Negligence--Torts I

Explain The Foreseeable Consequences Test/Majority Rule

Under the Foreseeable Consequences Test, a defendant is liable for those consequences which are the natural and probable result of the defendant's negligent act and, in hindsight, are not extraordinary. Normally, if the result is foreseeable, the defendant is the proximate cause, even if the manner of the injury is not foreseeable.

Does a landowner have a duty to those outside their premises?

A landowner may have a duty to those outside the premises when a foreseeable risk is created by D's activity. Salevan v. Wilmington [Baseball hitting a passerby outside of stadium]

What two elements must be established to show causation

(1) Actual cause/cause in fact (2) proximate cause

What are some defenses to negligence?

(1) contributory negligence (2) Assumption of the risk (3) Negligence per se

What are special damages?

If a defendant is found to be negligent, a plaintiff may not recover for punitive damages but may collect compensation for special and general damages from the defendant. Special damages are awarded for past, present and future medical expenses, lost earnings and earning capacity, property damages, disfigurement, and the value of any gratuitous services.

What is a Third Party Intervention/Intervening Cause?

If there is a third party who intervenes in the chain of causation, between the defendant's negligence and the ultimate consequence, there is a possibility of the defendant's liability being cut off. In order for the intervening cause to cut off liability, it must be superseding. A superseding cause is one that is unforeseeable and extraordinary.

Does a duty arise for a landlord to those on his or her property?

Yes, a duty arises for a landlord to those on his or her property in the following circumstances: 1-Trespasser 2-Licensee 3-Invitees

Are there alternative ways of proving breech of duty?

Yes. The alternative ways are Violation of Statute/negligence per se and Res Ipsa Loquitur (the thing speaks for itself).

When can a defendant's liability be cut off?

when there is a third Party Intervention/Intervening Cause

What are the two types of damages?

general and special

Can a plaintiff who suffers emotional distress recover for negligence?

-Plaintiff who suffers only emotional distress as a result of defendant's negligence may recover only if: 1-Closely related to victim 2-Present at scene & aware of injury producing event when it occurs 3-As a result suffers severe, but not abnormal, emotional distress

Duty of Ordinary Care

...

Breech of the Duty of Ordinary Care

A breach of duty is established if the defendant fails to act like a reasonable prudent person under the circumstances. The standard of a reasonable prudent person is evaluated by the Hand Formula, N = B < PL, which weighs the utility of the defendant's conduct together with the burden of precaution against the probability of causing harm and the severity of that harm. When the burden of precaution is less than the severity and probability of the risk, then the defendant who has caused the risk has failed to act like a reasonable, prudent person.

When does a duty of ordinary care arise?

A duty arises when the defendant's conduct creates a foreseeable risk of harm to the plaintiff.

Can a duty arise to a rescuer?

A duty can arise to a rescuer because danger invites rescue, so rescuer is foreseeable plaintiff (McCoy)

What is a foreseeable risk?

A foreseeable risk is one that is significant enough to lead a reasonable person to anticipate the risk and take some precaution against it. Whether a risk is foreseeable is determined by both the likelihood and severity of the risk.

Causation

A plaintiff cannot recover under a negligence claim unless the defendant's negligent conduct was the cause of the plaintiff's injuries. To establish causation, it must be shown that the defendant was the actual cause and the proximate cause of the plaintiff's injuries.

What are some circumstances to consider for the burden of precaution?

Circumstances to consider for the burden of precaution: 1-Custom: If D acts like most others do in circumstance, good evidence that D acted reasonably. If departs from custom, may show that D acted unreasonably. Sometimes outdated b/c custom unreasonable. 2-Emergency: someone pointing gun and D jumping out of car. Emergency does not mean off of the hook, but will take into consideration the emergency. 3-Child defendant: If child activity, held to standard of child of like age, intelligence and experience. 4-Defendant who has superior skill or training: If neurosurgeon, held to that standard, not family practice dr. 5-Physical disability: D held to standard of a reasonable person with that disability. Ex: blind. 6-Severe mental deficiency: If slight, no consideration. If extreme considered because can deprive D of appreciating risk.

Explain contributory negligence

Contributory negligence is a defense to negligence when the negligent behavior by the plaintiff contributes to the plaintiff's injury. Here, _____. Therefore, ____ was probably/probably not contributory negligent. At common law, any negligence on the part of the plaintiff is a complete bar to recovery; however, the majority of jurisdictions have adopted some form of comparative fault to allow the plaintiff to recover even when the plaintiff's negligence contributed to his or her own injury. Comparative fault is broken down into pure comparative fault (a minority of jurisdictions) and modified comparative fault (a majority of jurisdictions) Under a pure comparative fault jurisdiction (minority), a plaintiff can recover for whatever percentage for which he is not responsible, even if the plaintiff was at greater fault than the defendant. In a modified comparative fault jurisdiction (majority), a jurisdiction will either adopt an equal fault bar scheme (plaintiff recovers only if he/she was less than 50% at fault) or a greater fault bar (a plaintiff recovers only if he/she was less than 51% at fault).

Is there a duty to rescue?

Duty to rescue. There is generally no duty to rescue, but under certain circumstances a duty may arise (misfeasance v. nonfeasance): 1-When defendant causes risk in the first place 2-When rescuer undertakes rescue and leaves plaintiff worse off; reliance on P or others. 3-Where special relationship exists: Parent to warn others of child's harmful behavior.

What are some factors to discuss in the hand formula?

Factors to discuss in the hand formula: 1-Utility of defendant's conduct 2-Burden of precautions (available alternatives to defendant's conduct) 3-Probability of the risk 4-Severity of the risk

What are general damages?

General damages include compensation for pain and suffering and for loss of enjoyment of life. A plaintiff cannot recover for general damages if the plaintiff only suffered economic loss.

Explain Direct Cause Test/Minority Rule

In a direct cause jurisdiction, A defendant is liable for any consequences that directly followed the defendant's negligent act, regardless of foreseeability. Liability is based on the circumstances that existed at the time, the set stage.

What is the zone of danger?

In order for defendant to owe a duty to the plaintiff, the plaintiff must be in the zone of danger. If any risk of harm is foreseeable to this plaintiff, then plaintiff is in the zone of danger, even if the expected risk did not occur.

Who is an invitee?

Invitees: duty owed here is the highest obligation (includes tenants and visitors to tenants) 1-Economic Benefit Test: One who poses a potential economic benefit for landowner (business function) 2-Public Premises Test: One who is on property held open to the public for the public purpose 3-A duty to use reasonable care to inspect and correct, if necessary, dangerous conditions, natural, artificial and activities. 4-Rowland v. Christian: Duty of reasonable care to all who are foreseeably on premises. 5-No liability if danger is so obvious that Plaintiff should avoid it.

What is a licensee?

Licensee: One who enters with consent 1-No duty to inspect for unknown dangers 2-Duty to use reasonable care to warn of known hidden dangers in regard to natural or artificial conditions or activities 3-Ex: big hole. Diana texting. Falls in large hole. Liable? No because big hole is not unforeseeable.

Explain Negligence per se as a defense to negligence

Must prove that: 1-p was in the class of plaintiffs that the statute was designed to protect, and 2-harm that occurred was the type of harm that the statute was designed to prevent. Here, the statute was designed to ________________. It was not designed to______________ and second, the harm that occurs was/was not the type of harm that the statute was designed to prevent. Therefore, ________ can/cannot use the statute to prove contributory negligence per se.

Common Law Negligence

Negligence is established through the existence of a duty of ordinary care owed to the plaintiff by the defendant and a breach of that duty. In order for a plaintiff to have a claim for negligence, the plaintiff must demonstrate that the breach of duty was the actual and proximate cause of injuries to the plaintiff and that the plaintiff suffered damages to his person and or property.

What is proximate cause?

Proximate cause, the second prong to the causation test, is a legal limitation on actual cause, cutting off liability at a certain point. There are two tests to determine proximate cause, the Direct Cause Test and the Foreseeable Consequences/Majority Test. The Foreseeable consequences test is generally the only test applied; if the direct cause test would produce a different result, however, then both tests should be analyzed.

Explain Res Ipsa Loquitur

Res Ipsa Loquitur (The thing speaks for itself): Res Ipsa Loquitur is a substitute for common law analysis for breach when the facts of a case do not show how an injury occurs because it is self evident. Proving breach of duty under res ipsa loquitur requires a reverse chain of causation analysis. The three factors that must be established to invoke res ipsa loquitur are: 1-The event doesn't normally occur without negligence 2-The instrumentality was in the exclusive control of the defendant (at the time the negligence occurred) 3-Plaintiff did no contribute to the injury Effect of invoking res ipsa loquitur: 1-Majority of jurisdictions treat res ipsa loquitur as creating a permissible inference of negligence that the jury may or may not choose to draw. 2-Minority holds that res ipsa loquitur provides a rebuttable presumption.

What are some factors to consider with intervening causes?

Some factors to consider with intervening causes: 1-D will be liable if the intervening act is foreseeable and the consequences that result are foreseeable 2-Generally, negligence of interveners is foreseeable 3-If the actions of the intervener are not foreseeable (intentional or criminal) this supersedes D's liability. 4-If the intervening cause is not superseding, D is the proximate cause of all the harm caused and the intervener is also liable for the harm actually and proximately caused by his/her negligence. 5-If the intervening cause is found to be superseding, D is not off the hook. D is liable for harm caused up to time of superseding act, superseding individual is liable for harm caused thereafter.

What is the avoidable consequences rule?

The avoidable consequences rule denies recovery to the plaintiff for damages which the plaintiff could reasonably have avoided following the defendant's negligence.

What is the collateral sources rule?

The collateral source rule says that a defendant is liable for all damages proximately caused by his own negligence even if those losses are paid to the plaintiff by a third party. The collateral source is a benefit to the plaintiff, not to the defendant. Therefore, _____ would still be liable for the ___ % of ______'s previous salary that he/she receives from her disability insurance because he was the cause of damages.

Explain Assumption of the Risk

The defense of assumption of risk bars a plaintiff's recovery in a majority of jurisdictions. An express assumption is valid if it does not violate public policy. An implied assumption requires that the plaintiff have actual knowledge of the particular risk of defendant's negligence and appreciate its magnitude; further, the plaintiff must voluntarily manifest a willingness to proceed in the face of risk. Since, _____, the defense would fail/would apply.

Explain Actual Cause/Cause in Fact

To establish actual cause, the "but/for" test is applied. The "but/for" test holds that if the plaintiff's injuries would not have occurred but for the defendant's negligent conduct, the defendant is an actual cause of the plaintiff's harm. But for the ________, the _________ would not have happened. Therefore, _____ act/action was/was not the cause in fact of_____. If two or more defendant's concur to cause the plaintiff's injury, each defendant who was a substantial factor is a cause in fact of the plaintiff's injury. No liability is unfair, so each that is a substantial factor is an actual cause.

When is someone considered a trespasser?

Trespasser: One who volitionally enters without consent 1-No duty to undiscovered trespassers 2-Duty to discovered or foreseeable trespassers to use reasonable due care with activities 3-Duty to foreseeable child trespassers who are too young to appreciate danger to use reasonable care with activities and artificial conditions and activities.

Explain Violation of Statute

Violation of Statute: Negligence per se. shows duty and breach. Still need to discuss Hand Formula. An unexcused violation of a statute can provide an alternative method of proving breach if: 1-Plaintiff is a member of the class protected by the statute (legislative intent determines this) 2-The harm that occurred is the type the statute was designed to prevent. Some violations of statute, usually involving circumstances beyond the defendant's control, will be excused: 1-Incapacity 2-Emergency 3-Defendant is ignorant of operative facts which make statute apply 4-Defendant is unable, after reasonable diligence, to comply 5-Compliance creates greater risk that non-compliance A violation of statute in and of itself is not enough, the violation of statute must be proved to have caused the plaintiff's injury. Defenses of contributory negligence and assumption of the risk apply.