Mindmap of Negligence

Dated September 4, 2007

Torts I

Prof. Eric E. Johnson, University of North Dakota School ofLaw

NEGLIGENCE

i. Elements

1. Duty

a. Generalduty

i. Ageneral duty of care is owed to all foreseeable plaintiffs

b. Specificsituations

i. Rescuers

1. Arescuer is a foreseeable plaintiff where the defendant negligently put the selfor a third person in peril. "Danger invites rescue."

c. Unborn,unconceived children

i. Differsby jurisdiction.

ii. Wrongfulbirth

iii. Wrongfullife

d. Noaffirmative duty to act

i. Exceptions

1. Assumptionof duty by acting

a. Exception:good samaritan statutes exempting medical professionals from liability forordinary, but not gross, negligence in voluntarily acting to help someone

2. Perilcaused by negligence

a. Defendanthas a duty to assist someone in peril because of the defendant's negligence

3. Commoncarriers, innkeepers, shopkeepers

a. Thosewho solicit and gather the public for their own profit owe a duty to aidpatrons

2. Standardof care

a. Generalstandard

i. Reasonableperson

1. Thecare that would be exercised by a reasonable person under the circumstances

2. Example:Looking in the rear-view mirror before backing up

ii. Objectivestandard

1. Mentaldeficiencies not taken into account

2. Inexperiencenot taken into account

3. Physicaldisabilities and limitations are taken into account

b. Specificstandards

i. Professionals

1. Generalpractitioner

a. Theknowledge, skill, and custom of practice among practitioners in the localcommunity

2. Specialist

a. Theknowledge, skill, and custom of practice among members of the specialty acrossthe nation

ii. Children

1. Thatof a child of like age, education, intelligence, and experience

2. Childrenunder four generally do not have the capacity to be negligent

3. Exception:children engaged in an adult activity

a. Therelevant adult standard of care for the activity

iii. Bailment

1. Bailor

a. Gratuitousbailment

i. Mustinform of known, dangerous defects in chattel

b. Bailmentfor hire

i. Mustinform of known and reasonably discoverable defects in the chattel

2. Bailee

a. Solebenefit of bailor

i. Lowstandard

b. Mutualbenefit of bailor and bailee

i. Ordinarycare standard

c. Solebenefit of bailee

i. Highstandard of care

iv. Owners/occupiersof land
(shifted to the left, below)

o Trespassers

§ Undiscovered

· Noduty

§ Discovered/anticipated

· Dutyto warn or make safe concealed artificial conditions, known to theowner/occupier, involving risk of death or serious bodily injury

o Infanttrespassers

§ "Attractivenuisance" doctrine

· Dutyto avoid foreseeable risk to children caused by artificial conditions, if:

o Adangerous artificial condition the owner/occupier does or should know about

o Theowner/occupier knows or should know that children frequent the area

o Thecondition is dangerous to children

o Cost/benefitanalysis: the expense of remedying condition is slight compared to magnitude ofrisk

§ Licensees

· Personswho enter land with permission for their own benefit, rather than the benefitof the owner/occupier. (Licensees include friends and contractors coming on tothe premises to make sales or repairs.)

· Dutyto warn of or make safe any known, concealed dangerous condition (whethernatural or artificial)

· Noduty to inspect

§ Invitees

· Personsentering land with permission for the owner/occupier's business or as members ofthe public on land open to the public

· Sameduty as to licensees, plus a duty to inspect and render safe concealed dangers

v. Statutorystandard (negligence per se)

1. Whenapplicable, statute's specific standard replaces the general negligencestandard

2. Test: class-of-persons/class-of-risk

a. Theplaintiff is in the class of persons the statute was designed to protect

b. Theharm suffered is among the risks that the statute was designed to protectagainst

3. Breachof duty

a. Generally

i. Issuefor jury or trier of fact

b. Specialcase

i. Resipsa loquitor

1. Thevery occurrence of an event may rebuttably establish negligence, if:

a. Theaccident is of the type that would not normally occur absent negligence

b. Theinstrumentalities of the accident were in defendant's sole control

4. Actualcausation

a. Generally

i. "Butfor" test

b. Jointcauses

i. Substantialfactor test

c. Summersv. Tice problem

i. Multipledefendants acted, but only one caused injury

1. Burdenof proof shifts to defendants, each to negate his or her own neglience

5. Proximatecausation

a. Foresseeabilitytest

i. Theextent or severity of harm is always considered foreseeable (eggshell plaintiffrule)

ii. Negligenceof medical professionals is always considered foreseeable

6. Damages

a. Sufficientkinds of compensatory damages

i. Personalinjury

ii. Propertydamage

iii. Severeemotional distress (for NIED only)

iv. Notmere economic damages, harm to reputation, or other oblique injuries

1. (Butnote that oblique injuries may create liability covered under the heading ofoblique torts)

b. Punitivedamages

i. Compensatorydamages are a prerequisite

ii. Conductmust be wonton, willful, reckless, or malicious

c. Dutyto mitigate

d. Collateralsource rule

i. Damagesare not reduced because plaintiff has collateral sources (insurance, charity)

ii. Defenses

1. Plaintiff'snegligence

a. Contributorynegligence

i. Completebar to recovery

ii. Mostjurisdictions have rejected contributory negligence in favor of comparativenegligence

b. Comparativenegligence

i. Purecomparative negligence

1. Plaintiff'saward is reduced by percentage of fault

ii. Partialcomparative negligence

1. Plaintiff'saward is contingent upon defendant meeting a certain threshold percentage offault

2. Plaintiff'saward is then reduced by percentage of fault

2. Assumptionof risk

a. Expressagreement

i. Notvalid for certain defendants, including common carriers

ii. Notvalid for gross negligence or willful acts

b. Implied

i. Basedon the circumstances, plaintiff impliedly assumed the risk