Duty
An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless one of the exceptions applies:
1. The volunteer exception
2. Prior conduct exception
3. ?????
4. Relationship with the perpetrator exception
What is missing under nonfeasance?
Special Relationship with a victim
- A statute proscribes certain conduct
- the actor violated it without an excuse
- the statute was designed to protect the act
- Victim falls within classifications of persons the statute was targeting
Negligence Per Se
The "but-for" test works to establish factual cause for all types of negligence cases except for this
Res Ipsa Loquitor
...change the outcome of the situation?
False - there must be some sort of physical contact in jurisdictions that follow the old rule of NIED.
Who decides if there is a duty owed?
The judge
For B<PL, what does the B stand for
Burden
If multiple acts occur, each of which under §26 [but-for causation] alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.
Which factual cause exception is this restatement defining?
Multiple Sufficient Causes
A mover is unloading a box of super toxic chemicals marked loudly as dangerous and highly flammable. He accidentally drops a box on the old wooden ramp and the chemicals react and start a fire. A nearby oil spill lights, spreads fast, and lights poor Greta's car on fire.
Is the mover likely to be liable for Greta's burned car?
Yes, because the mover was carrying a box that is known to be dangerous and warned of exactly what happened. It was possible to foresee that dropping the box would have a bad consequence.
(In Re Polemis - Stevedore case)
What is a "loss of consortium" claim?
(Rodriguez v. McDonnel)
A derivative claim that the non-injured spouse can bring for the impact on the marriage due to the injuries to their spouse. (loss of counsel and companionship due to brain injuries, loss of sexual relations and ability to conceive children due to physical injuries)
An actor ordinarily has a duty to exercise __________ ____ when the actor's conduct creates a risk of physical harm.
Reasonable care
- the injury was caused by an instrumentality under the exclusive control and management of the defendant AND
- the occurrence causing the injury is of such a type that in the ordinary course of things would not have happened if reasonable care had been used
If there is substantial evidence to support both elements, it permits the jury to infer there was negligence
What's this called?
Res Ipsa Loquitor
List all three circumstances that we can turn to in the event of the "but-for" test failing. (100 pts each)
1. Multiple Sufficient Causes
2. Multiple Sufficient Causal Sets
3. Alternative Liablity
Ned and a 10 year old neighbor kid Nick are cleaning out the garage. Ned hands Nick a blow torch, and Nick accidentally stabs himself in the eye with it, making his tear duct permanently watery. Nick sues Ned for negligence.
What will the court likely decide?
Ned would not be liable for the injury because Nick stabbing himself in the eye was not the foreseeable harm in giving a kid a blow torch.
What are the three broad categories of damages that we have talked about in torts? (100 pts each)
Nominal - not technically available in a negligence case, only intentional torts cases
Compensatory - damages awarded to make the plaintiff whole
Punitive - an amount intended to punish the defendant for particularly egregious conduct
A landowner invited some friends to go hunting on his land. What kind of visitor are they and what is the standard of care that he owes them?
Licensees - The landowner must warn his friends of the existence of any dangerous conditions on the land and not recklessly, willfully, or wantonly injuring them.
A patient underwent surgery to remove a damaged tooth. The patient awoke from surgery to discover that the wrong tooth had been removed. The patient learned that multiple actors had been involved in the surgery.
What legal theory may the patient use to bring a negligence action against the actors involved in the surgery and why?
Res Ipsa Loquitor - the patient was unconscious at the time of the injury
Two experienced hunters go out for deer in a forest. Both hunters shoot at a "deer" with the same bullets and type of gun. The deer turns out to be their friend Dave. One of the bullets hits and injures Dave. Dave sues both of them for negligence, and Dave is able to recover.
Under what doctrine is this negligence based?
The Doctrine of Alternative Liability
A driver negligently ran a stop sign, striking a pedestrian in a crosswalk. The pedestrian suffered a compound broken leg in the accident. The break was relatively simple, and the pedestrian should have recovered full use of the injured leg. However, the doctor attending to the pedestrian negligently treated the leg. As a result, the leg developed an infection that required partial amputation. The pedestrian sued the negligent driver.
For which of the pedestrian’s injuries is the proximate-cause element of negligence satisfied as against the driver?
Both the broken leg and the amputation
A shopper in a supermarket slipped and fell in a puddle of spilled soda that the shop owner had not yet cleaned. The shopper thought she felt pain in her leg as a result of the fall, and she immediately went to a nearby hospital emergency room. The emergency-room doctor found no physical injury from the fall, but an x-ray revealed a previously undetected mass in the shopper’s leg. Further testing revealed that the mass was a malignant tumor. The shopper paid for and underwent surgery to remove the mass, which, having been discovered early, had not yet spread to any other region of her body. After the surgery, the shopper’s doctors determined that she was cancer-free. Still angry about her fall in the supermarket, the shopper brought a negligence action against the shop owner.
Is the shopper likely to establish the element of harm in her negligence action against the shop owner and why?
No, because the shopper did not suffer prima facie harm.
A man was driving his car when a small child darted out in front of him. The man, despite the exercise of reasonable care, was unable to stop in time and collided with the child, injuring her. The man stopped to assist the injured child. A bystander saw the accident and ran over to give emergency aid to the child. The bystander, due to her own negligence, sustained minor injuries while helping the child.
Will the driver be liable for the injuries sustained by the bystander?
No, the driver did not negligently injure the child, so he couldn't have also been liable to the bystander.
Lauren is a delivery driver for a local company and is running late for her last drop off of the day. She drives 50mph in a 25mph residential neighborhood. While speeding, Lauren hits Ken (a kid) when he runs into the street. He is injured.
When Ken's parents bring a claim, what breach element are we targeting?
Negligence per se - Lauren was negligent in breaking the residential speed limit that was intended to protect the neighborhood
A doctor was reusing injection needles to give his patients routine steroid injections. One of the doctor’s patients was infected with the hepatitis C virus, a blood-borne pathogen that, in this patient, did not produce obvious medical symptoms. The doctor unwittingly transmitted this patient’s infection to another patient on whom he had used the same needle. This second patient sued the doctor for, among other things, negligence.
Is the second patient likely to prevail in the negligence action and why?
Yes, because the virus was either among the reasonably foreseeable risk of the doctor's conduct, or else it acted to increase a reasonably foreseeable risk of the doctor's conduct.
A driver negligently sideswiped Phil, causing the bicyclist to veer off the road and hit a fence. The bicycle was badly damaged, but Phil was fine. The driver saw that Phil was good and drove away. Phil spent an hour trying to fix the bike but couldn't, and started to walk home. All of a sudden, a storm started, and a strong wind broke a tree branch that fell and injured Phil's arm.
Is the driver's negligence a proximate cause of the bicyclist's shoulder injury?
No, the storm was an unforeseeable, superseding force of nature.
A father was staying in hotels for work for 6 months straight. His kid drew him pictures to take with him. He put the pictures on his nightstand every night for safe keeping. One day when he gets back to his hotel room, the drawings are gone. It turns out that the drawings were thrown away by a maid because she thought they were garbage. The loss of the sentimental drawings caused the father severe emotional distress, so he sued the hospital for negligence. Does he have any valid claims, and if so, what?
No, he does not have any claims for NIED, there was no physical harm, and the daughter's drawings lacked significant monetary value.