Elements of Negligence:
Injury- Question of Fact
Duty- Question of Law- To judges
Breach- Question of Law-(what does it mean to breach) and Fact ( did the conduct breach the duty)
Causation- actual and proximate-question of law (how do you measure causation) and Fact- (did the conduct cause the injury)
Damages- question of fact
Judgment as a matter of law: before trial, during, after
-no reasonable jury could find in favor of opposing party
Rule
No expert testimony needed where professional negligence and its harmful results are obvious as to lie within common knowledge-Wal Mart Case
Injury- 3 types
Physical- body and tangible property
economic- loss of wealth
emotional
Duty Element
Person in a specific position owes certain duties.
**Act as an ordinary reasonable person under the circumstances (general default rule)**
1) Foreseeabilty of harm
2) Foreseeabilty of severity of harm
3) Burden of taking precaution
Rule: No duty if there is no privity or special relationship between P and D
-want to limit lawsuits, if no privity, no foreseeability
Exception- (Winchester)-when D deals with imminently dangerous materials, has duty to assure no injury arises to any person who may use product-only need probable danger
**manufacturer reasonably expects no one else has responsibility to inspect**
-an object is a thing of danger if the nature of it is such that it is reasonably certain to place life in limb in peril when used
Rule: one with contagious disease owes a duty of reasonable care to avoid spreading to partners or partner’s foreseeable partners
Qualified Duties of Care
Premises liability-ownership, possession, or right to control of land or real property requires different duties
Trespasser-one who enters upon land without permission (express or implied) or doesn’t have privileges to be there
Duty: no duty of ordinary care, however there is a duty to not intentionally, willfully or wantonly injure trespasser
Exceptions: known or anticipated trespasser-duty to warn of hidden man-made condition of which owner knows
Children- owner owes duty of ordinary reasonable care not to injure child when has reason to foresee children might enter and be endangered by man-made condition b/c danger is not apparent to children (attractive nuisance) Ask Cravens
Licensee- person who enters with express or implied consent of the owner for licensee’s own purpose and not for any business person of the owner (social guest)
Duty- warn of any natural or artificial dangerous hidden conditions on premises of which owner actually knows about, maintain reasonably safe conditions
-no duty to warn of open or obvious hazards
Invitees- 1) business invitee who is invited expressly or impliedly for the economic benefit of owner or 2) public invitee who enters upon premises that are open to general public (store, church, park) Ask Cravens about public park.
Duty- duty of ordinary reasonable care to inspect premises, discover danger, and warn invitee of danger which was discovered or should have been discovered by owner
Licensee v. Invitee- possessors owe licensees a duty only under the conditions specified by the court
Minority View: Some courts have abolished distinction
ng for power company—blackout case
-back to Winterbottom and privity of contract
Pure Economic Loss
-No duty to avoid pure economic loss, unless it is clearly foreseeable (Airport Fire)
Breach
Test is reasonableness
-Failure by the D to conform to the required standard of care
-question is always whether in this instance did D adhere to the relevant standard of care
2 main assessments-
What is the scope of the duty? Where are boundaries? Look at purpose of duty to find scope; then
What was reasonable within the bounds of the duty
Usually left to jury, but when very clear, judge decides. Want ordinary person to decide.
Cases
Rogers v. Retrum- student left school b/c of open policy and got into car wreck
Duty- not to subject students, through acts, omissions or school policy to a foreseeable and unreasonable risk of harm
Breach- No
Caliri v. NH- person suing DOT for icy roads. D won- appealed on jury instructions, but court said they were ok because they said reasonable and prudent person
Pingaro v. Rossi- Meter reader bitten by dog.
Statute-owner of dog who bites person lawfully on premises is strictly liable for damages
Common Law- owner of dog strictly liable whether on or off of property only if owner knew or had reason to know dog could be violent
