study guide ch 10-15 Negligence

the largest of the three major categories of torts

Negligence

In the digests of West, look for case summaries on negligence under key topics such as:

Negligence, damages, Products liability, Landlord and Tenant,

risk-benefit analysis

Deciding whether the risks outweigh the benefits. The determination of whether the benefits of proceeding without additional precautions outweigh the risk of harm that is foreseeable. Also called cost-benefit analysis and risk-utility analysis.

gratuitous undertaking

Voluntarily assuming a duty of care when none is imposed by law. under no obligation to perform. you do it fo rfree

how do we decide the amount of caution that is reasonable in a given set of circumstances?

carefully weighing the elements of the breach-of-duty equation

negligence has been called a _______ tort in that it encompasses a wide variety of unreasonable actions and inactions that cause injury or loss

catchall

ordinary negligence

conduct that is unreasonable, but not gross or reckless. For example, speeding through a yellow light, without other risky behavior such as texting or shaving

recklessness

consciously taking a risk in failing to exercise due care but without intending the consequences; wantonly disregarding a risk but neither desiring the consequences of the risk nor having substantially certain knowledge of the consequences

if the undertaking is supported by ______, then something of value is received in exchange for the undertaking

consideration

Independent liability

liability based on what an individual did themselves; the opposite of vicarious liability, which is liability based on what someone else has done

How is ordinary care measured?

measured by what someone of ordinary prudence would have done under the same circumstances to avoid injury or other loss

Negligence per se

negligence because of a violation of a statute; the jury is not asked what a reasonable person would have done; the trial judge concludes that a reasonable person would have done what the statute provides

modern cases are beginning to find that a duty does exist as long as there has been ______ by plaintiff on the defendant's promise

reliance

When is a defendant vicariously liable for the negligence of his or her independant contractor?

the general rule is that the person who hires independent contractors is not liable for their torts; respondeat superior does not apply

In most negligence cases, duty is...

the obligation to use reasonable care to avoid the foreseeable risk of causing injury or other loss to the person or property of another.

How would the dissent of Ralsdof v. Long Island R.R. limit liability to persons who were not in the zone of danger when the original carelessness occured?

the principles of proximate cause- under the dissenting opinion, a duty of due care is owed to anyone in the world who suffers an injury or other loss that is proximate cause of the defendant's orginal carelessness.

ordinary care

the standard embodied in the duty of reasonable care. also called due care.

T/F....

there is no legal requirement to be a good samaritan

According to the American Law Institute:

"The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action"

Res Ipsa Loquitur

"the thing speaks for itself" evidentiary tool that relieves the plaintiff from proving the defendant's breach of duty or unreasonableness under certain circumstances

Paralegal roles in negligence litigation:

- Factfinding -litigation assistance -collection/enforcement help

Questions before the court in negligence case:

-Was the defendant's conduct unreasonable? -Did this unreasonableness cause the plaintiff's injury or other loss?

questions to ask regarding duty

-Who owes the duty? -To whom is the duty owed? -When does the duty arise? -What is the standard of conduct to which there must be conformity? (duty to do what?)

Defenses to Negligence

1. Contributory Negligence 2. Comparative Negligence 3. Assumption of Risk

elements to the tort of negligence

1. Duty 2. breach of duty 3. Proximate cause 4. Damages

Dissenting opinion (judge Andrews) Palgraf v. Long Island R.R.

A duty is owed to anyone in the world at large who might be injured because of the defendant's unreasonable conduct, even if the injured person was not in the zone of danger, so long as someone is in the zone of danger due to the defendant unreasonable conduct. Under this principle, a duty was owed to Plaintiff 2 as well as plaintiff 1 because plaintiff 1 was in the zone of danger from the careless push of the employee. This led to an injury to plaintiff 2 when the package exploded. *To owe a duty to an injured person who is not in the zone of danger, all that is needed is for someone to be in the zone of danger. *

reliance

Forming a belief, taking action, or refraining from action due in part to confidence in someone or something.

breach-of-duty equation

If the danger of a serious accident outweighs the burden or inconvenience of taking precautions to avoid the accident, the reasonable person would take those precautions. Furthermore, the more important or socially useful the activity, the more risks the reasonable person is willing to take.

Negligence in relation to other torts

If you are not able to prove one of the intentional torts, explore the possibility of negligence. -if you cannot establish the tort of battery because you cannot prove that the defendant had the intent to cause a contact that was harmful or offensive, you may be able to establish the tort of negligence if you can prove that the harmful or offensive contact was caused by the defendant's unreasonable conduct. -Whenever you are having difficulty establishing an intentional tort, determine whether the defendant created an unreasonable risk of the same injury or other loss occurring. If so, negligence may be an alternative cause of action. -explore negligence as an alternative to strict liability torts.

reasonable care

Ordinary prudence under the circumstances to avoid injury or other loss.

reasonable person

Someone who uses ordinary prudence under the circumstances to avoid injury or damage; someone who is not careless. (Called the reasonable man in older cases.)

foreseeable plaintiff

Someone whose presence in the zone of danger is foreseeable to the defendant

unforeseeable plaintiff

Someone whose presence in the zone of danger is unforeseeable to the defendant.

consideration

Something of value that is exchanged between parties. It can be an act, a forbearance (nonperformance of an act), a promise to perform an act, or a promise to refrain from performing an act.

standard of care

The degree of care that the law requires in a particular case. In most cases, the standard is reasonableness—what an ordinary prudent person would do under the same or similar circumstances. In some cases, however, a lesser standard is used, such as a duty to avoid reckless conduct.

Reasonable person standard

The standard of behavior expected of a hypothetical "reasonable person." The standard against which negligence is measured and that must be observed to avoid liability for negligence. the reasonable person will mentally go through all four components of the breach-of-duty equation to determine what risks should be taken and what precautions should be made to avoid an accident

Negligence in relation to criminal law

There are some crimes based on negligence, e.g., negligent homicide. More than ordinary negligence is usually required. Negligence in criminal law requires at least recklessness.

Proximate cause

a cause that is legally sufficient to impose liability for the results of one's wrongful act or omission.

Insurance

a contract (called an insurance policy) under which a company agrees to compensate a person (up to a specific amount) for a loss caused by designated perils or risks.

Imputed negligence

a form of vicarious liability; the unreasonableness of one person is imputed (put upon) another person

Good Samaritan

a person who comes to the aid of another without having a legal obligation to do so

Employer-Employee (Agency) Law

a private (non-government) employee who commits negligence is personally liable for this tort. His or her employer will also be liable for negligence (a) vicariously, if the conduct of the employee was within the scope of employment (respondeat superior), or (b) independently, if the employer was careless in hiring or supervising an incompetent employee who posed a risk of injuring others.

gratuitous promise

a promise that one does not have any duty or obligation to make

special relationship

a relationship between persons that is the basis of a duty of reasonable care to avoid injury even in the absence of affirmative conduct.

Affirmative behavior

active behavior, activity; the opposite of inaction most defendants allege that their injury or other loss was due to affirmative conduct of the defendant. it is very easy to establish the existence of a duty when affirmative conduct creates such a risk.

basis for the existence of a duty of reasonable care

affirmative conduct special relationship gratuitous undertaking

Misfeasance

affirmative conduct that is improper or unreasonable

Negligent entrustment

allowing a child to use a vehicle, tool, or other object that poses an unreasonable risk of harm to others

fault

an error or defect in someone's judgement or conduct to which blame and culpability attach. The wrongful breach of a duty.

duty

an obligation to conform to a standard of conduct prescribed by law.

moral duties

derive from religion, customs, and principles of natural law. Not embodied in enforceable laws. However, they do sometimes appear in statutes and court holdings of our legal systems.

Frolic

employee conduct that is outside the scope of employment because it is personal rather than primarily for the employer's business interests; there is no vicarious liability if the negligent act of the employee was committed while he or she was on a frolic of his own

the hallmark of negligence is

fault

liability under the Civil Rights Act

if the negligence was committed while the defendant was depriving the plaintiff of a federal civil right under color of state law

Most courts limit claims for Negligent Infliction of emotional distress to persons who were

in the zone of danger with the injured person and suffered physical symptoms as a result of the emotional distress

policy considerations of duty that are important factors in the decisions reached by courts

include the moral blameworthiness of the defendant's conduct, the prevention of similar harm in the future, the availability of insurance to cover the resulting harm, and the burden that the community would suffer if a duty were found or not found to exist

natural law

inherent principles of conduct based on human nature rather than on formal laws imposed by society

The forseeability of the risk gives rise to a(n) _______ to use reasonable care to prevent injury or loss

obligation (a duty)

Custom and usage

one claim by the plaintiff in negligence cases is that the defendant failed to take specific precautionary steps and that this failure led to the plaintiff's injury. a common defense is that no one else in the field takes these steps. leads to the question of when it is reasonable to do what everyone else is doing or to fail to do something when everyone else fails to do it as well? does not settle the question of what is reasonable or unreasonable behavior.

Deep pocket

person or business with resources to pay a potential judgement, often sued over others responsible because they have the capability to pay the judgement where others don't

___________ establishes a cutoff of liability for injuries or losses that result from unreasonable conduct

proximate cause

majority opinion (Judge Cardozo) in Palsgraf v. Long Island R.R.

ruled that a duty of due care was owed only the plaintiff 1. *unless you are foreseeably in the zone of danger, no duty is owed to you.* When plaintiff 1 was pushed by the railroad employee, harm was foreseeable to plaintiff 1. Plaintiff 2, however, was not in the zone of danger. It was not foreseeable to the employee that harm could come to plaintiff 2 by the careless push to plaintiff 1. Therefore, the majority opinion held that no duty was owed to plaintiff 2. Her negligence action against the railroad failed.

Reasonable person standard: objective standard

standard by which something is measured by comparing a.) what a person actually knew, felt, or did with b) what a reasonable person would have known, felt, or did under the same circumstances

Reasonable person standard: subjective standard

standard by which something is measured by what a person actually knew, felt, or did

Vicarious liability

taking the place of another; one person will be found to be unreasonable solely because someone else is unreasonable 3 categories: employment, joint enterprise, family purpose

Federal Tort Claims Act

the U.S. government will be liable for negligence committed by one of its federal employees within the scope of employment (respondeat superior) as long as the employee's conduct did not involve discretion at the planning level

Zone of danger

the area within which injury or other loss to the plaintiff is foreseeable

risk

the chance or danger of an unwanted and usually unintended result. In the law of negligence, the preoccupation is with the presence or absence of risk.

Nonfeasance

the failure to act; inaction; an omission. can either be wrongful or blameless

gross negligence

the failure to use even a small amount of care to avoid forseeable harm

unreasonable

the failure to use ordinary prudence under the circumstances to avoid injury or loss (careless)

Negligence

the failure to use reasonable care that an ordinary prudent person would have used in a similar situation, resulting in harm or other loss. Injury or other loss caused by the failure to use reasonable care

T/F... foreseeability is not the sole criterion used by courts to determine whether a duty exists.

true

T/F... special relationships create a duty to use reasonable care in nonfeasance cases

true

T/F... you have no duty to assist someone simply because it is possible for you to give assistance without harming yourself.

true

T/F...a good samaritan can be sued for negligence if he or she fails to use reasonable care in rendering assistance.

true

Breach of duty

unreasonable conduct endangering someone to whom you ow a duty of care

general rule on duty?

whenever one's conduct creates a foreseeable risk of injury or other loss to someone's person or property, a duty of reasonable care arises to take reasonable precautions to prevent the injury or loss

malfeasance

wrongful (illegal) conduct or inaction by a public official