession may maintain an action for trespass to chattels

Causation and trespass to chattels

The interference with plaintiff’s possessory interests in the chattel must have been caused by defendant’s act or something set in motion thereby.

Damages and trespass to chattels

As a general rule, nominal damages will not be awarded for trespass to chattels; i.e., in the absence of any actual damages, an action will not lie. However, if the trespass amounts to a dispossession, the loss of possession itself is deemed to be an actual harm

Does the doctrine of transferred intent apply to trespass to chattels?

yes

What is the prima face case for conversion?

To establish a prima facie case for conversion, the following elements must be proved:

1)An act by defendant interfering with plaintiff’s right of possession in the chattel;

2)Intent to perform the act bringing about the interference with plaintiff’s right of possession;

3)Causation (must have been legally caused by d’s act or something set in motion thereby); and

4)Damages—an interference that is serious enough in nature or consequences to warrant that the defendant pay the full value of the chattel.

What are some examples of acts of conversion?

1)Wrongful acquisition, e.g., theft, embezzlement.

2)Wrongful transfer, e.g., selling, misdelivering, pledging.

3)Wrongful detention, e.g., refusing to return to owner.

4)Substantially changing.

5)Severely damaging or destroying.

6)Misusing the chattel.

What intent is required for conversion?

The only intent required is the intent to perform the act that interferes with the plaintiff’s right of possession. Even if the conduct is wholly innocent, liability may attach where the interference is serious in nature.

May a bona fide purchaser be liable for conversion?

Yes, if chattel had been stolen from true owner

Accidental Conduct and Conversion

Accidentally causing damage to or loss of another’s chattel does not amount to conversion unless the actor was using the chattel without permission when the accident occurred

Subject matter of conversion

Property subject to conversion is limited to tangible personal property and intangibles that have been reduced to physical form (e.g., a promissory note), and documents in which title to a chattel is merged (e.g., a bill of lading or a warehouse receipt). Intangibles such as a bakery route, customer lists, or the goodwill of a business may not be the subject of conversion. Neither may real property be converted.

Who may bring action for conversion?

Anyone with possession or the immediate right to possession. If person in possession is not the true owner; they are accountable to true owner for any recovery to the extent of the owner’s interest

What are the basic conversion remedies?

1) Damages (FMV of chattel computed as of the time/place of conversion)

2) Replevin (if P wants chattel returned)

What are the defenses to intentional torts?

Consent

Self-Defense

Defense of Others

Defense of Property

Ree

Defense to Intentional Torts - Consent

A d is not liable for an otherwise tortious act if the p consented to the act. Consent may be express or implied

Defense to Intentional Torts - Express Consent

P has expressly shown a willingness to submit to d’s conduct

Consent by Mistake (Express Consent)

STILL a valid defense unless d caused the mistake OR knows of the mistake and takes advantage of it

Consent induced by Fraud (Express Consent)

If expressly given consent induced by fraud, generally NOT a defense IF the fraud goes to an essential matter. If the fraud is only in respect to a collateral matter, the consent remains effective

Consent Obtained by Duress

May be held invalid BUT threats of future action or of some future economic deprivation do NOT constitute legal duress sufficient to invalidate express consent

Defense to Intentional Torts - Implied Consent

Two basic kinds:

Apparent consent = in which a reasonable person would infer from p’s conduct or as a matter of usage or custom

Consent implied by law = where action is necessary to save a person’s life or some other important interest in person or property

Is capacity required to consent to tortious conduct?

Yes. Generally, incompetents, young kids are deemed incapable of consent to tortious conduct. consent by a parent/guardian = necessary to constitute a defense in such a case

What are the majority and minority views about consenting to criminal acts?

Majority view: a person CANNOT consent to a criminal act

Minority view (and restatement view): consent to a criminal act is a valid defense in a civil action for an intentional tort

*Consent is not valid where a law seeks to protect a limited class against its own lack of judgment

What is the modern trend about consenting to criminal acts?

Modern trend = differentiate between illegal acts that are breaches of peace (street fight) where consent is ineffective; and those that are not breaches of peace (acts of prostitution) where consent is effective

What happens if a defendant exceeds the scope of the consent given?

The defendant is liable when he commits a more intrusive invasion or if he invades a different interest

Defense to Intentional Torts - Self-Defense

When a person has reasonable grounds to believe he is being, or is about to be, attached, he may use such force as is reasonably necessary for protection against the potential injury

Self-Defense and Reasonable Belief

Actor need only have a reasonable belief as to the other party’s actions so a reasonable mistake as to the existence of the danger does NOT vitiate the defense

Is retaliation allowed in self-defense?

NO! Self-defense is limited to the right to use force to prevent commission of a tort so you cannot use force in retaliation

Is retreat necessary for the defense of self-defense?

Majority of courts: no, can stand ground and even use deadly force when necessary to prevent death or serious bodily injury to yourself or others

Modern trend: impose a duty to retreat before using deadly force where this can be done safely UNLESS the actor is in his own home

Delaware and Duty to Retreat (Self-Defense)

Other than initial aggressors, those threatened with force (including deadly force) do NOT have a duty to retreat if they are in their HOME or place of work

Self-Defense and Initial Aggressors

Initial aggressor is NOT privileged to defend himself against the other party’s reasonable use of force in self-defense. HOWEVER, if other party uses deadly force against an aggressor who had only used nondeadly force, the aggressor may defend himself with deadly force

How much force can someone use in deadly force?

Force that reasonably appears to be necessary to prevent the harm. If you use more force than is necessary, you will lose the privilege of self-defense

What if you hurt a bystander while defending yourself?

If, in the course of reasonably defending himself, one accidentally injures a bystander, he is still protected by the defense (though might be liable to bystander for negligence if conduct warrants it)

BUT if the actor deliberately injures a bystander, probably cannot raise self-defense

Defense of Others

Actor need only have a reasonable belief that the person being aided would have the right of self-defense and may use as much force as he could have used in self-defense if the injury were threatened to him

Defense of Property

Generally, one may use reasonable force to prevent commission of a tort against their property BUT a request to desist MUST precede the use of force UNLESS the circumstances make it clear that such a request would be futire or dangerous

Effect of Mistake and Defense of Property

Reasonable mistake is allowed as to the property owner’s right to use force in defense of property where the mistake involves whether an intrusion has occurred or whether a request to desist is required. However, mistake is not allowed where the entrant has a privilege to enter the property that supersedes the defense of property right. In such a case the property owner is liable for mistakenly using force against a privileged entrant unless the entrant himself intentionally or negligently caused the mistake (e.g., by refusing to tell the property owner the reason for the intrusion)

What is defense of property limited to?

Preventing the commission of a tort against the defendant’s property. Thus, if they have been permanently dispossessed of the property and the commission of the tort is complete, they may not use force to recapture it

HOWEVER, if you are in hot pursuit of someone that wrongfully dispossessed you of your property, you still have this defense because the other person is still viewed as being in the process of committing the tort against the property

Defense of Property Superseded by other privileges

Whenever an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another’s land to recapture chattels, etc. (discussed below), that privilege supersedes the privilege of the land possessor to defend her property.

How much force may be used in defense of property?

Reasonable force BUT they CANNOT use force that will cause death or serious bodily harm UNLESS invasion of the property also entails a serious threat of bodily harm to the owner
Also cannot use indirect deadly force like a trap when that force could not be lawfully used directly

Reentry onto Land

Common law privilege —> used to be that a person who had been tortiously dispossessed from their and could use reasonable force to regain possession IF they acted promptly upon discovering the dispossession (did not apply to a tenant merely overstaying lease)

Most states have abolished this because you can bring an ejectment action or another summary procedure to recover possession; so if you use force to retake = you are liable for the injuries you inflict

Recapture of Chattels —> When is this defense available?

Basic rule: where another’s possession began lawfully, one may use only peaceful means to recover the chattels. Force may be used to recapture only when in hot pursuit of someone who obtained possession wrongfully

Is a timely demand required for recapture of chattels?

Yes, such a demand MUST precede the use of force UNLESS the circumstances make it clear that the demand would be futile or dangerous

Who can you recapture chattels from?

The recapture may only be from a tortfeasor or some third person who knows or should know that the chattels were tortiously obtained. If the chattels have come to rest in the hands of an innocent party, this will cut off the actor’s privilege to use force to effect recapture.

How much force can you use to recapture chattels?

Reasonable force, NOT Including force sufficient to cause death or serious bodily harm

Entry Upon Land to Recapture Chattels

If wrongdoer’s land: owner can enter the land and reclaim chattels at a reasonable time and in a reasonable manner; generally required to make a demand for return before doing this

If innocent party’s land: owner may enter and reclaim at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattels and refuses to return it. But you will be liable for any actual damage caused by your entry

If on land through owner’s fault: NO privilege to enter the land; can only recover by going through the legal process

Privilege of Arrest

Depending on circumstances, may have a privilege to make an arrest of a third person BUT you will still be liable for subsequent misconduct and if you make the arrest under the mistaken belief that it is privileged may be liable for false imprisonment.

Can enter land of another to effect the arrest

Defense of Necessity

A person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is SUBSTANTIALLY more serious than the invasion that is undertaken to avert it

What are the two types of necessity?

Public necessity - where the act is to avert an imminent public disaster, the defense is absolute

Private necessity - where the act is solely to prevent serious harm to a limited number of people the defense is qualified meaning that the actor must pay for any injury they cause UNLESS the act is to benefit the owner of the land, then the defense is absolute

Defense of Discipline

A parent or teacher may use reasonable force in disciplining children, taking into account the age of the child and the seriousness of the behavior. In most states, however, this common law rule has been displaced by statutes or regulations forbidding the use of corporal punishment (physical discipline) by school teachers.

What is the general duty of care?

Legal duty to act as a reasonably prudent person under the same or similar circumstances. This is an objective standard.

Remember that a reasonably prudent person will take precautions against creating unreasonable risks of injury to others. If physical characteristics are relevant to the claim, the reasonable person is considered to have the same physical characteristics as the defendant BUT individual mental disabilities are not considered so defendant must act as a person with average mental ability would

The reasonable person has the knowledge of an average member of the community BUT someone with superior knowledge to that of an average person is required to use that knowledge

To whom is the duty of care owed?

Owed only to foreseeable plaintiffs = people who were foreseeably endangered by the d’s negligent conduct

Are rescuers foreseeable plaintiffs?

Yes, as long as the rescue is not reckless

Firefighter’s Rule and the DE Firefighter Rule

Firefighter Rule: firefighters and LEOs are barred from recovering for injuries caused by the inherent risks of their jobs on public policy/assumption of risk grounds

DE firefighter rule: safety officers NOT completely barred from recovery for injuries in all circumstances. DE exceptions to the firefighter’s rule include (1) failure to warn of known preexisting hidden defects where there is an opportunity to warn; (2) acts occurring after the officer’s arrival and which are outside their anticipated occupational hazards; and (3) acts of arson or similar intentional misconduct

Do you owe a duty of care to a fetus?

Yes, but the fetus MUST have been viable at the time of injury

Most states also permit a wrongful death action if the fetus dies from the injuries

Are wrongful life actions recognized? And wrongful pregnancy actions

Generally, no in most states. This means that the failure to diagnose a congenital defect of the fetus or to properly perform a contraceptive procedure does NOT permit the unwanted child to recover damages for wrongful life even if child is born with a disability

BUT child’s parents DO have an action: either for failure to diagnose the defect or for failure to properly perform a contraceptive procedure (wrongful pregnancy). The mother can recover damages for the unwanted labor (medical expenses and pain and suffering)

If child is born with defects, parents may recover the additional medical expenses to care for the child and, in some states, damages for emotional distress

If child is born healthy in a wrongful pregnancy case, most cases do NOT permit parents to recover child-rearing expenses, just damages for unwanted labor

Intended Beneficiaries of Economic Transactions

A third party for whose economic benefit a legal or business transaction is made (e.g., the beneficiary of a will) is owed a duty of care if the defendant could reasonably foresee harm to that party if the transaction is done negligently. Note that this is an exception to the general rule that one who suffers only economic loss as a result of another’s negligence cannot recover damages in a tort action

DE Independent Contractor Rule

Under Delaware’s independent contractor rule, a general contractor has no duty to an independent contractor on the work site. The general contractor will be liable only if they: (1) actively control the manner and method of performing the work; (2) voluntarily undertake the responsibility for implementing safety measures; or (3) retain possessory control over the work premises during work

Standard of Care for Professionals

A person who is a professional or has special skills (e.g., doctor, lawyer, airplane mechanic, etc.) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing. For doctors, most courts will apply a national standard of care to evaluate their conduct.

The professional must also use such superior judgment, skill, and knowledge as he actually possesses. Thus, a specialist might be held liable where a general practitioner would not.

Doctors and the Duty to Disclose Risks of Treatment

A doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment. If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the doctor has breached this duty.

Child Standard of Care

Generally, a child will be held to a subjective standard of care NOT the adult standard of care. Required to conform to the standard of care a child of like age, intelligence, and education.

It is unlikely that a court would find a child below the age of five as having the capacity to be negligent

Delaware Presumption - Child Standard of Care

The Delaware Supreme Court has held that there is a rebuttable presumption that a four-and-a-half year-old is too young to be capable of negligence. [Beggs v. Wilson, 272 A.2d 713 (Del. 1970)] The court also held that violation of a statute by a child is not negligence or contributory negligence per se.

Exception to the Child Standard of Care

if a child is engaging in a potentially dangerous activity that is normally one that only adults engage in, most cases hold that they will be held to the adult standard of care for that activity

Standard of Care and Common Carriers and Innkeepers

Required to exercise a high degree of care toward passengers and guests meaning they are liable for slight negligence

Automobile Driver Standard of Care to Guest

In most jdxs, duty by driver of car to a rider is one of ordinary care

BUT a few states have guest statutes. Under these statutes, the driver’s only duty to a nonpaying rider is to refrain from gross or wanton and willful misconduct (does not apply to riders who contribute towards the expense of the ride)

What is a bailment relationship?

In a bailment relationship, the bailor transfers physical possession of an item of personal property to the bailee without a transfer of title. The bailee acquires the right to possess the property in accordance with the terms of the bailment. A bailment obligates the bailee to return the item of personal property to the bailor or otherwise dispose of it according to the bailment terms.

Duties Owed by Bailee

If bailment is for sole benefit of the bailor (the bailor asks their neighbor (bailee) to get his mail for him while he is out of town), the bailee is liable only for gross negligence

If the bailment is for the sole benefit of the bailee (bailor gratuitously loans lawnmower to bailee), the bailee is liable even for slight negligence

Mutual benefit bailments: bailee must exercise ordinary care

Modern trend: toward a rule that considers whether the bailee exercised ordinary care under all the circumstances

Duties Owed by Bailee

Sole benefit of bailee - the bailor only needs inform the bailee of known dangerous defects in the chattel; NO duty regarding unknown defects

Bailments for hire (bailor loans lawnmower to neighbor for a fee) - bailor owes a duty to inform the bailee of defects known to him, or of which he would have known by the exercise of reasonable diligence

Standard of Care in Emergency Situations

The existence of an emergency, presenting little time for reflection, may be considered as among the circumstances under which the defendant acted; i.e., he must act as the reasonably prudent person would under the same emergency. The emergency may not be considered, however, if it is of the defendant’s own making.

Duty of care owners/occupiers of land owe to those OFF the premises

Natural conditions on the land = generally NO duty owed; exception for decaying trees next to sidewalks or streets in urban areas

Artificial conditions = generally NO duty owed BUT there are two major exceptions

Conduct of persons on property = duty to exercise reasonable care with respect to his own activities on the land AND to control the conduct of others on his property so as to avoid unreasonable risk of harm to those outside the property

Exceptions to the duty of care owed to those off premises for artificial conditions

Generally = no duty owed

Two exceptions

-unreasonably dangerous conditions: liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land

-duty to protect passerby: duty to take due precautions to protect persons passing by from dangerous conditions

Duty owed to a trespasser on the land

Trespasser = one who comes onto the land without permission or privilege

Depends on whether the trespasser is undiscovered or discovered

Undiscovered: NO DUTY owed

Discovered: duty to exercise reasonable care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover

• no duty is owed for natural conditions or less dangerous artificial conditions

• duty of reasonable care in exercise of active operations on the property

When is a trespasser discovered?

A trespasser is discovered, of course, when she is actually noticed on the property by the owner or occupier. But in addition, a trespasser is viewed as discovered if the owner or occupier is notified by information sufficient for a reasonable person to conclude that someone is on the property. An “anticipated trespasser” situation arises where the landowner knows or should reasonably know of the presence of trespassers who constantly cross over a section of his land.

Attractive Nuisance Doctrine

Most courts impose upon a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Under the general rule, to assess this special duty upon the owner or occupier of land with regard to children on his property, the plaintiff must show the following:

(i)There is a dangerous condition present on the land of which the owner is or should be aware;

(ii)The owner knows or should know that young persons frequent the vicinity of this dangerous condition;

(iii)The condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk; and

(iv)The expense of remedying the situation is slight compared with the magnitude of the risk.

Do children need to be lured onto the land by the attractive nuisance?

Under traditional doctrine, yes

BUT this is no longer the case in most jurisdictions - instead Foreseeability of harm to a child is the true basis of liability and the element of attraction is important only insofar as it indicates that the presence of children should have been anticipated by the landowner.

Duty of Easement and License Holders to Trespassers vs. Duty of EE/Independent Contractor

While employees and independent contractors acting on behalf of the landowner have the status of the landowner, persons with an easement or license to use the land do not; they must exercise reasonable care to protect the trespasser.

What is a licensee?

A licensee is one who enters on the land with the landowner’s permission, express or implied, for her own purpose or business rather than for the landowner’s benefit.

Under the “firefighter’s rule,” police officers and firefighters are generally treated like licensees rather than invitees, based on public policy or assumption of risk grounds. They cannot recover for a landowner’s failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity.

Duty owed to a licensee

The owner or occupier owes a licensee a duty to warn of or make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. (social guests are licensees)

NO duty to inspect

The owner or occupier also has a duty to exercise reasonable care in the conduct of “active operations” for the protection of the licensee whom he knows to be on the property.

Who is an invitee?

An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. Basically, there are two classes of invitees:

(a)Those who enter as members of the public for a purpose for which the land is held open to the public, e.g., museums, churches, airports; and

(b)Those who enter for a purpose connected with the business or other interests of the landowner or occupier, e.g., store customers and persons accompanying them, employees, persons making deliveries, etc.

An entrant serving some purpose of the possessor generally is treated as an invitee, e.g., garbage collectors, mail carriers, etc.

One who comes under normal circumstances during working hours generally is treated as an invitee, e.g., census takers, health inspectors, etc.

Scope of Invitation and Invitee

A person loses her status as an invitee if she exceeds the scope of the invitation—if she goes into a portion of the premises where her invitation cannot reasonably be said to extend. (Note that the invitation normally does extend to the entrance and steps of a building.)

What is the duty owed to an invitee?

The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of or make safe nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property) plus a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe.

Make safe = reasonable warning usually satisfies this

When does landowner NOT owe a duty to warn to an invitee?

A duty to warn usually does not exist where the dangerous condition is so obvious that the invitee should reasonably have been aware of it. “Obviousness” is determined by all of the surrounding circumstances.

Duty Owed to Users of Recreational Land

If an owner or occupier of open land permits the public to use the land for recreational purposes without charging a fee, the landowner 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.

Duties of a Lessor of Realty

Ordinarily, tort liability in regard to conditions on the property is an incident of occupation and control. Thus, when the owner leases the entire premises to another, the lessee, coming into occupation and control, becomes burdened with the duty to maintain the premises in such a way as to avoid unreasonable risk of harm to others. Similarly, where the owner leases portions of the premises to tenants, the owner continues to be subject to liability as a landowner for unreasonably dangerous conditions in those portions of the premises such as corridors, entry lobby, elevators, etc., used in common by all tenants, or by third persons, and over which the owner has retained occupation and control.

Keep in mind that the potential liability of the lessor for dangerous conditions on the premises does not relieve the tenant, as occupier of the land, of liability for injuries to third persons from the dangerous conditions within the tenant’s control.

Exceptions to the General Duty of Care of a lessor of realty

• The lessor is obligated to give warning to the lessee of existing defects in the premises of which the lessor is aware, or has reason to know, and which he knows the lessee is not likely to discover on reasonable inspection.

• If the lessor has covenanted to make repairs and reserves the right to enter the leased premises for the purpose of inspecting for defects and repairing them, he is subject to liability for unreasonably dangerous conditions.

• If the lessor, though under no obligation to make repairs, does so, he is subject to liability if he does so negligently, failing to cure the defect; it is not necessary that his negligent repairs make the condition worse.

• If the lessor leases the premises knowing that the lessee intends to admit the public, the lessor is subject to liability for unreasonably dangerous conditions existing at the time he transfers possession where the nature of the defect and length and nature of the lease indicate that the tenant will not repair (e.g., lessor rents convention hall to tenant for three-day period). This liability continues until the defect is actually remedied. A mere warning to the lessee concerning the defect is not sufficient.

Delaware Rule about Duty Landlord Owes to Guests of Tenants; and Rule about Holdover Tenants

A landlord owes guests of tenants a duty of reasonable care because, as to the landlord, they are not “guests without payment” under the Guest Premises Statute. [Ford v. Ja-Sin, 420 A.2d 184 (Del. Super. Ct. 1980)]

A holdover tenant cannot recover for a landlord’s negligence in maintaining the leasehold premises. They are considered a guest. [Stratford Apartments, Inc. v. Fleming, 305 A.2d 624 (Del. 1973)]

Duties of Vendor of Realty

The vendor, at the time of transfer of possession to the vendee, has the duty to disclose concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and of which he knows the vendee is ignorant and is not likely to discover on reasonable inspection. The vendor’s responsibility continues until the vendee should have, in the exercise of reasonable care in inspection and maintenance, discovered and remedied the defect.

Statutory Standards of Care: Negligence Per Se = when is it applicable

The precise standard of care in a common law negligence case may be established by proving the applicability to that case of a statute providing for criminal penalties (including fines for regulatory offenses and ordinances, such as for speeding). If this is done, a clearly stated specific duty imposed by the statute will replace the more general common law duty of due care. In proving the availability of the statutory standard, plaintiff must show the following:

• p must show that they are in the class intended to be protected by the statute

• p must show that the statute was designed to prevent the type of harm that was suffered

Where the statute in question provides for a civil remedy, plaintiff will sue directly under the statute; i.e., it is not a common law negligence case.

Negligence Per Se - Excuse for Violation

Violation of some statutes may be excused:

a)Where compliance would cause more danger than violation; e.g., defendant drives onto wrong side of road to avoid hitting children who dart into his path; or

b)Where compliance would be beyond defendant’s control; e.g., blind pedestrian crosses against light.

What is the effect of establishing negligence per se?

Most courts still adhere to the rule that violation of a statute is “negligence per se.” This means that plaintiff will have established a conclusive presumption of duty and breach of duty. (Plaintiff still must establish causation and damages to complete the prima facie case for negligence.)

A significant minority of courts, however, are unwilling to go this far. They hold either that (1) a rebuttable presumption as to duty and breach thereof arises, or (2) the statutory violation is only prima facie evidence of negligence.

Delaware Negligence Per Se

In Delaware, violation of a statute or ordinance enacted for the safety of others is negligence per se. [Rogers v. Christina School District, 73 A.3d 1 (Del. 2013)] In contrast, licensing statutes generally are not considered to set a standard of care, so their violation is not negligence per se. [Tydings v. Loewenstein, 505 A.2d 443 (Del. 1986)]

Does complying with a statute necessarily establish due care?

NO

Negligent Infliction of Emotional Distress - Generally

A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (1) plaintiff must be within the “zone of danger” (there was a threat of physical injury); and (2) plaintiff must suffer physical symptoms from the distress (growing minority of states have dropped requirement of physical symptms).

NIED and Bystanders

Traditionally, a bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another could not recover damages for her own distress. A majority of states now allow recovery in these cases 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) the plaintiff personally observed or perceived the event. Most of these states also drop the requirement of physical symptoms in this situation.

NIED and Special Relationships

The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant’s negligence has great potential to cause emotional distress. Most states drop the requirement of physical symptoms in this situation as well.