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  1. Negligence Elements
    • Duty
    • Breach
    • Causation (factual and proximate)
    • Damages

    Go thru in order on essays. Never omit an element, even if obvious.
  2. Duty
    (1) Duty of Care Owed to Whom?

    (2) What Standard of Care Owed?
  3. Duty
    (1) Duty of Care Owed to Whom?
    • =to foreseeable victims of
    • carelessness.

    Proximity figures large in this (Palsgraf; "zone of danger") (recent chase-foul-ball-into-street case).

    • Includes intended beneficiaries of economic transactions.
    • But, atty’s duty runs only to client.

    Rescuer’s Exception. Relaxed foreseeability requirement for rescuers’ injuries. (faulty rope, rock-climber rescue).
  4. Duty
    Standard of Care - Default
    That amount of care as would be given by a reasonably prudent person acting under similar circumstances.

    Don’t forget to write this out on essays.

    • This is an objective standard applied to everyone, unless a different standard specified.
    • --Applies even if D is stupid, mentally disabled, mentally ill, psychotic.
  5. Duty
    Standard of Care - Departures
    Modified Reasonable Care

    • -D’s Relevant Physical Characteristics
    • -D of Superior Skill or Knowledge

    Departure from Reasonable Care

    • -D is a child
    • -D is professional service provider
    • -Premises Liability
    • -Statutory Standards of Care
    • -Duties to Act Affirmatively
    • -Negligent Infliction of Emotional Distress

    Specific Duties re Pre-Natal Injuries

    • -Negligent Impact on Body of Pregnant Woman
    • -Doctor Misdiagnoses Birth Defect
    • -Doctor Botches a Sterilization
  6. Duty
    Standard of Care
    D’s Relevant Physical Characteristics
    • If relevant, the reasonably prudent person is assumed to have the same physical attributes as the D.
    • (reasonably prudent blind person)

    (not nec. a relaxed standard: reasonably prudent blind person would carry a walking stick or guide dog).
  7. Duty
    Standard of Care
    D of Superior Skill or Knowledge
    If D engages in activity with special skill or knowledge, that D is judged against a reasonably prudent person who also has that superior skill or knowledge. Two variations on this:

    (1) A body of knowledge due to training/education/occupation (race car driver on public streets).

    (2) Knowledge of an isolated fact that is relevant to a given situation (knowledge of poor visibility at intersection).
  8. Duty
    Standard of Care
    D is a Child
    Children under 4 = incapable of negligent acts (IOW, no duty to anyone).

    Children 4 - 18 = Standard is level of care exercised by a hypothetical child of similar age, experience, and intelligence, acting under similar circumstances. Subjective standard.

    • Exception: Child engaged in adult activity. Default standard.
    • --Adult Activity=99% of time means operating vehicle with engine (others are nonuniform rule; so MBE avoids; e.g. hunting).
  9. Duty
    Standard of Care
    D is a Professional Service Provider
    Standard of care is that of an average member of that profession, practicing in a similar community. Empirical standard.

    --Swap average member for reasonable, and community for circumstances.

    --Customary practice sets the standard (is merely probative of ordinary negligence).

    --Professional=lawyers, accountants, architects, all health care providers (not just doctors).

    --“Similar community” means compare small town to small town, and big city to big city. Largely governs from where you can get your expert.

    But, specialists are generally compared to other specialists in the same field, w/o regard to geography.

    Informed Consent. Duty includes explanation of risks sufficient for informed consent if the undisclosed risk would be serious enough that a reasonable person in the patient's position would have withheld consent

    Informed Consent. A doctor’s duty includes an obligation of affirmatively explaining the risks of any recommended procedure. If a doc fails to explain the risks, but the risk materializes, the patient will have a negligence claim. This is regardless of how small the risk was.

    • Waived: (JUST NY? MAJORITY RULE?)
    • --No need to disclose commonly known risk (e.g. risk of infection from surgical procedure);
    • --No need to disclose where patient has declined the information;
    • --No need to disclose where patient is mentally incompetent;
    • --No need to disclose where disclosure would be medically harmful (not clear what this means; does not include where the disclosure would prompt you to decline the procedure).
  10. Duty
    Standard of Care
    Premises Liability - General
    Did the P get hurt on real estate?

    • (1) How Did the P Get Hurt?
    • (2) What Kind of Entrant is P?

    • Firefighter’s rule. Generally, a police officer or firefighter cannot recover in negligence for any risk that is an inherent risk of the job. Assumed the risk.
    • --Only applicable in lawsuits against the employer or coworkers of the firefighter. You could actually have a suit against the homeowner.

    • Obvious Dangers. No duty to warn, even invitees.
    • Satisfying Duty:
    • (1) fix the problem;
    • (2) give a warning (warnings satisfy duties).
  11. Duty
    Standard of Care
    Premises Liability - Table

    • -Activity: No duty.
    • -Condition: No duty.


    • -Activity: Default.
    • -Condition: Duty to protect from known, man-made, death traps.


    • -Activity: Default.
    • -Condition: Duty to protect from all known traps.


    • -Activity: Default.
    • -Condition: Duty to protect from all reasonably-knowable traps.
  12. Duty
    Standard of Care
    Premises Liability – Undiscovered Trespasser
    No duty is owed (unforeseeablevictim).
  13. Duty
    Standard of Care
    Premises Liability – Discovered Trespasser
    =actual knowledge.

    =anticipated trespassers (generally b/c of pattern, such as people using shortcut) (RR trespasses at mile 78).

    Activity. Default standard.

    • Condition. Only a duty if
    • (i) condition is artificial (man-made) (never a duty to protect a trespasser from natural conditions);
    • (ii) condition is highly dangerous (capable of doing very serious bodily harm);
    • (iii) condition is concealed from trespasser (no duty to protect from an open and obvious hazard); and
    • (iv) the land possessor has prior knowledge of the hazard.
  14. Duty
    Standard of Care
    Premises Liability - Licensee
    =enter w/ permission but w/o purpose of conferring commercial benefit on the landowner (social guests; door-to-door solicitors and canvassers).

    Activities. Default standard.

    • Conditions. Only a duty if
    • (i) condition is concealed;
    • (ii) condition is known to D.
  15. Duty
    Standard of Care
    Premises Liablity - Invitee
    =enter land either to confer a commercial benefit on the landowner or enter land that is open to the public generally (customers; free museums; airports).

    Activities. Default standard.

    • Conditions. Duty triggered when:
    • (i) condition is concealed;
    • (ii) condition is one that is known to D or that could have discovered through reasonable inspection (whether your inspection program is reasonably thorough and frequent).
  16. Duty
    Standard of Care
    Premises Liability - New York Rule
    NY has abolished this entire approach. All lawsuits by entrants are judged by reasonable prudence under similar circumstances.

    But, one of these “circumstances” is likely to be the kind of entrant you’re dealing with.

    If you get essay, you should state NY’s approach. But, then when you get into your breach analysis, you should still go into when the entrant came and what kind of entrant he was, and whether the entrant was anticipated. These all go into the “circumstances.”
  17. Duty
    Premises Liability
    Attractive Nuisance Doctrine
    Child trespassers are treated more generously, and can demand that the D live up to the default standard.

    The higher (RPP) duty arises if:

    • 1. Dangerous condition of which the owner is or should be aware;
    • 2. Owner knows or should know that children frequent the vicinity of the dangerous condition;
    • 3. The condition is dangerous because the child is unable to appreciate the risk; and
    • 4. Expense of remedying is slight compared to the magnitude of the risk.
  18. Duty
    Standard of Care
    Statutory Standards
    Statute regulates the behavior of the D that led to the accident. The statute is not on its face about tort liability (rather it is criminal or regulatory).

    Statutory standard becomes standard of care (activity=negligence per se) if:

    • (i) That P falls within the class of persons that the statute seeks to protect; and
    • (ii) That the injury sustained by P is in the class of risks that the statute seeks to prevent.
    • (“Class of person/class of risk test”)

    • Exceptions (don’t import statutory standard)
    • --Compliance more dangerous than violation (swerve to miss girl).
    • --Compliance was impossible (heart attack behind wheel).
  19. Duty
    Standard of Care
    Duty to Act Affirmatively
    There is none. Its only when you undertake an activity that a duty attaches to the activity. Don’t let them catch you with emotional facts.


    Preexisting Relationship. B/t D and person in peril. Relationship must be established in law (property owner & invitee; family).

    D caused peril. (due to D’s negligence or nonnegligence) (driving a passenger and hit black ice; have duty to rescue passenger)

    • Undertaken Rescue. Must rescue as a RPP.
    • Abrogates this rule with good samaritan law:

    • --Applies to citizens in certain occupations (those who have training coming to aid).
    • --Will protect gratuitous rescue
    • from simple negligence by:
    • --Nurse
    • --Physician
    • --Veterinarians
  20. Duty
    Standard of Care
    Negligent Infliction of Emotional Distress
    • We almost look at like a tort. Three
    • scenarios where a P is likely to succeed:

    All 3: First, D must have violated another standard of care (e.g. RPP failure). These scenarios are essentially add-ons to this ordinary breach.

    • 1. Near Miss Case.
    • --Negligent conduct put P in a zone of physical danger,
    • --P was distressed as a result, and
    • --the distress then produced subsequent physical manifestations.

    • 2. Bystander Case.
    • --P must be contemporaneous witness to a negligent bodily injury,
    • --Injury inflicted on a close family member.
    • --P himself must be in the zone of physical danger.

    “Close family” is fuzzy (usu. spouse, parent, child). Strict application (disallowed Ps damages for run-over aunt who raised her from birth).

    • 3. Preexisting relationship b/t P and D.
    • --Preexisting relationship between P and D; and
    • --D’s negligent act foreseeably causes distress.
    • (Dr misdiagnoses P’s HIV)

    Distinguished from IIED: Intentional vs. Negligent.
  21. Duty
    Specific Duties Involving Pre-Natal Injuries
    • Negligent Impact on Body of Pregnant Woman.
    • --Baby born later with injuries = COA in baby’s name.
    • --No COA if no live birth (but mother still has her own COAs).

    • Doctor Misdiagnoses Birth Defects.
    • --Parents can recover for costs of raising child that are above the costs of raising a healthy child.
    • --Cannot recover emotional distress damages. Arbitrary, but NY rule to limit liability.

    • Doctor Botches a Sterilization.
    • --Family has child.
    • --No recovery. The “joy” outweighs the costs.
  22. Breach
    Under Duty with Reasonableness Component
    • Approach in essay answer:
    • 1. Identify the standard of care;
    • 2. Identify the wrongful behavior; and
    • 3. Give reason as to why behavior falls short of standard (your argument).

    • D admits to looking at radio dial just before accident:
    • --Duty to drive as RPP;
    • --Looked at radio;
    • --Looking at radio was unreasonable (RPP wouldn’t look at radio).
    • (Do not forget to tie up with last step.)
  23. Breach
    Under Duty without Reasonableness
    Where no reasonableness component, no need for last step (arguing behavior is unreasonable). Just identify standard of care and identify the behavior that violated it.

    Duty imported from stop-at-red statute. Breach occurs if person didn’t stop.

    Duty is to protect/warn invitee re rotten bridge. Breach occurs by failure to protect or warn.
  24. Breach
    Res Ipsa Loquitur
    Occurs where P cannot identify wrongful conduct, and thus cannot allege a specific breach (barrel falls from window).

    Res ipsa only substitutes for specific breach. Gets to jury; doesn’t guarantee win.

    P must demonstrate:

    1. That the accident is one normally associated with negligence (a barrel falling out a window).

    • --Essentially a probability argument.
    • --Demonstrating:
    • --Common knowledge/judicial notice;
    • --Evidence ruling out nonnegligence (no
    • earthquakes on day of fall)
    • --Expert testimony about probability.

    • 2. The accident is normally due to the negligence of someone in the D’s position.
    • --B/c not identifying a specific breach, be careful not to sue wrong person.
    • --Typical way to do this is to show that D had control of the object.
  25. Causation
    But-for D’s acts, P would have escaped injury.

    • Parallel Universe Conception. If D had not engaged in the activity, P would not have been injured.
    • D hits P; allegedly because he was looking out car window.
    • --P argues that had D been looking, he wouldn’t have hit P.
    • --D defends that had D been looking, couldn’t have avoided anyway.

    Multiple Defendants. Must depart from standard but-for cause.

    • Multiple Ds, Merged Causes. Negligent forces merge to harm P (two campers set fires).
    • --Substantial factor test. If the breach, standing alone, was capable of causing the injury. “Substantial factor” Ds are J&S liable.

    • Unascertainable Cause. (two hunters shoot at same time from same location)
    • --Shift burden to Ds to exonerate themselves. If they can’t, they will be J&S liable.
  26. Causation
    Poorly-labeled. Makes more sense to think of as fairness of liability.

    • Foreseeability test. Ds must pay for the foreseeable consequences of their breaches of duty. Foreseeable=not freakish and bizarre.
    • Never use “PC” analytically. The words are meaningless. Use foreseeability.

    • Direct Cause Problems.
    • Breach leads instantaneously to injury (dynamite in hit car).
    • --99% of time, the harm will be foreseeable.

    • Indirect Cause Problems.
    • Breach, followed by intervening events, followed by injury.
    • Approach depends on whether case is settled.

    Settled cases (D proximately caused, all b/c foreseeable):

    • 1. Intervening medical negligence.
    • --D liable for injury and injuries from negligence
    • --Foreseeable that D’s harm>hospitalization>malpractice.

    • 2. Intervening negligent rescues.
    • --D liable for injury and injuries from rescue.
    • --Foreseeable that D’s harm>rescue>botched rescue.

    • 3. Intervening reaction or protection forces.
    • --(stampede from car barreling into intersection; P gets stomped)
    • --D liable for injury and injuries from reaction/protection forces.

    • 4. Subsequent disease or accident.
    • --D liable for injury and subsequent disease/accident.
    • --Foreseeable that D’s harm>weakened state>subsequent disease/accident.

    • Approach for other (unsettled) cases:
    • 1. Why did we call the conduct a breach?
    • 2. Ask whether what you were worried about is what happened to P.

    (A eats spoiled shrimp; B slips on vomit. Breach=serving bad shrimp bc of poisoning danger, not slip-and-fall danger.).
  27. Damages

    • (1) Personal injury;
    • (2) Property damage;
    • (3) Punitive damages (conduct is wanton or willful)
    • --Punitive damages may be awarded in cases of gross negligence.

    Nonrecoverable items—interest for personal injury damages & attorneys’ fees.

    See Equitable Remedies in Tort Litigation

    P has duty to mitigate.

    • Collateral source—damages not reduced just because P received benefits from other sources.
    • --Reduce a P’s damage award by the amount
    • of any benefits from collateral sources. Some exceptions: life insurance, certain SS benefits.
  28. Damages
    Eggshell Skull Rule
    If all elements are satisfied, D takes V as he finds him (regardless of extent of injuries).

    Valid rule for every tort we cover.
  29. Affirmative Defenses to Negligence
    • --Traditional Contributory Negligence
    • --Traditional Implied Assumption of Risk
    • --Express Assumption of Risk
    • --Comparative Negligence
  30. Affirmative Defenses to Negligence
    Traditional Contributory Negligence
    Only law in 5 jdx; NOT in NY. MBE will signal that jdx follows “traditional defenses.”

    If a P in a negligence claim has failed to exercise proper care for his own safety, that P is barred from all recovery.

    --Failure to exercise proper care=RPP failure; also often statutory violation (jaywalking)

    • Exception:
    • Last Clear Chance Doctrine. D had last clear chance to avoid accident.
  31. Affirmative Defenses to Negligence
    Traditional Implied Assumption of Risk
    Not a defense to intentional torts.

    NOT the law in NY. MBE will signal “traditional defenses.”

    Conduct by the P from which we infer that P knows he is dealing with negligent person but proceeds anyway.

    • Key elements:
    • 1. P had knowledge and appreciation of the risk.
    • 2. P must take on risk voluntarily (not where no choice or in emergency).
    • Failure to wear a seatbelt can be shown by a D to mitigate P’s recovery.

    Certain groups cannot impliedly assume risk (protectee class of a statute).
  32. Affirmative Defenses to Negligence
    Express Assumption of Risk
    Certain groups cannot K’y assume risk (lessees).
  33. Affirmative Defenses to Negligence
    Comparative Negligence
    Majority and NY rule. MBE will be silent.

    Same as contributory, but not complete bar. Jury assigns proportionate blame by %; P’s recovery reduced by % of own fault.

    • Pure Comparative Negligence. MBE will be silent.
    • --System in which we go strictly by the jury’s percentages. P always recovers at least a little bit of money, even if assigned the bulk of the fault.
    • --NY rule.

    • Partial/Modified CN. MBE will signal partial or modified.
    • --P assigned < 50% of fault has damages reduced.
    • --P assigned > 50% of the fault gets no recovery.
Card Set:
2011-06-21 16:58:56
torts negligence

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