Negligence
§ 282: Negligence Elements:
1. Defendant owed a Duty of Care to the plaintiff;
2. The defendant's conduct was a Breach of that duty (didn’t use appropriate level of care);
3. The defendant's conduct was the Proximate Cause of Harm and;
4. Plaintiff suffered Harm as a result
A defendant must fail to exercise such care as a reasonable person in his position would have
exercised; his conduct must be a breach of the duty to prevent the foreseeable risk of harm to
anyone in the plaintiff’s position, and this breach must cause the plaintiffs damages
A. DUTY
a. Defendant has a duty to avoid creating unreasonable risks of harm to others
b. Reasonably Prudent Person
i.
What would a “reasonably prudent person” do under the circumstances
ii. Consider the: foreseeable risks of injury, extent of risks, likelihood of
risks, if alternatives impose a greater or lesser risk, and the costs
iii. Exceptions: Measurable disability (blindness), children (except for
children engaging in adult activity.)
1. Child-to-child(age, intelligence, experience), blind person to blind
person
2. Mental or emotional disability not considered, unless it is a child
c. Expertise: If a person has skills or knowledge that exceed those possessed by
most others, these skills or knowledge will be taken into account in determining if
they were a reasonably prudent person.
i.
We ratchet up for experts, but don’t ratchet down for beginners (except if
the beginners are children
d. Determining a Duty:
i.
Foreseeability or does it owe a specific duty to a person
1. Owes duty a child duty or person with mental disability
ii. If The defendant engaged in the creation of the risk which resulted in the
plaintiffs harm
iii. Voluntary undertaking: The defendant volunteered to protect the plaintiff.
iv.
Knowledge: the defendant knows/should know that the conduct will harm
the plaintiff.
v.
Business/voluntary relationships: ex: business owner and customer;
innkeeper and guest; land possessor who opens her land to the public;
person who voluntarily takes custody of another person.
vi.
Majority: Foreseeable Plaintiff Rule: Owes a duty to any people in the
foreseeable zone of danger
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vii.
viii.
Minority Rule: Owes a duty to everyone, even unforeseen
Misfeasance - duty is typically found
1. Often consists of affirmative acts of misconduct
2. Or omission - failure to do something - such as not paying
attention while driving
e. Vicarious Liability: assigns liability for an injury to a person who did not cause
the injury but has a particular legal relationship to the negligent person. Eg,
husband & wife, vehicle & driver, employer & employee
f. Cases:
i.
NOT LIAB - The law doesn’t hold one in an emergency situation to the
same mature judgement it would require under normal circumstances.
1. Facts: Taxi driver jumped out of his car while getting robbed, car
rolled off & crashed
ii. NOT LIAB - A disabled individual is not negligent if he takes the same
precautions an ordinary reasonable person afflicted with the same
disability would take under the same circumstances.
1. Facts: Blind man using facial recognition bumps into guy, held to
the standard of another blind person
iii. LIAB - A person has a legal duty to use his or her property with the same
level of ordinary care that would be exercised by a reasonable person.This
duty can be most accurately measured by an objective standard requiring
ordinary care. - Vaughan v. Menlove and haystacks caught on fire due to
Menlove’s carelessness
1. Facts: Menlove set the neighbors house on fire by leaving his
haystack out
iv.
LIAB - The liability may be avoided if there was absence of forewarning
to the defendant that driving a vehicle with a mental illness could cause
injury. The sudden heart attack and seizures should not be considered the
same with those who are insane. Majority rule: Still Liable, Minority
rule: Not liable if no forewarning- Breunig
1. Facts: Woman went insane while driving, had prior hallucinations,
therefore, forewarning
v.
LIAB - A child engaging in an activity normally undertaken by adults
may be held to the standard of care of an adult
1. Facts: Child hit adult with a golf ball which can be dangerous like
a missle and golf is usually an adult activity
B. BREACH
a. A defendant breaches a duty by failing to exercise reasonable care
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b. If the defendant’s conduct was equivalent to, or higher than, the standard set by
the judge, then the defendant was not negligent, even if the defendant’s conduct
caused the plaintiff harm.
i.
Cases:
1. NOT LIAB - A person who has taken reasonable precautions
against foreseeable dangers may not be held liable in negligence
for injuries caused by extraordinary circumstances.
a. Facts: Wire hit the train
2. LIAB A person owes a duty of care to protect against a foreseeable
harm even if the actual harm suffered occurred from an
unforeseeable cause. - Gettysburg Coll.
a. Facts: Young player suffers heart attack. Though the
specific risk that a person like Drew would suffer a cardiac
arrest may be unforeseeable, the Kleinknechts provided
ample evidence that a life-threatening injury occurring
during participation in an athletic event like lacrosse was
reasonably foreseeable
c. Calculus of Risk: Hand Formula
i.
Provides a guideline to determine whether a particular conduct is
reasonable or unreasonable
ii. Compares the cost of undertaking conduct with the cost of not undertaking
1. (P) probability; (L) injury; (B) burden
2. B < PL = Negligence
iii. Case:
1. Liability for negligence due to failure to take safety precautions
exists if the burden of taking such precautions is less than the
probability of injury multiplied by the gravity of any resulting
injury, symbolized by B < PL = negligence liability.
a. Facts: US v. Carroll Tow: Having the Bargee on the boat >
Probability of Injury OR Having the Bargee on boat <
Probability of Injury - LIAB
b. Problem with Hand Formula: the numbers are hard to
figure out, especially probability
d. Role of Custom
i.
Usually by a specific industry standard - Those engaging in activity with
unique knowledge and ability, then the degree of care is to a person in that
profession ex. Doctors, Lawyers
1. Doctors custom is legally dispositive, but not dispositive for
informed consent
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ii.
Even if the defendant establishes that its behavior followed the customary
standard, the jury can decide for itself that the conduct was negligent.
iii. Conversely, even if the plaintiff establishes that the defendant was not
following a standard of care prevalent or customary in a trade or industry,
the jury might nonetheless determine that the defendant acted reasonably
iv.
Today custom is evidence -- often highly important evidence -- of
reasonableness, but it is just that: evidence.
v.
Medical Modified Locality Rule Obsolete, Use the National Standard
1. Has become obsolete because of increased technology,
communication, and insurance which can provide patients with
more choice of doctors.
vi.
Cases:
1. LIAB - Prior to a medical procedure, a physician is under a duty to
disclose all risks that a reasonable person would find significant in
making an informed decision whether to undergo the specific
procedure
a. Facts: Man gets paralyzed after doctor did not disclose all
risks
i.
Duty to Disclose: governed by the same legal
principles applicable to others in comparable
situations, with modifications only to the extent that
medical judgment enters the picture.
ii. Scope of Disclosure: must be measured by the
patient’s need, and that need is the information
material to the decision.
1. While a doctor cannot know exactly what
is important, the doctor is in a position
superior and are called upon to make
judgements
iii. Sometimes if risks are commonly known then it
doesn’t need to be disclosed
e. Role of Statutes (Negligence Per Se)
i.
Statute, ordinance, or regulation must prohibit or require some conduct
ii. The defendant neglects to perform that duty
iii. Plaintiff must be within the particular class of persons that the statute
was designed to protect
iv.
The injury must be the specific harm against which the statute was meant
designed to protect
v.
Plaintiff’s injuries were caused by defendant's violation of the statute,
ordinance, or regulation
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vi.
vii.
viii.
ix.
Exceptions:
1. Compliance with the statute will cause more danger or harm
than non-compliance
2. Compliance is beyond the defendants control
3. Non-compliance is reasonable because of incapacity or disability
4. The defendant is confronted with an emergency not due to the
defendants own misconduct
5. The defendant neither knows nor had reason to know that that
the circumstances offer an occasion to comply with the statute
6. The statute provides expressly, or necessarily, that the statute is
not to be used as the standard of conduct
7. The stature is so vague and consuming that nobody can
reasonably be expected to figure out what they are supposed to
do or refrain from doing
Proving the duty and reach is burden shifting, it shifts Prima Facie the
burden to the otherside to come up with a reason for violating the statute
Emphasis on Duty and Breach - You only have a claim if the statute is
specifically designed for that particular instance
Cases:
1. LIAB - Negligence is the breach of legal duty, and it is immaterial
whether the duty is one imposed by the rule of ordinary care or is
imposed by statute. In either case failure to perform constitutes
negligence
a. Facts: Selling poison without label violating the statute that
required person to do so, woman drinks it & dies
2. LIAB - A violation of a statute or regulation constitutes negligence
as a matter of law when the violation results in injury to a member
of the class of persons intended to be protected by the legislation
and when the harm is of the kind that the statute or regulation was
enacted to prevent.
a. Facts: (Mar-Cam) Over Serving at a bar when and the
regulation prohibited it to protect against bar fights, owner
failed to do anything to stop the fight
3. NOT LIAB - The violator may be liable for damages, but only if
the omission is the proximate cause of the injury. There was a
statute to have headlights on the highway and the plaintiffs failed
to have them. If you contribute to the negligence then it is not
negligence.
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a. Facts: Herzog (Cardozo) Horse & Buggy didn’t have any
lights on which inturn made a car not see them and crash
into them
4. NOT LIAB - If violation of the statute by the defendant was the
proximate cause of the plaintiff’s injury, then the plaintiff may
recover upon proof of violation. If violation of the statute has no
direct bearing on the injury, proof of the violation becomes
irrelevant.
a. Facts: (Shyne) Fake chiropractor gives back treatments,
woman paralyzed. The lack of license is not the proximate
cause of Brown’s injuries; it is Shyne’s carelessness.
f. § 17 RES ISPA LOQUITUR: The thing speaks for itself - can be used when no
one sees how the accident occurs
i.
Elements:
1. The injury was, more likely than not, the result of negligence;
2. The instrumentality that caused the injury was under the
defendant’s control;
3. The plaintiff did not contribute to the accident
ii. Alters the burden of proof for a plaintiff in a negligence case when,
because of the facts of the case, the plaintiff is unable to provide evidence
of negligence
iii. In a res ipsa loquitur case, the judge would instruct the jury that they could
draw an inference as to negligence and causation based on the injury itself.
iv.
Cases:
1. LIAB - If injury of a type that does not typically occur without
negligence does occur, negligence is presumed from the mere fact
of the occurrence. Facts: Boedle - Barrel of flour fell out of the
window. This usually doesn't happen on its own, so there must
have been negligence
2. Not Liab - If the accident could be attributable to one of several
causes, one of which is not the responsibility of the defendant, res
ipsa loquitur will not be sufficient to hold the defendant liable.
Facts: St. Francis - Someone threw a chair out a hotel window.
a. The instrument that caused the accident has to be under
exclusive control of the defendant, and that if the defendant
was using ordinary care the accident would not have
occured.
3. LIAB - The mere fact of an accident occurring may be sufficient to
maintain a claim of negligence. Facts: McDougald - Tire
unattached from chain under car and hit a windshield
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a. A spare tire likely would not detach from a truck without
some negligence on the part of the driver or the truck
owner
4. NOT LIAB - The doctrine of res ipsa loquitur requires that the
injury suffered be one that does not ordinarily occur absent
negligence. Brannon - Cellulose packing in surgery caused
paralysis:
a. Problem with the first element: “the accident must be of a
kind which ordinarily does not occur in the absence of
someone’s negligence.” An instruction on res ipsa loquitur
is not warranted unless expert testimony reveals the injury
under the specific circumstances of this surgery ordinarily
does not arise absent negligence
5. LIAB - Where a plaintiff receives unusual injuries while
unconscious and in the course of medical treatment, all those
defendants who had any control over his body or the
instrumentalities that might have caused the injuries may be held
liable in an action based on res ipsa loquitur. Facts: Ybarra went in
for appendix surgery and came out with a sprained shoulder.
a. Since he was unconscious he could not have contributed,
the injury occured to a healthy part of his body which did
not need surgery, and the injury could not have occurred
without some sort of negligence made by the doctor or
caregivers.
b. Respondent Superior - Let the Master Answer - makes the
employer liable for a lack of care on the part of an
employee
C. CAUSATION
a. Cause in Fact
i.
Cause and effect chain of events
ii. Usually a question for the jury
iii. “But for” Test
1. Question of fact, requiring proof that the injury would not have
occurred “but for” D’s Conduct
2. For any event, there are always multiple “but for” causes
3. The plaintiff must prove (under the preponderance of the evidence
standard) that but for defendant’s tortious conduct, the plaintiff’s
injury would not occur
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iv.
4. Post hoc ergo propter hoc is an informal fallacy that states:
"Since event Y followed event X, event Y must have been
caused by event X."
5. Cases:
a. LIAB - Where the negligence of the defendant greatly
increases the chance of an accident, the mere possibility
that the accident might have happened absent the
negligence is not sufficient to break the chain of cause and
effect between the negligence and the injury. Facts: Texas
Railway - Woman running up an unlit stairwell fell and was
injured.
i.
The railway company was negligent in not lighting
the stairway. Although the accident could have
occured in broad daylight, the negligence greatly
increased the chance of accident
Substantial Factor
1. The plaintiff must show by a preponderance of the evidence that
the defendant's negligent conduct was a major contributing factor
the the plaintiffs harm
2. Liab - Minneapolis Railway Fire - Someone who negligently starts
a fire may be liable if the fire damages a property in combination
with a fire of unknown origin, and either fire would have damaged
the property independently of the other, if the negligently started
fire was a material factor in the destruction.
3. Not Liab - Kramer window hits man on head, gets cancer - In a
negligence claim, the mere possibility that one event may have
caused another event is not sufficient to maintain a verdict.
a. In order to recover in an action for negligence, it is not
enough to show that one person was negligent and another
person was injured, or even to show that one person's
negligence possibly caused an injury to another person.
Instead, it must be shown that negligence caused the injury.
4. Not Liab - Perkins, train hits car - A negligence claim cannot be
maintained if the negligence is not a cause in fact of the harm.
a. Because the accident would have occurred even if the train
had been traveling within the speed limit, the negligence of
the train’s operator is not a substantial factor in the
collision.
5. Alternative Liability
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a. Summers v. Tice - Two men shot in the same direction as
another man, and the man got hit, but only one person’s
bullet hit him. Under the doctrine of alternative liability,
two independent tortfeasors may be held jointly liable if it
is impossible to tell which one caused the plaintiff's
injuries, and the burden of proof will shift to the defendants
to either absolve themselves of liability or apportion the
damages between them.
b. Two or more defendants act negligently
c. But only one of them could have caused plaintiff’s injury
d. It is difficult or impossible to determine which defendant
actually caused the harm
e. The courts might switch the burden of proof to each
defendant to show that he was not responsible
f. If it can’t be proven, then it will be joint liability
b. Proximate Cause - scope of liability
i.
§ 29 - “An actor's liability is limited to those harms that result from
the risks that made the actor's conduct tortious.”
ii. Requires the plaintiffs harms to be a reasonably foreseeable consequence
1. The basic rule of proximate cause is that an actor should not be
liable for every possible harmful effect of his negligent conduct,
but only for those harms arising from the particular risks that a
reasonable person in the actor’s position should have been able to
foresee arising from that conduct.
2. This is a “foresight” oriented test because we are judging what D
ought to have foreseen prior to the occurence
iii. Intervening Cause = foreseeable ( may still be liable) v.
Superseding = unforeseeable (cuts off liability)
iv.
Connection between the breach and the harm
1. The injury must be a reasonably foreseeable consequence of the
alleged conduct and not highly extraordinary.
2. The conduct must also be a “substantial factor” in the injury with
no intervening and superseding causes between the conduct and
the injury.
v.
Harm within the Risk: Considers first whether there was a class, or
group of people that could foreseeably been harmed by the defendants
actions
1. For example a pedestrian on a sidewalk might get hit by a car
vi.
An intervening criminal act of a third party is generally not reasonably
foreseeable.
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vii.
viii.
ix.
x.
xi.
Type of Harm v. Extent of Harm
1. Type: Thin-skulled plaintiff - Take your plaintiff as you find them
a. Think Vosburg
b. Restatement: “When an actor’s tortious conduct causes
harm to a person that, because of a preexisting physical or
mental condition or other characteristics of the person, is of
a greater magnitude or different type than might
reasonably be expected, the actor is nevertheless subject
to liability for all such harm to the person.”
2. Extent:
a. type of injury always matters when evaluating proximate
causation. The applicable test for proximate cause is the
reasonable foreseeability of the injury, not the
characteristics of the activity.
Type of Harm v. Precise Sequence of Events
1. Only the general type of harm need be foreseeable; the precise
sequence of events linking the defendant's negligent conduct to the
injury, or the precise manner in which the harm occurs, need not be
foreseeable.
2. Not absolute; may be nullified by unforeseeable, supervening
causes
Ultra directness test - intervening cause cuts off liability
Defense: Superseding Cause: a third party's actions intervene and cause
the accident. An unforeseeable or improbable intervening cause will
constitute a superseding cause, and will allow a defendant to escape
liability.
1. Intentional tort and criminal acts,are usually considered
unforeseeable
Intervening cause: Conduct by some third person, or an event, which
occurs after D’s tortious conduct, and operates with or upon D’s conduct
to produce P’s injury
1. If (1) an intervening cause was foreseeable, or (2) the intervening
cause was not foreseeable but the consequences were of the type
which D could foresee as a result from his conduct, it will not
relieve D of liability
2. Medical malpractice is usually foreseeable
3. R. 144 - Any act by somebody that is a normal response to fear or
similar disturbance, which disturbance is a foreseeable result of the
defendant’s conduct, is not a superseding cause of the harm.
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4. An intervening force will defeat proximate cause if it breaks the
causal chain between the defendant's conduct and the plaintiff's
injury
5. An intervening force will not break the causal chain if it, or the
harm it creates, lies within the scope of the foreseeable risk created
by the defendant's conduct.
xii. Not liab - Ryan v. Railroad - Railroad set fire to a woodshed, fire spread to
nearby houses. A negligent person is liable in damages for the proximate
results of his own acts, but not for remote damages.
1. Damage is the “proximate result” of an act if it is of the type that
could reasonably be anticipated to be caused by the act, or if it is
the type that ordinarily and naturally flows from such acts.
xiii. Liab - Derdiarian: man crashes into poorly run worksite, causes man to
catch on fire: Third-party negligence becomes a superseding cause only
when the act is extraordinary, not foreseeable, or completely
independent of the defendant’s negligence.
1. Highly extraordinary and unforeseeable intervening acts will break
the causal chain. In such cases, the intervening act will be a
“superseding act which breaks the causal nexus.” It is reasonably
foreseeable that a car may veer off the road into a nearby worksite
and injure a worker. It is not necessary that the exact manner of the
accident be foreseeable. This intervening cause is the very risk
created by Felix’s negligence in not placing a barrier at the
worksite.
xiv. Joint Liab Reversed - Diehl v. Fidelity - woman slips on ice created by
steam from building - Failure of a third person to perform a duty owing to
another to protect him from harm threatened by the actor's negligent
conduct is not a superseding cause of the other's harm
1. Philadelphia's failure to remove the ice was a breach of duty it
owed to the public to maintain the pavement from hazards, but
Fidelity's failure to perform its duty was not a superseding cause of
harm resulting from Metro's negligence. Metro was bound to
anticipate the consequences of the conditions it created and also
the non action of Fidelity. Joint liability, reversed, in favor of
plaintiff against Fidelity
xv. Not Liab- Watson - Man threw cigarette on gasoline made by train spill, if
it was malicious the man would be liable, but he claimed it was an
accident - An intervening criminal act of a third party is generally not
reasonably foreseeable.
D. LIMITATIONS ON DUTY
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a. Foreseeable Plaintiff Requirement
i.
The scope of duty is limited to a foreseeable plaintiff
ii. Even if the defendant breaches the requisite standard of conduct and
causes injury to a plaintiff, no liability will ensue if the plaintiff falls
outside the zone of foreseeability
iii. Rescuers can be considered a foreseeable plaintiff - even if they had no
duty - it is foreseeable someone would try rescue
iv.
Not Liab - Palsgraf - Man jumped on train, package of fireworks fell,
exploded, very far down the platform Ms. Palsgraf got hit by a scale
1. A defendant owes a duty of care to a plaintiff only if the plaintiff is
in the zone of reasonably foreseeable harm resulting from the
defendant's actions.
2. The court ruled she was too far outside of the danger zone, and was
not a foreseeable plaintiff
b. No Duty to Act
i.
§ 314 : “The fact that the actor realizes or should realize that action
on his part is necessary for another's aid or protection does not of
itself impose upon him a duty to take such action.”
ii. Nonfeasance - usually no duty
1. Plaintiff asserts the defendant should have intervened in order to
prevent harm, and failure resulted in injury
iii. Not Liab - Yania - Man allegedly taunts man to jump over coal ditch, falls
and dies - Someone who finds another in a position of peril is under no
legal duty to rescue the person, unless he or she is legally responsible for
placing the person in the perilous position.
1. Liability for Nonfeasance
a. when the defendant is responsible for causing the
plaintiff’s peril;
b. when the defendant voluntarily attempts to assist the
plaintiff; and
c. when the defendant and plaintiff share a special
relationship: Parent/Child, Employer/Employee,
Landlord/Tenant, Innkeeper/Guest, School/Student,
Business/Customer, Carrier/Passenger
iv.
Exception: Existing Special Relationships:
v.
Liab - J.S. - Woman likely knows her husband is abusing girls and does
nothing - If a spouse has actual knowledge or a special reason to know of
the likelihood of his or her spouse engaging in sexual abuse against a
particular person, the spouse has a duty to prevent or warn of the abuse.
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vi.
vii.
viii.
ix.
Liab - Podias - Drunk kids hit motorcyclist in the road, left him there, then
another woman drives and hits/kills him - Several factors weigh:
1. Risk of harm: leaving the man in the road the harm was
foreseeable. They had many chances to help
2. Defendants therefore bear some relationship not only to the
primary wrongdoer but to the incident itself. It is this nexus which
distinguishes this case from those defined by mere presence on the
scene without more
3. A reasonable jury could find that Newell and Swanson’s
abandonment of Podias and their failure to render assistance
breached their duty of reasonable care.
Liab - Farewell - Men get into fight, one gets unconscious, friend left him
in the backseat and he died due to injuries which could have been helped
1. They were companions on a social venture. Implicit in such a
common undertaking is the understanding that one will render
assistance to the other when he is in peril if he can do so without
endangering himself.
Liab - Tarasoff - Man tells psychiatrist he wants to kill his ex, therapist
tells boss and cops, but not her parents or her (think bobby) - When a
therapist learns from his patient about intent to do harm to a third party,
the therapist has a duty to take reasonable precautions given the
circumstances to warn the potential victim of danger.
1. The extent of a therapist’s duty to warn may depend on the
foreseeability of harm to the plaintiff, as well as other factors.
2. A reasonable therapist in Dr. Moore’s position should have
reported the potential danger to Tatiana or her family. The failure
to do so by Moore and the other doctors employed by the Regents
constitutes a breach of their legal duty of care, and they are liable
for negligence.
Exception: Undertook Assistance:
1. Once a person undertakes assistance she has a duty to use
reasonable care in rendering that aid.
2. Situations in which persons who originally acted of good will to
aid another, but end up subject to liability for negligence are when
the defendant puts the plaintiff in a worse position than she started.
a. Ex. If the defendant volunteers to take an injured plaintiff
to the hospital, but then changes her mind and leaves the
plaintiff in a more dangerous position or thereby prevents
others from offering the plaintiff assistance, the defendant
could be liable for negligence.
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3. Good Samaritan laws exempts from liability a person who
administers reasonable assistance to a person who is injured or in
peril.
x. Liab - Ocotillo - Men drunk at golf course, employees take keys, friend
offers to drive, gets keys back, gives to friend, drunk friend crashes/dies
1. A person can be held liable for negligence if the person volunteers
to care for another who is in need of protection and then the person
fails to render protection, causing harm to the other person.
2. Once you undertake assistance, you can't abandon it, and if an
emergency happens you can't take care of then you need to call for
help
xi. Liab - Mraz - Two boys dared underaged girl to chug goldshlager, they
started to help, but then stopped, and did not call ambulance when she had
alcohol poisoning (gurgling)
1. One who voluntarily undertakes to render services to another is
liable for harm caused by his or her failure to perform such
services with reasonable care.
2. The Mraz brothers began a voluntary undertaking of care when
they carried Wakulich downstairs to a couch, changed her vomitcovered shirt, and placed a pillow under her head.
a. Failure to bring girl to hospital and stopping people from
calling showed lack of reasonable care
xii. Liab - Herr - Friends got friend drunk day before 21st birthday
1. If a defendant knows or should know that his conduct, however
innocent, has caused harm to another, making that person helpless,
the defendant has a duty to use reasonable care to prevent further
harm to that person.
2. You don’t have to rescue someone if they put themselves in that
position, but if you put them in that position then you have to help
them. He was under 21, and considered not able to make proper
judgement because of his age, and his friends kept piling him with
alcohol
xiii. Liab - Tubbs - Woman crashes into tree, passenger injured, woman left
1. Tubbs was injured by a vehicle that was under the woman's
control. This is a sufficient relationship to hold the woman to a
duty to render aid and assistance to Tubbs so that she does not
suffer further injury.
2. Therefore, Argus is liable for any additional injuries that Tubbs
suffered due to Argus’s failure to render aid and assistance.
c. Negligent Infliction of Emotional Distress
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i.
If D is subject to liability to P for negligence based on bodily injury, P can
recover not only for his physical injury but also his resulting pain,
suffering, mental and emotional harm:
1. P’s mental damages are Parasitic to his physical harm
2. Zone of Danger Test - if D’s negligent conduct threatens (but does
not result in) bodily harm (impact) to P (a “near miss” situation,
most courts will allow P to recover for bodily harm resulting from
the fear, shock or other emotional disturbance caused by his
presence in the zone of danger
a. Courts like this rule best
b. Ex. D negligently drives through a red light, narrowly
misses P crossing the street. D is subject to liability for P’s
bodily harm resulting from P’s reasonable apprehension of
being struck by the car
3. Bystander Rule - If P himself was not in the zone of danger, but
merely witnessed a shocking event in which D’s negligent conduct
caused serious physical harm or death to a third person (T), A
plaintiff may only recover damages for emotional distress caused
by observing the negligent infliction of injury to a third person if
the plaintiff is: Dylann v. Legg Approach
a. (1) closely related to the victim,
b. (2) present at the scene of the injury when it occurred and
aware that the victim was being injured, and
c. (3) as a result of witnessing the injury, suffers emotional
distress beyond what would be expected in a disinterested
witness.
4. Cases:
a. NIIED - Dylan v. Legg: While driving his car, Defendant
stuck and killed Dillon, a child as she was crossing a public
street. Plaintiffs sued for negligent infliction of emotional
distress. A defendant’s liability for emotional distress
caused to a plaintiff largely depends upon whether the harm
was reasonably foreseeable, and foreseeability can be
evaluated by considering factors such as whether a plaintiff
was located near the scene of an accident as opposed to
some distance from it, whether the shock alleged by the
plaintiff resulted from his sensory and contemporaneous
observance of the accident, and whether the plaintiff and
the victim were closely related, as contrasted with an
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absence of any relationship or the presence of only a distant
relationship.
b. Plaintiff can recover for negligent infliction of emotional
distress even if he is not within the “zone of danger.”
5. Thing Case: Mother came on the scene after an accident, saw son
dead, but did not witness it. A plaintiff may not recover damages
for emotional distress caused by observing the negligently inflicted
injury of a third person if she was not an eyewitness to the act that
caused the injury.
d. Duties of Owners and Occupiers of Land
i.
It is important to define the categories and then match them with their
duties
ii. Trespassers: those who enter land without the landowner’s permission
1. Trespassers were owed no duty by the landowner, except to refrain
from harming them intentionally, or engaging in willful and
wanton misconduct
iii. Licencees: Generally, these are people who are on private land with the
permission of the owner, but who do not convey any economic benefit
to that owner.
1. Ex. Social guests
2. Duty only to warn of dangerous, and concealed, conditions, that
the landowner knows or reasonably should know about.
iv.
Invitees: 2 Categories:
1. Invited onto private land, such as contractors, business associates
(if there to discuss business), and any number of service or sales
people.
2. On land generally held open to the public -- including stores,
hotels, most houses of worship and so on
3. Duty of reasonable care
v.
Some jurisdictions (such as California) don’t recognize the categories
anymore because it doesn't affect the ordinary care duty owed to the
visitor
vi.
Woman invited a man home, while using the bathroom he injured his
hand. Woman didn't tell him about the danger. The proper test to be
applied for determining the liability of a landowner is whether in the
management of his property he has acted as a reasonable man given the
probability of injury to others, and, although the plaintiff’s status as a
trespasser, licensee, or invitee may have some bearing on the question of
the landowner’s liability, this status alone is not determinative.
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E. AFFIRMATIVE DEFENSES
a. CONTRIBUTORY NEGLIGENCE
i.
Contributory negligence allows the defendant to assert that the plaintiff
was at least partially at fault for her own harm.
ii.
The Restatement (Second) of Torts § 463 defines contributory negligence
as “conduct on the part of the plaintiff which falls below the standard to
which he should conform for his own protection, and which is a legally
contributing cause co-operating with the negligence of the defendant in
bringing about the plaintiff’s harm.”
iii.
To establish Contributory Negligence
1. The plaintiff acted voluntarily;
2. The plaintiff owed herself a duty of care;
3. The plaintiff breached that duty of care
4. The plaintiff’s breach was a factual and proximate cause of her
harm; and
5. The plaintiff suffered actual and compensable harm.
iv.
Traditionally, if a defendant was successful in showing that the plaintiff
was negligent in causing her own harm, the plaintiff was barred from
recovering any damages from the defendant. Whether the plaintiff was 1%
or 99% at fault, she would recover nothing. This “all-or-nothing” rule
v.
LAST CLEAR CHANCE DOCTRINE: allows the plaintiff to recover
from the defendant despite her contributory negligence, if the plaintiff
could show that the defendant had the last clear chance to avoid harming
the plaintiff.
1. Lets the plaintiff recover despite being negligent if the defendant
was the person with the “last clear chance” to prevent the accident
from occurring.
2. Another way to state this rule might be that, in a contributory
negligence jurisdiction, the last person who was negligent is the
loser.
vi.
Only a few states continue to apply a contributory negligence approach.
States that have adopted comparative negligence no longer have a need for
the last clear chance doctrine.
vii.
CASES: (man riding on horse, pole laying in street, would have seen if he
wasn’t speeding) When a plaintiff fails to use ordinary care in avoiding an
obstruction caused by a defendant, the plaintiff may not recover damages
from the defendant.
b. COMPARATIVE NEGLIGENCE
i.
If a plaintiff and defendant are both at fault, the responsibility should not
be an all-or-nothing proposition.
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reduced based on the percentage of her fault. Some states have adopted a
comparative negligence system by statute; others have done so through
judicial decision.
iii.
The defendant has the burden of making out a prima facie case showing
that the plaintiff’s negligence caused her harm.
1. The difference between comparative and contributory negligence
is not the elements of the affirmative defense, but the impact on the
plaintiff’s recovery.
2. In a comparative negligence jurisdiction, even if a plaintiff is
found to have been negligent in causing her own harm, she may
still be able to recover some damages from the defendant.
3. THREE APPROACHES:
4. A pure comparative negligence system apportions liability in direct
proportion to the plaintiff’s fault, allowing the plaintiff to recover
regardless of the degree of her fault. So, if a plaintiff is found to be 99% at
fault and the defendant 1% at fault, the plaintiff can still recover 1% of her
damages from the defendant
1. Each party will bear the cost for the portion of damages that his
or her negligence actually caused
2. In a modified comparative negligence system, damages are
apportioned based on fault up to the point at which plaintiff’s
negligence is equal to or greater than that of the defendant.
a. Modified comparative negligence systems differ as to
whether they cut off the plaintiff’s recovery if she is 50% at
fault (equal to the defendant) or 51% at fault (greater than
the defendant).
i. If the plaintiff’s own percentage fault is equal to
the combined percentage fault of all the
defendants in the case, then recovery is barred
b. The Plaintiff, Harry McIntyre (Plaintiff) and the Defendant,
Clifford Balentine (Defendant), were involved in a car
accident, with both parties being partially responsible. The
jury found for the Defendant based on the contributory
negligence doctrine. Even if contributorily negligence, a
plaintiff may recover, but only if the plaintiff’s
negligence is less than the defendant’s negligence.
c. The slight-gross approach to comparative negligence is
only found in South Dakota. Under this approach, a
plaintiff can recover as long as her fault is “slight” and the
defendant’s fault is “gross.”
ii.
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1. The overwhelming majority of states apply some form comparative
negligence, with the majority of states using a modified approach
2. (woman opened door to man and got raped) Under a comparative
negligence framework, fault may be determined by comparing the
respective costs to the plaintiff and the defendant in avoiding the injury
that lead to the negligence action.
2. JOINT AND SEVERAL LIABILITY
1. joint and several - the injured person may sue for and recover the full
amount of recoverable damages from any jointly and severally liable
person
2. several only - the injured person may recover only the severally liable
person’s comparative-responsibility share of the injured person’s damages.
3. Typically, parties acting in concert, or parties whose combined actions
cause a single indivisible injury, are jointly and severally liable.
Otherwise, liability is typically several only.
4. Retain Joint and Several Liability:The injured person may sue for and
recover the full amount of recoverable damages from any jointly and
severally liable person
1. Typically, parties acting in concert, or parties whose combined
actions cause a single indivisible injury, are jointly and severally
liable
a. If they’re acting IN CONCERT, it doesn’t matter who
caused the harm, the Ds are joint tortfeasors regardless of
the state, all considered to be equal at fault
b. Unless one of the D can prove they didn’t cause the
plaintiff’s harm.
c. This approach is followed in a minority of jurisdictions, but
that minority significantly includes Delaware
5. Pure Several Liability Scheme: the injured person may recover only the
severally liable person’s comparative-responsibility share of the injured
person’s damages
1. Also followed in a minority of states, for cases in which the
combined but independent tortious conduct of two or more persons
causes an indivisible injury.
6. Hybrid System: The Restatement (Third) of Torts (Apportionment of
Liability) has identified hybrid approaches, representing some
combination of joint and several, and several liability. These hybrid
approaches, in total, comprise a majority of all jurisdictions.
1. Substantial Liability: If a D’s liability isn’t substantial, they’ll be
severally liable
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a. Usually 50% or 60% threshold for which you’ll be held
jointly liable
b. Applies when 2+ D’s negligent actions are independent, but
combined to cause P’s damage.
2. Environmental: Liability is joint only for certain types of claims; for
example, environmental claims.
3. Ratio of Fault: Liability is several only, except that the percentage of
liability of absent tortfeasors will be adjusted to reflect the ratio of fault
that the remaining tortfeasors’ fault bears to that of the plaintiff.
C. IMPLIED ASSUMPTION OF RISK
1. Contributory negligence is about the plaintiff’s carelessness and implied assumption of
the risk is about the plaintiff’s venturesomeness.
a. Primary implied assumption of the risk arises when a plaintiff voluntarily partakes
of an activity with knowledge of the inherent risks.
b. In secondary implied assumption of the risk the defendant was negligent.
c. Flopper Case: One who voluntarily participates in a sport accepts the inherent
dangers in it so far as they are obvious and necessary to participation.
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