Negligence — Duty & Breach
What are the four elements a plaintiff must prove for negligence?
Duty, breach, causation, and harm.
What duty is owed to an undiscovered trespasser?
No duty of care is owed, but the premises possessor cannot act willfully or wantonly.
What are the two types of causation required in negligence?
Actual cause and proximate cause.
What is the difference between assault and battery?
Assault requires intent to cause harmful or offensive contact or imminent apprehension, and imminent apprehension results. Battery requires intent to cause harmful or offensive contact or imminent apprehension, and harmful or offensive contact results.
In a strict liability case, what must the plaintiff prove, and what issue is irrelevant?
The plaintiff must prove duty, causation, and harm. Whether the defendant acted reasonably is irrelevant.
What standard of care applies to children, and what is the major exception?
Children are judged by a subjective standard based on age, intelligence, and experience. The exception is when the child is engaged in an adult activity, such as driving a car, driving a boat, or shooting a gun; then the child is held to the reasonably prudent person standard.
What duty is owed to a discovered trespasser?
The premises possessor must warn of or make safe unreasonably dangerous artificial conditions that the possessor knows of.
What are three examples of foreseeable harm for proximate cause purposes?
Medical malpractice after an accident, harm occurring during rescue efforts, and a disease or later accident that occurs after the original accident.
For assault, what does “apprehension” mean, and what does it not require?
Apprehension means knowledge or anticipation of impending contact. It does not require fear.
What are the two requirements for an abnormally dangerous activity?
The activity must create a foreseeable risk of serious harm even when reasonable care is used, and the activity must not be a matter of common usage in the community.
What must a plaintiff show to establish negligence per se, and what elements must the plaintiff still prove?
The plaintiff must show that the defendant violated a statute, the plaintiff was in the class of persons the statute was designed to protect, and the plaintiff suffered the type of injury the statute was designed to prevent. This establishes duty and breach, but the plaintiff must still prove causation and harm.
Which type of plaintiff is owed a duty to inspect the premises, and what is the duty owed?
An invitee. The premises possessor must warn of or make safe all dangers that the possessor knows or should know of. This is the only category where a duty to inspect is imposed.
When there are multiple causes of the plaintiff’s harm, what test applies?
The substantial factor test. If a defendant’s breach was a substantial factor in causing the harm, the defendant is liable.
What are the elements of false imprisonment?
The defendant acts with intent to confine or restrain the plaintiff to a bounded area, actual confinement occurs, and the plaintiff either knows of the confinement or is harmed by it.
What are the three types of product defects?
Manufacturing defect, design defect, and lack of warning or instructions.
What is the difference between custom in ordinary negligence cases and custom in professional malpractice cases?
In ordinary negligence cases, custom is evidence of the duty of care. In professional malpractice cases, custom is conclusive evidence of the duty of care.
When is an employer vicariously liable for intentional torts committed by an employee?
Intentional torts are usually outside the scope of employment, but an employer may be vicariously liable if the intentional tort was foreseeable or was committed for the purpose of serving the employer.
In alternative causation cases, what must the plaintiff show before the burden shifts to the defendants?
The plaintiff must show that all potential defendants are joined in the lawsuit and that all defendants were negligent. Then the burden shifts to each defendant to show that its breach was not the actual cause of the harm.
What are the elements of intentional infliction of emotional distress, and does the plaintiff need to show physical symptoms?
The defendant intentionally or recklessly engages in extreme or outrageous conduct that causes the plaintiff to suffer severe emotional distress. The plaintiff does not need to show physical symptoms, but must show severe emotional distress.
What additional elements must a public figure prove in a defamation case, and what does malice mean?
A public figure must prove that the statement was false and that the defendant acted with malice. Malice means the defendant knew the statement was false or acted with reckless disregard as to whether it was true or false.
When does res ipsa loquitur apply, and what does it allow the plaintiff to avoid?
Res ipsa loquitur applies when the circumstances surrounding the injury are unclear, but the plaintiff can show that the injury likely resulted from negligence and that it was likely the defendant who was negligent. It allows the case to go to trial and prevents a directed verdict for the defendant, but it does not automatically mean the plaintiff wins.
What are the exceptions to the general rule that a principal is not liable for torts committed by an independent contractor?
A principal may be liable if the duty is nondelegable, the activity is inherently dangerous, or the principal was negligent in hiring, firing, or supervising the contractor. A duty is generally nondelegable if it involves safety.
What is the difference between pure comparative negligence, modified comparative negligence, and contributory negligence?
Under pure comparative negligence, the plaintiff can recover no matter how negligent the plaintiff is, but damages are reduced by the plaintiff’s percentage of fault. Under modified comparative negligence, the plaintiff cannot recover if the plaintiff is more at fault than the defendant, or in some states, if equally at fault. Under contributory negligence, the plaintiff cannot recover if even slightly negligent unless the defendant had the last clear chance to avoid the injury.
What are the general elements of negligent infliction of emotional distress, and what are the special cases where physical symptoms are not required?
The plaintiff must show that the defendant was negligent, the plaintiff suffered physical symptoms from emotional distress, and the plaintiff was either in the zone of danger or witnessed a negligent injury to a closely related person. Physical symptoms are not required when a corpse is mishandled or when there is an erroneous report of a relative’s death.
What are the four invasion of privacy torts under FAID, and which defenses apply?
False light, appropriation, intrusion, and disclosure. Consent is a defense to all four privacy torts. Defamation privileges apply to false light and disclosure.