Torts 4.txt

  1. Negligence : Elements
    • 1. Duty of care
    • 2. Breach of duty
    • 3. Causation
    • 4. Damages
  2. Duty: Two inquiries
    • 1. To whom does ∆ owe a duty of care? (Foreseeable victims)
    • 2. What standard of care does ∆ owe?

    • Foreseeable victims include:
    • People within proximity (the "zone of danger")
    • Rescuers (can be foreseeable π)
    • Pregnant women (in NY only)
  3. Duty : Default Standard of Care
    • Test: Reasonably prudent person acting under similar circumstances
    • Objective test: ∆'s individual characteristics are ignored

    But, ∆ characteristics considered where

    • ∆ has a physical impairment (e.g., disabled)
    • ∆ has advanced or superior skill or knowledge (e.g., doctors)
  4. Duty : What standard of care does a CHILD ∆ owe to potential πs?
    • < 4 years: Child owes no one a duty
    • ≥ 4 years: Child of the same (1) age, (2) experience, and (3) intelligence under similar circumstances
    • < 18 and engaged in adult activity: Default std (reasonably prudent person under similar circumstances

    An adult activity tends to be one involving the operation of a motorized instrument, e.g., cars, boats, chainsaws
  5. Duty : ∆ is a Professional
    • Duty of care: Average member of that profession, practicing in a similar community
    • Evidence of actual community custom: Establishes standard of care applicable to ∆ professional
    • Specialists: Compare specialists to other specialists, regardless of geography
    • NY Distinction: Doctors must inform patients the risks of any procedure, unless doing so would harm patient.
  6. Duty : MS Possessor of Land
    Source of Injury: Two possibilities—(1) Activity conducted by ∆ or ∆'s agents, (2) hazardous static condition (HSC) distinguish natural from man-made HSCs

    Undiscovered Trespasser: Not a foreseeable victim, ∆ owes no duty of care

    Discovered or Anticipated Trespasser: Must protected discovered or anticipated trespassers from all known man-made death traps on the land

    Licensee (e.g., social guests): ∆ must (1) warn licensee about all known traps (natural and man-made) on the land, and (2) use reasonable care in the exercise of activities on the land

    Invitee (e.g., commercial benefit or general public): ∆ must (1) warn invitee about all reasonably knowable or discoverable traps (whether natural or man-made), and (2) use reasonable care in the exercise of activities on the land
  7. Duty : NY Possessor of Land
    • Applicable standard: Reasonably prudent person under similar circumstances
    • Tip: Follow the analysis applicable to MS possessors of land to determine what is reasonably prudent
  8. Duty : Possessor of Land : Firefighter Exception
    Firefighter's rule: Assumption of risk. NY: Can't sue employer, but can sue other third parties.
  9. Duty: Possessor of Land: Child Trespassers
    • "Attractive nuisance" doctrine. Must show
    • (1) ∆ knew or should have known of an artificial hazardous static condition (HSC),
    • (2) that children were likely to trespass on the land,
    • (3) that the artificial HSC was likely to cause serious injury b/c of the child's inability to appreciate the risk, and
    • (4) the expense of remedying the situation is slight compared to the magnitude of the risk
  10. Minimum required to satisfy duty to trespassers for hazardous static conditions
    • Adults = provide warnings
    • Children = build barriers to entry
  11. Duty : Statutory Standards of Care
    Borrow the standard of care from the statute?

    • Yes: When all of the following are present: (1) π is in intended class of persons, (2) π's injury is within class of risks, and (3) statute clearly describes conduct.
    • No: Compliance would be impossible or increase danger to π
  12. Duty : NY No-Fault Insurance
    • Ability to collect: (1) ≤ $ 50,000; and (2) owner, driver, passenger, pedestrians
    • Availability of additional remedies in tort: (a) death, dismemberment, significant disfigurement, etc.; (b) damages > $ 50k
    • What can be recovered: Personal injuries (but not pain and suffering, or property damage)

    Note that bad persons (e.g., drunk drivers, thieves) are barred from recovery under a no-fault insurance plan

    Also note that a no-fault plan is "portable" outside of NY—i.e., still possible to recover, even though accident occurs outside of NY, so long as policy was purchased in NY
  13. Duty : Negligent Infliction of Emotional Distress
    • 1. Near miss: (1) ∆'s negligent conduct, (2) put π in a "zone of danger," (3) π suffered distress, and (4) resulting physical manifestations
    • 2. Bystander: (1) π is contemporaneous witness to (2) bodily injury inflicted on (3) close family member (strict construction), and (NY only) π was also in zone of danger
    • 3. Special relationship between π and ∆: Foreseeable risk of emotional distress (e.g., negligent medical diagnosis)
  14. Breach
    • Identify: wrongful behavior (fact)
    • Explain: why the identified behavior (fact) falls short of the applicable standard of care
  15. Res ipsa loquitur
    • If you can't identify a specific wrongful act, you can use res ipsa loquitur if–
    • (1) the accident is normally associated with negligence, and
    • (2) the accident would normally be caused by the negligence of someone in the ∆'s position–e.g., showing ∆ was in control of the object.
  16. Causation: Definition
    • Must show BOTH: Factual and Proximate Causation
    • Factual Causation: But-for test, and Multiple ∆s
    • Proximate Causation: "Fair" to hold ∆ liable for foreseeable consequences
  17. Causation : Factual Causation : But-for Test
    • Causation: But-for ∆'s negligence, there would be no injury
    • No causation: Even-if ∆ was not negligent, π would still be injured (e.g., because π threw himself in front of ∆'s truck)
  18. Causation : Factual Causation : Multiple ∆s
    • Causes combined: Substantial Factor Test–Causation, if a breach would, in itself, be sufficient to cause π's injury. If both ∆s are substantial factors, then joint and several liability.
    • Unascertainable Cause: No mechanism to figure out which ∆ did it. Burden shifted from π to ∆—∆ must prove that he/she wasn't at fault
  19. Proximate Cause
    A ∆ generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts—i.e., when the consequences of ∆'s negligent action are foreseeable

    • Foreseeable: Causation
    • Unforeseeable: No causation
  20. Proximate Cause
    • Defined: Occurs when ∆'s breach leads directly to π's injury—i.e., uninterrupted chain of events.
    • Causation: ∆ is liable for all foreseeable harmful results, regardless of unusual manner or timing.
    • ∆ is NOT liable for unforeseeable harmful results not within the risk created by ∆'s negligence.

    In summary—

    • Direct + Foreseeable consequence: Causation
    • Direct + Unforeseeable consequence: E.g., freakish or bizarre—No causation
  21. Proximate Causation: Intervening Causes
    Occurs when ∆ breaches duty, and there are intervening events between the breach and π's injury.

    • ∆ is liable for indirect injuries that are–
    • (1) Reasonably expected to happen as a result of ∆'s breach.
    • (2) The foreseeable result of unforeseeable intervening forces.
    • (3) The result of ∆'s negligence that increased the risk of harm from independent intervening forces.

    Well-settled cases—Causation found

    • Intervening medical negligence
    • Intervening negligent rescue
    • Intervening reaction/protection forces (e.g., mass hysteria stampede)
    • Subsequent disease or accident (e.g., infection, falling off crutches)
  22. Damages
    • If the other 3 elements are satisfied, ∆ is liable for all damages arising from the breach no matter how great in scope.
    • Damages are not presumed. π must make a showing.

    • Three types:
    • 1. Personal injury
    • 2. Property damage
    • 3. Punitive damages–∆'s conduct is wanton or willful. NY: only awarded for gross negligence.

    π has duty to mitigate damages.
  23. Damages: Collateral Source
    Damages not reduced just because π received benefits from other sources.

    NY Distinction: Courts are required to reduce a successful π's damage award by the amount of any benefits that π has received or will receive from collateral sources. EXCEPTIONS: life insurance, certain SS benefits.
  24. The "egg-shell skull" rule
    • You take your π as you find him.
    • The egg-shell-skull rule applies to all successfully proven torts—not just those in negligence
  25. Traditional Contributory Negligence
    • Complete bar to recovery
    • EXCEPTION: Last Clear Chance–Despite π's contributory negligence, person with the last clear chance to avoid the accident who fails to do so is liable for negligence.
  26. Assumption of Risk

    NOT a defense to an intentional tort (that would be consent).

    • EXPRESS ASSUMPTION–express agreement
    • (i) knew of the risk,
    • (ii) appreciated the risk, and
    • (iii) voluntarily proceeded in face of risk.
  27. Pure Comparative Negligence
    Jury allocates fault. π's recovery is reduced accordingly so π will always recover something, even if π has the bulk of fault.
  28. Partial/Modified Comparative Negligence
    • If π <50% at fault, damages will be reduced.
    • If π >50% at fault, NO RECOVERY.
Card Set
Torts 4.txt
Negligence Defenses