TORTS
SUSAN LYONS
FALL 2015
Negligence
Reasonable Person standard
A person is negligent if they exercise less care and consideration than an objective average person would have in the same or similar circumstances.
Other standards of Care
Common Carriers: common carriers owe “a duty of utmost care and vigilance of a very cautious person.” Common carriers should weigh the costs of potential care against the risk and have an obligation to take precautions where harm is foreseeable and relatively simple/cheap to correct.
NOT TRUE – SEEREVIEW NOTES
There is no lower standard for unintelligent or less able people, but individuals with proven higher abilities in an area (e.g. a professional truck driver) can be held to a higher standard.
Exception for children: children are held to a care standard which considers the way in which a child of similar age and circumstances would have acted in their position.
Some states use the age categories. Under 7 irrebuttably innocent, 7-14 rebuttably presumed innocent.
Note: adult standard of care when engaged in adult activities.
A defendant whose conduct is the product of a “sudden and unexpected physiological problem” there is no liability where the defendant has taken reasonable care and caution with regard to the problem which caused the harm.
Role of Statutes in determining negligence:
Statutory establishment of negligence: the legislature may establish a standard of care other than the reasonable person standard governing particular groups of persons or actions via statute.
Courts may use criminal statues governing conduct relevant to a civil suit to determine a reasonable standard of care.
Breach Per Se: breach implied from the violation of a statute. Must protect the people harmed, must be designed to protect against the harm that happened.
Licensing statutes do not give a standard of conduct
Proof of Negligence
Res ipsa loquitur: there can be a rebuttable presumption or inference (depending on jurisdiction) of negligence. Elements in determining res ipsa loquitur:
Traditional elements:
Event ordinarily occurs because there is a breach
Event caused by instrumentality within defendant’s exclusive control
Plaintiff did not contribute to the harm
Modern restatement:
Event ordinarily occurs because of a breach
Breach, when occurs, is usually defendant’s fault
Custom: proof of customary practice ignored + accident can mean negligence.
Common practice may indicate general expectation of a profession.
Though admissible, evidence of custom is not conclusive
Non delegable duty: some courts hold that there are circumstances where, in the absence of a single identifiable breacher, an entire chain of causally connected parties may be responsible for a harm.
Documentary and real evidence, as well as direct evidence, are evidence of negligence. Circumstantial evidence may be sufficient to support a case of negligence
Constructive notice: reasonable person would have known of a risk
Defect must be visible, apparent, and present long enough to be remedied. Think, spilled items in a store that had been there a week.
Plaintiff need not show that D had constructive notice if D is engaged in a business which has a continuous, foreseeable risk.
Actual notice: when the defendant actually knew of a risk.
Spoliation of evidence: term for when a defendant deliberately destroys evidence.
Defense to negligence:
Contributory negligence: when a defendant proves that a partial or complete cause of the harm was the failure of the plaintiff to exhibit the reasonable care standard in their own actions.
Liability for Negligent Actions
Persons and entities are generally liaper seble for their own negligent conduct.
Respondeat superior: Employers may be liable for the negligent actions of their employers if those actions satisfy the elements of the Birkner test:
Must be conduct that the employee is hired to perform
Must occur within the hours and location of the job
The conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.
Independent contractor liability: entities may be liable for the negligent actions of individuals acting with the apparent authority of that entity. In determining apparent agency, the court checks for three factors:
The principle represents the relationship
The third party relies on the relationship it thinks the principal and the apparent agent have
There is a change in position by the third party in reliance on the representation.
GET INDEPENDENT CONTRACTOR RULE OF VICARIOUS LIABILITY
Parents are not vicariously liable for the torts of their children.
Duty Requirements for Physical Injuries
Affirmative obligations to act
Superior knowledge of a dangerous condition by its
ses, the court will decline to submit to social considerations and upholds a duty. Example: negligent entrustment and loaning money to an unqualified party to buy a car.
Duties of Landowners and Occupiers
Traditionally three types of guests on a property: trespassers, licensees, and invitees.
Trespassers: those who enter a property without any permission of the host. Traditionally it was held that there was no duty to trespassers, but modern courts distinguish between innocuous trespassing (children exploring a forest) and flagrant trespassers, which are guests, “whose presence on the land is so antithetical to the right of the land possessor that it would be unfair to subject the person to liability for negligence” and hold the landowner to the reasonable care standard with regard to the former category.
Attractive nuisance doctrine for artificial conditions for children
Person knows children will trespass
Unreasonable risk of death/injury
Children don’t realize risk
Burden is less than the precaution
Defendant fails to exercise reasonable care to protect children
Licensees: invited with permission. Landowners owe licensees a duty to disclose any known dangers about the property when they are not obvious and are known to the owner.
Invitees: Social or business guests from whom the owner expects some benefit. Owner owe invitees the reasonable care standard of duty.
Note: Many jurisdictions have abolished the invitee/licensee distinguish and apply a reasonable care duty to all visitors (maintaining the trespasser distinction/rule noted above).
Duties between Landlords and tenants
Historically, landlords are pretty insulated. Could be liable only if:
There’s a hidden danger on the premises of which the landlord but not the tenant is aware
Premises retained under landlord’s control, such as stairways or common areas
Premises negligently repaired by the landlord.
