Negligence and Standard of Care

Negligence (Causation)

Cause in fact Legal/proximate cause

Standard of Care (Licensees)

Enters land with express/implied permission, think social guest Duty to correct/warn of concealed dangers Not duty to inspect for dangers Reasonable care in conducting activities on land

Westfall Act

Precludes personal liability of federal employee under state tort law

Negligent Infliction of Emotional Distress

Zone of Danger (think assault) (1) w/in zone of danger of threatened physical impact, AND (2) threat of physical impact caused emotional distress Bystander Recovery (1) Closely related to person injured, (2) Present at scene of injury, AND (3) Personally observed injury Special Relationship (1) Mishandling of corpse (2) Negligent medical information

Cause in Fact

"But-for" test - injury would not have occurred "but for" negligence Substantial Factor - "catch-all" when there are conceptual problems w/causation, asks whether negligence was a "substantial factor" in causing harm Concurrent tortfeasors - when acts of 2 or more defendants are each a factual cause of one harm, then join and several liability applies Alternative causation - harm cause by 2-5 and can't be determined which one caused harm, shift burden to defendants and impose joint and several liability Concert in Action - 2 or more acting together collectively and that causes plaintiff's harm, all joint and severally liable

Standard of Care (Automobile Drivers)

"Guest Statutes" - drivers liable only if grossly negligent or wanton/willful in misconduct Many jurisdictions have abandoned and apply negligence standard

Negligence (Elements)

(1) Duty (2) Breach (3) Causation (4) Damages

Negligence Per Se

(1) law or statute imposes particular duty for protection or benefit of others (2) violates statute (3) plaintiff in class of people intended to be protected (4) accident type of harm that is intended to be protected against (5) harm caused by violation

Standard of Care (Possessors of Land)

1/2 say depends on invitee, licensee, or trespasser 1/2 says due care owed to all invitees and licenses

Duty (Rescuers)

A person that comes to aid of another is a foreseeable victim

Negligence (Damages)

Actual (compensatory) - make plaintiff whole Parasitic damages - damages for emotional distress that accompany physical injury Economic-loss rule - can't recover economic damages in negligence without any related personal injury or property damage Mitigate Personal injury: (1) past and future medical expenses (2) pain and suffering (3) lost income and reduce earning capacity Property damage - difference between market value before and after, cost of repair, and replacement value of household items Collateral-Source - insurance payments credited against defendant's liability Punitive if show clear and convincing evidence of willful, wanton, reckless conduct, or malice

Res Ipsa Loquitur (Third Restatement)

Applies elements generously (1) Accident is type that ordinarily happens as result of negligence of a class of actors, AND (2) Defendant is member of that class

Defenses to Negligence (Assumption of Risk)

Applies when party knowingly and willingly embraces a risk for some purpose Analogous to consent in intentional torts

Duty (Affirmative Duty to Act)

Assumption of Duty - voluntarily aids or rescues another is liable for injury caused by failure to act with reasonable care in the performance of that aid or rescue. Placing another in danger Authority - person with ability and actual authority to control another has duty to exercise reasonable control Relationship - special relationship to plaintiff, duty to aid or assist and prevent reasonable foreseeable injuries

Standard of Care (Bailors and Bailees)

Bailment - bailee temporarily takes possession of bailor's property Common-law - complicated Modern trend - duty depends on circumstances in light of which conduct is measured by standard of reasonable care

Dram Shop

Bars, bartenders, etc. liable for injuries cased when drunk injures third party Form of direct liability, not vicarious liability

Duty (Foreseeability of Harm to Plaintiff)

Cardozo - duty only if plaintiff is member of class of persons who might be foreseeably harmed by conduct Andrews - proximate cause terms

Res Ipsa Loquitur

Circumstantial evidence of negligence is sufficient evidence of negligence Traditional elements (1) accident kind that ordinarily doesn't occur in absence of negligence (2) caused by agent/instrumentality w/in exclusive control of defendant, AND (3) not due to any action on part of plaintiff Procedural Effect - allows case to go to jury

Indemnification

Complete reimbursement from one party to a party who was forced to pay damages

Negligence Per Se (Defenses)

Complying with statute would be even more dangerous Compliance impossible or emergency justified violation Violation by plaintiff counts as comparative or contributory negligence

Standard of Care (Trespassers)

Duty: Possessor obligated to refrain from willful, wanton, or intentional misconduct, or reckless harm Discovered or anticipated trespassers - Must warn/protect from hidden dangers, no duty to warn from natural conditions/artificial conditions that don't cause risk of death Undiscovered trespassers - No duty

Vicarious Liability (Torts committed by independent contractors)

Employer generally not liable Independent contractor if employer doesn't retain right of control over way employee does work Employer may be vicariously liable for torts of independent contractors if: (1) Inherently dangerous activities (2) Non-delegable duties (3) Duty of operator of premises to keep premises safe for public AND (4) Duty to comply with safety statutes

Vicarious Liability (Respondeat Superior)

Employer held vicariously liable for negligence of employee that is w/in scope of employment Not responsible for intentional torts of employees unless that's w/in scope of employment

Immunities

Federal Tort Claims Act - expressly waives immunity for certain torts (exceptions include discretionary functions, traditional governmental activities, enumerated torts) State governments - most have waived to some extent, municipalities generally governed by state tort claims statute Governmental functions (police, courts) - immunity applies Propriety functions (performed by private company like parking lots) - immunity waived Government officials Discretionary functions - immunity applies Ministerial functions (like driving truck) - no immunity

Proximate Cause

Foreseeability of harm Proximate cause Extent of damages never needs to be foreseeable, unless unusual or unforseeable

Vicarious Liability (Parents & Children)

Generally parents not vicariously liable for minor child's torts Liable for own negligence w/respect to child's conduct

Defenses to Negligence (Exculpatory clauses)

Generally parties can contract to disclaim liability on negligence Hesitant when: (1) disclaim liability for reckless or wanton misconduct (2) gross disparity of bargaining power (3) party seeking to enforce offers services of great importance to public (4) provision is subject to contract defenses (fraud, duress) (5) Enforcement against public policy

Duty (Foreseeability of Harm)

If acting affirmatively, the foreseeability of harm to others is enough to give rise to general duty

Defenses to Negligence (Contributory Negligence)

If plaintiff was negligent, recovery precluded "Last clear chance" doctrine - plaintiff mitigate contributory negligence if defendant had last clear chance to avoid injury and failed to do so

Standard of Care (Off-Premises Victims)

Land possessor generally not liable for injuries resulting from natural conditions (exception is trees in urban area) Artificial conditions must prevent unreasonable risk of harm to persons not on premises Reasonable care in conducting activities on land

Standard of Care (Landlords and Tenants)

Landlord remains liable for: (1) injuries in common areas, injuries from hidden dangers about which landlord didn't warn tenant (2) injuries from premises leased for public use (3) injuries from hazard landlord agreed to repair Tenant liable for injuries arising from conditions w/in his control

Attractive Nuisance

May be liable to injuries to children trespassing if: (1) artificial condition exists in place where owner knows or has reason to know children are likely to trespass (2) possessor knows or has reason to know artificial condition poses unreasonable risk of death/serious bodily harm (3) children, because of age, don't discover or can't appreciate danger (4) utility to land possessor of maintaining condition is slight compared to risk of injury (5) possessor fails to exercise reasonable care

Res Ipsa Loquitur (Modern Trends)

Medical Malpractice - some shift burden by holding all defendants jointly and severally liable unless they can exonerate themselves Products Liability - ignore exclusivity requirement when it's clear defect originated upstream of package's wrapping/sealing Comparative-Fault Jurisdictions - loosely apply element that action not caused by plaintiff

Standard of Care (Physicians)

National standard Must provide informed consent Explain risks of procedures Not required to inform if: (1) risks commonly known, (2) patient is unconscious, (3) patient waives/refuses information, (4) patient is incompetent, (5) patient would be harmed by disclosure

Vicarious Liability (Automobile Owners)

Negligent entrustment - DIRECTLY LIABLE for negligently entrusting vehicle to someone not in position to take care Family-purpose doctrine - may be liable for torts of any family member driving with permission Owner liability statutes - may be liable for torts of anyone driving car w/permission

Survival Actions

On behalf of decedent for claims decedent could have brought at time of death Damages from personal injury or property damage

Defenses to Negligence (Imputed Contributory Negligence)

One party's negligence is imputed to plaintiff to prevent or limit plaintiff's recovery Doesn't apply to child plaintiff or married plaintiff

Defenses to Negligence (Comparative Fault)

Plaintiff's negligence limits ability to recover Pure comparative negligence - diminished by percentage of fault jury attributes to plaintiff's negligence Modified comparative negligence - if plaintiff more at fault than defendant, bar recovery, some jurisdictions say equally at fault also bars Multiple defendants - plaintiff's negligence compared to combined negligence of defendants

Standard of Care

Reasonably prudent person under the circumstances (objective standard) Presumed to have average mental abilities and knowledge Particular physical characteristics taken into account Intoxication held to same standard unless involuntary Children - reasonably prudent child of that age, unless engaged in high-risk adult activity Custom is relevant but not dispositive Professionals held to same skill/knowledge in community, specialists held to higher standard

Wrongful Death

Representative brings suit for losses suffered by representative as result of death Damages include loss of support and loss of companionship and society

Joint and Several Liability

Single, indivisible harm; then each subject to entire harm Contribution allows defendant who pays more than his share to recover from other liable defendants

Standard of Care (Emergency situations)

Standard of care is reasonable person in same situation

Standard of Care (Invitees)

Think business purpose, mutual/joint purpose Duty of reasonable care Non-delegable duty: Can't avoid duty of assigning are of property to an independent contractor

Breach of Duty

Traditional Approach - what a reasonable person would do under circumstances Cost-Benefit Approach - courts specify what precautions should have been taken and weigh against likelihood of harm

Common Carriers and Innkeepers

Traditional: higher duty of care consistent with practical operation of business Modern: high for common carriers, innkeepers only liable for ordinary negligence

Loss of Chance of Recovery

Where plaintiff likely to die anyway, allow recovery at discount for physician that negligently reduces chance of survival

General Duty of Reasonable Care

act as reasonable person of ordinary prudence under the circumstances, no affirmative duty to act

Vicarious Liability (Business Partners)

liable for torts of other partners committed w/in scope of business purpose