Negligence Outline PDF

Negligence ========== 1. Duty: Defendant has a duty to use reasonable care - Establishing a Duty i. Step One: Identify the relationship between the parties: Is the relationship direct or indirect? ii. Step Two: Use the factors or special duty rules to determin...

Negligence ========== 1. Duty: Defendant has a duty to use reasonable care - Establishing a Duty i. Step One: Identify the relationship between the parties: Is the relationship direct or indirect? ii. Step Two: Use the factors or special duty rules to determine if there is a duty - The general rule for **standard of care** is that a person is expected to act with the same care as a **reasonable** person in similar circumstances (objective rules) - What is reasonable under the circumstances depends greatly on the knowledge the actor possesses or should possess a. *Parrot v. Wells Fargo & Co*: Common carrier doesn't have obligation to know contents of packages b. *Cervelli v. Graves*: The reasonable person standard provides a floor below which an individual's conduct will not be permitted to fall. The existence of knowledge, skill, or even intelligence superior to that of an ordinary person will demand use of it. If one has superior knowledge, that is now the floor. - **Duty factors** iii. Relationship of the parties iv. Nature of the risk involved v. Foreseeability and the likelihood of injury weighed against the social utility of the actor's conduct vi. Magnitude of the burden in guarding against the injury - Balancing Test from *McCarty v. Pheasant Run, Inc.* c. Defendant is negligent if the cost of taking precautions is less than the potential harm that could be prevented by taking those precautions vii. The consequences of placing the burden on the defendant - *Parrot v. Wells Fargo & Co*: Common carrier doesn't have obligation to know contents of packages viii. Whether one party has superior knowledge of the risk - *Cervelli v. Graves*: The reasonable person standard provides a floor below which an individual's conduct will not be permitted to fall. The existence of knowledge, skill, or even intelligence superior to that of an ordinary person will demand use of it. If one has superior knowledge, that is now the floor. ix. Whether there is a right to control the actor whose conduct precipitated the harm - **Special duty rules** x. **Sudden Emergency Duty Rule**: Less may be expected of a reasonable person who is forced to act in an emergency, but ONLY IF the Defendant's conduct did not cause the emergency (*Myhaver v. Knutson***)** - A person is not liable to another for injuries sustained if: d. the person did not create the emergency; e. the emergency was sudden and without warning; f. the person's reaction to the emergency was spontaneous, without time for reflection; and g. the person's reaction was reasonable given the emergency xi. **Minor Children Standard of Care Rule:** The duty of a child is to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training, and experience would exercise under the same or similar circumstances UNLESS - **Exception**: engaged in activities normally reserved for adults/inherently dangerous activities or both (jurisdictional split) (*Robinson v. Lindsay*) - this is the snowmobile case. Operating snowmobile is an adult activity, therefore going to use adult standard - **NC Rule of 7s** h. Under 7: Incapable of negligence i. 7-14: Rebuttable Presumption that child is INCAPABLE of Negligence but evidence can be introduced to rebut the presumption j. 14 & Over: Rebuttable Presumption that the child is CAPABLE of negligence xii. **Mental and Emotional Disability Standard of Care**: - A Defendant is presumed to have average mental abilities and the same knowledge as an average member of the community, and the Defendant's own mental or emotional usually not considered in determining whether the conduct is negligent UNLESS k. There is a sudden mental incapacity WITHOUT forewarning OR l. Relationship is between an institutionalized person and their caretaker i. Caretaker exception: A person institutionalized, with a mental disability, who does not have the capacity to control or appreciate his/her conduct cannot be liable for injuries caused to caretaker who are employed for financial compensation (*Creasy v. Rusk*) xiii. **Physical Disability Standard of Care** - The duty of a person with a physical disability is to exercise the same care as a person with the same disability would exercise under the same or similar circumstances m. In *Poyner v. Loftus*, blind person still had the duty to exercise due care for his own safety xiv. **Duty to Rescue (Bystander Rule)** - **General Rule**: A bystander has no duty to provide affirmative aid to an injured person, even if the bystander has the ability to help n. HOWEVER, the existence of a relationship between the victim and one in a position to render aid may create a duty ii. Ex: Employee hurts while performing work duties o. If a bystander DOES help though, he/she can be held liable to the person in peril if iii. He/she does not exercise reasonable care in rendering aid; or iv. The bystander discontinues aid or protection and leaves the person in a worse position than when the bystander started rendering aid p. **Common Carrier Exception**: A common carrier/innkeeper is under a duty to its passengers/guests to take reasonable action to protect them against unreasonable risk of harm and to give them first aid after it knows or has reason to know that their passenger/guest is ill or injured, and to care for them until they can be cared for by others v. A possessor of land has a duty to those who enter upon invitation vi. The duty does not require providing all medical care that might be needed (*Lundy v. Adamar of NJ*) - blackjack case - **Good Samaritan Statutes**: Seeks to limit liability for a bystander who renders aid -- must looks to statute to see q. If it applies to the person rendering aid r. What conduct is allowed (reasonable care v any conduct) s. What they are protected from (full immunity or partial immunity) xv. **Protecting third parties from criminal attacks or disease** - General Rule: No duty to warn third parties of criminal attacks or diseases UNLESS t. There is a special relationship with either (1) the person who needs to be controlled or (2) the person who is the intended victim and needs protection vii. **Exception 1: Mental Health Professional**: When a patient has communicated a specific and immediate threat of serious bodily injury against a sepcfically identified or readily identifiable third party, and when the professional determines or should determine under the standards of the mental health profession that his patient presents a serious danger of violence to a third party, then the professional has a duty to the third person to exercise reasonable care to protect by warning the third party of the danger (*Emerich v. Philadelphia Center for Human Development, Inc*: case viii. **Exception 2: Doctor Duty to Third Party to Disclose Disease**: The existence of a patient-physician relationship is sufficient to impose a physician an affirmative duty to warn identifiable third parties in the patient's immediate family against foreseeable risks emanating from a patient's illness (*Bradshaw v. Daniel*) 2. Breach: Defendant failed to meet the required standard of care, therefore breaching the duty - To show a party failed to behave as an ordinary, prudent person, plaintiff may introduce evidence showing that the conduct created risks that a reasonable person would have avoided xvi. Violation of a statute - Types of statutes: u. Can create a duty: requires a person to do something, such as rendering aid v. Can incorporate the ordinarily prudent person standard into the statute w. Can establish a specific standard of conduct, which is where **negligence per se** may apply - **Negligence Per Se (NPS)** x. Jurisdictional approaches to statutes ix. **Strict liability**: The violation of the statute establishes negligence as a matter of law - does not look to reasonable care 1. Use 6 NPS elements, and if all elements are met, then the defendant will be liable under NPS x. **Evidence of negligence**: The violation of the statute is merely evidence of negligence and is not determinative - analyze like common law negligence 2. If statute creates a duty, plaintiff is in the class of persons, type of harm, then statute establishes the standard of care 3. Breach (discuss whether D's conduct fell below the standard), causation damages xi. **Rebuttable presumption of negligence**: The violation of the statute is a presumption of negligence, but the burden now shifts to the defendant to provides an excuse or justification for the negligent conduct 4. Step 1: Analyze the 6 elements of NPS 5. Step 2: Analyze the **excuse** using common law negligence (duty, breach, causation, damages) - you are analyzing whether the defendant's conduct was reasonable under the circumstances given the excuse a. Excuses for NPS i. Violation is reasonable because of actor's incapacity (ex: sudden stroke w no prior notice) ii. The actor neither knows nor should know of the occasion for compliance (car unexpectedly malfunctions) iii. The actor is unable after reasonable diligence or care to comply (statute says not to cross double lines and a child runs into the street) iv. The compliance would involve a greater risk of harm to the actor or others (in icy conditions it is safer to walk in the road than sidewalk) v. The actor is confronted by an emergency not due to his own misconduct (ex: has to swerve to avoid hitting a person but hit a car in the back) y. Elements to Establish Negligence Per Se xii. Statute that imposes a specific duty for the protection of others xiii. Defendant violates the statute xiv. The plaintiff is in the class of persons intended to be protected by the statute xv. The harm is of the type that the statute was intended to protect xvi. Causation: Plaintiff's injuries were causes by the defendant's violation of the statute xvii. Actual damages xvii. Industry standard or custom - Evidence of what is usual and customary is generally admissible on the issue of what is negligence UNLESS (1) the custom evidence is not related to the issue at hand or (2) the custom or usage is clearly careless or dangerous - Jurisdictional Approaches - Use of Custom Evidence: z. Conclusive evidence of breach a. Evidence of negligence b. Rbuttable presumption of negligence xviii. Res ipsa loquitor - Res Ipsa is circumstantial evidence of negligence. There is no res ipsa if there is direct evidence that a defendant is negligent. - **Burden of proof**: If the plaintiff establishes a prima facie case of res ipsa loquitor (and proves each element), then the plaintiff will survive a motion to dismiss/direct verdict and the case can go to the jury - Elements c. The accident must be of a kind that ordinarily does not occur in the absence of negligence d. The instrumentality which causes the injury is in the exclusive control of the defendant - test: Defendant must have the right to control (actual control not required) e. The accident was not due to any voluntary action or contribution on the part of the plaintiff f. Causation: The accident caused the plaintiff's injury g. There are damages - Examples: h. Objects falling from defendant's premises i. Escape of gas or water from the mains j. Escape of electricity from wires or appliances k. Derailment of a train l. Wayward Wheel - spare tire flies through plaintiff's windshield m. Injuries while a patient is unconcious 3. Causation: The defendant's breach caused the injury - **Cause in fact:** A defendant's action is the cause in fact of a plaintiff's harm if the plaintiff's harm would not have occurred had the defendant acted properly xix. This is the "but for" test xx. Even if actor is negligent, 4. Actual Damages: The plaintiff suffered actual damages **Rescue Doctrine**: Allows an injured rescuer to sue a person who caused the danger requiring the rescue, assuming rescuer is a foreseeable plaintiff (ex: *McCoy v. American SuzukiI:* Hit and run of person who was helping flipped over car) 1. Negligent actor was negligent to the person rescued and such negligence caused the peril or appearance of peril; 2. the peril or appearance of peril was imminent; 3. a reasonably prudent person would have concluded that the peril or appearance of peril existed; and 4. the rescuer acted with reasonable care in effecting the rescue **Firefighter Rule**: Limits on tortfeasor liability to rescuer - Prohibits emergency personnel/public safety workers from holding a person liable for injuries sustained based on negligent conduct that required their assistance - **[EXCEPTIONS]**: Harm from dangers that are different from typical police or firefighting work OR owner concealing or lying about dangers [**Contractor for Repairs Rule**:] The owner is under no duty to protect the contractor against risks arising from the condition the contractor is hired to repair, and the owner is not liable even if the condition was the product of the owner's negligence [ ] Special Duty Rules: Protecting Third Parties from Criminal Attacks or Disease - **General Rule**: There is generally not a duty to warn third parties of criminal attacks or diseases UNLESS there is a special relationship with either (1) the person who needs to be controlled or (2) the person who is the intended victim and needs protection - **Exception 1: Mental Health Professional:** When a patient has communicated a specific and immediate threat of serious bodily injury against a specifically identified or readily identifiable third party, and when the professional determined or should determine under the standards of the mental health profession that his patient presents a serious danger of violence to a third party, then the professional has a duty to the third person to exercise reasonable care to protect by warning the third party of the danger (In *Emerich v. Philadelphia Center for Human Development, Inc.*, defendant met this standard) - **Exception 2: Doctor Duty to Third Party to Disclose Disease:** The existence of a patient-physician relationship is sufficient to impose upon a physician an affirmative duty to warn identifiable third parties in the patient's immediate family against foreseeable risks emanating from a patient's illness Standard of Care - General Practitioner: A professional person (doctor, lawyer, etc.) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community - objective standard - Specialist: The specialist in a profession may be held to a standard of care greater than that required for the general practitioner - Attorney malpractice elements a. Attorney's employment b. Attorney's neglect of reasonable duty c. Causation - the negligent act caused harm d. Damages - Physicians e. National Standard (Majority Rule): Board-certified physicians, hospitals, medical laboratories, and other health care providers, the standard of care is to be measured by the National Standards f. Locality (Minority Rule):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 locality and community g. Duty to Check: When the standard of the profession is to not check for a specific illness until a certain age because such illness is rare in persons under that age group, the physician does have a duty to perform tests if the patient exhibits symptoms of the illness. Example: Breast Cancer -- generally not required to complete a mammogram until 40 - Informed Consent - Physician Duty to Disclose - Elements: h. Physician failed to inform patient adequately of material risks before securing consent to proposed treatment i. If patient was informed of the material risks, patient would not have consented j. The adverse consequences that were not made known did in fact occur