Negligence

• + - Elements
  • + - Duty
    • + - General duty
      • A general duty of care is owed to all foreseeable plaintiffs
    • + - Specific situations
      • + - Rescuers

        • A rescuer is a foreseeable plaintiff where the defendant negligently put the self or a third person in peril.  "Danger invites rescue."

      • + - Unborn, unconceived children
        • + - Differs by jurisdiction.
          • Wrongful birth
          • Wrongful life
    • + - No affirmative duty to act
      • + - Exceptions
        • + - Assumption of duty by acting

          • Exception: good samaritan statutes exempting medical professionals from liability for ordinary, but not gross, negligence in voluntarily acting to help someone

        • + - Peril caused by negligence
          • Defendant has a duty to assist someone in peril because of the defendant's negligence
        • + - Common carriers, innkeepers, shopkeepers
          • Those who solicit and gather the public for their own profit owe a duty to aid patrons
  • + - Breach of duty
    • + - Standard of care
      • + - General standard
        • + - Reasonable person
          • + - The care that would be exercised by a reasonable person under the circumstances
            • Example: Looking in the rear-view mirror before backing up
          • Objective standard
          • Mental deficiencies not taken into account
          • Inexperience not taken into account
          • Physical disabilities and limitations are taken into account
      • + - Specific standards
        • + - Professionals
          • + - General practitioner
            • The knowledge, skill, and custom of practice among practitioners in the local community
          • + - Specialist
            • The knowledge, skill, and custom of practice among members of the specialty across the nation
        • + - Children
          • That of a child of like age, education, intelligence, and experience
          • Children under four generally do not have the capacity to be negligent
          • + - Exception: children engaged in an adult activity
            • The relevant adult standard of care for the activity
        • + - Bailment
          • + - Bailor
            • + - Gratuitous bailment
              • Must inform of known, dangerous defects in chattel
            • + - Bailment for hire
              • Must inform of known and reasonably discoverable defects in the chattel
          • + - Bailee
            • + - Sole benefit of bailor
              • Low standard
            • + - Mutual benefit of bailor and bailee
              • Ordinary care standard
            • + - Sole benefit of bailee
              • High standard of care
        • + - Owners/occupiers of land
          • + - Trespassers
            • + - Undiscovered
              • No duty
            • + - Discovered/anticipated

              • Duty to warn or make safe concealed artificial conditions, known to the owner/occupier, involving risk of death or serious bodily injury

          • + - Infant trespassers
            • + - "Attractive nuisance" doctrine
              • + - Duty to avoid foreseeable risk to children caused by artificial conditions, if:
                • A dangerous artificial condition the owner/occupier does or should know about
                • The owner/occupier knows or should know that children frequent the area
                • The condition is dangerous to children
                • Cost/benefit analysis: the expense of remedying condition is slight compared to magnitude of risk
          • + - Licensees

            • + - Persons who enter land with permission for their own benefit, rather than the benefit of the owner/occupier.  (Licensees include friends and contractors coming on to the premises to make sales or repairs.)
              

              • Duty to warn of or make safe any known, concealed dangerous condition (whether natural or artificial)

                No duty to inspect

          • + - Invitees

            • + - Persons entering land with permission for the owner/occupier's business or as members of the public on land open to the public

              • Same duty as to licensees, plus a duty to inspect and render safe concealed dangers
        • + - Statutory standard (negligence per se)
          • When applicable, statute's specific standard replaces the general negligence standard
          • + - Test: class-of-persons/class-of-risk
            • The plaintiff is in the class of persons the statute was designed to protect
            • The harm suffered is among the risks that the statute was designed to protect against
    • + - Generally
      • Issue for jury or trier of fact
    • + - Special case
      • + - Res ipsa loquitor
        • + - The very occurrence of an event may rebuttably establish negligence, if:
          • The accident is of the type that would not normally occur absent negligence
          • The instrumentalities of the accident were in defendant's sole control
  • + - Actual causation
    • + - Generally
      • "But for" test
    • + - Joint causes
      • Substantial factor test
    • + - Summers v. Tice problem
      • + - Multiple defendants acted, but only one caused injury
        • Burden of proof shifts to defendants, each to negate his or her own negligence
  • + - Proximate causation
    • + - Foresseeability test
      • The extent or severity of harm is always considered foreseeable (eggshell plaintiff rule)
      • Negligence of medical professionals is always considered foreseeable
  • + - Damages
    • + - Sufficient kinds of compensatory damages
      • Personal injury
      • Property damage
      • Severe emotional distress (for NIED only)
      • + - Not mere economic damages, harm to reputation, or other oblique injuries
        • (But note that oblique injuries may create liability covered under the heading of oblique torts)
    • + - Punitive damages
      • Compensatory damages are a prerequisite
      • Conduct must be wonton, willful, reckless, or malicious
    • Duty to mitigate
    • + - Collateral source rule
      • Damages are not reduced because plaintiff has collateral sources (insurance, charity)
• + - Defenses
  • + - Plaintiff's negligence
    • + - Contributory negligence
      • Complete bar to recovery
      • Most jurisdictions have rejected contributory negligence in favor of comparative negligence
    • + - Comparative negligence
      • + - Pure comparative negligence
        • Plaintiff's award is reduced by percentage of fault
      • + - Partial comparative negligence
        • Plaintiff's award is contingent upon defendant meeting a certain threshold percentage of fault
        • Plaintiff's award is then reduced by percentage of fault
  • + - Assumption of risk
    • + - Express agreement
      • Not valid for certain defendants, including common carriers
      • Not valid for gross negligence or willful acts
    • + - Implied
      • Based on the circumstances, plaintiff impliedly assumed the risk