Negligence

Torts I Outline Page 1 of 7 1. 2. Negligence Prima Facie a. All elements of negligence are fulfilled (Duty, std of care, breach, proximate cause, actual damage) Duty (obligation from Δ to Π)  gets you into court, On exam, argue both Malfeasance and Nonfeasance a. Misfeasance i. Risky Affirmative Act ii. Creates a Zone of Danger 1. Distance 2. Time 3. Enclosure iii. Foreseeable Π’s are in the Zone of Danger b. Nonfeasance i. Direct 1. Contract – Limit to reasonable K & known groups 2. Special Relationships  must look at the purpose of the relationship (unrelated purpose, not good) a. Social Venture (connotes planning)  Weakest b. Innkeepers c. Owners of land with public access d. Custody 3. Restatement 324 (start & stop care) a. Caregiver with no prior duty to care is liable if: (argue what is “take charge”) i. Fails to exercise reasonable care to secure safety of other, OR, ii. Discontinues aid, leaving other in worse position than before. b. Cannot interfere w/rescue & reliance 4. Statute a. Π is in class specified by legislature b. Cause of action promotes legislative purpose c. Cause of action is consistent with legislative scheme ii. Indirect (Obligation to a third party) 1. Treatment (Dr.-patient) a. Special relationship between Δ and pod b. Δ must know that pod is dangerous c. Victim must be identifiable (in some jurisdictions, by name) d. POLICY: Not to erode the Dr.-Patient relationship 2. Misrepresentation (Randi v Monroe School bd.) a. Δ must have knowledge of dangerous conduct of pod b. Danger must be foreseeable that it would happen again c. Δ must misrepresent pod – neutral is O.K. d. Reliance on misreprentations e. POLICY: Prevent future harm 3. Entrustment a. Entruster-entrustee relationship b. Δ must know of dangerous conduct c. Π’s must be foreseeable Π’s 4. Social Host (“Must Know”) a. Serve ROH to minor b. Minor gets intoxicated c. Driving c. Status i. Landowners 1. Trespassers a. On land without permission b. Standard of Care: do nothing wantonly or willfully to harm c. May become licencee with use and notice to landowner d. Child Trespassers (Attractive Nuisance) - Possessor of land is liable if (ALL): i. P-Possessor know that children are likely to play there ii. R-Possessor should know of unreasonable risk of serious harm to children iii. Y-Because of youth, children do not realize danger iv. C-Burden of protection is slight compared to risk to children v. E-Possessor fails to exercise reasonable care to eliminate danger. 2. Licencee Torts I Outline Page 2 of 7 a. b. c. Invitee a. b. c. On land with permission seeking a material benefit or Social Guest Must be given a proper amount of time to leave before becoming a trespasser Standard of care to protect against known dangers 3. d. On land with permission giving material benefit OR On land open to public use – Charge Fee? If so,  duty Standard is to protect against known dangers and unknown dangers if dangers may be known upon inspection 4. Reasonable landowner: a. Natural Dangers (no protection) v made dangers (must protect) b. Replaces licencee and invitee in some jurisdictions c. Factors to consider in protection: forseeability, purpose of visit, circumstances of visit, use of premesis, reasonable inspection, reasonable repair/warn, burden v. cost to provide protection. d. Obvious and Dangerous (Divided jurisdictions) i. Obvious dangers do not need fixig or warning because they are obvious ii. If they are obvious, then the duty to protect is greater e. Using land to create tortuous situation for people outide of land (bungee jumping near freeway) 5. Criminal activity by 3rd person a. Specific Harm Rule  no duty unless owner is aware of specific harm b. Prior similar incident rule  forseeability established by similar crimes nearby c. Totality of the Circumstances  all relevant facts in circumstances bear on forseability d. Balancing Test  Balance forseeability of specific harm with burden of protecting against harm ii. Intrafamily 1. Child suing parent a. Reasonable parent standard (in some jurisdictions) i. Gives parents latitude in raising children ii. Compares parent to parent b. Parental immunity (abolished in most states) c. Goller Standard  parental immunity if: i. Act involves parental authority OR ii. Act involves provision of food, clothing, housing, medical/dental and other care 2. Parent suing child (most statets do not allow) 3. Parent suing parent (all but one state allow) iii. Governmental 1. Municipal (“Riss” lye case) a. Duty exists when authorities undertake responsibility to the injured party in a situation (direct communication and reliance) b. This is the rule in jurisdictions that have abrogated complete immunity c. Special relationship elements: i. Municipality assumes duty ii. Municipality is aware of possible harm iii. Direct contact between municipality and injured iv. Reliance of injured on municipality 2. State  qualified immunity from procedural decisions EXCEPT where: a. Planning was inadequate OR b. Planning was unreasonable OR c. State was aware of the danger and did nothing in a reasonable time 3. Federal  Immune if: a. Federal statute prescribes coarse of action, and employee did follow that course OR b. Acts of employee are types that are exempt: (ministerial = sue, Discresional = no sue) i. Political policies ii. Social policies iii. Economic policies c. Ferres Docterine Nonphysical Harm i. NIED (negligent infliction of emotional distress) *Split in all Juris  Physical manifestations?, Shock?* 1. Direct a. Impact Torts I Outline Page 3 of 7 Zone of Danger Fear of imminent personal injury Exposure  no symptoms of disease, no recovery available Foreseeability mental distress & severe emotional distress i. Botched funerals ii. Misplaced corpses iii. Forseeability of severe emotional distress to ordinary person, Π suffers SED 2. Indirect (Bystander) a. Zone of Danger b. Dillon i. Death or serious injury ii. Π near scene of incident iii. Shock resulted from sensory observance iv. Π and victim are closely related c. Portee i. Death/serious injury by Δ’s negligence ii. Marital/intimate familial relationship iii. Observance @ scene of accident iv. Resulting severe emotional distress d. Loss of Consortium i. Available to spouses, children (in some juris) ii. Not a tort in itself ii. Economic harm 1. No threat of physical injury a. Foreseeability test  duty to all who i. Reasonably foresee to obtain ii. Reasonably foresee to rely on b. Near-privity test i. One step away from privity c. Restatement 552 i. Doc supports false info for guidance of others in business ii. Reliance on the doc 1. limited group of known to supply info or intended to supply (p. 304) 2. Threat of physical injury a. Reasonable foreseeable losses b. Identifiable class iii. Life and Death 1. Wrongful Birth (injury is child itself, brought by parents) a. Limited Recovery b. Full Recovery c. Limited Recovery minus emotional distress 2. Wrongful Life ( injury is own life, brought by child) 3. Wrongful Living ( injury is prolonging of life) a. Supreme  right to die is not protected by constitution Standard of Care a. Reasonable Person Under the Circumstances i. Reasonable Professional under circumstances 1. Used only when act in question is within professional training. 2. Medical Malpractice (Dr.’s set standard of care) a. Procedures i. Standard set by expert witnesses 1. Locality: a. National Standard (info shared all over country)  specialists b. Regional Standard (in some jurisdictions)  general practice 2. Speciality: a. Same speciality is required b. “Mirror” speciality & education not required ii. Expert witnesses must be used when jury has not common knowledge iii. Expert witness set std of care for jury in Med Mal only. iv. For different schools of thought, both are good, Δ wins b. Informed Consent  Materiality (material risks in procedure/nonprocedure) b. c. d. e. 3. Torts I Outline Page 4 of 7 i. Patient Oriented:- Reasonable patient defined by DR.’s (expert witnesses) 1. Subjective: Dr. must taylor materiality to patients circumstances 2. Objective: Reasonable patient for mateariality test ii. DR. oriented: Dr. decides what is informed consent to patients ii. Reasonable Child Under Circumstances 1. same age, intelligence and experience 2. UNLESS acting as an adult iii. Reasonable Parent Under the Circumstances – gives parents some parental discression/leeway iv. Circumstances: 1. Gender 2. Sudden physical illness 3. Physical Challenge – Split, some J’s Physical Challenge is a person 4. Superior attributes 5. Emergency: Reasonable person in the emergency 6. Custom a. Δ or Π may argue accordance w/ or distance from custom b. This evidence is not conclusive, jury must decide 7. MENTAL ILLNESS IS NOT A CIRCUMSTANCE Proof of Negligence a. Learned Hand Test i. B