Negligence

Duty of Care Owed by Possessors of Land

- unknown trespassers: no duty - known or anticipated trespassers: warn or make safe from artificial, highly dangerous, concealed, known - licensees (social guests): concealed, known - invitees (patrons of business) within scope of invitee status: concealed, known/discoverable by inspection - children: ordinary to avoid reasonably foreseeable risk caused by artificial conditions

Assumption of Risk

The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant's act. The plaintiff must have: •Known of the risk and •Voluntarily proceeded in the face of the risk Knowledge may be implied where the risk is one that an average person would clearly appreciate - No AOR where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency. - common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk. - not a defense to intentional torts

Comparative Negligence

- not a complete bar; plaintiff's damages reduced according to fault - Partial comparative negligence - plaintiff cannot recover if they were more at fault than defendant.

Prima Facie Case for Negligence

- A duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury. - A breach of that duty by the defendant - The breach is the actual and proximate cause of the plaintiff's injury - Damages

Duty of care owed by children

- Child of like age, intelligence, experience (subjective test) - if under 5, no capacity to be negligent - adult standard applicable to dangerous adult activities.

Factual Causation (Torts)

- but-for test - Merged causes: when several causes bring about injury, and any one alone would be sufficient to cause injury, defendant's conduct is a cause in fact if it was a substantial factor in causing the injury. - Unascertainable causes: when there are two negligent acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants and each must show that his negligence is not the actual cause.

Contributory Negligence

- completely bar's plaintiff's recovery - not a defense to intentional torts - not a defense to negligence per se, when plaintiff is in class that statute seeks to protect from their own incapacity and lack of judgment - Exception - last clear change: the person with the last clear chance to avoid an accident is liable for negligence.

Negligence - Duty of Care

- duty to behave as a reasonably prudent person to avoid injuring foreseeable victims. - If superior knowledge or skill, must use it. - reasonable person has defendant's physical characteristics, if relevant - Owed to foreseeable plaintiffs (class of persons foreseeably endangered by conduct). - rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril (first responders excepted).

Affirmative Duties to Act Under tort law

- generally, no legal duty to act, but exceptions: - special relationship: parent-child, common carriers/accomodatoin - defendant placed plaintiff in peril - assumption of duty by acting to save (under Good Samaritan laws, doctors etc. exempt)

Per Se Negligence

Clearly stated specific duty imposed by statute providing for criminal penalties creates conclusive presumption of duty and breach if: - plaintiff is within protected class - statute designed to prevent the type of harm suffered by the plaintiff Violation excused if compliance would cause more danger than violation, or is beyond defendant's control.

Negligence Damages

Defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is also known as the "eggshell-skull" plaintiff rule. Punitive damages generally not available, unless defendant's conduct is "wanton and willful," reckless, or malicious.

Proximate Causation (Torts)

Foreseeability test: defendant is generally liable for all harmful results that are normal incidents of/within the increased risk caused by their negligent acts.

Negligent Infliction of Emotional Distress

Near Miss: - Zone of danger - physical symptoms of distress Bystander: - Injured person is closely related - plaintiff present at the scene or personally observed it Special relationship: - relationship creates great potential for distress, e.g. doctor's misdiagnosis.

Res Ipsa Loquitur

Plaintiff must show: •The accident causing the injury is a type that is normally associated with negligence •The negligence is probably attributable to the defendant (often shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant). Effect of Res Ipsa: - plaintiff has made prima facie case; no directed verdict may be given for defendant - plaintiff can lose if jury rejects inference of negligence

Duty of care owed by professionals

knowledge and skill of an average member of the profession in good standing (empirical standard). Doctors - national standard; duty to disclose risks serious enough that reasonable patient would withhold consent.