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What is the basic rule of negligence?
Defendant engages in an affirmative risk created conduct, duty is owed to a foreseeable plaintiff.
What are significant issues that may arise in identifying whether there is a negligence claim?
- Unforeseeable plaintiff;
- Harm other than personal injury or property damage; and
- Defendant is a land possessor, landlord, utility or government agent
What is the Palsgraf Rule for Unforeseeable Plaintiffs
No duty is owed to an unforeseeable plaintiff.
What is the rule for rescuers?
Rescuers are owed an independent duty because we want them to recover from negligent parties to encourage rescuers to rescue
What is nonfeasance?
A failure to intervene to confer a benefit on the plaintiff; failure to act.
What is malfeasance?
Affirmative risk creating conduct or a negligent omission
What is the general rule for nonfeasance?
There is no duty to act, however there are exceptions to this rule.
What are the exceptions to the "no duty to act" rule in a rescue or aid situation?
- Defendant's tortious conduct created the need for rescue
- Undertaking to act; once defendant starts rescue, the defendant must must act reasonably
- Failure to perform a gratuitous promise
- Special relationships
What are examples of special relationships that are an exception to the "no duty to act" rule?
- Captain/passenger or seaman
- Drinking buddies
What is the general rule for duty to control third parties?
There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another.
What is the exception to the general rule to control third parties?
If there is a special relationship; one takes charge of another, knowing of their dangerous propensity, the plaintiff has a duty to warn.
What are examples of "special relationships" for the exceptions to the general rule to control third parties?
Traditional rule of drinking establishments and general rule for controlling third parties?
Social host or commercial establishment that provides alcohol to guest that injures a third party have no duty
What are dram shop rules?
- Statutory exception ot general rule for drinking estabilishment's duty to control third parties
- No jurisdiction extends this to social hosts
What is negligent entrustment?
- A form of malfeasance that is an exception to "no duty to act" general rule
- Defendant gives someone an object when they know or should know that the third party the object is a dangerous instrumentality in the third parties hand
What is the general rule for the duty to protect against third parties?
One general has no duty to take affirmative steps to protect a third party criminal attack absent an exception
What is the exception to the general rule for the duty to protect against third parties?
Special relationships, but there is a high level of foreseeability in order to find an existence of duty. Many jurisdictions require prior similar conduct.
What is the rule for the "duty to act" in regard to governmental entities?
When the defendant is a governmental entity, the question of whether the defendant owes a duty to the plaintiff will depend on the function the government is fulfilling that gives rise to the cause of action.
When is the government treated as a private actor for duty to act rules?
- Proprietary functions: government acts as a private actor
- Discretionary function: decision and resource allocation required by the governmental defendant - courts reluctant to enforce duty (policy: separation of powers)
- Ministeral function: Once a decision made, ask whether the government messed up. If they did, they have to do it right.
What is the public duty doctrine?
When a government agency (e.g., police, fire department) is sued for failing to provide an adequate response, courts will find no duty, absent an exception.
What are the exceptions to the public duty doctrine?
- Government creates a situtation, such as specific reliance from a promise to warn
- Government increase a risk to plaintiff
What is the utility exception to duty to act?
Courts have limited duty owed to people absent a contractual relationship
What are the rules for duty when the harm is not physical harm or property damage, but rather emotional distress?
Nature of injury is emotional distress rise and physical harm arises out of the distress.
What are the types of emotional distress actions?
Direct Action: Defendant engages in negligent conduct and the subsequent result to plaintiff is emotional distress or manifestation of such emotional distress.
What are the requirements of zone of danger for emotional distress issues?
- Zone of danger; risk of personal harm
- Most jurisdictions require physical manifestation of distress
What are exceptions from general emotional distress rules?
- Message wrongly informing plaintiff of death of a loved one
- Mishandling of remains of a loved one
- In a minority of jurisdictions, if defendant has a preexisting duty to plaintiff, plaintiff may recover for negligent infliction of emotional distress.
- ***Courts are rigid on the exceptions***
What is the majority rule for bystander rules?
- Many apply zone of danger test
- Physical manifestation
- Close relationship with vicitm
What is the minority rule for general emotional distress bystander rule?
Plaintiffs outside the zone of danger but on the scene of the injury to recover for emotional distress.
Where do wrongful birth issues apply?
Where the baby is wanted but unhealthy
Where do wrongful conception issues apply?
Wrongful conception applies where the injury is the birth of a healthy but unwanted child
What damages are available to plaintiff for wrongful conception?
Medical costs, pain and suffering, but no costs for raising child
Wrongful birth usually results from what actions?
Results from doctor's failure to figure out impaired condition
What are damages available for wrongful birth?
No general exceptions, but special expenses
Where do wrongful life issues apply?
Child sues for damages related to health issues
What damages are availble for wrongful life?
Generally, no damages are available
What are the categories of land entrants?
Who is an invitee?
Someone who comes onto the land with the express or implied consent of the land possesor AND there to confer an economic benefit; or the land is held open to the public at large
What duty does a land possessor to a licensee?
- Land possessor must act reasonably; duty of reasonable care
- Not strict liability; duty is simply owed
Who is a licensee?
- Someone on the land with the express or implied consent of the land possessor, but land is not open to public at large, nor are they there for defendant's economic benefit
- Key trigger: "Social guest"
What duty does a land possessor owe to an licensee?
- Land possessor must warn licensees of non-concealed dangers that are known to the land possessor
- No responsibility to look for conditions
Who is a tresspasser?
People that enter land without the express or implied consent of the land owner
What duty does a land possessor owe to a trespasser?
Only obligation is to avoid wanton and willful harm
What is the exception to duties owed by land possessors to trespassers?
Duty to warn of dangerous conditions when there are known or frequent trespassers
Can the status of a entrant of land change; what does it depend on?
Yes. It depends on whether there is a reasonable belief of implied consent.
What are other duties owed by land possessors?
Land possessors have a duty of reasonable care related to activities on the land to any entrant but an unknown trespasser
What is the attractive nuisance doctrine?
- If trespasser is a child and the attractive nuisance doctrine 5 factor test applies, a duty of reasonable care is owed.
- (Essentially, child becomes and invitee)
What is the five factor test for the attractive nuisance doctrine?
- Are kids to young to appreciate the danger?
- Is it foreseeable that there would be trespassing children?
- Does the defendant know of the dangers on the property?Are there artificial conditions?
- If there are artificial conditions, how burdensome would it require some measures to protect?
What is the significant minority approach to the attractive nuisance doctrine?
Reasonable care required for any land entrant, regardless of status of entrant and some just merge licensee and invitee.
What are the duties of land possessor to plaintiffs that are not on their land?
- Artifical Conditions: Duty of reasonable care
- Non-artificial Conditions: No duty unless it is a tree in an urban area
What is the general rule of duty for landland liability?
Landlords are not liable unless one of four exceptions apply.
Exceptions to the general landlord liability rule and additional duties required?
- Common area; area the landlord maintains control requires duty of reasonable care
- Negligent repairs; makes repairs negligently, even if not required
- Known hidden dangerous defect on the property known to the landlord at the time the property is leased; the landlord is liable to tenant and third parties until the defect should have reasonably be discovered by the tenant
- Landlord knows the tenant is going to hold the property open to the public at large, then landlord must exercise reasonable care to discover and remedy defects
What are the four basic standards of care for determination of breach of duty?
- Reasonably Prudent Person Under the Same or Similar Circumstances
- Standard for Children
- Negligence Per Se
What is the basic rule for reasonably prudent person under same or similar circumstances for purpose of analyzing breach of conduct?
Measure defendant conduct against reasonably prudent person; jury decides as representatives of community of what the appropriate level of standard of care for the community and whether it was breached.
What are the relevant circumstances to reasonably prudent objective prudent person standard?
- Defendant must rise up to the level of the average person in the community
- Do not consider the abilities of the defendant
What factors should be considered for part of the circumstances?
- Whether defendant has physical conditions such as blindness, missing limbs, epileptic
- Whether the defendant is acting in an emergency situation that is not of her own making
What is the calculation of the Learned Hand analysis of breach?
- Failure to act as a reasonably prudent person
- Burden of avoiding a harm is less than the ability of avoiding the harm multiplied by the burden of the loss
What are the questions to ask for failure to act as a reasonable person?
- What was the defendant's specific unreasonable conduct?
- What was the probabality of harm?
- What's the likely injury based?
- What would it take for the defendant to behave differently; take a safer route?
What is "custom evidence" to examine in determining whether there was a failure to act as a reasonable person?
Deviation from well established custom favors plaintiff, while compliance favors defendant.
What is the majority rule for determining whether a child has breached a duty?
- Subjective: Compare this child to other children of same age, experience and intelligence
- Objective: Compare to other children of same age, experience and intelligence
What is the minority rule for determining whether a child has breached a duty?
Blanket Rule: children under 7 cannot be negligent
What is the exception to the majority rule for determining whether a child has breached a duty?
- If child is not acting as a child, if she is engaged in adult activity or inherently dangerous activity, she should be treated as if she were a grownup.
- Apply reasonable person standard, age no longer relevent.
What is the rule for negligence per se?
- Applies where there is a criminal law or safety ordinance or regulation, use it to set the standard of care.
- Determined under judge's broad descretion
What should the judge consider when there is a negligent per se case?
- Is the plaintiff in the class in which the statute was to protect?
- Was the statute designed to protect from harm such that the plaintiff suffered?
What is the majority rule for what negligence per se establishes?
In a majority of jurisdictions, this means that an unexcused violation conclusively establishes that defendant breached his duty to plaintiff.
What is the minority rule for what negligence per se establishes?
Minority jurisdictions regard a qualifying violation of statute by defendant as either raising a rebuttable presumption or as prima facie evidence that defendant’s conduct breached the duty to plaintiff.
What happens when a statute is not applied in a negligence per se inquiry?
Statute will not be used to set the standard of care but the case proceeds under reasonable and prudent person standard of care.
Situations in which statute standard (negligence per se) will not apply?
- Dangerous to comply with the statute or there is an emergency
- Licensing statutes
How is the "professionals" standard of care determined for examining breach of duty?
- Customary practice of the profession becomes the standard of care
- If act in customary manner, no breach of standard of care
- If not act in customary manner, breach of standard of care
Who are professionals for the professional standard of care determination?
- Those with extra training; extra skill
- Examples: lawyers, doctors, accountants and architects
What is the standard of care in medical malpractice cases?
- Must use other practice of doctors in relevant geographical community
- If speciality: use national geography
- If general: use same or similary locality
What is the lack of informed consent (form of medical malpractice) standard of care? Historical rule? Trending rule?
- Doctor fails to inform the patient of information
- Historically was a battery claim, but now only battery, as opposed to malpractice, in extraordinary scenarios (cutting off a patient's leg)
What are the historical and trending rules for medical malpractice?
- Historical rule: Doctors must divulge those risks that are customarily divulged. (Customary rule standard)
- Trending rule: Material risks are the risks that a reasonable patient would want to know in undergo or opting not to do a particular procedure
What must a plaintiff show in order to prevail in legal malpractice claim?
Cause in fact, which is a difficult hurdle to jump.
What is the plaintiff's burden of proof to prove breach of duty?
- To show every element of a prima facie case by the preponderance of the evidence (more likely than not).
- Just the happening of a bad result doesn’t establish any sort of unreasonable conduct on the part of the defendant.
What are the two types of evidence to prove breach of duty?
- Direct (rare) evidence: eyewitness, video, etc.
- Circumstantial evidence: evidence that provides reasonable inference that the event occurred
What are two types of circumstantial evidence?
- Res Ipsa Locquitor
- Slip and fall
What must plaintiff prove using circumstantial evidence for slip and fall cases?
She must provide evidence that the jury could infer that there was unreasonable conduct on the part of the plaintiff
What does res ipsa locquitor mean?
"The thing stands for itself."
What does res ipsa locquitor accomplish?
Serves as circumstantial evidence that allows jury to infer breach of duty and defendant's culpability
What are the boundaries of res ipsa locquitor?
Only applies when you are trying to prove breach of duty for the tort of negligence
When does res ipsa locquitor apply?
- When the event occurs, it is probably the result of negligence
- The defendant is probably the responsible party; defendant has control over the instrumentality (exclusive control is not required)
- Plaintiff did not contribute to the injury
What is the common knowledge exception for res ipsa locquitor when there is medical malpractice?
No experts to establish negligent conduct when egregious mistakes are made
What is the exception for res ipsa locquitor as applied to a group when there is medical malpractice?
- Hold all defendants on medical team are joint and severally liable unless they are can prove if plaintiff is unconscious and there is a group or team of medical professionals
- Very narrow exception
What is cause-in-fact?
Actual cause - Ties defendant's breach of duty to the plaintiffs injury
What must the plaintiff prove to establish cause-in-fact?
More likely than night that but-for the defendant's action, the plaintiff would not have been injured.
What are four situations in which cause-in-fact issues arise?
- Multiple causes
- Loss of chance
- Alternative liability theory (Summers. v. Tice)
- Market share liability
What test should usually be applied for cause-in-fact when there are multiple defendants?
- Apply substantial factor test:
- Was the negligence of the defendant at issue a substantial factor in the plaintiff's injury?
When MUST the substantial factor test be applied for actual cause determinations?
Multiple parties: In the context when either defendant alone would have brought about the harm?
When should you assume joint and several liability applies under actual cause considerations?
Where there are multiple defendants that are a substantial factor
What is the trend for the "lost chance doctrine?"
The plaintiff must show more likely than not that but for the defendant's plaintiff, she would lose the chance that she could have survived.
What are the elements for the alternative liability theory?
- Small number of defendants
- All defendants acted negligently
- All defendants are before court
What happens if the elements for the alternative liability theory can be established?
Burden of proof shifts to the defendant to show they are not the cause. Those that cannot are joint and severally liable
What is market share liability for purposes of actual cause determinations?
Generic product which and plaintiff cannot show which product is the cause, all defendants are negligent, and the plaintiff's harm was through no fault of her own, the plaintiff can sue all defendants
What liability applies to market share liability?
Several liability (not joint and several liability)
What issues arise in the context of proximate cause?
- Unforseeable extent of harm
- Unforeseeable type of harm
- Unforeseeable manner of harm
What is the standard for proximate cause when there are unforesee harms?
- Defendant is responsible for unforeseen harms if all other elements of a prima facie case are met.
- Eggshell skull rule applies
What is the eggshell skull real for extent of harm for proximate cause?
Even if the plaintiff has a condition that makes him predisposed to excess damage, the defendant is still on the hook for all damages incurred.
In the context of unforeseeable type of harm for proximate cause, what rule applies?
The rule of foreseeability/the risk rule
What is the rule of foreseeability/risk rule (applies to unforeseeable type of harm for determination of proximate cause)?
Look at what makes the defendant's conduct unreasonable; is the result within a risk caused by that conduct.
In the context of unforeseeable manner of harm for proximate cause, what are the elements?
- Superseding Cause: Freakish, bizzare, etc.
- Culpability:More culpable the intervening force is, more likely it is to be superseding (intentional tort of third party versus negligence of third party)
What are typical intervening cause that are so unforeseeable that it becomes a superceding cause?
- Naturally occuring phenomena
- Criminal acts of third persons
- Intentional torts of third persons; or
- Extraordinary forms of negligent conduct
What damages are required to establish prima facie case of negligence?
There must be a cognizable injury and no nominal damages are permissible.
What types of damages are available?
Compensatory damages: damages to restore plaintiff's pre-injury position
What are the rules of compensatory damages?
- Foreseeable type of damage must be foreseeable
- Damages must be reasonably certain; not speculative
- Damages cannot be unavoidable
What are the types of compensatory damages?
- Special damages: Loss of earnings, medical expenses; etc.
- General damages: Pain and suffering; difficult to measure
What is the collateral source rule for special damages?
The fact that the plaintiff is getting compensated from a third party source (insurance, worker's comp, etc) does not relieve liability of defendant to pay.
What is the avoidable consequences rule?
Applies to determination of compensatory damages; requires plaintiff to minimize damages
What justifies punitive damages?
Defendant must be more culpable than negligent to justify punitives. Willful, wanton, reckless, behavior
What is the purpose of punitive damages?
To punish or make an example of the defendant. Also referred to as exemplary damages
How is the amount of punitive damages determined?
Affected by wealth, however, SCOTUS has indicated that it may be unconstitutional to have punitive damages that exceed 10% of compensatory damages.
What is pure comparative fault?
Reduces the plaintiff's recovery by the percentage of fault of the plaintiff
What is modified comparative fault?
If the plaintiff is at much at fault or more at fault, the plaintiff is barred from recovery; else, the plaintiff recovers the portion of her recovery attributable to the defendant
What is contributory negligence?
Any fault of the plaintiff is a bar to recovery completely - all or nothing
When does the last clear fault doctrine apply?
It only applies to contributory negligence
What is the defendant's burden of proof for negligence defenses?
The plaintiff's conduct was unreasonable - apply the same standards as for the plaintiff (reasonably prudent person under the facts and circumstances plus modifiers; plaintiff's action was cause in fact
When does express assumption of risk arise?
- The plaintiff through written or oral rules relieves the defendant of his responsibility to be negligent towards the defendant.
- Likely the result of a signed waiver
What are the parties liability in comparitive fault jurisdictions?
Joint and several liability survives; if multiple defendants are negligent, but so is the plaintiff, subtract the plaintiff's fault and then the defendant sued must pay remainder but can seek contribution from other defendants
When are express assumptions of risk in validated?
- Void against public policy when dealing with a necessity
- Example: agreement not to sue a landlord
What are the elements of implied assumption of risk?
- The plaintiff knew the specific risk
- The plaintiff understood the specific risk
- The plaintiff confronted the specific risk voluntary
Is assumption of risk a subjective or objective standard?
Are contributory and comparatively negligence subjective or objective?
Objective; reasonable person subject to exceptions
What is the firefighter rule?
- Where the plaintiff professional rescuer is injured in doing her job due to an inherent risk of that job, she cannot recover for negligence against the defendant that caused the risk she addressed during her job.
- True whether paid or not
What is a primary assumption of risk?
- In certain contexts, the defendant has no duty to act non-negligent towards the plaintiff
- Example: Inherent risk of playing basketball is that another player may be negligent
What is the "avoidable consequences" defense?
- Plaintiff is required to reduce risk of further harms taking reasonable steps
- Allows jury to reduce recovery
- Example: plaintiff fails to wear a seatbelt; plaintiff fails to go to the doctor
What is strict liability?
- A defendant is liable for injuring a plaintiff whether or not the defendant exercised due care
- As a matter of public policy the law imposes liability regardless of defendant's conduct
What is the wild animal rule of strict liability?
If defendant keeps a wild animal and the plaintiff is injured by the animal, the defendant is liable regardless of the foreseeability of the inury
What is the domestic animal rule of strict liability?
Absent a statute for strict liability, the keeper of a domestic pet is not liable unless the keeper of the pet knows or should know of the animal's propensity for damage
What is an abnormally dangerous activity?
An inevitable high risk of serious harm and it is not a common activity
What are examples of abnormally dangerous activity?
Blasting or dynamite, crop dusting, transporting toxic waste, fumigating
Under the abnormally dangerous activity rule of strict liability, when can a plaintiff recover?
Absent proof of fault if they can establish the plaintiff was involved in an abnormally dangerous activity and the causal connection can be proven
What is the proximate cause issue associated with abnormally dangerous activity rule?
- Intervening, superceding forces that cut of strict liability
- Plaintiff has to be injured by a risk that makes the activity abnormally dangerous
- If plaintiff is injured by another cause, the activity is not abnormally dangerous for purposes of strict liability
Under the MBE rule, what defense is available to defendant's in strict liability cases?
Assumption of risk is a defense under strict liability
Under the MBE rule, what defenses are not available to defendant's in strict liability cases?
The plaintiff's unreasonable conduct (comparitive fault or contributory negligence) is not a defense under strict liability
What is the focus of strict products liability in tort actions?
Focus on the condition of the defendant's product
What are the elements under strict products liability?
- Proper plaintiff
- Proper defendant
- Proper context for strict liability cases
- Proximate Cause
Who is a proper plaintiff under strict products liability?
Any user, consumer, or bystander that suffers physically injured
Who is a proper defendant under strict products liability?
Anyone who is in the marketing chain and in the business of dealing with this product
What are examples of proper defendant under strict products liability?
Anyone who is in the marketing chain and in the business of dealing with this product
Who is included in proper defendants under strict products liability (examples)?
Manufacturer, wholesaler, retailer, etc.
Who is not included in proper defendants under strict products liability (examples)?
Any occasional seller
What is the proper context under strict products liability?
There must be a product
When is there a proper context when a service and product is involved under strict products liability?
- Which predominates
- If product does, strict liabilty claim can be raised
- If service does, strict liability claim cannot be raised
What types of defects are considered under strict products liability?
What is a manufacturing defect under strict products liability?
Product is more dangerous intended by the manufacturer
What must a plaintiff prove for manufacturing defects under strict products liability?
The product is more dangerous than the consumer would expect when using the product in its intended or foreseeable method or the product was not in the condition the defendant intended and that the defect existed at the time the defendant placed it in the market
What is a design defect under strict products liability?
The entire product entire line of the manufacturer is defective. It is the design of the product that is defective. The product comes out in the way the manufacturer intended it to
What is the ordinary consumer test expectation test for design defects under strict producs liability?
The product is more dangerous than the plaintiff would expect when used in the manner intended
What must a plaintiff show under the risk-utility test for design defects in strict products liability cases?
Plaintiff must show that there is an alternative design that would not ruin fail the risk-utility balancing test
What factors are considered under the risk-utility test for design defects under strict products liability?
Availability, feasibility and impact of alternative designs
When does a product have a design defect under the risk- utility test under strict products liability?
When the risk outweighs the utility
What products are exempt from being found defective in design under strict products liability under Comment K
- If the product has extraordinary social utility and no alternatives
- Unavoidably unsafe products
What is a plaintiff asserting when she claims a warning defect under strict products liability?
There is an inadequate warning or an absence of a warning
What is considered if there is a claim of inadequate warning under strict products liability?
- Inadequacy of warnings are based on whether the warner reasonably inform the reader of significant risks;
- Look at language used, placement, size of the font
- Use common sense
What is the test for the absence of a warning under strict products liability?
Manufacturer must warn of risks of it knows or should know and that it should reasonably warn
What are the factors in the test for absence of a warning under strict products liability?
- Probability of harm
What is the actual cause under strict products liability?
But-for the defect the plaintiff would not be injured
What is the proximate cause standard under strict products liability?
Look for superceding causes and where the defendant discovers the defect
What is the learned intermediary doctrine under strict products liability?
If the manufacturer provides warning to a person later in the change, that person is the superceding cause
What damages are required for recovery under strict products liability?
- Harm to person property other than the product itself
- If to the product itself, than the only claim is breach of warranty
What are defenses under strict products liability?
- Assumption of risk
What is misuse as a defense under strict products liability?
The plaintiff uses the product in a manner that is not intended or foreseeable
What is alteration as a defense under strict products liability?
Third party unforeseeable alters a product
What is the effect of comparative fault versus that of assumption of risk defense under assumption of risk?
Comparative fault, general unreasonable conduct is not a defense; only assumption of risk is a defense
What is the analysis for products liability under negligence theory
- 1. Any foreseeable plaintiff is entitled to bring an action.
- 2. Analyze the conduct of each defendant and ask whether it was reasonable; differentiate from strict products liability, which considers the product rather than the person.
- 3. Res ipsa loquitur takes the place of a manufacturing defect in negligence theory.
- 4. Negligence defenses apply.
What are the warranties that may arise products Liability on a Warranty Theory
- Express warranty
- Implied warranty
What is an implied warranty?
Warranty of Merchantability: In any transaction of goods the merchant states implicitly that it is fit for its intended use
What are the limitations of warranties of merchantability?
- Privity (who can bring the action)
- Notice requirements