NEGLIGENCE Big N – Cause of action, a tort little n – action or failure to act that is unreasonable (duty and breach) 1) Duty of due care a. Fx Palintiff b. NIED 2) Breach of duty 3) Cause in fact 4) Proximate Cause 5) Damages I. Duty of reasonable care. A. Learned Hand Test – Gravity of danger X Foreseeability of danger = Burden of prevention. i. Cardozo and the Majority say that you only have a duty to reasonable foreseeable plaintiffs (Zone of danger). B. In looking at Burden of prevention, take into account social value attached. C. Assume the following: 1. Average Intelligence (objective) 2. Basic Knowledge, vague minimum knowledge. If nearly everyone in the community knows of a danger then you should know. People with superior knowledge are held to that knowledge. 3. Custom reflects the experience of many. If a custom is violated it may be considered evidence of negligence. Custom is not despositive. Doctors must follow a “respected school of thought” not custom. 4. In an Emergency we take the circumstances into account. If the person created his own emergency he could be negligent in the first place. 5. Physical Characteristics are taken into consideration. This may be disability or exceptional ability. 6. Children are judged based on Age, Intelligence, Experience. Exception – If engaged in inherently dangerous activity. 7. Insanity is generally not taken into account. A minority of courts will allow a sudden insanity exception. i. Exception – With contributory negligence, insanity and retardation will get the person off the hook. D. Duty for professionals and those who hold themselves as having exceptional skill. 1. Assume the learning, skill and ability of an ordinary (not average) member of profession in good standing. 2. Must exercise own best judgment 3. Use of due care E. Medical Malpractice 1. P must bring in expert witnesses.
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2. Locality rule is used – The conduct of members of the medical profession is to be measured solely by the standard of conduct expected of other members of the medical profession in the same type of community. F. Informed Consent (Medical Malpractice) 1. Failure to inform of the material risk prior to obtaining consent; i. A risk is material if a reasonable person would attach significance to the information. Minority uses just subjective approach, is the risk material to this person. 2. Causation; i. P must prove, subjectively, that he would not have gone forward with the procedure if he knew the info. 3. Damages Exception to rule – Therapeutic privilege – A doctor can choose not to inform of risk if it is an emergency or if they reasonably feel it is in the best interest of the patient. Ia. Limited Duty – No limited duty on parasitic claims A. NIED – Some sort of physical manifestation of injury required. 1. Direct NIED i. Zone of Danger ii. Special Cases a. If not in the zone of danger can still recover is a relative or pet’s corpse has been mishandled. Or in erroneous notification of harm or death to relative. iii. Special Relationships a. Mother to fetus 2. Bystander NIED i. Thing Approach a. P closely related to injury victim; b. P present at the scene of the injury producing event and is then aware it is causing injury to the victim; c. As a result, P suffers serious ED that is not abnormal and that is worse than what would be expected in a disinterested witness. ii. Zone of Danger approach a. If you are a bystander, you can only recover if you yourself are in the zone of danger and you are fearful for your own safety. B. Failure to Act 1. Misfeasance v. Non-feasance 2. Duty to rescue – Generally no duty i. Special Relationship – Parent/Child; Business/Customer; etc. ii. If you cause the peril iii. If your instrument caused the harm iv. If you assume the duty by putting them in a worse position by getting involved 3. Duty to get involved – Control and responsibility i. Spousal molestation ii. Psychologist
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C. Unborn Children 1. For award to damaged fetus, minority says baby needs to be born alive 2. Wrongful Life i. Brought about by child – Courts allow recovery for special damages but not general. 3. Wrongful Birth i. Brought about by parent – Generally medical expenses but not emotional distress. Minority allows pain and suffering and emotional. Do not allow double recovery along with wrongful life. No award when child is born healthy. D. Wrongful Death 1. Parasitic claim, attached to battery. 2. Must be a close relative 3. Allow out of pocket losses, split on whether to allow pain and suffering E. Owners and Occupiers of land 1. Trespassers – Typically no duty of care to trespassers. i. Except in a place where it is anticipated that the public might be ii. Except when the landowners acts are wanton or reckless iii. Except with the owners active operation (running over with train after seeing the person on your land) 2. Licensee – Anyone on your property with permission who is not an invitee. Typically same duty as trespasser except the owner must warn of any hidden dangers. 3. Invitee – any one on land where the owner hopes to gain financially from it (business purpose or private open to the public). Use normal duty breach analysis for invitees. 4. Modern trend is to treat everyone the same and just go through learned hand analysis, take into account that the person is a trespasser or whatever. II. Breach of Duty – Standards of determining A. Stare Decisis – Courts decide as a matter of law B. Violation of Statute 1. Elements a. Injured party must be a member of the class of persons the statute seeks to protect. b. The type of injury that occurred must be one that the legislature intended to protect; and c. The violation proximately caused the injury. 2. Approaches a. “Negligence per se” – Jury decides if the 3 elements are met and that is it. There are some exceptions such as emergency and the judge can decide if the excuse is valid. b. Rebutable Presumption (California) – If elements are met we shift the burden of proof and defendant must prove it was not negligence, jury makes all determinations. c. Some Evidence – Just goes to show some evidence of negligence but no more. Will prevent directed verdict against the P.
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C. Res Ipsa Loquitur – The thing speaks for itself 1. Elements a. An event which does not normally occur in the absence of negligence; b. The instrumentality causing the injury must be within the D’s exclusive control or custody (not so strict, basically asking is it most likely that the D caused the negligence); c. The injury must not be due to P’s conduct. i. In most jurisdictions this element has been changed to one of comparative negligence. 2. Usually not used with 2 or more defendants because the second element is not met. a. Highly Integrated Service Exception – With medical malpractice cases if the P can not pick out the specific D, all will be held liable. 3. Approaches a. Majority approach – Inference of negligence. Gets you past a summary judgment against you but that is all. b. Weak Presumption approach (CA) – The RIL will put us in favor of the plaintiff but barely, the D can produce any credible evidence to push us back in his favor. c. Rebutable Presumption approach – Pushes the burden all the way on the defendant. Assume guilty and now the D must prove otherwise. 4. Respondiat Superior – Employee acts on behalf of employer. Unless the person is an independent contractor. D. Learned Hand Test III. Cause in Fact – But For Cause – Sine Qua Non (without which a thing can not be) A. But For Cause – Most common approach. 1. Reduced Chance of Survival – For Medical Malpractice the court will sometimes allow a reduced chance of survival as a but for cause. In such cases the recovery is limited to out of pocket expenses. 2. Multiple Causes do not wipe out but for cause. 3. With multiple defendants are responsible then each defendant can be 100% liable – Joint and Several Liability. B. Traditional Substantial Factor Test – Used for concurrent causes 1. Elements a. 2 or more forces combine to bring about the harm; b. The defendant is responsible for only one of them, which is a substantial factor in bringing about the harm; and c. Each force would have been sufficient to bring about the harm done. C. Alternative Causation Test 1. Elements a. Plaintiff is injured by the negligence of only one of multiple defendants; b. All of the defendants acted negligently toward the plaintiff; and c. Plaintiff cannot establish which defendant’s negligence caused the injury.
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2. Result – The burden of proof is shifted to the defendants to prove he or she did not cause the injury. D. Enterprise Liability Test 1. Elements a. Plaintiff is injured by the negligence of a manufacturer making a product; b. The market consists of goods that are in all material aspects identical; c. The plaintiff has named defendants representing a substantial share of the market; and d. The plaintiff cannot reasonably establish which manufacturer made the product that injured him or her. 2. Result a. The burden of proof is shifted to each defendant to prove it did not cause the injury. b. Each defendant’s liability is limited to its share of the market. E. California Substantial Factor Test Simply asks whether defendant’s misconduct was a substantial factor in causing the plaintiff’s harm. Does not require any of the elements above. Used in California in place of any of the other tests. IV. Proximate Cause – As a matter of policy do we want to impose liability in situation. A. General 1. All about policy 2. “Aladdin’s lamp,” court will massage to get proper results B. Egg Shell Plaintiff or Thin Skull Plaintiff Rule – Take the plaintiff as you find him. D is responsible for all injuries, foreseeable or not, as long as some injury was foreseeable. C. Reasonable Foreseeablity Test 1. Proximate cause exists only if P’s injury was a reasonable foreseeable result of D’s negligence. 2. Including reasonable foreseeable intervening causes such as rescue attempts, second accidents, escape attempts, negligence by doctors aggravating the injury. D. Direct Cause Approach 1. Proximate cause exists if the injury is a direct and natural consequence of D’s negligence under the existing set of circumstances. 2. Easier to get than Rx Fx test. All you have to show is that a direct chain of events led to the damage. E. Hindsight approach 1. Proximate cause exists if, in hindsight, it is not highly extraordinary that the defendants negligence brought about the harm. F. Intervening Cause 1. General Rules i. If an intervening cause is not reasonably foreseeable then it is a superceding cause and gets the D off the hook. ii. The cause is in existence when the D acts, then it is not an intervening cause. iii. Don’t look at the manner of harm, just look at the type of harm.
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2. Intentional or Criminal intervening causes i. Traditional rule is that intentional or criminal intervening causes always supercede, regardless of reasonable forseeability. ii. Modern trend is to treat it just like any other act. 3. Alcohol to guests 1. Majority does not impose a social host duty. 2. If guest is a minor then all bets are off. 3. More likely for courts to hold a commercial establishment liable for serving too much alcohol. 4. Rescuers – Typically not intervening causes 1. If D’s negligence causes the need for someone to be rescued, then D is also responsible for rescuer unless the rescuer is reckless. 2. The Rescuer must still prove his harm was reasonably foreseeable. 5. Second Injury caused by a weakened condition. 1. If the negligence caused a weakened condition and that led to another injury, the D is responsible for both. 6. Doctor’s malpractice is usually not considered a superceding intervening cause unless it is intentional. 7. Suicide 1. Involuntary suicide (the person is insane) is usually not considered a superceding intervening cause. 2. Voluntary suicide is a superceding intervening cause. ON EXAM 1. Is any harm reasonably foreseeable, are there any intervening causes and are they reasonably foreseeable. 2. Then talk about direct cause approach. 3. Then talk about hindsight approach. 4. Then talk about Andrews sense of justice approach. But remember that Andrews is not really an approach, he is just trying to observe what is going on and say that we are using the other approaches as tools to bring us to a rough sense of justice. V. Damages 1. Generally a. Compensatory (try to make the plaintiff whole) i. General (3X special) – Pain and Suffering (emotional and physical) ii. Special – Out of Pocket b. Punitive (punish defendant) c. Nominal 2. Collateral Source Rule – For purpose of mitigating damages, D may not introduce evidence that a third party provided money to the P related to injuries. a. Subrogation clause – Insurance companies use this to negate the collateral source rule. 3. Duty to mitigate – P can not recover damages if it could have avoided them with reasonable activity. Courts usually do not see surgery as reasonable duty. 4. Punitive Damages Guideposts a. Degree of reprehensibility b. The ratio between compensatory and punitive (about 9X)
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c. The criminal penalty for similar conduct d. Wealth of defendant 5. For Punitive damages courts usually look for maliciousness, recklessness. VI. Affirmative Defenses 1. Contributory Negligence – Completely bars recovery. a. Gross v. Minor Negligence exception b. Last Clear Chance exception 2. Comparative Negligence – Look at Percentages a. Pure approach (California) – Just divide it up accordingly i. In counter-claim situations some courts offset, California does not. b. Less Than approach – P can only recover if his negligence is less than D’s negligence c. Not greater than approach – P can only recover if his negligence is not greater than D’s. 3. Multiple Defendants – Many jurisdictions say plaintiff must be less than or not greater than all of the defendants collectively, some jurisdictions add up the percentage of all the defendants. 4. Assumption of risk a. Express – Very detailed, courts construe the contracts narrowly b. Implied – Subjective knowledge of the risk and a voluntary assumption of the risk. If you jump into a ring when a bullfight is going on. Only relevant when the negligence is present prior to the risk being assumed.
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