Negligence.txt

• 1. Duty of care
• 2. Breach of duty
• 3. Causation
• 4. Damages

• 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)

• 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 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

• 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.

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

• Applicable standard: Reasonably prudent person under similar circumstances
• Tip: Follow the analysis applicable to MS possessors of land to determine what is reasonably prudent

Firefighter's rule: Assumption of risk. NY: Can't sue employer, but can sue other third parties.

• "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

• Adults = provide warnings
• Children = build barriers to entry

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

• 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

• 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)

• Identify: wrongful behavior (fact)
• Explain: why the identified behavior (fact) falls short of the applicable standard of care

• 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.

• Must show BOTH: Factual and Proximate Causation
• Factual Causation: But-for test, and Multiple ∆s
• Proximate Causation: "Fair" to hold ∆ liable for foreseeable consequences

• 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)

• 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

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

• 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

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)

• 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.

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.

• You take your π as you find him.
• The egg-shell-skull rule applies to all successfully proven torts—not just those in 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.

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

• EXPRESS ASSUMPTION–express agreement
• TRADITIONAL IMPLIED ASSUMPTION–π:
• (i) knew of the risk,
• (ii) appreciated the risk, and
• (iii) voluntarily proceeded in face of risk.

Jury allocates fault. π's recovery is reduced accordingly so π will always recover something, even if π has the bulk of fault.

• If π <50% at fault, damages will be reduced.
• If π >50% at fault, NO RECOVERY.