Negligence

definition of contribution

partially liable party pays damages in accord with that liability.

definition of res ipsa loquitur

"The thing speaks for itself." Res ipsa loquitur (RIL) is circumstantial evidence of negligence that does not change the standard of care. It is invoked where little is known about the circumstances regarding the event which caused harm. The presence of negligent conduct has to be inferred. It is only applicable where no direct evidence of the cause of injury is known, but negligence by the defendant or the class of defendants is the only possible explanation.

Substantial factor test

"Was the defendant's tortious conduct a substantial factor in causing the plaintiff's harm?" The substantial factor test is used in the case of multiple defendants, where their conduct together results in injury to the plaintiff and where the conduct of each, taken alone, would have been sufficient to directly cause the same injury. Necessary because a mechanical application of the "but for" test would permit each defendant to claim that the plaintiff's injury would have occurred whether he acted or not and thus "but for" causation did not exist. The substantial factor test is used by Rest2, but Rest3 is highly critical of it and drops it.

Ways a reasonable person is established

* established by a legislative enactment or administrative regulation which so provides [by and large this has not been utilized] * adopted by the court from a legislative enactment or an administrative regulation which does not so provide [judge infers from legislature] [courts not mandated to utilize criminal statutes in civil cases, this is a discretionary decision for the judges] * established by judicial decision * applied to facts of case by trial judge or jury, if no such enactment, regulation or decision

SItuations in which joint liability can be imposed:

1. Act in concert. -In concert action requires direct interaction between parties: some kind of planned or encouraged behavior. 2. Defendants fail to perform a common duty to the plaintiff. -Employer is liable for acts of employee. Employer doesn't have to be negligent; it's the fact of employment that creates this kind of liability. The employer has the money/ability to shoulder compensation. 3. Defendants act independently to cause indivisible harm. -Where you see most joint liability litigation.

Elements of negligence

1. Duty 2. Breach 3. Causation 4. Damages

other approaches to NIED

1. In some jurisdiction, both eh impact requirement AND the physical consequences/injury requirement are both eliminated. 2. Rest3: replacement of the impact requirement with a zone of danger requirement, and elimination of the physical consequence or injury requirement. When negligence + plaintiff was in the zone of danger = NIED.

criticisms of common law RIL 2

1. It is incorrect because the evidence might show that 2/3 of the time accidents of a certain type happen because of negligence, and 2/3 of the time when negligence does occur the defendant is the negligent party, but that could still just mean that there's a 4/9 likelihood 2. sets up a two-step inquiry that would often fail at the first step.

test for NIED

1. Negligence of the defendant that foreseeably creates a risk of bodily harm (you still have to do a negligence analysis). 2. Some kind of impact on the body of the plaintiff. 3. Emotional distress. 4. Physical consequence (manifestation) or injury.

excuses to violation of statute

1. No violation. 2. No causation (violation did not cause damages). 3. No damages (violation did not cause damages). 4. Other excuses: A. Violation is reasonable in light of actor's childhood, physical disability or physical incapacitation. B. Reasonable care was exercised in attempts to comply with the statute, but compliance was impossible. C. Actor neither knew nor should have known of factual circumstances that rendered the statute applicable. D. Actor failed to comply because of confusing way statute is presented to the public. E. Compliance would have involved greater risk of physical harm to actor or others compared to noncompliance. F. Statute is neither followed nor enforced. G. Actor confronted by emergency not due to his own conduct. H. However, a few statutes are regarded as so important that their violation cannot be excused as a matter of law. 5. In prima facie jurisdictions, an excuse is that violation of the statute was reasonable.

analysis of violation of statute in a negligence per se jurisdiction:

1. Plaintiff argues that Defendant violated statute. Plaintiff must establish a prima facie proof of violation, cause and damage. 2. Judge must decide to adopt the standard of care for the court. If the statute is adopted, then defendant's motion for directed verdict on breach of duty is denied. 3. Defendant may offer excuses. If no excuse offered, a presumption of negligence is created, but violation must be proven as a matter of law, as well as causation and damages. a. Court (judge) must decide whether to recognize the excuse offered. 4. Jury must decide whether: a. Statute was indeed violated. b. Whether excuse was sufficient. (If no, negligence is proven, but the rest of the negligence analysis must still be done.) c. Violation of the statute was the cause of the injury. d. Damages.

analysis of negligence per se in a prima facie jurisdiction

1. Plaintiff argues that defendant violated a statute and establishes a prima facie argument for negligence, including causation and damages. 2. Court decides whether to adopt the statute of PRIMA FACIE evidence of negligence. 3. Defendant may argue excuses, with the additional excuse that violation of the statute does not establish negligence because it was reasonable in spite of the violation. a. Court decides whether to accept excuses. b. If no excuse is offered or recognized, court may grant plaintiff a directed verdict on the issue of breach of duty when violation is established as a matter of law, but this is less likely in a "per se" jurisdiction. 4. Jury considers: a. Was statute violated? -If no: verdict for the defendant. -If yes: is this negligence? i. Yes: proceed to excuse if raised by defendant. ii. No: verdict for the defendant. b. Was the excuse valid?

test for assumption of risk

1. Plaintiff had knowledge of and appreciated the nature of the danger involved, 2. Plaintiff appreciated the specific danger that injured him, and 3. Plaintiff voluntarily chose to subject himself to that danger.

duty to affirmatively aid when:

1. Special relationships necessitate that defendant has a duty to take affirmative action in aid of plaintiff. A. Employer/employee and in the scope of employment: i. Employer has a duty to plaintiff to exercise reasonable care in hiring employees, and may be liable to plaintiff if an employee subsequently injures plaintiff, but is only liable for employer's own negligence in hiring the employee, not vicariously liable for the wrongful conduct of the employee. B. Common carrier & innkeeper/customer C. School/pupil D. Parent/child E. Business/patron F. Jailer/prisoner (custodian/those in custody) 2. In some jurisdictions, a defendant who has the requiesit special relationship with a third person and who becomes aware that the third person intends to do specific harm to an identified plaintiff has a duty to warn plaintiff of the harm. The special relationships that have been recognized as triggering this duty are usually psychotherapist/patient and custodian/prisoner.

Cause-in-fact when there are concurrent causes

1. Substantial factor test 2. Concurrent tortfeasors 3. Summers v. Tice

common law RIL 1

1. The accident was the kind that does not occur in the absence of negligence; 2. The accident was caused by an "instrumentality" within the exclusive control of the defendant; and 3. It was not due to any cause of the plaintiff.

Pure comparative fault jurisdictions

1. The plaintiff's negligence, even if 99% of the total fault found by the trier of fact, does not bar the action but diminishes recovery by the percentage of negligence found against the plaintiff; 2. a defendant whose fault is less than the plaintiff's owes only his percentage of the total fault; 3. contribution rights among defendants are based upon the defendants' percentages of fault; 4. a tortfeasor who settles with the plaintiff continues to be insulated against liability to the plaintiff and against claims for contribution.

common law RIL 2

1. The type of accident usually happens because of negligence, and if so, then 2. it usually occurs because of the defendant, rather than some other party.

criticisms of common law RIL 1

1. There may be several instruments that could be deemed the cause of the plaintiff's injury, making the test indeterminate 2. Frequently exclusive control functions poorly as a proxy for the question of which party was probably negligent.

Types of superseding cause

1. Types of superseding causes: a. acts of God b. criminal acts of third persons; c. intentional torts of third persons; d. extraordinary forms of negligent conduct.

Factors that lead to foreseeability

1. Was there a natural and continuous sequence between cause and effect? 2. Was the one a substantial factor in producing the other? 3. Was there a direct connection between them, without too many intervening causes? 4. Is the effect of cause on result too weak? 5. Is the cause reasonably likely to produce the result? 6. Could the result have been reasonably foreseen? 7. Is the result too remote from the cause in time and space?

Illinois statute of repose for medical malpractice

2 years after knowledge/reasonably should have known 4 years after injury without knowledge Thus, sometimes claims can be lost before they can be discovered.

Illinois joint liability rule

25% rule. In actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, all defendants found liable are jointly and severally liable for plaintiff's past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault shall be severally liable for all other damages. All defendants over 25% are jointly liable. 1. In Illinois, fault can be allocated to a non-party tortfeasor.

effect of finding RIL

3. The large majority of jurisdictions are said to give RIL the effect of creating a permissible inference of negligence based on circumstantial evidence. Therefore, in most jurisdictions, RIL permits the jury to infer the defendant's breach of duty. However, a showing of causation and damages is still necessary to finish the negligence analysis. 4. A dwindling minority deem that a finding of RIL creates a presumption of negligence. In these jurisdictions, a showing of RIL shifts the burden of producing evidence to the defendant to show that the defendant has not breached any duty. The defendant must then produce sufficient evidence to support a verdict in his favor, or the court will instruct the jury that breach of duty is established. A showing of causation and damages is still necessary to finish the negligence analysis. A. This is called the presumption theory. B. Duty on defendant(s) to prove innocence. If the defendant(s) cannot prove innocence, they are all jointly and severally liable. Ex.: Medical malpractice example. Where a plaintiff suffered harm in which several physicians and nurses had access to her during surgery, but she was unconscious and doesn't know the person who harmed her, each defendant has breached a duty of care unless he can exonerate himself. 3. A smaller minority of jurisdictions find that RIL means that there is a presumption of negligence, and the defendant must come forward with a PREPONDERANCE of the evidence (more than 50%)

duty of employer to control employee

A employer is under a duty to exercise reasonable care to control his employee while acting outside the scope of his employment in order to prevent the employee from intentionally harming others or creating unreasonable risk of bodily harm to them, if: A. The employee: i. is upon the premises ii. is using the chattel of the master. B. The employer: i. knows or has reason to know that he has the ability to control his servant, and ii. knows or should know of the necessity and opportunity for exercising such control.

Hegel v. Langsam

A lawsuit brought by parents against a university for failing to keep their daughter from bad influences (i.e., drugs, criminal friends, etc.). The court rejects that: there is no duty in the law for a university to monitor a student's associations or make sure she is in her dorm. This is a typical no duty opinion, where the court rejects categorically the imposition of a duty obligation.

Definition of a licensee

A licensee is a person who enters onto defendant's land with defendant's express or implied permission, and who does not enter for a purpose benefiting defendant or defendant's activities. Ex.: visiting relatives, social guests, door-to-door salespeople.

definition negligent omission

A negligent omission occurs when the defendant fails to do something that a reasonable person would have done, such as stopping at a stop sign. Negligent omissions are treated as misfeasances for which a duty is typical owed.

duty of parent to control child

A parent is under a duty to exercise reasonable care to control his minor child so as to prevent the child from intentionally harming others or creating an unreasonable risk of bodily harm to them, if the parent knows of the ability to control the child and knows of the necessity for exercising such control.

bystander claim requirements

A plaintiff may recover damages for emotional distress caused by observing a negligently inflicted injury of a third person, but only if plaintiff: 1. is closely related to the injury victim 2. is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim 3. as a result suffers serious emotional distress -- a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. In California, "domestic partners" can recover for NIED to the same extent as spouses by statute. Rest3: An actor who negligently causes sudden serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who: A. Perceives the event contemporaneously AND B. Is a close family member of the person suffering the bodily injury. Another approach: An additional requirement that the plaintiff must be in a zone of danger to recover (Rickey v. CTA) Notes: Almost no bystander cases in Illinois.

Duties owed by a social host

A social host may be liable under certain circumstances for actions of their guests. A. In New Jersey, social hosts who serve liquor to an adult social guest, knowing both that the guest is intoxicated and that he will thereafter be operating a motor vehicle, is proximately liable for injuries inflicted on a third party as a result of the negligent operation of the motor vehicle by the intoxicated adult guest. (Kelly v. Gwinnell) B. Otherwise, social host will only be liable for harm coming from foreseeable risk. C. In IL: There is complete social host liability (liability for all the consequences) for adults who serve minors alcohol, or who permit minors to drink alcohol in non-residential premises. However, common law for adults is that there is no social host liability. Statute v. common law. D. Limited social host liability for employers serving employees at events within scope of job. F. Many states have Dram Shop Acts extending liability to commercial vendors of alcohol

definition of superseding cause

A superseding cause is an unforeseeable event that breaks the chain of causation between the initial wrongful act and the ultimate injury, and thus relieves the original tortfeasor of any further liability.

100/3 amount of contribution

A tortfeasor will only be forced to pay his pro rata share (proportionate share) unless one of the other joint tortfeasors cannot pay (insolvency, uncollectability). In that case, the remaining tortfeasors will absorb his obligation in accordance with their pro rata culpability.

voluntary rescuer standard of care

A voluntary rescuer must act with reasonable care while in the process of rescuing. The person responsible for the rescue is liable for any injuries the voluntary rescuer sustains while acting reasonably. However, if the rescuer acts unreasonably, the original tortfeasor is not liable for injuries sustained while the rescuer acted unreasonably. Still, the original tortfeasor will likely have to offer some compensation via comparative fault.

Duties owed to/by people with disabilities

A. The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability. B. Sudden, unforeseeable illness/loss of consciousness is excluded from liability. C. INVOLUNTARY intoxication qualifies for disability standard.

Four instances in which there is an affirmative duty of care required absent risks created by actor:

A. Actor aware of prior conduct creating a risk of harm: B. Actor maintains a special relationship with another: C. Actor Maintains Special Relationship With Persons Posing Risks •Duty when there is a reasonably identifiable victim D. Duty Based on Voluntary Undertaking Where Services Rendered to Another

Defendant has a duty to take affirmative action to benefit plaintiff where a special relationship exists between defendant and plaintiff:

A. Employer/employee during and in the scope of employment B. Common carrier and innkeeper/customer C. School/pupil D. Parent/child E. Business/patron F. Jailer/prisoner G. Mental health professional/patient (with regard to self or third party)

Duties of people with specialized knowledge

A. Only considered in assessing if an actor's conduct is negligent if the relationship between the parties involved reliance on that knowledge/skillset. B. Learners/beginners held to the general standard. C. If the issue regards substandard judgment, specialized skills/knowledge is not considered.

Duties owed by individuals in unfamiliar circumstances:

A. The reasonable person takes reasonable steps to learn about and diagnose risk. B. Failure to do this constitutes fault. Harm that then results may be considered negligent.

the standard of care for a professional

A. The standard for professionals: the knowledge, training, and skill (or ability and competence) of an ordinary member of the profession in good standing. B. Objective standard. C. Applicable unless the actor represents himself as having less skill/knowledge. D. Performing a professional service is equivalent to an undertaking, and creates an express or implied contact exists between parties. E. National standard, if it exists, applies. G. Actor provided latitude in exercising best judgment - a mere error in judgment does not necessarily trigger liability. H. Expert testimony typically required to identify particulars of profession. I. Standard applies even for those that perform pro bono. J. P must prove that actor: 1. Breached any duty imposed upon them in serving P 2. Failed to possess requisite learning and skill required by professional. 3. Failed to act in good faith.

definition voluntary undertaking

Although defendant has no general duty to take affirmative action to aid plaintiff, in many jurisdictions, once defendant actually takes such action, he has a duty to exercise due care as to his subsequent conduct.

Definition of an invitee

An invitee is a person who enters onto defendant's land at defendant's express or implied invitation, and who enters for a purpose relating to defendant's interests or activities.

exceptions to medical malpractice

B. Exceptions: 1. Risk is commonly known. 2. Patient is unconscious. 3. Patient refuses the offered information. 4. Patient is incompetent (in this case, physician must make a reasonable attempt to procure consent from guardian). 5. Disclosure would be too harmful for the patient (decided based on medical discretion). 6. Emergency was so pressing that disclosure was not necessary. 7. Therapeutic - patient idiosyncratic and physician decides to not disclose risks for harm it may pose on patient. C. Relevant Cases

standard of care for common carriers

Common law rules hold that common carriers (planes, trains, ships, & buses) must follow the highest standard of care. This means that common carriers can be held liable even for "slight negligence." A. Rest3 has a somewhat different rule: common carriers must only exercise reasonable care toward their passengers. This reasonable care standard comes from the special relationship that they have with their passengers.

Majority test for proximate cause

Defendant only owes a duty of care to foreseeable plaintiffs who are within the zone of danger. I.e., under the circumstances a reasonable defendant would have foreseen a risk of harm to the plaintiff.

Relationship between custom and duty

Departure from custom or compliance with it is not determinative of negligence or lack thereof. It is persuasive but not conclusive. The jury will want to hear testimony from an expert, and evidence that the custom is accepted in the relevant community.

krayenbuhl

Child on RR turntable. B<PL, if precaution is available that does not harm social utility it must be employed [or negligence].

pro tanto

If P receives a partial judgment/settlement from one joint tort feasor, the non-settling party's liability for damages is credited by the amount P has received.

Davison v. Snohomish

Car breaks through bridge guard rail. B>PL.

Triggers for special duties

Consider children, emergency, disability, special knowledge/skills, custom

butterfield v. forrester

D placed pole in road, a viable passage still existed, P driving fast and hit pole, P contributory negligent because no harm would've resulted with exercise of reasonable ordinary care

wagon mound 2

D's boat leaked oil into port, water set on fire and destroys port, P [port owner] sues - original court doesn't hold P liable because D did not and could not have been expected to reasonably know that water could be set on fire - court finds a low but existent level of foreseeability of fire exists -> liability.

Anderson v. Minneapolis Ry. Co.

D's fire combined with another and harmed P's property - D liable because it's a multiple sufficient cause of harm - other fire starter and D both liable together.

Gentry v. Douglas Hereford Ranch Inc.

D falls with gun and accidentally shoots/kills P - P tried suing D for negligence because of steps - suspicion/speculation insufficient to create cause in fact, inadequate evidence to demonstrate D greatly enhanced risk of harm

H.E. Butt Groc. Co. v. Resendez

D has grape display, P slips and falls, D NOT liable because took many precautionary measures. For a plaintiff to recover in negligence for a slip and fall, she has the burden to prove that the store 1) had actual or constructive knowledge of a condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) the store did not exercise reasonable care to reduce or eliminate the risk, and (4) the store's failure to use such care proximately caused her injuries.

hill v. edmonds

D leaves car in middle of road without lights, P collides with it - D liable in light of P's negligence - multiple necessary causes.

mccoy v. american suzuki

D negligently designed car, a third party was driving and got in an accident because of negligent design, P aided in rescue and was harmed during rescue attempt - D's liability for negligent harm resulting from negligent design to driver extended to rescuer.

partial comparative fault jurisdictions

Damages are apportioned only if defendant's responsibility exceeds plaintiff's responsibility (>50%). Otherwise, plaintiff is denied any recovery. This is IL's rule.

standard of care for drivers

Drivers owe ordinary care to their passengers. There is no special relationship between drivers and their passengers. Most jurisdictions hold via statutes that unless the driver of an auto engaged in wrongful conduct amounting to gross negligence or recklessness, the driver of the auto is not liable or injuries suffered by the guest.

definition of comparative fault

In a comparative negligence jurisdiction, where plaintiff's negligence contributed to the harm suffered by him, the total damages caused by defendant may be reduced based on a determination of the relative fault of each party.

Per se v. prima facie jurisdictions

In a per se jurisdiction, the statute is the controlling standard of care and if the statute's standard of care is adopted and violated, the jury must find negligence. Prima facie: The jury has the ability to reject the statute as controlling even after its standard of care has been adopted by the court. Directed verdict: If the defendant does not offer an excuse, the court can offer a directed verdict in both jurisdictions. A directed verdict occurs when a judge renders a verdict on the case at hand rather than handing it to the jury. Usually the judge takes control when the issue is a matter of law rather than of fact. A. Per se jurisdiction: i. Plaintiff motion for directed verdict: SOMETIMES granted when the statute has been adopted; when plaintiff establishes prima facie proof of violation, cause and damage; and when no excuse is offered by the defendant. ii. Defendant motion for directed verdict: NEVER granted when the violated statute is adopted as a standard of care. B. Prima facie jurisdiction: i. Plaintiff motion for directed verdict: SOMETIMES granted in the same way as plaintiffs in per se. ii. Defendant: In a prima facie jurisdiction, the defendant has the additional argument that violating the statute might be reasonable even if the defendant has no other excuse. Effect: weakens the statute, makes directed verdict less likely.

definition proximate cause

In addition to being a cause-in-fact of plaintiff's harm, the defendant's conduct must also be a proximate, or legal, cause of the injury. The question that must be answered is: was the plaintiff's harm within the scope of liability of the defendant's conduct?

definition of last clear chance doctrine

In contributory negligence, If D had opportunity to avoid accident after opportunity was no longer available to P, D should bear loss.

Market share test

In generic products liability cases where the plaintiff demonstrates that the injury resulted from a product owned/sold by several defendants, each acting independently, but cannot identify which particular defendant's conduct actually caused the harm, the defendants will all be held severally liable for their market share of the number of products out in the marketplace. This is because liability is based on economic benefit the defendants derived from the risk-producing conduct. -Defendants act independently and so are independently (severally) liable.

joint & several liability

In jurisdictions that recognize this liability, where multiple defendants qualify as the concurrent proximate cause of an indivisible harm, joint and several liability will be given.

Plaintiff must prove in negligence per se

In order to prove negligence per se, a plaintiff must prove that: 1. The defendant violated a statute or regulation; 2. The statute or regulation was designed to protect a class of people from harm; 3. The plaintiff was in the group the statute aims to protect; and 4. The harms suffered were of the type that the statute was designed to protect against; 5. The defendant's actions were the proximate cause of the harms suffered. 6. The defendant's actions were not excused.

Duties owed by drunk people:

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

Cardozo reasonable standard of care

Majority view. 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 ("foreseeable plaintiffs") as a result of the defendant's negligent conduct (Palsgraf). The defendant is only liable to plaintiffs who are within the zone of foreseeable harm.

morrison v. mcnamara

Marks move toward recognition of national standard of care, hospitals and labs that are nationally certified held to same standard. locality standard no longer used, insulates doctors from liability for negligent conduct

Andrews reasonable standard of care

Minority view. If the defendant causes harm, he owes a duty to anyone whose harm was proximately caused by his negligence. If he can foresee any harm, he owes a duty to everyone (whether foreseeable or not).

Reasonable standard of care

Most courts today hold that there is a general duty to act with reasonable care, which is broken when the defendant fails to do what a reasonably prudent person would do given a certain level of foreseeable harm to another. There are three ways of measuring the general standard of care: Learned Hand, Cardozo, and Andrews.

definition of negligence per se

Negligence per se is invoked when a statutory violation occurs. If the conduct of an actor falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm, even if the actor had no wrongful intent, he may be liable for negligence per se.

standard of care owed by landowners to known trespassers

Ordinary standard of care: Reasonable standard of care includes duty to warn of dangerous conditions that are known to possessor, with the exception of obvious natural conditions of the land. A landowner is prohibited from willfully, wantonly, recklessly, or intentionally engaging in misconduct toward trespassers. Traps or spring guns which are likely to inflict death or grievous bodily harm will lead to liability for the land possessor.

tedla v. elman

P and brother violated statute by walking in direction of oncoming traffic, D hit and killed brother, contends P is contributory negligent - P not found negligent for violating statute - statute's intent to preserve human safety, P's violation was in an effort to enjoy greater safety. Courts won't recognize violation of statute when violation is attempt to avert danger.

martin v. herzog

P drove without headlights at night, D crashed and killed P. Statute required headlights to be on. Court adopted statute as NPS here because statute was violated, intended to protect against such harm, P was in class of protected

Jasko v. F.W. Woolworth Co.

P falls on pizza, sues D - D found guilty - higher level of care required because of nature of product/operation. 1. If operating methods of a proprietor create dangerous conditions that are continuous or easily foreseeable P need not prove D had actual or constructive knowledge.

kelly v. gwinnell

P gets into car accident with a drunk driver, D had party and served drunk driver knowing he would soon drive, D held liable for serving guest knowing he was intoxicated and would soon drive

Ortega v. Kmart Corp.

P injured after falling on puddle of milk - D found guilty because a jury could infer that milk was left there for a considerable period of time. 1. Nature of product/level of handling by consumers/type of store affects burden of care store owes customers.

davies v. mann

P owns donkey and leaves it on side of road, D driving fast over hill and hits donkey - D liable because he did not claim contributory negligence on behalf of P and D had last clear chance of avoiding accident

Anjou v. Boston Elevated Railway Co.

P slips on banana described as black, flattened, gritty - D found guilty, could be inferred that banana was there for a long time and in such a location that if D were reasonably careful would have removed it.

Joyce v. Great Atlantic and Pacific Tea Co.

P slips on banana in market - D not found guilty because no facts available to give even slight approximation of how long banana was there. 1. Commercial localities have reasonable period of time to learn about risk and to deal with it. 2. The passage of that amount of reasonable time is sufficient to give constructive notice.

Goddard v. Boston & Maine R.R. Co.

P slips on banana on train platform, sues for negligence - D not guilty because many people were on train, peel could have been dropped moments before accident.

lubitz v. wells

P sues owner of golf club, left in yard. Object not intrinsically dangerous = no foreseeability = no negligence.

pipher v. parsell

Passenger jerks steering wheel. Knowledge that a risk exists and may repeat itself = negligence.

informed consent in medical cases

Physicians have a specific duty to explain the risks of a medical procedure to a patient in advance of a patient's excision to consent to treatment. If a physician does not divulge a risk, which then materializes and causes the plaintiff's injury, the failure to divulge information and collect consent constitutes medical negligence. i. A majority of jurisdictions hold that disclosure of risks is governed by customs in the medical community. Physicians prefer this standard. ii. A close minority of courts hold that risk must be disclosed if it is "material risk," i.e., any risk that might make a difference to a reasonable person in deciding whether to proceed with treatment. Plaintiffs prefer this standard, because it is subjective. iii. The court decides which standard applies. The states diverge on which standard should be applied.

definition of assumption of risk

Plaintiff "assumes the risk" of injury from defendant's negligence if plaintiff expressly or impliedly consents to undergo the risk created by defendant's conduct.

standard of care owed by landowners toward those on land, known or unknown

Reasonable standard of care includes duty to warn of dangerous conditions that are known to possessor, with the exception of obvious natural conditions of the land. However, approximately half of all jurisdictions continue to follow traditional rules that the standard of care owed to a land entrant depends on whether the land entrant is an invitee, a licensee, or a trespasser.

Minority approach to proximate cause

Recovery to any person thereby harmed due to breach of defendant's duty of care. (Hindsight approach: Polemis) Most courts now use the foreseeability approach and have abandoned the hindsight approach.

Definition of negligence

Rest3 defines negligence as "the failure to exercise reasonable care under all the circumstances." Negligence occurs when an actor breaches a duty toward another, the breach of which causes damages.

Concurrent tortfeasors

Rest3 promotes the concurrent tortfeasors test, which holds that when several causes or acts may have contributed to the plaintiff's injury, each of which alone would have been a factual cause, each act is regarded as a factual cause of the harm.

Rest3 rule on RIL

Rest3 rule: The fact-finder may infer that the defendant has been negligent when: 1. The accident that caused the plaintiff's harm is the type of accident that ordinarily happens as a result of negligence; and 2. The defendant is a relevant member of that class of actors.

discovery rule

SOL begins to run when he plaintiff has actual knowledge or should have had knowledge of the injury or wrong. The plaintiff has to discover injury caused by the defendant -- does not have to be, but can be, negligent injury caused by defendant. SOL begins to run on long-term injury (i.e., domestic violence) after the "last exposure" since domestic violence is a long-term single act of harm, not separate incidents.

difference between assumption of risk and contributory negligence

State of Mind •AR=venturousness •CN=carelessness

mcintyre v. balentine

TN chooses to adopt comparative negligence scheme, harshness of common law rule of contributory negligence ameliorated while fault-based tort system advanced

teeters v. currey

Tennessee should join the "discovery" states that hold that the cause of action accrues when the plaintiff discovered or reasonably should have discovered the injury.

The Learned Hand formula

The Learned Hand formula is an objective standard that describes in economic cost-benefit terms the care required of the reasonable person under all the circumstances. It is adopted by the Restatement (Third). The degree of care required will vary with the nature of the foreseeable risk (P for probability), value of the loss (L for loss), and burden of reducing or eliminating the loss (B for burden). If the probability of something occurring times the value of the loss is more than the burden of reducing or eliminating the loss (PL>B), then the risk must be addressed. If it is less (PL<B), then the risk is a reasonable one and need not be addressed.

considerations in decision to adopt a statute as a standard of care

The court will not adopt as the standard of conduct of a reasonable man the requirements of legislative enactment or an administrative regulation whose purpose is found to be exclusively: 1. to protect the interests of the state its agencies 2. to secure to individuals the enjoyment of rights or privileges to which they are entailed only as members of the public, or 3. to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public, or 4. to protect a class of persons other than the ones whose interests are invaded, or 5. to protect another interest than the one invaded, or 6. to protect against other harm than that was invaded, or 7. to protect against any other hazards than that from which the harm has resulted. a) "It is well-established that the mere fact that the mere fact that the Legislature adopts a criminal statute does not mean that this court must accept it as a standard for civil liability." A crime is not equivalent to a duty in tort.

J.S. and M.S. v. R.T.H

The court's holding was that when a spouse has actual knowledge or special reason to know of the likelihood of his or her spouse engaging in sexually abusive behavior, a spouse has a duty of care to take reasonable steps to prevent or warn of the harm. Further, the breach of such a duty constitutes a proximate cause of the resultant injury. -Doesn't create a duty across the board for all spouses and alls situations; the duty is based on "particularized foreseeability."

but-for test

The defendant's conduct was the cause-in-fact of an event if that event would not have occurred but for the existence of the conduct. Would the harm have occurred but for the defendant's tortious act? If no, then the defendant's conduct is the cause in fact of the harm.

standard of care in emergencies

The standard of care in an emergency is that of a reasonable person in the same situation. There is a requirement to reasonably anticipate emergencies. However, more is expected if the defendant caused the emergency; a person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

definition of contributory negligence

Tort law requires a plaintiff to exercise due care to protect himself from injury by defendant. The plaintiff's own negligence may bar the plaintiff's recovery if his standard of care toward himself falls below the standard to which he should conform for his own protection.

Daley v. LaCroix

Under Michigan law, it is no longer necessary to have an impact requirement in an NIED claim. Michigan requirements: 1. Negligence. 2. Emotional distress which must be proximately caused by defendant's negligence. 3. Physical consequence (therefore impact requirement is satisfied.) -Some courts feel that the impact requirement wasn't separating the valid claims from the invalid claims.

blyth v. birmingham

Water pipe failure due to extreme cold was not due to the negligence of the defendant, since there had not been such an extreme cold in a long time. Defendant's conduct was reasonable given PL<B.

loss of chance of recovery

When a physician negligently misdiagnoses a potentially fatal disease and thereby reduces the patient's chance of survival, but the patient's chance of recovery was less than 50% even prior to the negligent misdiagnosis, a plaintiff may still be able to recover reduced damages. A majority of courts now hold that the plaintiff can recover reduced damages on the basis of "loss of chance of recovery." Under this theory, the plaintiff can recover an amount equal to the total damages recoverable as a result of the decedent's death multiplied by the different in percentage chance of recovery before the negligent misdiagnosis and after the misdiagnosis. i. Recovery = (damages recoverable as a result of death) x (percentage chance of recovery before misdiagnosis) - (percentage chance of recovery after misdiagnosis).

crowley v. spivey

Where a promise exists, a duty exists. A mere promise does not require successful completion of the promise, but it does require action. Where this is a promise and no action, there is liability.

Summers v. Tice

Where plaintiff's injury arises from the negligent conduct of two or more independently acting defendants, only one of whom can actually be responsible, and plaintiff is unable to establish which defendant is in fact responsible, each and every defendant's conduct is regarded as a cause-in-fact of the injury, unless a defendant can prove that he did not cause the plaintiff's injury. In effect, the burden of proof as to cause-in-fact is shifted from plaintiff to defendant.

Definition nonfeasance

a breach of a duty of care through a failure to act that results in harm to another party.

Definition misfeasance

a breach of a duty of care through improper performance of a legal act.

Definition of emergency

a sudden, unforeseen happening which requires action to correct or to protect lives and/or property.

Exceptions to the lack of duty to act affirmatively

a) a voluntary rescuer must act with reasonable care or be liable for damages; b) a person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering aid; c) people under contractual obligations to act with due care; d) people with authority to control others have an affirmative duty to exercise reasonable control (generally over a third party about to commit an injuring act); e) people with unique relationships (especially common carriers to passenger) have a duty to aid or assist to prevent reasonably foreseeable injury.

An actor who undertakes to render services that the actor knows or should know reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:

a) the failure toe exercise such care increases the risk of harm beyond that which existed without the undertaking, or b) the person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking.

Mental illness duty of care

a. An actor's mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child. Even if an adult actor is mentally a child, no exception is made. b. Reasons: i. The physical disability generally need to be significant and objectively verifiable. ii. Because mentally ill peoples' behavior cannot be modified, the cost of the risk of harming others should fall on the perpetrator, not the innocent bystander.

hodges v. carter

lawyer not held liable for error in judgment that caused plaintiff-client to lose case, must prove that but for actor's negligence that the case would not have been lost

Perkins v. Texas & New Orleans RR Co

train hits car - excessive speed of train not held to be cause in fact, since the accident would have occurred regardless of the excessive speed of the train. (but for)

standard of care for physicians

modern standard is a national customary standard rather than local/"same or similar" locale customary standard. The question that must be answered is: did the physician conform conduct to the customary practice of the average qualified practitioner?

palsgraf

newspaper-covered fireworks, vibration causes scales to fall across platform and injure P, no liability because P was outside scope of danger.

causation

cause in fact + proximate cause

Definition of custom

conduct widely accepted by a community "or others in like circumstances."

Coney v. JLG Industries

court chooses to retain joint and several liability in light of the fact that it is now a jx that employs comparative negligence, requires multiple defendants to apportion damages between themselves

fuller v. preis

decedent in car accident with D, subsequently suffered seizures and eventually committed suicide from irresistible urge - if jury found irresistible urge then D could be proximate cause - MINORITY here - most jx's would hold suicide as a intentional act, thus D not liable.

yun v. ford motor co

decedent runs across busy street to gather loose parts of tire holder; hit by car and killed; D not liable because of extraordinary/independent operation of decedent - insane, unnecessary for him to take risk

boyce v. brown

doctor failed to efficiently heal patient's ankle; Testimony from a doctor indicating that he would have employed a different standard is insufficient to establish medical malpractice unless the treatment by the D deviated from a standard of the medical community

impson v. structural metals

driver attempts to pass car on left, car attempts to turn left and accident occurs - driver violates statute prohibiting passing in left lane within 100ft of intersection - D's excuse of exercising reasonable care while violating statute rejected.

derdiarian

employer D failed to block entryway to worksite, negligent driver lost control of car, entered site, hit P - precise manner of harm need not be anticipated, D's negligence was substantial factor in creating risk of harm.

Definition intervening forces

forces that actively operate in producing harm to another after the actor has already committed his negligent act. As a general rule, a defendant will be held liable for harm caused by foreseeable intervening forces. Thus, intervening forces do not break the causal chain between the initial wrongful act and the subsequent injury because (this is the key) they are foreseeable.

Kramer Service, Inc. v. Wilkins

glass falls from hotel room, hits P in head, P develops cancer at point of injury - experts testified to a possibility (1/100) that cancer developed from injury, not probability (>50%) - evidence needed to specifically relate P to cause.

when can RIL be applied to multiple defendants?

i. They have an ongoing relationship. ii. They were in concurrent joint control. iii. In one sole exception (Ybarra), a patient can hold all the doctors and nurses liable for an injury received while under anesthesia. Although it was highly improbable that everyone was negligent, a verdict against all was sustained.

The defendant has a greater duty to warn potential trespassers of these artificial & potentially dangerous conditions IF:

i. the artificial condition is a foreseeable risk of unreasonable danger to trespassers ii. it is foreseeable that trespassers are likely to traverse where the artificial condition is located; iii. the trespasser is unaware of the risk; iv. the risk of danger of the artificial condition outweighs its utility. PL>B or <B

individual equality system

in comparative fault, plaintiff does not recover anything if her responsibility exceeds that of any single defendant.

aggregate system

in comparative fault, the percent responsibilities of all defendants are combined and apportioned only if this total exceeds plaintiff's percentage responsibility. If plaintiff has more responsibility than the aggregate, recovery is barred.

heath v. swift wings

jury needs to be instructed to objectively assess professional's conduct according to the skill and knowledge normally possessed by members of that trade in good standing in similar community [pilot crashed plane]

standard of care owed by attorneys

laintiff-client must show that but for the attorney's negligence the client would have been successful in prosecuting or defending the claim.

IL approach to settlement

pro rata

Tarasoff v. Regents of Univ. Calif.

psychiatrist had duty to protect or warn a reasonably identifiable victim of the threat of violence her patient imposed on victim

definition of pro rata

reduction of settlement based on fault percentage. P seeks damages of $100. If D1 is liable for 50% of fault and settles for only $20, D2's liability is only 50% of total damages sought = $50, not remaining $80 sought. Where plaintiff and defendant are both liable either comparatively (pure) or contributorily, if defendant's negligence is less than the plaintiff's, the defendant cannot be held for more than his percentage share of the loss.

Types of foreseeable intervening forces

rescue, urgent care, subsequent medical problems, general defenses of life, health, or property

purpose of statute of limitations

ring fresh cases, not stale cases. Witnesses may have more unreliable memories as time passes. It's unfair to the defendant to be able to bring stale cases; time delay is worrisome -- after a certain amount of time, a defendant should be given peace of mind. The longer the defendant is exposed to liability, the more expensive insurance becomes.

In rem Polemis

ship carrying vapor lit ablaze by a plank that fell and created a spark - irrelevant if type of damage unforeseeable so long as some type of damage was and the harm is direct and not remote.

kinsman

ships moored, one breaks loose and causes another to as well, ships go down river, bridge employee absent, both ships crash, lake freezes, lake floods nearby properties - both ship owners and city held liable as proximate causes because it was a foreseeable event.

zeni v. anderson

snow/sidewalk, P hit by car while walking on street along commonly used pathway - P not held contributorily negligent - sufficient excuse because of snow on sidewalk.

several liability

some jurisdictions only recognize several liability. In that case, tortfeasor is only liable for comparative fault attributed to him for an indivisible harm. If the liability of a second defendant is <25%, it is uncollectable. If it is uncollectable, it is shifted over to the first defendant and the first defendant is responsible for all of the damages. Once joint liability is eliminated, there is no need for contribution. Contribution goes hand in hand with joint liability.

L.S. Ayres v. Hicks

store held liable for aggravation of injuries when boy got fingers stuck in escalator and store failed to act quick enough to limit injuries L.S. Ayres created the risk by having the escalator in the first place. The creation of the risk does not have to be tortious. In that case, the defendant has a duty to provide affirmative assistance. When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty toe exercise reasonable care to prevent or minimize harm. example of business owing duty to its patrons to act and help them if in trouble.

Duties owed by children

the standard of care imposed upon a child is that of a reasonable child of similar, age, intelligence, and experience. Analysis focuses on the individual child and his/her qualities & attributes. A. However, a child engaged in an adult activity is held to the same standard as an adult. B. A child cannot be negligent if less than 5 years old. C. Most states don't hold parents vicariously liable for their children's conduct. D. Maximum age this standard has been extended to is 17.

summers v. tice

two defendants liable to P for shooting him - can't tell which shot him - burden shifts to each defendant to disprove their liability - if P can show harm was result of tortious conduct -> both liable, apportion damages between them, if one is judgment proof the other pays in full.

Bierczynski v. Rogers

two defendants racing, only one hits P, both held jointly and severally liable - acted in concert, induced and encouraged one another, shared common design of racing

definition of indemnity

when a party held vicariously liable seeks full recovery against party directly responsible for harm.

contribution in IL

•D must bring action for contribution before judgment issued •Pro rata basis used - division according to relative fault of parties

satisfaction and release

•If P receives satisfaction of a judgment then ALL joint tort feasors for that action are released from liability •Multiple judgments permissible, only ONE satisfaction (full reception of damages)

contribution unavailable when

•In JX's where joint and several liability abolished •For intentional tort feasors at common law view •Immune individuals •Intrafamily, government, charity, employer •Unavailable from settling defendant

joinder by plaintiff permissible when defendants are:

•Persons acting in concert •Persons acting independently and create same harm •Persons acting independently to create different harm