Torts - Negligence
Children - Particular Standards of Conduct (Duty)
A majority of courts take the view that a child is required to conform to the standard of care of like age, education, intelligence, and experience. This permits a subjective evaluation of these factors.
Professional - Particular Standards of Conduct (Duty)
A person who is a professional or has special skills is required to possess and exercise the knowledge and skill of a member of that profession or occupation in good standing. For doctors, most courts will apply a national standard of care to evaluate their conduct. The professional must also use such superior judgement, skill, and knowledge as he actually possesses. Thus, a specialist might be held liable where a general practitioner would not.
Rescuers (Duty)
A rescuer is a foreseeable plaintiff as long as the rescue is not reclines; hence, defendant is liable if he negligently puts himself or a third person in profile and the plaintiff is injured in attempting a rescue.
Superseding Force (Proximate Cause)
A superseding force is one that serves to "break the causal connection" between defendant's initial negligent act and the ultimate injury, and itself becomes a direct, immediate cause of the injury. Thus, defendant will be relieved of liability for the consequences of his antecedent conduct.
"But For" Test (Actual Cause/Cause in Fact)
An act or omission to act is the cause in fact of an injury when the injury would not have occurred "but for" the act.
General Rule - No Duty to Act (Affirmative Duties to Act)
As a general matter, no legal duty is imposed on any person to affirmatively act for the benefit of others. This general rule is, however, subject to exception.
Unforeseeable Results Caused by Unforeseeable Intervening Forces - Defendant Not Liable
As a general rule, intervening forces that produce unforeseeable results (i.e., results that were not within the increased risk created by defendant's negligence) will be deemed to be unforeseeable and **superseding**.
Violation of Statute (Breach of Duty)
As we have seen above, the existence of a duty owed to plaintiff and breach thereof may be established by proof that defendant violated an applicable statute.
Custom or Usage (Breach of Duty)
Custom or usage may be introduced to establish the standard of care in a given case. However, the customary methods of conduct do not furnish a test that is conclusive for controlling the question of whether a certain conduct amounted to negligence.
Unforeseeable Harmful Results-Defendant Not Liable (Proximate Cause)
In the rare case where defendant's negligent conduct creates a risk of a harmful result, but an entirely different and totally unforeseeable type of harmful result occurs, most courts hold the defendant is not liable for that harm.
Prenatal Injuries (Duty)
(1) "Wrongful Life" Action Not Recognized - failure to diagnose congenital defect of fetus or perform contraceptive procedure does not permit the **unwanted child** to recover. (2) "Wrongful Birth" Actionable - **Parents** can have an action for failure to diagnose defect (3) "Wrongful Pregnancy" - **Parents** can have an action failure to properly perform a contraceptive procedure
Causation
(1) Actual Causation (2) Proximate Causation
Res Ipsa Loquitur - What Plaintiff Must Establish (Breach)
(1) Inference of Negligence - That the accident causing his injury if the type that would not normally occur unless someone was negligent; (2) Negligence Attributed to Defendant - Evidence connected defendant with the negligence ("exclusive control"); (3) Plaintiff's Freedom from Negligence (i.e. plaintiff did not bring about negligence)
Common Fact Situations - Independent Intervening Forces (Proximate Cause)
(1) Negligent Acts of Third Persons - Defendant is liable for harm caused by the negligence of third persons where such negligence was a foreseeable risk created by defendant's conduct. (2) Criminal Acts and Intentional Torts of Third Persons - If defendant's negligence created a foreseeable risk that a third person would commit a crime or intentional tort, defendant's liability would not be cut off by the crime or tort. (3) Acts of God - Acts of God will not cut off defendant's liability if they are foreseeable.
Independent Intervening Forces (Proximate Cause)
Independent intervening forces also operate on the situation created by defendant's negligence but are independent actions rather than natural responses or reactions to the situation. Independent intervening forces may be foreseeable where defendant's negligence increased the risk that these forces would cause harm to plaintiff.
Concurrent Causes ("But For" Test, Actual Cause/Cause in Fact)
The "but for" test applies where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient (e.g. two negligently driven cars collide, injuring a passenger). But for any of the acts, the injury would not have occurred.
General Duty of Care (Duty)
A general duty of care is imposed on all human activity. When a person engaged in an activity, he is under a legal duty to act as an "ordinary, prudent, reasonable person." It is presumed that an ordinary, prudent, reasonable person will take precautions against creating an unreasonable risks of injury to the other person. No duty is imposed on a person to take precautions against events that cannot be reasonable foreseen.
Standard of Care in Emergency Situations (Duty)
The existence of an emergency, presenting little time for reflection, may be considered as among the circumstances under which the defendant acted, i.e., he must act as the reasonable person would under the same emergency. The emergency may not be considered, however, if it is the defendant's own making.
Joint Causes - Substantial Factor Test (Additional Tests, Actual Cause/Cause in Fact)
Where several causes commingle and bring about an injury - and any one alone would have been sufficient to cause the injury - it is sufficient if defendant's conduct was a "substantial factor" in causing the injury.
Breach of Duty (General)
Where the defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. Whether the duty of care is breached in an individual case is a question for the tried of fact. Evidence may be offered to establish the standard by which defendant's conduct is to be measured, e.g., custom or usage, applicability of a statute, etc.
Alternative Causes Approach (Additional Tests, Actual Cause/Cause in Fact)
(a) Burden of Proof Shifts to Defendants - A problem of causation exists where two or more persons have been negligent, but uncertainty exists as to which one caused plaintiff's injury. Under the alternative causes approach, plaintiff must prove that har has been caused by one of them (with uncertaintly as to which one). (b) Applied in Enterprise Liability Cases - This concept has been extended in some cases to encompass industry groups (% national marketshare).
Informed Consent - Professional Standard (Duty)
A doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an "informed consent" to the treatment. If an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent to the treatment, the doctor has breached this duty.
To Whom Is the Duty of Care Owed? (Duty)
A duty of care is owed only to foreseeable plaintiffs - the class of persons who were foreseeably endangered by the defendant's negligent conduct. Someone who is not within the "zone of danger" from the defendant's conduct cannot recover.
Negligent Infliction of Emotional Distress (Duty)
A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (1) Plaintiff must be within the "zone of danger," and (2) Plaintiff must suffer physical symptoms from distress
Indirect Cause Cases (Proximate Cause)
An indirect cause case is one where the facts indicate that a force came into motion after the time of defendant's negligent act and combined with the negligent act to cause injury to plaintiff. In short, indirect cause cases are those where intervening forces are present. Whether an intervening force will cut off defendants' liability for plaintiff's injury is determined by foreseeability.
Common Carriers and Innkeepers (Duty)
Common carriers and innkeepers are required to exercise a very high degree of care toward their passengers and guests, i.e., they are liable for slight negligence.
Actual Causation (Cause in Fact) (Causation)
Before the defendant's conduct can be considered a proximate cause of plaintiff's injury, it must first be a "cause in fact" of the injury: (1) "But For" Test (2) Joint Causes - Substantial Factor Test (3) Alternative Causes Approach ((i) Burden of Proof Shifts to Defendants; (ii) Applied in Enterprise Liability Cases))
Foreseeable Results Caused by Unforeseeable Intervening Forces - Defendant Usually Liable (Proximate Cause)
Defendant is negligent because his conduct threatens a result of a particular kind that will injure plaintiff. This result is ultimately produced by an unforeseeable intervening force. Most courts would generally find liability here because they give greater weight to foreseeability of result than to foreseeability of the intervening force. An exception exists, however, where the intervening force is an unforeseeable crime or intentional tort of a third party; it will be deemed a **"superseding force"** that cuts off the defendant's liability.
Basic Standard - The Reasonable Person (Duty)
Defendant's conduct is measured against the reasonable, ordinary, prudent person. This reasonable person has the following characteristics by an objective standard: (1) Physical Characteristics - Same as Defendant's (2) Average Mental Ability (individual mental handicaps are not considered; insanity is no defense; sudden consent exception) (3) Same Knowledge as Average Member of Community
No Directed Verdict for Defendant (Effect of Res Ipsa Loquitur (Breach))
Does not change the burden of proof, nor does it create presumption of negligence. Where the Res Ipsa elements are established, plaintiff has made a prima facie case and no directed verdict may be given for the defendant.
Negligence (Prima Facie Case)
Elements: (1) Duty - The existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (2) Breach - Breach of that duty by the defendant; (3) Causation - That the breach of duty by the defendant was the actual and proximate cause of the plaintiff's injury; and (4) Damage - Damage to the plaintiff's person or property.
Negligence Per Se (Duty)
Elements: (1) Plaintiff must show that she is in the class intended to be protected by the statute. (2) The plaintiff must show that the statute was designed to prevent the type of harm that the plaintiff suffered. Plaintiff will have established a "conclusive presumption of duty and breach of duty." (Plaintiff still must establish causation and damages to complete the prima facie case for negligence.) Minority of cases hold that either (i) a rebuttable presumption as to duty and breach thereof arises, or (ii) the statuary violation is only prima facie evidence of negligence.
Proximate Cause (Legal Causation)
In addition to being a cause in fact, the defendant's conduct must also be a proximate cause of the injury. Not all injuries "actually" caused by defendant will be deemed to have been proximately caused by his acts. Thus, the doctrine of proximate causation is a "limitation of liability" and deals with liability or non liability for unforeseeable or unusual consequences of one's acts.
Duty to Prevent Harm from Third Person (Affirmative Duties to Act)
Generally, there is no duty to prevent a third person from injuring another. In some situations, however, such an affirmative duty might be imposed. In such cases, it must appear that the defendant had the actual ability and authority to control the third person's action. (i.e. employers for employees) It is generally required for imposition of such a duty that the defendant knows or should know (foreseeability) that the third person is likely to commit such acts as would require the exercise of control by the defendant.
Unforeseeable Extent to Severity of Harm (eggshell-skull plaintiff) - Defendant Liability (Proximate Cause)
In both direct cause and indirect cause cases, the fact that the extent or severity of the harm was not foreseeable foes not relieve defendant of liability; i.e., the tortfeasor takes his victim as he finds him. This is also known as the **"eggshell-skull plaintiff" rule. This, where defendant's negligence causes an aggravation of plaintiff's existing physical or mental illness, defendant is liable for the damages caused by the aggravation.
Foreseeable Harmful Results-Defendant Liability (Proximate Cause)
If a particular harmful result was at all foreseeable from defendant's negligent conduct, the unusual manner in which the injury occurred or the usual timing of cause and effect is irrelevant to the defendant's liability.
Bailment Duties
In a bailment relationship, the bailor transfers physical possession of an item of personal property to the bailee without a transfer of title. The bailee acquires the right to possess the property in accordance with the terms of the bailment. A bailment obligates the bailee to return the item of person property to the bailor or otherwise dispose of it according to the bailment terms.
Automobile Driver to Guest (Duty)
In most jurisdiction today, the duty owed by the driver of an automobile to a rider is one of ordinary care.
Common Foreseeable Intervening Forces (Proximate Cause)
Intervening forces that are normal responses or reactions to the situation created by defendant's negligent act are almost always foreseeable: (1) Subsequent Medical Malpractice - The original tortfeasor is usually liable for the aggravation of plaintiff's condition caused by the malpractice of plaintiff's treating physician. (2) Negligence of Rescuers - Generally, rescuers are viewed as foreseeable intervening forces, and so the original tortfeasor usually is liable for their negligence. (3) Efforts to Protect Person or Property - Defendant is liable for negligent efforts on the part of persons to protect the life of property of themselves or third persons endangered by defendant's negligence. (4) "Reaction" - When defendant's actions cause another to "react" (e.g., fire a gun), liability generally attaches for any harm inflicted by the "reacting" person no another. (5) Subsequent Accident - Where the plaintiff suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, the original tortfeasor is usually liable for damages arising from the second accident.
Unforeseeable Results Caused by Foreseeable Intervening Forces - Defendant Not Liable
Most intervening forces that produce unforeseeable results are considered to be unforeseeable intervening forces. Similarly, most results caused by foreseeable intervening forces are treated as foreseeable results. in the rare case, where a foreseeable intervening force causes a totally unforeseeable result, more courts would not hold the defendant liable.
Assumption of Duty to Act by Acting (Affirmative Duties to Act)
One who gratuitously acts for the benefit of another, although under no public duty to so do in the first instance, is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance.
Peril Due to Defendant's Conduct (Affirmative Duties to Act)
One whose conduct (whether negligent or innocent) places another in a position of peril is under a duty to use reasonable care to aid or assist that person.
Res Ipsa Loquitur (Breach of Duty)
The circumstantial evidence doctrine of res ipsa loquitur ("the thing speaks for itself") deals with those situations where the fact that a particular injury occurred may itself establish or tent to establish a breach of duty owed. Where the facts are such as to strongly indicate that plaintiff's injuries resulted from defendant's negligence, the trier of facts may be permitted to infer defendant's liability.
Relationship Between P & D - Special Situations (NIED, Duty)
The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant's negligence has great potential to cause emotional distress. Most states drop the requirement of physical symptoms in this situation as well. (Think of death circumstances: false notice of death & mishandling corpses.)
Effect of Defendant's Evidence of Due Care (Effect of Res Ipsa Loquitur (Breach))
The effect of defendant's evidence that due care was exercised has the same effect in these cases as in all other cases. If the jury rejects the defendant's evidence and draws the permissible inference of negligence, it will find for the plaintiff. If defendant's evidence overcomes the permissible interference such that may be drawn from the Res Ipsa proof, the jury may fine for the defendant. Such a finding for the defendant may result even where defendant rests without offering evidence on the issue if the jury elects not to infer negligence.
General Rule of Liability (Proximate Causation)
The general rule is that the defendant is liable for all harmful results that are "the normal incidents of and within the increased risk of caused by" his acts. In other words, if one of the reasons that make defendant's act negligent is a greater sin or a particular harmful result occurring, and that harmful result does occur, defendant generally is liable. This test is based on **"Foreseeability"**
Bystander - Special Situations (NIED, Duty)
Traditionally, a bystander outside the "zone of danger" of physical injury who sees the defendant negligently injuring another could not recover damages to her own distress. A majority of states now allow recovery in these cases as long as: (1) the plaintiff and the person injured by the defendant are closely related; (2) the plaintiff was present at the scene of the injury; and (3) the plaintiff personally observed or perceived the event. (Also many states require physical symptoms.)
Minimum Age for Capacity to Be Negligent (Children, Duty)
There is a minimum age for which it is meaningful to speak of a child being capable fo conforming his conduct to. standard of care. Most courts, however, do not fix this age at any arbitrary figure. Most courts do say that children below the age of five do not have a legal duty of reasonable care or the capacity to be negligent.
Children Engaged in Adult Activities (Duty)
Where a child engages in a potentially dangerous activity that is normally one that adults engage in, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity, e.g., driving an automobile
Foreseeable Results Caused by Foreseeable Intervening Forces - Defendant Liability (Proximate Cause)
Where defendant's negligence caused a foreseeable harmful response or reaction from an intervening force or created a foreseeable risk that an intervening force would harm plaintiff, defendant is liable for the harm caused.
