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Elements of a Negligence Prima Facie Case Injury (suffered by Plaintiff) Duty (owed to class of persons that included Plaintiff)

f) Breach (Defendant breached that duty of care) Causation (actual and proximate cause of injury) Injury Element Physical Harms o Bodily harms o Damage of tangible property (land, structures, etc.) Non-physical Harms o Emotional distress o Loss of Wealth (Economic losses) Duty Element The existence of a duty depends on the injurys foreseeability. Reasonable Foreseeability a duty not to cause physical harm exists whenever a reasonable person would recognize that careless conduct could cause injury to a person Common Law General Duty of Care Degree of care imposed is what is expected of an ordinary, prudent, and reasonable person exercises, or is accustomed to exercising, under the same circumstances. A person is expected to avoid risking injury to others. *Special Relationship or Statutes may alter that standard of care* Duty to Rescue and Protect Generally No Duty to Rescue if no Pre-existing Relationship Exceptions Imminent Peril to plaintiff caused by defendant Voluntary undertaking if rescue is volunteered, a duty to continue rescue with reasonable care exists Good-Samaritan Immunity statutes protect would be rescuers from liability (i.e. off-duty cops, firemen Special Relationships employee/employer, etc. Common Carriers A common carrier has a duty to its passengers to take reasonable action to protect passengers from unreasonable risks of physical harm and to give first aid after it knows, or should know, that they are injured, and care for them until proper caregivers take over. Pure Economic Loss Dont confuse with loss of income in physical injury cases or property damages that cause loss of income Legal liability does not always extend to every foreseeable consequence of every accident. No duty is owed to plaintiff who suffers pure economic loss as a result of negligence without physical harms, contractual relationship, or a special relationship making the injury clearly foreseeable.

Premises Liability Invitee o On property by invitation, there is a mutual benefit o Duty exists to have reasonably safe conditions o Duty to warn invitees of non-obvious risks o Invitees are people who enter premises open to the public and have a purpose connected w/ the business or interests of the owner/occupier. Licensee o On property with permission, no benefit to Licensor o Duty to warn of known dangers; no duty to inspect for nor repair any known defects Trespasser o No permission, invitation, enticement to come on property; on property against the will of possessor o i.e. to commit a crime, lost, negligently on property o No duty to warn or duty to maintain safe conditions o Duty to not intentionally injury trespassers Children trespassers are owed a duty attractive nuisance Duty to Warn Rowland & Tarasoff General Rule is that there is no duty to warn Special Relationship creates duty to warn/protect Texas rejected the idea of a doctor has a duty to protect third parties from physical lapses of their patients (doctor not liable when epileptic patient drove, likely aware of the risks, and crashed into plaintiff. Concealed conditions creates a duty to warn Immunized from criminal trespasser claims, but cant set up traps Breach Element Reasonable standard of care can be determined by personal knowledge and common sense Professional standard of care is determined exclusively by expert testimony Strict Liability - Automatic liability if elements are met Common Carriers have a heightened duty of care Duty is an issue of law, breach is an issue of fact (for the jury) Reasonable person standard not typically adjusted Exceptions Adjusted for mental/physical incapacities Adjusted for children Adjusted for professionals standard Tender Years Doctrine Immaturity limits childrens ability to act reasonable Stare Decisis although arbitrary expected & accepted by society Reasonable person standard Compares D w/others having same incapacities Children engaged in adult activity are held to adult standard Parents are not held vicariously liable for children Parental liability only for direct negligence (negligent supervision, negligent entrustment) Physical Incapacity still a breach if foreseeable Car Wreck caused by: epileptic seizure (liable), heart attack (no liability)

Industry and Professional Standards & Customs TJ Hooper Court may overrule the industry standard Precautions so imperative that universal disregard does not accuse their omission. TJ Hooper does not apply to Professional Standards Professional Standard What most professionals do or what professionals should do Informed Consent Dr. has duty to disclose information that would allow the patient to make a proper evaluation of proposed treatment, alternative treatment, and the risks associated with both. Carroll Towing Cost Benefit Analysis (to be used as a guideline, not a rule) Liability if Burden < Probability(occurrence)*$Amount of Loss Res Ipsa Loquitur Injury is only possible by some form of carelessness Relieves P of burden of production 3 conditions that must be met Cause of injury was exclusively in Ds control Injury that only happens as result of carelessness Plaintiff did not contribute to negligence Strict Liability you harm, you pay Certain Dangerous industries have strict liability Causation Element Actual Cause the but-for test Would there be an injury if D had acted with requisite care Circumstantial evidence must give inferences of cause, not merely speculation (Preponderance Standard) 50% is typically the threshold for Preponderance Lost Opportunity to Survive Case (Medical Malpractice only) A contract relationship existed There is empirical evidence of survival Substantial chance, but < 50% (otherwise its negligence) Death (lost survival, duh) Mayo thinks that 5-10% lost opportunity is sufficient Lost Chance of Survival = Damages * % of survival lost If % of survival > 50% then 100% of Damages are recovered Multiple Necessary Causes Multiple But-for Causes Multiple Sufficient Causes (Substantial Factor Test) Not all causes are necessary, any one of them could have injured and been the actual cause If Ds conduct was substantial in causing injury then it is sufficient Alternative Causes Approach (Summers v. Tice, hunting acc.) Plaintiff must prove injury was caused by one of the causes Doesnt have to identify which one, uncertainty is OK Defendants have burden of Proof, must show that it was not his negligence that caused the injury

Proximate Cause Must have Actual Cause first Not enough to be a but-for cause Directness (or Remoteness), Foreseeability, Scope of Risk Negligence must be a substantial factor in injury Wagon Mound adopted foreseeability as proximate cause test Jolley (kid is crushed by boat) foreseeability applies to the general type of injury (kids will hurt themselves), rather than the particular means of injury Superseding Cause a completely new act has occurred A second careless act has created a new timeline Subsequent MedMal is not a superseding cause Intentional Criminal Act is a superseding cause But an Affirmative Duty trumps superseding cause Palsgraff Zone of Danger Foreseeability of risks/danger has limits Black Letter Law liability cannot extend past the boundary of duty Cordozo If risk is not one that made defendants conduct careless, then the Plaintiff cannot recover. Liability is limited to duty, Andrews Natural and Continuous sequence of events creates liability. Liability should be limited by the facts and the jury. Kinsman Risks that make conduct careless define liability, regardless of whether actual consequences were foreseeable. Special Duty Rules Trump Proximate Cause (Attractive Nuisances) Criminal Acts are not foreseeable, breaks chain of events Negligence Per Se 4 elements that must be met to relieve P of the burden of proof. 1. Violation of Statute 2. Violation proximately caused injury 3. Injury was of the nature the statute was intended to prevent 4. Injured person was in the class meant to be protected by stat. Actual Cause must still be proven driving w/o lights has to cause it Negligence Per Se does not apply to record-keeping statutes Excused Violations Children can be neg., just not negligent per se If P proves unable to comply given reasonable diligence Compliance of Statute does not establish reasonableness (like TJ Hooper) Wrongful Death compensates immediate family for their losses Same course of action the decedent would have had Texas & 8 others overturned the exclusion of non-pecuniary damage Only for victims of tort resulting in death nothing post mortem Survival Action compensation for damages incurred by decedent up until the time of death. (i.e. medical bills, pain & suffering, etc.)

Defenses Contributory Negligence replaced by comparative in most jurisdictions 1% fault by Plaintiff barred any recovery Exceptions Last clear chance (D neg. fails to prevent injury) Comparative Fault Damages are reduced by proportion of neg. attributed to P Ps conduct must be unreasonable & contribute to injury Pure Comparative Fault no matter how fault is distributed, Plaintiff can claim its losses Modified Comparative Fault can claim up to 50% fault Multiple Defendants P can recover up to combined fault of D Division of Damages (used to be used in Admiralty) 50/50 split if both parties were at fault, no matter how fault was distributed Assumption of Risk Express Assumption (Exculpatory Clauses) Public Policy exculpation is only for ordinary(not gross) negligence Exculpatory Clauses cannot affect the public interest No exculpation if: Great importance to public Willing to perform services for any member of pub. Person is subject to risk of sellers carelessness When substantial sales take place, it becomes public interest No exculpation for common carriers Implied Assumption of Risk (Based on Conduct of Plaintiff) Plaintiff knew of risks associated with D conduct and proceeding then assumption is implied Ps conduct is unreasonable then comparative fault Comparative Fault requires P to be negligent It is possible to be aware of dangerous conditions, but be unaware off the result of the combination of such dangers Immunity Intrafamilial Immunity Actions between family members are not for court (spanks) Could lead to collusive lawsuits (Mom sues Dad to get bigger insurance payout, leads to corrupt situations) Charitable Immunity Charitable immunities typically do not exist anymore, but have generally been replaced by Damage Caps for charities\ Volunteer Protection Act volunteers immune from liability for simple negligence (excludes driving and such) in course of volunteering for charitable/government organizations Sovereign Immunity Immunity for any discretionary function/duty of a govt employee Discretion is a 2 part test Involves element of judgment Judgment must be the type that the discretionary function was designed to shield Government has a duty to the general public, but that duty does not extend to the individuals without an established relationship

Damages Eggshell Skull Rule tortfeasor must take the victim as he is Cannot complain about the severity of injuries Mitigation of Damages Plaintiff has a duty to attempt to limit damages Only applies to unreasonable failures to mitigate Defendant is not liable for damages that were avoidable i.e. post-accident medical attention is reasonable mitigation Damages should fairly compensate Plaintiff for injuries Consideration is given to: Nature & extent of injuries Diminished earning capacity Economic Conditions Plaintiffs Age Compensation awarded in cases with comparable injuries Collateral Source Rule jury may not take into account other payments received by Plaintiff due to injuries Reexamination Clause th (7 Amendment no fact tried by a jury will be examined by another US court) the Trial Court can overturn a judgment (including damages) but the Appellate Court cannot review damage awards Punitive Damages Used to supplement compensatory damages when necessary Gross negligence alone is not sufficient to warrant punitive damages Tort must appear malicious or indifferent to consequences Must have clear and convincing evidence of willfulness, malice, or indifference Clear and convincing is somewhere between preponderance and beyond a reasonable doubt