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Negligence : Elements
- 1. Duty of care
- 2. Breach of duty
- 3. Causation
- 4. Damages
Duty: Two inquiries
- 1. To whom does ∆ owe a duty of care? (Foreseeable victims)
- 2. What standard of care does ∆ owe?
- Foreseeable victims include:
- People within proximity (the "zone of danger")
- Rescuers (can be foreseeable π)
- Pregnant women (in NY only)
Duty : Default Standard of Care
- Test: Reasonably prudent person acting under similar circumstances
- Objective test: ∆'s individual characteristics are ignored
But, ∆ characteristics considered where
- ∆ has a physical impairment (e.g., disabled)
- ∆ has advanced or superior skill or knowledge (e.g., doctors)
Duty : What standard of care does a CHILD ∆ owe to potential πs?
- < 4 years: Child owes no one a duty
- ≥ 4 years: Child of the same (1) age, (2) experience, and (3) intelligence under similar circumstances
- < 18 and engaged in adult activity: Default std (reasonably prudent person under similar circumstances
An adult activity
tends to be one involving the operation of a motorized instrument, e.g., cars, boats, chainsaws
Duty : ∆ is a Professional
- Duty of care: Average member of that profession, practicing in a similar community
- Evidence of actual community custom: Establishes standard of care applicable to ∆ professional
- Specialists: Compare specialists to other specialists, regardless of geography
- NY Distinction: Doctors must inform patients the risks of any procedure, unless doing so would harm patient.
Duty : MS Possessor of Land
Source of Injury: Two possibilities—(1) Activity conducted by ∆ or ∆'s agents, (2) hazardous static condition (HSC) distinguish natural from man-made HSCs
Undiscovered Trespasser: Not a foreseeable victim, ∆ owes no duty of care
Discovered or Anticipated Trespasser: Must protected discovered or anticipated trespassers from all known man-made death traps on the land
Licensee (e.g., social guests): ∆ must (1) warn licensee about all known traps (natural and man-made) on the land, and (2) use reasonable care in the exercise of activities on the land
Invitee (e.g., commercial benefit or general public): ∆ must (1) warn invitee about all reasonably knowable or discoverable traps (whether natural or man-made), and (2) use reasonable care in the exercise of activities on the land
Duty : NY Possessor of Land
- Applicable standard: Reasonably prudent person under similar circumstances
- Tip: Follow the analysis applicable to MS possessors of land to determine what is reasonably prudent
Duty : Possessor of Land : Firefighter Exception
Firefighter's rule: Assumption of risk. NY: Can't sue employer, but can sue other third parties.
Duty: Possessor of Land: Child Trespassers
- "Attractive nuisance" doctrine. Must show
- (1) ∆ knew or should have known of an artificial hazardous static condition (HSC),
- (2) that children were likely to trespass on the land,
- (3) that the artificial HSC was likely to cause serious injury b/c of the child's inability to appreciate the risk, and
- (4) the expense of remedying the situation is slight compared to the magnitude of the risk
Minimum required to satisfy duty to trespassers for hazardous static conditions
- Adults = provide warnings
- Children = build barriers to entry
Duty : Statutory Standards of Care
Borrow the standard of care from the statute?
- Yes: When all of the following are present: (1) π is in intended class of persons, (2) π's injury is within class of risks, and (3) statute clearly describes conduct.
- No: Compliance would be impossible or increase danger to π
Duty : NY No-Fault Insurance
- Ability to collect: (1) ≤ $ 50,000; and (2) owner, driver, passenger, pedestrians
- Availability of additional remedies in tort: (a) death, dismemberment, significant disfigurement, etc.; (b) damages > $ 50k
- What can be recovered: Personal injuries (but not pain and suffering, or property damage)
that bad persons (e.g., drunk drivers, thieves) are barred from recovery under a no-fault insurance plan
that a no-fault plan is "portable" outside of NY—i.e., still possible to recover, even though accident occurs outside of NY, so long as policy was purchased in NY
Duty : Negligent Infliction of Emotional Distress
- 1. Near miss: (1) ∆'s negligent conduct, (2) put π in a "zone of danger," (3) π suffered distress, and (4) resulting physical manifestations
- 2. Bystander: (1) π is contemporaneous witness to (2) bodily injury inflicted on (3) close family member (strict construction), and (NY only) π was also in zone of danger
- 3. Special relationship between π and ∆: Foreseeable risk of emotional distress (e.g., negligent medical diagnosis)
- Identify: wrongful behavior (fact)
- Explain: why the identified behavior (fact) falls short of the applicable standard of care
Res ipsa loquitur
- If you can't identify a specific wrongful act, you can use res ipsa loquitur if–
- (1) the accident is normally associated with negligence, and
- (2) the accident would normally be caused by the negligence of someone in the ∆'s position–e.g., showing ∆ was in control of the object.
- Must show BOTH: Factual and Proximate Causation
- Factual Causation: But-for test, and Multiple ∆s
- Proximate Causation: "Fair" to hold ∆ liable for foreseeable consequences
Causation : Factual Causation : But-for Test
- Causation: But-for ∆'s negligence, there would be no injury
- No causation: Even-if ∆ was not negligent, π would still be injured (e.g., because π threw himself in front of ∆'s truck)
Causation : Factual Causation : Multiple ∆s
- Causes combined: Substantial Factor Test–Causation, if a breach would, in itself, be sufficient to cause π's injury. If both ∆s are substantial factors, then joint and several liability.
- Unascertainable Cause: No mechanism to figure out which ∆ did it. Burden shifted from π to ∆—∆ must prove that he/she wasn't at fault
A ∆ generally is liable for all harmful results
that are the normal incidents
of and within the increased risk
caused by his acts—i.e., when the consequences of ∆'s negligent action are foreseeable
- Unforeseeable: No causation
- Defined: Occurs when ∆'s breach leads directly to π's injury—i.e., uninterrupted chain of events.
- Causation: ∆ is liable for all foreseeable harmful results, regardless of unusual manner or timing.
- ∆ is NOT liable for unforeseeable harmful results not within the risk created by ∆'s negligence.
- Direct + Foreseeable consequence: Causation
- Direct + Unforeseeable consequence: E.g., freakish or bizarre—No causation
Proximate Causation: Intervening Causes
Occurs when ∆ breaches duty, and there are intervening
events between the breach and π's injury.
- ∆ is liable for indirect injuries that are–
- (1) Reasonably expected to happen as a result of ∆'s breach.
- (2) The foreseeable result of unforeseeable intervening forces.
- (3) The result of ∆'s negligence that increased the risk of harm from independent intervening forces.
- Intervening medical negligence
- Intervening negligent rescue
- Intervening reaction/protection forces (e.g., mass hysteria stampede)
- Subsequent disease or accident (e.g., infection, falling off crutches)
- If the other 3 elements are satisfied, ∆ is liable for all damages arising from the breach no matter how great in scope.
- Damages are not presumed. π must make a showing.
- Three types:
- 1. Personal injury
- 2. Property damage
- 3. Punitive damages–∆'s conduct is wanton or willful. NY: only awarded for gross negligence.
π has duty to mitigate damages.
Damages: Collateral Source
Damages not reduced just because π received benefits from other sources.
NY Distinction: Courts are required to reduce a successful π's damage award by the amount of any benefits that π has received or will receive from collateral sources. EXCEPTIONS: life insurance, certain SS benefits.
The "egg-shell skull" rule
- You take your π as you find him.
- The egg-shell-skull rule applies to all successfully proven torts—not just those in negligence
Traditional Contributory Negligence
- Complete bar to recovery
- EXCEPTION: Last Clear Chance–Despite π's contributory negligence, person with the last clear chance to avoid the accident who fails to do so is liable for negligence.
Assumption of Risk
NOT a defense to an intentional tort (that would be consent).
- EXPRESS ASSUMPTION–express agreement
- TRADITIONAL IMPLIED ASSUMPTION–π:
- (i) knew of the risk,
- (ii) appreciated the risk, and
- (iii) voluntarily proceeded in face of risk.
Pure Comparative Negligence
Jury allocates fault. π's recovery is reduced accordingly so π will always recover something, even if π has the bulk of fault.
Partial/Modified Comparative Negligence
- If π <50% at fault, damages will be reduced.
- If π >50% at fault, NO RECOVERY.