Negligence Tort Bar Prep :

Actual Causation:

c. Loss of chance of recovery Some jurisdictions apply the "loss of chance" doctrine. The doctrine is usually applied in a medical malpractice case (e.g., failure to diagnose) when a plaintiff cannot meet the preponderance standard (i.e., more likely than not) for causation because the chance of recovery was already less than 50% before the defendant's negligent conduct.

Neglignece Per Se, Special Classes of Defendants: Emergency situations

d. Emergency situations The applicable standard of care in an emergency is that of a reasonable person in the same situation. In other words, less may be expected of the reasonably prudent person who is forced to act in an emergency, but only if the defendant's conduct did not cause the emergency.

Negligence Per Se Violations By Plaintiff:

d. Violation by a plaintiff The violation of a statute, a regulation, or an ordinance by a plaintiff may constitute contributory negligence per se. The same requirements apply.

Negligence Per Se: Defenses: Greater risk of harm

The defendant may be able to avoid liability by proving that compliance would have involved a greater risk of physical harm to the defendant or others than noncompliance would have (e.g., it was an emergency).

b. Wrongful birth

, many states do permit parents to recover for "wrongful birth" (failure to diagnose a defect) or "wrongful pregnancy" (failure to perform a contraceptive procedure). Generally, the mother can recover damages for the medical expenses of labor as well as for pain and sufferingl.

Negligence: Ways to be given an afirmative duty to act

. Affirmative Duty to Act In general, there is no affirmative duty to act. However, a duty is imposed in the following situations. a. Assumption of duty b. Placing another in perilc. c. By contracts. D. By authority One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable contro

Negligence : Reasonably Prudent Person :.Children

. Children The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience. Unlike the objective standard applied to adult defendants in negligence actions, the standard applicable to minors is more subjective in nature because children are unable to appreciate the same risks as an adult. However, a child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult. Courts regard children of a particularly young age as incapable of negligent conduct. Under the Third Restatement, children under the age of five are generally incapable of negligent conduct. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 10 (2010).

Negligence : Reasonably Prudent Person Standard

. This standard is an objective one, measured by what a reasonably prudent person would do, rather than whether a particular defendant is acting in good faith or using her best efforts. a mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge.

Negligence Per Se; Specific Classes Of Defendants: Lists

.Common Carriers, innkeepers 1) autmobile drivers 2) Bailors and bailees 3) Emergecny situations 4) Possesors of Land 5)

Actual Casaution: Substanial Factor:

1) Substantial factor When but-for causation does not work, the majority of courts substitute a "substantial-factor" test. In cases in which several causes or acts may have contributed to the plaintiff's injury, each of which alone would have been a factual cause of that injury, the test is whether the defendant's tortious conduct was a substantial factor in causing the plaintiff's harm.

Actual Causation: But For Causation

1. Actual Cause (Cause in Fact) a. "But-for" test If the plaintiff's injury would not have occurred but for the defendant's tortious act or omission, then the defendant's conduct is a factual cause of the harm. If the injury would have occurred despite the defendant's conduct, then there is no factual cause. b. Multiple and/or indeterminate tortfeasors

Neglignece: Damages, Actual Damages

1. Actual Damages The plaintiff must prove actual harm, i.e., personal injury or property damage, in order to complete the requirements of liability for negligence. Unlike in actions for intentional torts, nominal damages are not recoverable in negligence actions. a. Emotional distress damages A plaintiff who is the victim of a tort that causes physical injury may also add emotional distress as an element of damages (sometimes known as "parasitic" damages). Most jurisdictions do not allow a plaintiff to recover in negligence for pure emotional distress, though a plaintiff with some physical symptom from the distress may be able to recover through a claim for negligent infliction of emotional distress. See § IV.G.1. Negligent Infliction of Emotional Distress, infra. b. Economic loss In addition, a plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. However, once a plaintiff has proven non-economic injury, he is entitled to recover both economic and non-economic damages. c. Attorney's fees Attorney's fees and interest from the date of damage are not recoverable in a negligence action. 2. Compensatory Damages The general measure of compensatory damages is compensation that would make the victim whole, as if she had never suffered the injury. 3. Mitigation of Damages, Avoidable Consequences The plaintiff must take reasonable steps to mitigate damages. Although sometimes phrased as a "duty to mitigate," this "duty" is not an obligation that the plaintiff owes to the defendant but instead is a limitation on the plaintiff's recovery due to the failure to avoid harm that could have been avoided by the use of reasonable effort after the tort was committed. For example, if the victim fails to use reasonable care to treat a wound, resulting in infection and the loss of a limb, that failure to mitigate her damages likely will reduce or even eliminate her recovery, depending on the jurisdiction's approach to contributory negligence. 4. Personal Injury: Categories of Damages The typical categories of damages recoverable in a personal injury action include: i) Medical and rehabilitative expenses, both past and future; ii) Past and future pain and suffering (e.g., emotional distress); and iii) Lost income and any reduction in future earnings capacity. 5. Property Damage a. General rule When the plaintiff's real or personal property is injured or destroyed by the defendant's tortious conduct, the general rule is that the plaintiff may recover the difference between the fair market value of the property immediately before the injury and immediately after the injury. b. Cost of repairs In the case of tortious harm to personal property, most courts also allow the cost of repairs as an alternative measure of damages, provided that the cost of repairs does not exceed the value of the property. c. Household items In the case of household items, such as clothing and appliances, courts often hold that replacement value is the measure of damages. 6. Collateral-Source Rule a. Traditional rule Under the traditional rule, benefits or payments provided to the plaintiff from outside sources (such as medical insurance) are not credited against the liability of any tortfeasor, nor is evidence of such payments admissible at trial. b. Modern trend A majority of states have passed statutes that either eliminate the collateral?source rule entirely or modify its application (e.g., cannot be applied in medical malpractice cases). Payments made to the plaintiff by the defendant's insurer are not considered payments from a collateral source, and such payments are credited against the defendant's liability. 7. Punitive Damages The plaintiff may be entitled to punitive damages if he can establish by clear and convincing evidence that the defendant acted willfully and wantonly, recklessly, or with malice. Torts that inherently involve a malicious state of mind or outrageous conduct (such as intentional infliction of emotional distress) may often result in punitive damages for the plaintiff. Note that in many states that availability of punitive damages as a remedy is determined by statute. SPECIAL RULES OF LIABILITY 1. Negligent Infliction of Emotional Distress There are three types of cases in which a defendant may breach the duty to avoid negligently inflicting emotional distress upon a plaintiff. Whether a duty exists may depend upon whether the harm and the plaintiff are reasonably foreseeable. Some states deny recovery because one or the other is too speculative and thus not foreseeable. a. Zone of danger A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm's way if the plaintiff demonstrates that: i) He was within the "zone of danger" of the threatened physical impact—that he feared for his own safety because of the defendant's negligence; and ii) The threat of physical impact caused emotional distress. b. Bystander recovery Most states allow a bystander plaintiff outside the zone of danger to recover for emotional distress if that plaintiff: i) Is closely related to the person injured by the defendant; ii) Was present at the scene of the injury; and iii) Personally observed (or otherwise perceived) the injury. A majority of jurisdictions would be unlikely to expand liability to an unmarried cohabitant. However, some jurisdictions do allow engaged cohabitants to recover. c. Special relationship The duty to avoid infliction of emotional distress exists without any threat of physical impact in cases in which there is a special relationship between the plaintiff and the defendant. The most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative. Example: A physician negligently misdiagnoses a patient with a terminal illness that the patient does not have, and the patient goes into shock as a result. d. Physical symptoms required The majority rule is that the emotional distress must be manifested by physical symptoms (e.g., nightmares, shock, ulcers). The severity of symptoms required varies by jurisdiction. A few states as well as the Restatement allow recovery for serious emotional disturbance without a physical manifestation of harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §4, comment d. Compare to intentional infliction of emotional distress, under which the plaintiff must prove more than negligence (intentional or reckless extreme or outrageous conduct) but need not prove any physical injury. 2. Wrongful-Death Actions and Survival Actions a. Wrongful-death actions A decedent's spouse, next of kin, or personal representative may bring suit to recover losses suffered as a result of a decedent's death under wrongful?death actions created by state statutes. Under typical statutes, the recoverable damages include the loss of support (income) as a result of the decedent's death, as well as the loss of companionship, society, and affection experienced by the surviving family members, but not pain and suffering. Recovery, however, is limited to what the deceased would have recovered had he lived. Additionally, the decedent's creditors have no right to institute a claim against the amount awarded. b. Survival actions Survival statutes typically enable the personal representative of a decedent's estate to pursue any claims the decedent herself would have had at the time of her death, including claims for damages resulting from both personal injury and property damage. Such claims often involve damages resulting from the tort that injured the decedent and later resulted in her death. Example: If the decedent was negligently injured by the driver of another automobile and lingered—out of work, in the hospital, and in extreme pain—for one year before passing away, his estate would be able to recover for his medical expenses from the time he was injured until his death, for his loss of income during this time, and for the pain and suffering he experienced. Most states do not allow survival of tort actions involving intangible personal interests (such as defamation, malicious prosecution, or invasion of privacy) because they are considered too personal to survive the decedent's death. If a jurisdiction recognizes both wrongful-death actions and survival actions, there is no double recovery. 3. Recovery for Loss Arising From Injury to Family Members a. Spouses One spouse may recover for loss of consortium and services as a result of injuries to the other spouse resulting from the defendant's tortious conduct. b. Parent-child A parent may recover damages for loss of services if a child is injured due to the defendant's tortious conduct. Many jurisdictions allow a parent to recover for loss of the child's companionship in a wrongful-death action if the child is killed, but only a few jurisdictions allow a parent to recover for such damages if the child is injured but lives. Similarly, many jurisdictions allow a child to recover for loss of the parent's companionship in a wrongful-death action, but most do not allow the child to recover such damages if the parent is injured but lives. In a wrongful-death action, the child's claim for loss of support resulting from the decedent's death will be brought by the statutorily designated adult family member as part of the wrongful-death action. c. Limitations The amount of damages recoverable in a derivative action (an action arising solely because of tortious harm to another) for interference with family relationships is reduced in a comparative-fault jurisdiction (and eliminated in a contributory-negligence jurisdiction) by the injured family member's contributory negligence. Thus, if the damages recovered in the injured family member's own action are reduced by the plaintiff's comparative fault, then the damages recoverable by his family members in their derivative action will also be reduced. 4. "Wrongful Life" and "Wrongful Birth" Claims

Negligence: Informed consent

2) Informed consent Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment. Failure to comply with this "informed consent" doctrine constitutes a breach of the physician's duty owed to the patient and is actionable as medical malpractice (medical negligence). A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. However, a significant minority holds that the physician must disclose any "material risk"; that is, any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment.

Neglingnce Per Se: Forseable Defendants: Modern Trend

2) Modern trend Courts in the other half of jurisdictions (as well as the Third Restatement) require that a reasonable standard of care be exercised for all land entrants except trespassers, abolishing the distinction between invitees and licensees. (In the case of the Third Restatement, the rule applies to all land entrants except for "flagrant" trespassers.) The land possessor must use reasonable care to prevent harm posed by artificial conditions or conduct on the land. As for natural conditions, the general rule is that there is no duty to remove or protect against the condition, although there is an exception for rotting trees in densely populated areas.

Actual Causation:

2. Causal Linkage Most often, when the plaintiff proves that the defendant's tortious conduct was a but-for cause of his injury, he also implicitly proves that the defendant's conduct increased the probability that the plaintiff would be harmed.

Negligence : Reasonably Prudent Person : Customs, Safety codes, profesionals

2. Custom a. Within a community or an industry Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive. The entire community or industry may be negligent. b. Safety codes Safety codes promulgated by industries, associations, and government bodies for the guidance of operations within their respective fields of interest are admissible to prove custom. c. Professionals A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.

Actual Causation: Concert of Action

4) Concert of action If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff's harm, then all defendants will be held jointly and severally liable. Example: Two defendants agree to a drag race and one of them injures another driver or a passenger during the race. Both will be held jointly and severally liable to the plaintiff.

Neglignece Per Se, Special Classes of Defendants: Possesors of Land

5. Possessors of Land The term "possessors of land" as used here includes owners, tenants, those in adverse possession, and others in possession of land. The fact that a plaintiff is injured while on someone else's land does not affect the liability of a defendant other than the land possessor. Only land possessors are protected by the rules limiting liability to trespassers or licensees. Everyone else—for example, easement holders (e.g., a utility company with power lines on the land) or those licensed to use the land (e.g., hunters)—must exercise reasonable care to protect the trespasser or the licensee. In general, possessors of land owe a duty only to those within the boundaries of their land. The duty to entrants on the land includes: i) Conduct by the land possessor that creates risks; ii) Artificial conditions on the land; iii) Natural conditions on the land; and iv) Risks created when any of the affirmative duties discussed in § IV.B.4. Affirmative Duty to Act, supra, are applicable.

Causation: a) Foreseeable intervening causes

A foreseeable intervening cause will not cut off a defendant's liability. Examples of foreseeable intervening forces include subsequent medical malpractice, disease, or accident; negligence of rescuers; normal forces of nature; or efforts to protect a person or property. As a general guideline, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff.

Negligence Foreseeable plaintiffs: b. Intended beneficiaries

A defendant is liable to a third-party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently, and the defendant could foresee the harm of completing the transaction.

. Specific Classes of Foreseeable Plaintiffsa. Rescuers

A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer's injuries. To the extent that a rescuer's efforts are unreasonable, comparative responsibility should be available to reduce, rather than to bar, recovery by a rescuer. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 32 (2010).

Causation: Direct Cause

A plaintiff can recover when the defendant's tortious acts are the direct cause of the plaintiff's harm without the intervention of independent contributing acts.

Nelgingece: Resucers and Profesional Emrgency professions

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional's injury if the injury results from a risk inherent in the job ("firefighter's rule").

Causation: 2) Indirect cause

An indirect cause results from an act or event occurring after the defendant's tortious act and before the plaintiff's injury (i.e., an intervening event). A superseding cause is any intervening event that breaks the chain of proximate causation between the defendant's tortious act and the plaintiff's harm. Whether an intervening cause will be superseding depends upon its foreseeability. The fact that an intervening cause occurred at all is considered to be foreseeable. A defendant is liable if the type of harm is foreseeable, even if it occurred in an unforeseeable manner.

Neglgence: Causation

CAUSATION The plaintiff must prove that the defendant's actions were both the actual cause (also known as the factual cause or "cause in fact") and the proximate cause (also known as the legal cause or, under the Restatement, the "scope of liability") of the plaintiff's injury. . .

Neglignece: When do doctors have to disclose?

Doctors are not under an obligation to disclose when: i) The risk is a commonly known risk; ii) The patient is unconscious or otherwise incapable of giving consent (e.g., emergency treatment); iii) The patient waives or refuses the information; iv) The patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian); or v) The disclosure would be detrimental to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack).

Negligence Per Se: Defenses: Incapcity

The violation of a statute may not be negligence if the violation is reasonable in light of the defendant's physical disability or incapacitation, or if the defendant is a child.

Negligence Foreseeable plaintiffs: c. Fetuses

Fetuses are owed a duty of care if they are viable at the time that the injury occurred. See § IV.G.4. "Wrongful Life" and "Wrongful Birth" Claims, infra.

Causation Effect of non-superseding intervening causes

If the intervening negligent act is not a superseding cause, then the original defendant and the actor responsible for the intervening negligent act can be held jointly and severally liable to the plaintiff.

Actual Causation: Alternative causation ]

If the plaintiff's harm was caused by (i) one of a small number of defendants—usually two and almost never more than four or five, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff's harm.

Negligence Per Se: Defenses: Vagueness

If the requirements of the statute at issue were presented to the public in a confusing manner (e.g., extremely vague or ambiguous), then the defendant's violation is excused.

Negligence Per Se: Defenses: Reasonable Ignorance

If the statute imposes an obligation only under certain factual circumstances that are not usually present, and the defendant is not aware that these circumstances are present and further proves that his ignorance was reasonable, then the defendant's violation of the statute is excused for the purposes of negligence per se.

3. Proximate Cause (Legal Cause) Overview

In addition to proving actual causation, the plaintiff must prove that the defendant's tortious conduct was a proximate cause of her harm. Proximate cause is a legal limitation on actual cause, focusing on foreseeability. Some courts and the Third Restatement prefer the phrase "scope of liability." The majority rule for proximate cause requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendant's conduc

Negligence Duty: Defined

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant's failure to act as a reasonable person of ordinary prudence under the circumstances. Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable.

Negligence : Reasonably Prudent Person :.. Intoxication

Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary. d

Negligence Per Se: Defenses: Reasonble care

It is a defense that the defendant exercised reasonable care in attempting to comply with the statute.

Causation: b) Unforeseeable intervening causes

Most courts hold that an unforeseeable intervening cause is a superseding cause that therefore breaks the chain of causation between the defendant and the plaintiff. Examples of unforeseeable superseding causes include extraordinary acts of nature ("act of God") and criminal acts and/or intentional torts of third parties. Criminal acts of third parties are generally regarded as unforeseeable superseding causes and therefore break the chain of causation between the original defendant's negligence and the plaintiff's harm. However, if the duty breached by the defendant is one of failing to use reasonable care to protect the plaintiff and the plaintiff is harmed by a criminal act, then the original defendant remains liable

a. Wrongful life

Most states do not permit actions by a child for "wrongful life" based on the failure to properly perform a contraceptive procedure or failure to diagnose a congenital defect, even if the child is born with a disability. A few states permit a "wrongful life" action, but they limit the child's recovery to special damages attributable to the disability.

Negligence Elements:

Negligence is conduct (the commission of an act or failure to act), 1) without wrongful intent, 2) that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm. 3) And the conduct causes harm 4)

Negligence Per Se; Specific Classes Of Defendants: Innkeepers and Common Carriers

Standards of Care for Specific Classes of Defendants A discussion of the traditional standards of care for special defendants follows, but note that the modern trend has been to move away from distinctions in the level of care and instead measure the parties' conduct in light of what is reasonable under the circumstances. a. Common carriers and innkeepers Under the common law, a majority of jurisdictions held both common carriers (e.g., planes, trains, buses) and innkeepers to the highest duty of care consistent with the practical operation of the business. Under this approach, common carriers and innkeepers could be held liable for "slight negligence." A majority of courts continue to hold common carriers to this higher standard. However, most courts today hold that an innkeeper (hotel operator) is liable only for ordinary negligence. Note, however, that the Third Restatement approach is slightly different: common carriers and innkeepers are treated alike and must exercise reasonable care toward their passengers and guests. Although generally there is no affirmative duty to act, common carriers and innkeepers have a duty to act based upon the special relationship they have with their customers. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40 (2010). EXAM NOTE: Be certain to apply the carriers and innkeepers standards only to customers or guests.

Proximate Causation: 2) Minority rule

Some courts follow the Andrews test from Palsgraf and find proximate cause for all consequences that flow directly from the defendant's conduct, considering factors including the number of intervening causes and the remoteness of the cause from the effect. Other courts find proximate cause if the defendant's conduct was a direct cause of the plaintiff's injury, regardless of foreseeability.

But For Causation: limits

The but-for test of causation often will not work if: i) There are multiple tortfeasors and it cannot be said that the defendant's tortious conduct necessarily was required to produce the harm; ii) There are multiple possible causes of the plaintiff's harm, but the plaintiff cannot prove which defendant caused the harm; or iii) The defendant's negligent medical misdiagnosis increased the probability of the plaintiff's death, but the plaintiff probably would have died even with a proper diagnosis.

Negligence Duty: 1. Foreseeability of Plaintiff Minor:

The minority view (and the Restatement approach), articulated in Judge Andrews's minority opinion in Palsgraf, states that if the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone (foreseeable or not) harmed as a result of his breach. The issue of whether the plaintiff is foreseeable is reserved for proximate cause. See § IV.E.3. Proximate Cause, infra. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29 cmt. n (2010).

Negligence Foreseeable plaintiffs: d. Anticipated victim of a crime

The special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party. Generally, a psychotherapist owes a duty only to her patient. For example, a psychiatrist who fails to correctly diagnose a suicidal patient is liable only to the patient if the patient commits suicide. However, when a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim. Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976). The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance.

3. Negligence Per Se: Overview

The standard of care can sometimes be determined by statute. In most jurisdictions, the violation of such a statute establishes negligence as a matter of law (a conclusive presumption as to duty and breach). A minority of jurisdictions hold that violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach).

Neglignece: Damages, Extent of Damages

Under the "thin-skull" or "eggshell-skull" rule, the extent of the damages need never be foreseeable. The defendant is liable for the full extent of the plaintiff's injuries that may be increased because of the plaintiff's preexisting medical condition or vulnerability, even if the extent is unusual or unforeseeable

Negligence : Reasonably Prudent Person :. Mental and emotional characteristics

Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community. The defendant's own mental or emotional disability is not considered in determining whether his conduct is negligent, unless the defendant is a child. In other words, a mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge. Most courts hold that if a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care.

Actual Causation: Concurent Actions

When the tortious acts of two or more defendants are each a factual cause of an indivisible injury to the plaintiff, the defendants are jointly and severally liable.

Negligence Duty: 1. Foreseeability of Harm

While the foreseeability of harm alone does not create a duty, most courts emphasize the foreseeability of harm to the plaintiff when evaluating the existence of a duty. The foreseeability of the type of harm is also relevant to proximate cause

Negligence Duty: 1. Foreseeability of Plaintiff Majority

a. Cardozo (majority) view The majority rule is that a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called "foreseeable plaintiffs") as a result of the defendant's negligent conduct. According to Judge Cardozo's majority opinion in Palsgraf v. Long Island R. R. Co., 162 N.E. 99 (N.Y. 1928), the defendant is liable only to plaintiffs who are within the zone of foreseeable harm.

Negligence Per Se : Elements

a. Elements i) A criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a penalty for violation of a specific duty; ii) The defendant violates the statute by failing to perform that duty; iii) The plaintiff is in the class of people intended to be protected by the statute; iv) The harm is of the type the statute was intended to protect against; and v) The plaintiff's injuries were proximately caused by the defendant's violation of the statute.

Proximate Causation Majority Rule

a. Foreseeability of harm 1) Majority rule A defendant is liable for reasonably foreseeable consequences resulting from his conduct. The type of harm must be foreseeable, though the extent of harm need not be foreseeable, see §IV.E.3.c. Extent of damages, below. A defendant's liability is limited to those harms that result from the risks that made the defendant's conduct tortious, within the scope of liability of the defendant's conduct. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29 (2010).

Negligence Per Se: defenses list of defenses

c. Defenses An excused violation of an applicable statute can be a defense to negligence perse under the following circumstances. 1) Greater risk of harm 2) Incapacity 3) Reasonable care 4) Vagueness 5) Reasonable ignorance

Neglgince Per Se: Specific Defendants: Possesors of Lands Tradtional

a. Two approaches 1) Traditional approach Approximately one-half of all jurisdictions continue to follow traditional rules that provide that the standard of care owed to land entrants depends upon the status of the land entrant as an invitee, a licensee, or a trespasser. 1) Traditional approach A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.

Neglignece Per Se, Special Classes of Defendants: Automobile Drivers

b. Automobile drivers In most jurisdictions, automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride). However, a minority of jurisdictions distinguish between the two with "guest statutes," which impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car. Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest.

Negligence Per Se;: Effect of compliance

b. Effect of a defendant's compliance Generally speaking, compliance with a statute, a regulation, or an ordinance does not prove the absence of negligence. However, sometimes, if the defendant's conduct complies with certain types of federal regulatory statutes, such as those establishing comprehensive regulatory schemes, compliance with the federal requirements may preempt common-law tort actions.

Proximate Causation: Indirect Causation

b. Indirect causation The second proximate cause issue is whether the injury resulted without any unforeseeable or extraordinary events that will serve to break the chain of the defendant's liability.

Negligence : Reasonably Prudent Person :. Physical Characteristics

b. Physical characteristics A defendant's particular physical characteristics (e.g., blindness) are taken into account and the reasonableness of the conduct of a defendant with a physical disability is determined based upon a reasonably careful person with the same disability. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §11 (2010). For example, a blind pedestrian must act as any other reasonable blind person would act under the circumstances.

Neglignece Per Se, Special Classes of Defendants: Bailors and bailees

c. A bailment occurs when a person (the bailee) temporarily takes possession of another's (the bailor's) personal property, such as when a driver leaves his car with a valet. The duty of care that must be exercised by a bailor or bailee varies depending on the type of bailment. 1) Bailor's duty The bailor has a duty to inform the gratuitous bailee only of known dangerous defects in personal property but must inform a bailee for hire of defects that are known or should have been known by the bailor had he used reasonable diligence. 2) Bailee's duty When a bailor receives the sole benefit from the bailment, the bailee has a lesser duty to care for the property and is liable only if he has been grossly negligent. In contrast, when a bailee receives the sole benefit from the bailment, he must exercise extraordinary care for the bailor's property. Slight negligence on the bailee's part will result in liability for any injuries to the property from failure to properly care for or use it. In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property.

Negligence Elements: Described

i) Duty, the obligation to protect another against unreasonable risk of injury; ii) Breach, the failure to meet that obligation; iii) Causation, a close causal connection between the action and the injury; and iv) Damages, the loss suffered.