Torts (Negligence)

Front 1

Prima Facie Case for NEGLIGENCE elements

Back 1

ELEMENTS:

(i) duty on part of D to conform to specific standard of conduct for protection of P against unreasonable risk of injury;

(ii) a breach of that duty by D;

(iii) breach is the actual and proximate cause of P's injury (Causation); AND

(iv) DAMAGE

Front 2

Duty of Care

Back 2

Owed to all foreseeable Ps

Foreseeable Zone of Danger - Majority rule for P2 recovery

Everyone is foreseeable - Minority, P2 can establish existence of a duty extending from D to them by showing D breached duty owed to P1

Front 3

Reasonable Person Standard

Back 3

Objective standard - one's conduct is measured against what average/reasonable person would do

- MENTAL DEFFICIENCES not taken into account

- PHYSIVAL CHARACTERISTICS are taken into accound

Front 4

Particular Standards of Conduct for Professionals

Back 4

Someone with special occupational skills is required to possess the knowledge and skill a member of that profession in good standing has in similar communities.

- Medical professionals - held to national standard

Duty to Disclose Risks of Treatment

Front 5

Particular Standards of Conduct for Children

Back 5

Children held to standard of child of:

- like age,

- like education

- like intelligence, and

- like experience

Subjective test

- Child <4 usually lacks capacity to be negligent

- Child engaged in adult activities may be required to conform to "adult" standard of care

Front 6

Particular Standards of Conduct for Common Carriers and Innkeepers

Back 6

Held to a VERY HIGH STANDARD OF CARE - liable for even slight negligence

- P MUST be a passenger or guest

Front 7

Particular Standards of Conduct for Automobile Driver to Guest

Back 7

Guest in auto owed duty of ordinary care, only liable for RECKLESS tortious conduct

Front 8

Particular Standards of Conduct: Bailment Duties

Back 8

Bailor transfers to the bailee possession of the chattel, but NOT title (bailor loans car to bailee)

a) Duties owed by Bailee - depends on who benefits from bailment:

(i) sole benefit of bailor --> LOW standard

(ii) sole benefit of bailee --> HIGH standard

(iii) mutual benefit (bailment for hire) --> ordinary care standard

Front 9

Duty of Possesor to those off premises

Back 9

Extent of liability depends on WHERE the injury occur and STATUS of P

NO DUTY to protect fomr natural conditions on premises; however there is duty for unreas dangerous artificial conditions or structures abutting adjacent land (in urban areas, owner/occupier is liable for damages caused off the premises by trees on premise (falling branches)

Front 10

Duty of Possesor to Those on Premises (6 Statuses)

Back 10

a) Trespassers - no duty to undiscovered;

as to discovered or anticipated, land owner must

(i) warn of or make safe concealed, unsafe artificial conditions know to the landowner involving risk of death or serious bodily harm, AND

(ii) reas care in exercise of "active" operation on the prop

b) Attractive Nusance Doctrine - duty to exercise ordinary care in avoiding foreseeable risks to children

c) To Licensees - possessor has duty to (i) wrn of or make safe dangerous conditions (natural and artificial) known to owner that create unforeseeable risk to licensee and licensee unlikely to discover

d) To Invitees - owes same duties as owed to licensees PLUS + a duty to make reasonable inspections to discover non obvious dangerous conditions and make safe (warning may suffice)

e) to Users of Rec Land - without charging, not liable unless willful and malicious failure to guard against or warn

Front 11

Modern Trend for Status Rules

Back 11

Strong minority of states reject distinction between licensees and invitees (and in some, trespassers) and simply apply reasonable person standard

Front 12

Duty of Lessor and Lessee of Realty

Back 12

Lessee has general duty to maintain premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection.

- If lessor covenants to repair --> liable for unreas dangerous conditions

- if lessor volunteers to repair and does so negligently, he is liable

Front 13

Statutory Standards of Care

Back 13

A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines) may replace the more gen common law duty of due care if:

(1) P is within the protected class, AND

(2) the statute was designed to prevent type of harm suffered

Front 14

EXCUSE for Violation of Stat Standard of Cre

Back 14

May be excused where compliance would cause more danger than violation, or where compliance would be beond D's control

EFFECT of Violation or Complaince: unexcused stat violation is NPS (neg per se) - establishes a conclusive presumption of duty and breach of duty/ whereas compliance within stat will not nec establish due care

Front 15

Duty Regarding Negligent Infliction of Emotional Distress

Back 15

To establish breach P must show:

1) P must be within zone of dange

2) P must suffer PHYSICAL symptoms of distress

Special Situations where Requirements not always Nec:

- Bystander not in zone of danger seeing injury to another

- special relationship between P and D

- Where D's negligence creates a great likelihood of emotional distress (erroneous report of relative's death, or mishandling of relative's corpse)

Front 16

Affirmative Duties to Act

Back 16

Generally one does not have legal duty to act

EXCEPTIONS:

- Assumption of duty by acting (except good Samaritan)

- Peril due to D's Conduct

- Special relationship between parties

- Duty to prevent Harm from third Persons

Front 17

Theories P may use to show proof of breach

Back 17

1.) Custom or usage

2.) Violation of Statute

3.) Doctrine of Res Ipsa Loquitor

Front 18

Doctrine of Res Ipsa Loquitor

Back 18

requires P to show that:

(i) accident causing injury is type that normally would not occur UNLESS someone was negligent,

AND

(ii) the negligence is attributed to D (type of accident happens usually because of negligence of someone in D's position.

Front 19

Effect of Res Ipsa Loquitor

Back 19

Where established, P has made a prima facie case and no directed verdicr may be given for D. P can sill lose

Motion for directed verdict

(i) deny D's motion if P has established RIP or other valid evidence of breach

(ii) Grant D's motion if P failed to establish

Front 20

Causation

Back 20

Once negligent conduct shown, P must show conduct was cause of injury. Must show BOTH:

1) Actual Cause (Causation in Fact)

2) Proximatae Cause (Legal Causation)

Front 21

1.) Actual Cause (Causation in Fact

Back 21

Before D's conduct can be considered a prox cause of P's injury, must first be cause in fact of injury. Several Tests:

a) "But For" - act or omission cause in fact

b) Joint Causes - Substantial Factor Test - if several causes and any one alone would have been sufficient

c) Alternative Causes Approach - when two acts, only one of which causes injury but not known which.

- Burden of proof shifts to D

Front 22

Joint Causes vs. Alternative Causes

Back 22

Under Joint Causes, both parties caused the harm

Under Alternative Causes, both parties acted negligently but only one caused the harm

Front 23

2.) Proximate Cause

Back 23

Can be Direct or Indirect

Need to prove Causation in fact First****

Doctrine is of limited liability and deals with liability or nonliability for unforeseeable or unusual consequences of one's acts

Front 24

Foreseeability Test

Back 24

D is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts

If asked whether one or both parties entitled to summ judg - any issue of foreseeability is for the jury. In other cases, the facts in quesion will be common sense

Front 25

Liability in Direct Cause Cases

Back 25

where there is an uninterrupted chain of events from the negligent act to P's injury, D is liable for all foreseeable harmful results regardless of unusual manner or time in which they arose and in cause and effect. Not liable for unforeseeable harmful effects

Front 26

Liability in Indirect Cause Cases

Back 26

1)Foreseeable Intervening Force:

The following depending intervening forces are almost always foreseeable: (i) subsequent med malprac, (ii) negligence of rescuers, (iii) efforts to protect the tperson or prop of oneself or another, (iv) injuries caused by another "reacting" to D's actions, (v) subsequent diseases caused by the weakened condition and (vi) subsequent accident substantially caused by original injury

2)Unforeseeable Intervening Force: D liable unless intervening force is crime or intentional tor if foreseeable harmful result, if nor foreseeable harmful result, D not liable as I.Force supercedes

Front 27

Damages

Back 27

Damage will not be presumed (and nominal damages are not available)

1) Personal Injury - all damages (past, present and prospective, both economic and noneconomic, foreseeability gen irrelevant

2) Property Damage - reas cost of repair or, if prop nearly destroyed, fair market value at time of accident

3) Punitive Damages - generally not available but P may recover if D's conduct is "wanton and willful", reckless or malicious

Front 28

Nonrecoverable Items under Damages

Back 28

Include:

(i) interest from the date of damage in Personal injury action, and

(ii) attorney's fees

Front 29

Duty to Mitigate Damages

Back 29

As in all cases, P has duty to take reasonable steps to mitigate damages (like seeking appropriate treatment)

Front 30

Collateral Source Rule

Back 30

Damages are not reduced just because P received benefits from other sources (health insurance does not excuse or reduce damages)

Front 31

NEGLIGENCE DEFENSES

Back 31

1) contributory negligence - neg on part of P that contributes to P's injury

2) Assumption of Risk - P may be denied recovery if assumed risk of any damage caused by D's act - P must have (i) known of risk and (ii) voluntarily proceeded in face of risk

3) Pure Comparative Negligence - Ps damage award reduced by % of attributed fault

4) Partial Comparative Negligence - P's damage award reduced if fault below threshold level, otherwise P's claim is barred

Front 32

Contributory Negligence Defense

Back 32

Can be negated by D's "last clear chance", does not apply to wanton or reckless tortious conduct

Standard of care is same as ordinary negligence

Applied successfully:

- as defense to D's Violation of Statute

- No Defense to wanton and willful misconduct or intentional tort conduct

- Comparative negligence system usually favored

EXCEPTION -- last clear chance - permits P to recover despite Contrib Neg, if person with last clear chance to avoid an accident who fails to do so is liable for neg

- 1) helpless peril

- 2) inattentive Peril

- 3) prior neg cases

Contrib neg of 3rd pty will be imputed to P (and bar her claim) only when tlationship between these two is such that court could find P vicariously liable for the 3rd part neg

Front 33

Assumption of Risk Defense

Back 33

Implied Assumption of Risk - knowledge may be implied where the risk is one that an average person would clearly appreciate.

- P may not be said to have assumed where there is not available alternative to proceeding in the face of risk or in situations involving fraud, force or emergency

Express Assumption of Risk - knowledge may be assumed by an express agreement

Assumption of risk is NOT A DEFENSE to intentional torts, but is one to wanton and willful misconduct

Front 34

Pure Comparative Negligence

Back 34

Assume Pure Comparative negligence applies unless question states otherwise - last clear chance is not used

- P's damage award reduced to % of attributable fault

Front 35

Partial Comparative Negligence

Back 35

Last clear chance is not used

P's damage award is reduced if fault is below the threshold level; OTHERWISE, P's claim is barred

- effect on other doctrines - Assumption of risk - analyzed as either (i) a limitation on the duty owed to P (no duty to protect against known risks); or (ii) contributory negligence (P unreas encountered a known risk, thereby reducucing or barring damages under state'ss neg rules

- wanton and willful conduct - P's negligence taken into account

Front 36

Strict Liability

Back 36

Liability without Fault

Prima Facie Case Elements:

(i) nature of D's activity imposes an absolute duty to make safe;

(ii) the dangerous aspect of the activity was the actual and proximate cause of P's injury; and

(iii) P suffered damage to person or property (Burglary, assault, trespass to land, tresspass to chattel)

Front 37

Abnormally Dangerous Activities - Rylands v. Fletcher Rule

Back 37

2 requirements for finding an activity to be abnormally dangerous:

1) activity must create foreseeable risk of serious harm even if reas care exercised by all actors; and

2) the activity is not a matter of common usage within the activity

Front 38

EXTENT OF LIABILITY

Back 38

1. Harm MUST result from normally dangerous characteristics

- as with Neg, D's liabo;oty extends to only foreseeable Ps

2. Defenses - in contributory neg states, contrib neg no defense if P failed to realize danger or guard against it, only if P know of danger and his unreas conduct was cause of har,