Negligence
Prima Facie Case: 1. Act or Omission
2. Duty of Due Care
3. Breach of Duty (Lack of Due Care)
4. Actual Cause (Cause in fact) & Proximate Cause (Legal cause)
5. Injury Recognized by Law
Duty (Law): π must establish that D owed her, or class of persons including her, an obligation to take care not to cause the type of injury suffered.
• Risk Creation: THOSE WHO ENGAGE in risk creating activities DO have a duty to exercise reasonable care to avoid injuring others (foreseeability).
• Objective Standard: Reasonable person under similar circumstances.
• GR: No liability for failure to act/ No duty to rescue.
a. Infringement of individual liberty
b. Has not worsened D’s injuries
c. Difficulty of defining the duty imposed (Who’s required to rescue?)
•Exceptions to no-duty rule:
a. Special Relationship to Victim (teacher, employer, psychologist (Tarasoff))
b. Special Relationship to D (mental patients, prisoners, employee)
* RESTATEMENT: One who takes charge of a third person whom he knows or should know to be likely t cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
* B/c of burden this puts on D, some cts require threat to be to particular victim.
***What is an adequate warning?
c. Duty Based on Innocent Creation of the Risk
* RESTATEMENT: If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
* RESTATEMENT: An actor who has injured another, even without negligence, has an affirmative duty to render assistance to prevent further harm to the injured party.
d. Duty When Rescue Initiated (Good Samaritan Laws=protect rescuers from liability so long as they are not reckless)
*RESTATEMENT: One who, being under no duty to do so, takes chare of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him
• Things Judges Consider to Qualify when there is a duty based on failure to act for the benefit of the π:
a. Foreseeability
b. Morality (Was π uniquely positioned to prevent the harm?)
c. Burden the new duty will place on D
d. Alternative ways to protect π’s interest
e. Increased safety likely to result from imposing the duty
f. Administrative issues (possibility of opening litigation floodgates/ proof?)
g. Policies established by legislature
h. Availability and cost of insurance
• Courts often use the duty concept to deny liability for consequences that are foreseeable.
• Premises Liability:
a. Invitee (Leffler v. Sharp): (1) On premises by express or implied invitation (2) in connection with the possessor’s business or activity she conducts or permits to be conducted on it, to (3) her financial benefit of landowner or a mutuality of benefit or on land available to the public at large.
* Duty: Reasonable care in maintaining the premises including affirmative steps to find all dangers on the property then make them safe or warn of them.
b. Licensee: has express or implied consent to be on that person’s property, conferring no particular benefit on the land occupier or on any use to which the land occupier is putting the land. (Social guests and visiting relatives)
* Duty: warn or make safe non-obvious dangers on the property that are known. No duty to inspect the property to discover such dangers. Warning usually sufficient.
c. Trespasser: one who intentionally enters or remains on another’s property w/out that person’s express or implied permission. Intent= only means intent to make physical contact w/ land.
* Duty to UNKOWN trespassers: None
* Duty to DISCOVERED trespassers: reasonable care for harmful activities or to warn or make safe artificial conditions if non-obvious and highly dangerous.
d. Child Trespasser: If presence on land is foreseeable, duty t
ears doctrine under 7 years old
* Exception: children who engage in high-risk activities primarily engaged in by adults are held to the adult standard of care.
*NOTE: RESTATEMENT: To prove negligent supervision, π must show (1) the parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur and (2) the parents had the opportunity to control the child.
•External Circumstances: The reasonableness of D’s decision is always judged in relation to the unique context or “circumstances” in which she made it.
a. Emergency: “circumstance” that D must act quickly is relevant.
b. Custom: relevant that the D acted as others customarily do in like circumstances. The fact that conduct is generally engaged in by those in a similar trade or profession provides evidence that the conduct is acceptable.
*Ex. Dr.’s duty to warn of material risk.
*NOTE: Courts split on whether reasonableness applies to what reasonable Dr. would warn about or what reasonable person would want to know before making a decision.
* If applies to patient, then must also be shown that patient would have decided differently if adequately informed (Largey v. Rothman)
*NOTE: Custom is NOT dispositive.
“what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether It was usually complied with or not.”
c. Experts: expertise is a “circumstance” that casts light on reasonableness.
*NOTE: Experts NOT held to a higher standard of care, merely gives consideration to the “circumstance”
d. Facilities/Resources/Alternatives: ex. an experimental surgery may be reasonable in podunk town but not in a big city.
e. Negligence Per Se: Violation of a Statute (See Below)
