Negligence torts

What are the elements of negligence?

Duty, breach, causation (both factual and legal), harm

To whom does P owe a duty?

Foreseeable victims

To whom does P not owe a duty?

Unforeseeable victims - outside the zone of danger

How will unforeseeable victims do on a negligence claim?

They will always lose, because they are not owed a duty?

How does the zone of danger change for plaintiffs who are rescuers?

Rescuers are always foreseeable victims

How careful must D be to avoid harming foreseeable Ps?

Reasonable care - As careful as the hypothetical reasonably prudent person would be under similar circumstances

What are the physical characteristics of a reasonably prudent person?

Same as those of D

What are the other characteristics of a reasonably prudent person.

Careful, aware, etc.

How is the RPP standard harsh?

It makes no allowances for D's personal mental conditions (e.g., stupidity), or the fact that D is a novice/amateur - but sets higher standards for professionals/experts)

What is the RPP standard for children?

A child of like age, education, intelligence and experience - subjective test

What is the standard of negligence for common carriers and innkeepers

Slight negligence - IF P is a guest

What are the six exceptions to objective RPP standard for negligence torts?

Children (under 4/5-17), professionals, possessors to entrants on land, statutory standards of care, affirmative actions, negligent inflection of emotional distress

RPP standard for children < 4

No liability

RPP standard for children over 4 under 18

Care of a hypothetical child of similar age, experience, intelligence acting under similar circumstances - subjective, flexible, pro-defendant

Why is the RPP standard for children pro-defendant

It's so customized to their personal situations that it's an uphill struggle for P

RPP standard for children over 4 under 18 engaged in adult activity

RPP objective standard

What is an adult activity?

Operating any vehicle with a motor

What is the standard for professionals?

Required to possess the knowledge/skill of a member of the profession/occupation in good standing in similar communities - conformity to the custom of that profession

What is a doctor's duty to disclose?

Doctors must disclose risks of treatment to enable person to make informed consent

How does P educate jury on standard of care?

Expert witness

How does "community" effect primary care physicians?

It means geographic community - e.g., small town docs to small town docs, etc.

How does "community" effect specialists?

It means the community of comparable specialists

What duty of care is owed to undiscovered trespassers?

None - they can never recover on negligence claim against landowner/possessor

Is an owner/occupier liable for damages caused off-premises by trees on the premises?

Yes

Why is an undiscovered trespasser owed no duty?

He is an unforeseeable plaintiff - see Palsgraff

What duty of care is owed to anticipated/discovered trespassers?

Activities - RPP standard; known, manmade-deathtraps

If people typically shortcut through field, what type of trespasser would an unknown trespasser be?

Anticipated

What is a licensee?

A person who enters land w/ permission but don't confer economic benefit on owner - e.g., social guest

What duty of care is owed to licensee?

Activities - RPP; conditions - warn of all known traps

What is the attractive nuisance doctrine?

RPP to avoid risk of harm to children caused by artificial conditions

What must P show to establish that the attractive nuisance doctrine applies? (4)

Dangerous condition that owner knows or should know of, owner knows/should know children frequent the area; condition likely to cause injury (because child won't appreciate the risk), expense of remedying the situation is slight compared to the magnitude of the risk

What duty of care is owed to invitees?

Activities - RPP; conditions - warn of concealed traps, plus duty to make reasonable inspections to discover nonobvious dangerous conditions and then make them safe

What is an invitee?

A person who comes on property to confer economic benefit or because property is open to the public

Does a child have to be attracted onto land by the dangerous condition for the attractive nuisance doctrine to apply?

No

When does an invitee lose that status?

When the invitee exceeds the scope of the invitation

What is the firefighters rule?

They can never recover for inherent risks of their job.

What duty is owed to users of recreational land?

No liability for injuries suffered by recreational user, so long as landowner does not charge fee and did not willfully and maliciously fail to guard against/warn of a dangerous condition or activity

What to consider re child trespassers (2)?

How likely is it that children will trespass? Can children appreciate danger themselves?

How to satisfy duty to people who come on land?

Adequate warning or repair - either works

When can a statutory standard of care substitute for a general duty of care?

IF statute provides for criminal penalty, clearly defines standard, P is within protected class, and statute was designed to prevent the type of harm suffered by P (class of persons, class of risk test)

When is violation of statute excused in negligence torts?

When compliance would cause more danger than violation, or when compliance is beyond D's control

A statutory violation is …

Negligence per se (but only 2 of 4 elements)

Does compliance with a statute establish due care?

Not necessarily

What are the duties to act affirmatively?

There are none

What is the duty to rescue a person in peril?

There is none

What are the exceptions triggering duty to rescue?

Assumption of duty by acting (but see good Samaritan law), peril due to defendant's conduct, special relationship between parties (parent child, common carriers, innkeeper, shopkeeper, places of public accommodation), duty to prevent 3d person from injuring another ONLY if one has actual authority to control, and knows/should know that 3d p is likely to commit acts that would require exercise of control

Does a landowner have a duty to rescue an invitee?

Yes, because they have a previously existing legal relationship

What is the limit of the duty to rescue, assuming there is one?

Need not put own life in peril

What must a P show to recover for negligent infliction of emotional distress?

Negligent D, caused threat of physical impact (has to be a near miss/close call) that leads to emotional distress, directly causing severe emotional distress that results in subsequent physical manifestations of the distress (heart attack, miscarriage)

When can bystander outside the "zone of danger" recover for negligent infliction of emotional distress?

P and negligently injured person are closely related, P was at scene, P observed/perceived injury

When can P recover for negligent infliction of emotional distress without physical manifestations?

Erroneous report of relative's death, mishandling of relative's corpse

How should I handle the breach element of a negligence tort question?

Identify the wrongful conduct and say why it's wrong - use "because" (e.g., because a reasonable person wouldn't… )

What must a plaintiff show for res ipsa loquitur to apply?

Accident causing the injury is of a type that normally wouldn't occur unless someone was negligent, and the negligence is attributable to D - often by evidence that the instrumentality causing the injury was in the exclusive control of D

Does Res Ipsa ensure a guilty verdict for D?

No

What is the standard for actual causation in a negligence tort?

But for D's breach, P's injury would not have occurred

What is the standard for actual causation when there are merged causes?

Substantial factor - D's conduct is the cause in fact if it was a substantial factor in causing P's injury

How can you tell if there are merged causes?

Several breaches cause injury, and any one of them would have been sufficient alone to cause the injury

How can you tell if there are alternative causes?

There are two or more negligent acts, but only one causes injury and it is not known which one

What is the standard for actual causation when there are alternative causes?

The burden of proof shifts to Ds, and each must show that his negligence is not the actual cause (Summers v. Tice)

What is the burden of proof in a torts case?

Preponderance of the evidence

What is the standard for proximate causation in a negligence tort?

Foreseeability - direct cause cases, D is liable for foreseeable harmful results of his negligent act; indirect cause cases, D is liable when his negligence caused a foreseeable harmful response or reaction from dependent intervening force or created a foreseeable risk that an independent intervening force would harm P

What essentially is proximate causation trying to show?

That it's fair to make D pay for P's injury

What common dependent intervening forces are almost always foreseeable? (6)

Subsequent medical malpractice, negligence of rescuers, efforts to protect person or property of oneself or another, injuries caused by another "reacting" to D's actions, subsequent diseases caused by a weakened condition, subsequent accident substantially caused by the original injury

What common independent intervening forces will be considered foreseeable if D's negligence increased risk of harm from the forces?

Negligent acts of 3d parties, crimes and intentional torts of 3d parties, acts of God

Is D liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force?

Yes, unless the unforeseeable intervening force was a crime an intentional tort of a 3d party

Is D liable where a totally unforeseeable result was caused by a foreseeable intervening force?

Generally

Is the doctor who committed medical malpractice also liable, when another actor's breach was the proximate cause?

Yes

Is D liable when unforeseeable intervening forces cause unforeseeable results?

No - these are superseding causes, relieving D of liability

Is D liable when the harm resulting from his breach is unforeseeably severe?

Yes. Eggshell skull plaintiff

How to analyze an indirect cause case?

Is what I'm afraid of (from breach) what happened?

Does bad shrimp foreseeably break people's arms?

No

Once you have made a case, you get…

All your damages, no matter how great in scope

You take your P

as you find him

Which torts does the eggshell plaintiff rule apply to?

All torts

What is the measure of damages in a personal injury case?

All damages (past, present and prospective), both special and general

How are damages determined in a pure comparative fault system?

Strictly by the #s, P recovers always at least something

What is the measure of property damages?

Reasonable cost of repair, or if property nearly destroyed the FMV at time of accident

When may P recover punitive damages?

When D's conduct is "wanton and willful", reckless or malicious

How are damages determined in a modified comparative fault system?

P's fault under 50% reduces recovery; P's fault over 50% bars recovery entirely.

What are nonrecovery items?

Interest from date of damage in a PI action, attorney's fees

Does P have a duty to mitigate?

Yes, as reasonable

How are damages affected if P receives benefits from other sources, such as health insurance?

Damages are not reduced, under the collateral source rule

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When is an employer liable for act of independent contractor?

When duty is nondelegable on public policy grounds (e.g., making premises safe for invitees)

Is a parent vicariously liable for the torts of her children?

No

Whose role is it to decide whether the doctrine of attractive nuisance applies?

Jury

What are the elements of intentional interference of contract/prospective economic advantage?

Existence of valid contractual relationship between P&3d party/economic expectancy of ; D's knowledge of the expectancy; intentional interference by D inducing breach/termination of the contractual relationship/expectancy; damage to P

How is a hotel's duty measured vis a vis guests - as innkeeper or land occupier/invitees?

Analyze both - innkeeper's high duty of care toward guests; land occupier's duty to make premises safe for invitees

What can create a legal duty to affirmatively act for the benefit of others?

The existence of a special relationship

Does an employer owe an employee a duty to protect him from unreasonable risk of injury when the employee was acting w/I the scope of his employment?

Yes, because of the special relationship between the employer and the employee.