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)
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)
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
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.
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
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
Duty : Possessor of Land : Firefighter Exception
Firefighter's rule: Assumption of risk. NY: Can't sue employer, but can sue other third parties.
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
Minimum required to satisfy duty to trespassers for hazardous static conditions
Adults = provide warnings
Children = build barriers to entry
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
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
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)
Identify: wrongful behavior (fact)
Explain: why the identified behavior (fact) falls short of the applicable standard of care
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.
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 : 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)
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
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
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.
Direct + Foreseeable consequence: Causation
Direct + Unforeseeable consequence: E.g., freakish or bizarre—No causation
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)
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.
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: 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.
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
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.
Assumption of Risk
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.
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.