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Villanova University School of Law
Brogan, Doris DelTosto



Fall 2013


*Prima Facie Elements:

1. P has suffered an injury;

2. A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P;

3. A breached that duty of care;

4. A’s breach was an actual and proximate cause of P’s injury

1. Duty – decided by JUDGE

a. A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P

b. General Duty of Reasonable Care

i. A general duty of care is imposed on all human activity; when a person engages in an activity, he is under a legal duty to act as an ordinarily prudent, reasonable person would.

ii. REASONABLE FORESEEABILITY: An unqualified duty to take reasonable care not to cause physical harm is owed to another whenever a person “of ordinary sense” would recognize that careless conduct on his part would create “danger of injury to the person or property of the other” (Heaven v. Pender)

iii. General Rule: Liability extends to foreseeable plaintiffs

c. Foreseeability – 3rd Party Plaintiffs

i. MacPherson v. Buick – Foreseeable Harm

1. D makes wheels à Buick manufactures cars à C car dealership à P injured driver

2. Cardozo said there was a duty – there must be knowledge of a danger, not mere possible, but PROBABLE

3. There must also be knowledge that in the usual course of events others besides the buyer will share the danger (i.e. the car has seats, foreseeable that others would use it)

ii. Mussivand v. David

1. Dr. D slept with Dr. W who was married to Dr. M, gave her an STD, which she passed on to Dr. W

2. Duty to 3rd party is related to foreseeability – it is foreseeable that a wife would sleep with her husband; there is liability

d. Exceptions to the General Duty of Reasonable Care Rule

i. Children

1. A majority of courts take the view that a child is required to conform to the standard of care of a child of like age, education, intelligence, and experience

2. Subjective standard

a. EXCEPTION = when a child engages in adult activity

b. If a child under 18 is engaged in an adult activity most courts hold that the child is required to conform to the same standard of care as an adult (reasonably prudent person)

3. Tender Years Doctrine: Children under 7 are not capable of negligence

a. Appelhans v. McFall – 5 year old ran over a 66 year old lady from behind on his bike

4. Parental Liability – A person injured by a child’s carelessness who wishes to recover from the child’s parents must establish some form of DIRECT negligence (carelessness on part of the parents)

a. Negligent Entrustment – parent carelessly gives access to a dangerous instrumentality (car, gun, poison)

b. Negligent Parental Supervision – direct cause of action; parents must cause or be specifically responsible for the action

i. Parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur

ii. Parents had the opportunity to control the child

ii. Professionals

1. A person who is a professional or has special skills (doctor, lawyer, mechanic) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities

2. Expert Witness’ Personal Practice

a. The P in a malpractice action must introduce expert testimony to establish that the D failed to heed standard of care (unless the conduct at issue is so unrelated to professional expertise)

b. Condra v. Atlanta Orthopedic

i. Court held evidence regarding an expert’s personal practices is admissible both as substantive evidence (of what the standard of care is) and to impeach the expert’s opinion regarding the applicable standard of care

ii. GA statute regarding expert medical testimony requires that the expert be regularly engaged in the active practice of such area of specialty of his or her profession… with sufficient frequency to establish an appropriate level of knowledge

iii. Informed decision

iv. The right of cross-examination is a substantial right

v. A jury is free to disregard the expert’s opinion entirely

c. Expert testimony: you only get an expert when it is something that a jury could not understand themselves

i. Daubert – federal judge must exercise a “gatekeeper responsibility” 2-part test

1. Establish reliability (that the expert testimony consists of scientific knowledge)

a. Theory/technique has been tested

b. Peer reviewed or published

c. Known potential rate of error of method used

d. Known potential rate of error of method used

e. Degree of method or conclusion’s acceptance within relevant scientific community

2. Whether testimony is relevant

iii. Prudent Patient/Materiality of Risk

1. The scope of the duty to disclose “must be measured by the patient’s need, and that need is the information material to the decision… The test for determining whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the decision must be unmasked. And to safeguard the patient’s interest in achieving his own determination on treatment, the law must itself set the standard for adequate disclosure.”

a. Largey v. Rothman – Court adopted the prudent patient standard – Dr. should disclose all the info that a reasonable person might need in order to make an informed decision

i. Main reason for adopting this standard is the “patient’s right of self-determination”

2. Informed Consent Defense

a. Consent must be informed – that is to be valid, patient must know what she is consenting to

b. Exception: unconscious patient in need of emergency surgery

iv. Common Carriers (see breach section)

e. Qualifi

death or serious bodily harm

iii. Exceptions: if the landowner knows of habitual trespassers

1. Limited duty to take steps to warn adult trespassers of a risk of physical harm posed by “artificial” conditions on the land

a. Ex: junk yard by the bus stop and people always cut thru to get to bus stop

c. Licensee: a person who enters upon the property for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner (social guest)

i. Duty = duty to warn of concealed dangers known to the owner

ii. No duty to inspect, no duty to repair

iii. Ex: Rowland

d. Invitee: Person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage

i. Land held open to the public (museums, churches, airports)

ii. People who enter the premises for a purpose connected with business (mailmen, customers, etc.)

iii. Duty to make reasonable inspections à Duty to repair subsequently found dangers

iv. Duty to warn of nonobvious, dangerous conditions known to the landowner

v. Scope of Invitation: An invitee who “goes beyond the bounds of his invitation… lose that status of invitee and the rights accompanying that state” (Leffler v. Sharp – drunk man staying at inn goes to roof deck that is marked ‘not for guests’)

1. Businesses such as motels and stores that are open to the public at least at times operate under an obligation to maintain and monitor their premises with due care for the possibility of a criminal attack on a customer or other lawful visitor

2. Often look at foreseeability when determining proximate cause and relation of duty (look at crime reports for the area)

e. Trespassing Children

i. Attractive Nuisance Doctrine: Most courts impose a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by dangerous conditions on his property – entitled to the care of the reasonably prudent person

1. There is a dangerous condition present on the land of which the owner is aware

2. The owner knows/should know that children frequent his land (near the danger)

3. The condition is likely to cause injury (b/c of child’s inability to appreciate the risk)

4. The expense of remedying the situation is slight compared with magnitude of the risk

5. Ex: pool