Negligence by wulinqing


									                                                      Torts I Outline
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1.   Prima Facie
         a. All elements of negligence are fulfilled (Duty, std of care, breach, proximate cause, actual damage)
2.   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
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                            a.   On land with permission seeking a material benefit or Social Guest
                            b.   Must be given a proper amount of time to leave before becoming a trespasser
                            c.   Standard of care to protect against known dangers
                  3.   Invitee
                            a.On land with permission giving material benefit OR
                            b.On land open to public use – Charge Fee? If so,  duty
                            c.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
                          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
                  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
d.   Nonphysical Harm
          i. NIED (negligent infliction of emotional distress) *Split in all Juris  Physical manifestations?, Shock?*
                  1. Direct
                          a. Impact
                                                       Torts I Outline
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                                    b.   Zone of Danger
                                    c.   Fear of imminent personal injury
                                    d.   Exposure  no symptoms of disease, no recovery available
                                    e.   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
3.   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)
                                                      Torts I Outline
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                                              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
4.   Proof of Negligence
         a. Learned Hand Test
                   i. B<PL  standard of care (Burden, Probability, Liability)
                  ii. Only for cases where economic values are assignable
         b. Res Ipsa Loquitor (not favored in all jurisdictions)
                   i. Normal Res Ipsa Π must show:
                          1. C - Δ had right to control or was in control of instrument of injury
                          2. A - accident would only happen if Δ was negligent
                          3. P - Π did not contribute to the harm (no contributory)
                          4. I - (in some jurisdictions) Δ must have more info on how accident happened than the Π
                  ii. Conditional (Medical) Res Ipsa, Π must show: (always inference of negligence)
                          1. N – Not normal injuries (not to area in operation)
                          2. U - Π was unconscious during procedure
                          3. T - happened in the course of medical treatment
                          4. A - must bring in all possible Δ’s
                 iii. Expert Witnesses
                          1. May be brought in to bridge gap in medical cases where case lacks common knowledge
                          2. Jury decides on standard of care
                 iv. Possible jurisdictions:
                          1. No Res Ipsa (must prove ordinary negligence)
                          2. Presumption of negligence
                                   a. Π raises negligence
                                   b. Δ defends, may go to jury
                          3. Inference of negligence
                                   a. Burden on Π to prove negligence
                                   b. Must go to jury
                  v. Examples:
                          1. Automobile rear-ending
                          2. Automobile fall asleep
                          3. Automobile failing brakes (other automobile are not res ipsa)
                          4. Flour falling from flour dealer on head
         c. Slip and Fall
                   i. Accident must be foreseeable by RPUC
                  ii. Risky acts with foreseeable outcome
                 iii. Ballanced with benefits outweighing costs
                          1. Both accident and risky act must be foreseeable
                          2. Constructive notice  risk is foreseeable if:
                                   a. Visible
                                   b. Appearant, and
                                   c. Length of time (can notice in time given)
         d. Evidence:
                   i. Real
                          1. Circumstancial
                                                       Torts I Outline
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                         2. Actual
                 ii. Direct = Eyewitness
                iii. Dauber test (less rigid, Judge is gatekeeper for permissible evidence)
                         1. Tested according to scientific method
                         2. Peer review
                         3. Known rate of error
                         4. Generally accepted method
                iv. Frye test (more rigid)
                         1. Scientists are gatekeeper for permissible evidence
                         2. Must be generally accepted
         e. Statutes
                  i. Does the jurisdiction have an applicable statute?
                         1. C - Does Statute set a clear standard?
                         2. C - Is Δ in the class of persons meant to be protected by statute?
                         3. C - Does the statute cover the type of accident/injury in this case?
                 ii. What kind of jurisdiction is involved?
                         1. Negligence per se
                                   a. Π raises negligence issues
                                   b. Δ may raise excuses
                                              i. Emergency
                                             ii. Unavoidable situation
                                            iii. Compliance is more dangerous than non-compliance
                                            iv. Judge/Jury decides if excuse is good
                                   c. If unexcusible  negligence
                         2. Presumption of Negligence (Bubble)
                                   a. Π raises bubble
                                   b. Δ has burden of proving that he was not negligent
                         3. Evidence of Negligence
                                   a. Violation of a statute is evidence of negligence
                                   b. No bubble, no preconsidered negligence, Π must prove negligence
5.   Causation
         a. Cause in Fact
                  i. “But-For” “But for the negligence of the Δ, the injury would not have happened”
                 ii. Substantial Factor (multiple Δ’s)
                iii. Exceptions
                         1. Loss of Chance
                                   a. Injury is loss of chance/time
                                   b. Damages by how much of a chance is lost * value of loss
                         2. Alternative liability: Π collects jointly & severally, Δ’s must figure who owes what
                                   a. Needed for all:
                                              i. One indivisible injury
                                             ii. All possible Δ’s are in court
                                            iii. All Δ’s are negligent
                         3. Damages:
                                   a. Concert of Action (drag racing, needs some planning)
                                   b. Concurrent Liability (act at same time, no planning)
                                   c. Successive Liability (negligently injured by Δ1, then resulting injury from Δ2, Δ1 is
                                        responsible for all)
                         4. Jurisdictional:
                                   a. Some totally abolished, unfairness to “lesser at fault but has more $”
                                   b. Some abolish for <50% fault
                                   c. Some abolish for all BUT economic harm
                         5. Market Share (Don’t need proximate cause)
                                   a. One injury
                                   b. Negligence on behalf of all Δ’s
                                   c. Π collects only from manufacturers in court (cannot always get whole compensation)
                                              i. Split: need majority of Δ’s in court / don’t need the majority of Δ’s in court
                                             ii. Split: National Market Share / Regional Market Share
         b. Proximate Cause
                  i. Eggshell Π (all jurisdictions allow for eggshell Π)
                         1. Thin skull
                                                     Torts I Outline
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                          2.    Thin psyche
                                     a. Prior tendencies may reduce damages
                                     b. Suicide  Π must prove Δ caused irresistible impulse for suicide
                  ii. Secondary Harm (1st tortfeasor is responsible if 2nd injury is related)
                 iii. Split jurisdictions:
                           1. Direct (Set Stage)
                                     a. Δ is liable if no intervening cause, intervening cause IF:
                                              i. Independent AND Significant OR
                                             ii. Gross
                           2. Risk  foreseeable damages
6.   Defenses
         a. Plaintiff’s Fault
                  i. Contributory Negligence:
                          1. Must still prove:
                                  a. Duty (always duty to self)
                                  b. Standard of Care
                                  c. Breach (negligence)
                                  d. Cause in Fact & Proximate Cause
                          2. Impute negligence on Π:
                                  a. Loss of consortium (most J’s impute)
                                  b. Wrongful death (most J’s impute)
                                  c. Bystander (devided)
                                  d. Children (no impute negligence on Π)
                 ii. Comparative Negligence
                          1. Pure  percentage does not matter
                          2. Modified Jurisdiction
                                  a. “Not as great as”
                                  b. “No greater than”
                          3. Watch for “too far removed” in time and distance
                iii. Avoidable Consequences
                          1. Negligence of Δ before negligence of Π
                          2. Π could have mitigated damage
                                  a. Π did not contribute to later negligence
                                  b. Like 2nd injury case – what Π could have avoided
                                  c. Reward not be percentages
                          3. Comes in AFTER damages have been rewarded
                          4. Seat belts & helmets are contributory, lose weight is avoidable
         b. Assumption of Risk
                  i. Elements:
                          1. Voluntary conduct by Π
                          2. Π must understand that danger is involved
                          3. Π must understand extent of danger
                 ii. Types
                          1. Express Agreements – must be unambiguous
                                  a. Restatement Test (ALL)
                                             i. Well-drafted (clear)  some J’s = must say “negligence” in waiver
                                            ii. Freely and fairly made
                                           iii. Parties are in equal bargaining position
                                           iv. No interfering social interest
                                  b. Factors:
                                             i. More risk = less likely to uphold waiver
                                            ii. Substantial # of participants
                                           iii. Invitee?
                                  c. Gross negligence / recklessness are not covered by the waiver
                          2. Implied Assumption of Risk
                                  a. Primary implied
                                             i. No negligence on the part of the Δ
                                            ii. Flopper and sports
                                  b. Secondary implied – Π knowingly encounters risk created by Δ’s negligence
                                             i. Reasonable – Π acts as RPUC
                                            ii. Unreasonable
                            Torts I Outline
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                           1.   Π does not act as RPUC
                           2.   COA & defense in contributory / comparative negligence
3.   Jurisdictions
          a. AOR – (Π barred from recovery in express, primary, secondary reasonable)
          b. No AOR – (COA & defense in contributory / comparative)
          c. Comparitive AOR (COA in express, primary & secondary, recovery is comparative)
4.   Firefighter rule – FF’s are compensated, cannot collect for injuries due to responding to risk
     created by negligence for actions already obligated to perform
          a. True FF  no recovery for FF’s
          b. Volunteer  recovery for volunteer FF’s
          c. No FF Rule  recovery for any

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