Duty
In terms of duty, what are the two questions you should ask yourself?
1. Is there a duty?
2. What is the standard of care?
What is breach?
A violation of the standard of care
What are the two types of causation?
1. Cause in fact/actual/ but for cause
2. legal/ proximate cause
What damages must a plaintiff prove?
Actual damages - bodily harm or property damage. A plaintiff cannot recover if they suffered only economic loss.
A plaintiff can also add emotional damages (pure emotional distress is normally insufficient unless NIED claim).
*Nominal damages and attorneys fees are not recoverable in negligence actions*
What are the defenses to negligence?
1. Contributory fault
2. Assumption of the risk
In most cases, what is the standard of care?
Reasonable care (reasonably prudent person under the circumstances).
What are the two approaches to determine breach?
1. Traditional approach - reasonable person standard. Focuses on a common-sense approach of what the reasonably prudent person would do under the circumstances.
2. Cost-Benefit Analysis - burden v. probability of harm x severity of the loss
What is the "but for" test?
Plaintiff must show that the injury would not have occurred but for the defendant's negligence
What is the eggshell plaintiff rule?
The defendant is liable for the full extent of the plaintiff's damages, regardless of how foreseeable the injuries were.
When is a parent liable for the actions of their children?
A parent has a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent: (1) has the ability to control the child and (2) knows or should know of the necessity and opportunity to exercise such control
What are the exceptions to the general rule of no affirmative duty to act?
1. Assumption of duty/ voluntary undertaking
2. Placing another in danger
3. By contract
4. By authority
5. By relationship
What are the elements of res ipsa loquitor ("the thing speaks for itself")?
Under this doctrine, the trier of fact may infer the existence of a defendant's negligent conduct in the absence of direct evidence of such negligence.
1. the accident was if a kind that ordinarily does not occur in the absence of negligence;
2. it was caused by an agent or instrumentality within the exclusive control of the defendant; and
3. it was not due to any action on the part of the plaintiff
How do you determine proximate cause?
The majority rule requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendant's conduct.
How does a court calculate the total amount of damages awarded generally?
Personal injury - compensation that would make a victim whole (compensatory damages).
Property damages - the difference between the fair market value of the property immediately before and immediately after the injury.
Punitive damages may be awarded if the defendant acted willfully, wantonly, recklessly, or with malice.
Mitigation can be a limitation on recovery. However, in some states payment from outside sources are not credited against the liability of the tortfeasor (collateral-source rule).
What is the standard of care for common carriers and innkeepers?
Majority - Common carriers - highest duty of care; Innkeepers - ordinary negligence
CL - highest duty of care for both
Restatement - reasonable care for both, may have affirmative duty to act though
What are the two views regarding the scope of duty?
1. Majority view (Cardozo) - a duty of care is owed to the plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed by the defendant's negligent conduct. In other words, the defendant is liable only to plaintiffs who are within the zone of foreseeable harm.
2. Minority view (Restatement/Andrews) - if the defendant can foresee harm to anyone due to his negligence, then a duty is owed to everyone harmed.
How does custom impact breach of duty?
Generally, evidence of custom is admissible but not dispositive.
For professionals (lawyers, doctors, accountants, electricians), custom is admissible and dispositive. In other words, compliance with custom equals no breach and deviation from custom equals breach.
How does an event or indirect cause impact proximate cause?
These events occur after the defendant's tortious act but before the plaintiff's injuries.
Intervening cause - foreseeable; do not break the chain of causation
Superseding cause - unforeseeable; do break the chain of causation (ex. extraordinary acts of nature, generally criminal acts, and intentional torts of third parties).
What is the difference between joint and several liability and pure several liability
Joint and several liability - each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm.
Pure several liability - each tortfeasor is only liable for his proportionate share of the plaintiff's damages.
How can a plaintiff recover for NIED? How can a bystander recover for NIED?
Plaintiff:
1. the plaintiff was within the zone of danger of the threatened physical impact; and
2. the threat of physical impact caused emotional distress (most JX require some physical manifestation of distress).
Bystander:
1. Is closely related to the person injured by the defendant;
2. was present at the scene of the injury; and
3. personally observed the injury
What is the standard of care for landowners (traditional, modern, and third restatement approaches)
Restatement - standard of reasonable care applies to all land entrants except flagrant trespassers.
Traditional:
invitees- duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitees from them.
licensees- duty of reasonable care, including the duty to either correct or warn of concealed dangers that are either known or should be obvious to the landowner.
known/ anticipated trespassers- warn or protect from concealed, danger, artificial conditions.
unknown/ unanticipated trespassers- refrain from willful, wanton, reckless, or intentional misconduct
When does negligence per se occur?
1. A criminal law or regulatory statute imposes a particular duty for the protection or benefit of others;
2. the defendant violates the statute;
3. the plaintiff is in the class of people intended to be protected by the statute; and
4. that harm is of the type the statute was intended to protect against.
At this point, the plaintiff must prove their injuries were proximately caused by the defendant's violation of the statute
What are the alternatives to the "but for" test and when are they commonly used?
1. Substantial factor - whether the defendant's tortious conduct was a substantial factor in causing the plaintiff's harm (multiple tortfeasors, multiple possible causes)
2. Alternative causation - courts will shift the burden of proof to the defendants; will impose joint and several liability on both unless one can show he did not cause the harm (multiple tortfeasors but only one may have caused the harm).
3. Concert of action - if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff's harm, then all defendants are jointly and severally liable
4. Loss of chance of recovery - if a physician negligently reduces the plaintiff's chance of survival, then that plaintiff can recover for the lost chance of recovery.
What is the difference between contributory negligence, pure comparative fault, and modified comparative fault? What is the default for the bar exam?
Contributory negligence - plaintiff's negligence is a complete bar to recovery.
Pure comparative fault - plaintiff's damages are reduced by the proportion that the plaintiff's fault bears to the total harm (DEFAULT)
Modified comparative fault - same as above, except if the plaintiff is more at fault they cannot recover at all.
What is respondeat superior? When does it apply to independent contractors?
The employer is held vicariously liable for the negligence of an employee, if it occurred within the scope of employment (employer may be able to recover under indemnification or contribution).
Generally, employers are not liable for torts committed by independent contractors. However, they are for non-delegable duties such as (1) inherently dangerous activities, (2) duties to the public or specific plaintiffs for certain types of work, and (3) shopkeepers have a duty to keep the premises safe for the public. They may also be liable under the apparent agency doctrine.