Injury Etc.
Name the three types of injuries to establish a negligence claim.
(1) Physical harm (to body or tangible property)
(2) Loss of Wealth
(3) Emotional Distress
What is the test for determining whether there is a duty?
Privity Rule aka "Foreseeable" Victim Test
Whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or non-performance of the act.
What is the two step test for determining whether there was a breach?
(1) Identify the applicable standard of care
(2) Did the defendant's conduct fall below it?
Bonus: Are these questions of law or questions of fact?
T or F: for medical malpractice cases, breach can be proved through expert testimony
TRUE
What is the medical malpractice standard of care?
"which is employed by the medical profession generally"
What is non-feasance?
doing nothing / failure to act
What are the two types of duties?
(2) Limited/Qualified duty
What is the superior knowledge rule?
an actor with special knowledge or skill to act commensurate with that knowledge or skill
What does Res Ipsa Loquitor mean?
What is it used for?
"the thing speaks for itself"
inferred breach for plantiff's prima facie case
What is the "hand" formula? What is it used to establish?
B(urden) of precaution < L(injury) magnitude x P(robability) of loss
What is misfeseance?
affirmative act that leads to injury
What are the two types of limited/qualified duties that we covered?
(1) Reasonable efforts to protect or rescue
(2) Premise Liability (to keep a reasonably safe premise)
What is the profession/trade principle?
an actor engaged in a profession or trade to act as a reasonable member of such profession or trade under the circumstances
What are the exceptions to the no duty of care owed to a trespasser for premises liability? (2)
What is the duty owed?
(a) Attractive Nuisance = secure artificial conditions that are enticing to children
(b) Knowledge of constant trespassers to a specific, restricted area = takes steps to warn of artificial conditions
Lola decided she wanted to go roller-skating for her birthday. She invited a bunch of her friends to her local roller rink. The roller rink was packed with Lola's friends and five other birthday parties.
While rolling skating in the rink, she slipped on a piece of birthday cake that was on the floor. The birthday cake was the generic one that the roller rink includes with birthday parties. No one saw how the cake got on the floor.
Can Lola establish the breach element for a prima facie case of negligence against the roller rink?
Likely no.
Lola would have to use res ipsa to infer the breach element, since no one saw how the cake got onto the floor.
She cannot meet the second element, as the instrument causing the injury is not in "exclusive control" of the roller rink. It could have been her friends who dropped the cake or several other kids who were also having birthday parties.
What type of duty arises when the act is misfeasance?
General Duty
What is the general rule of duty to rescue?
What are the exceptions?
(1) General rule = no duty to rescue
(2) Exceptions:
(a) imminent peril
(b) voluntary undertakings
(c) special relationships
- Bonus: can you name common types of special relationships that create a heightened duty of care?
What is the child standard of care under:
(1) Tender Years Doctrine
(2) Restatement
(1) Tender Years Doctrine = no child under 7 has the capacity to commit breach ; 7-14 year olds are presumed to be incapable of breach but it is rebuttable
(2) Restatement = ordinary standard of care of a reasonable child of like age/intelligence/experince
- What is the exception to the restatement's version?
What is informed consent for medial malpractice cases?
requires physicians to disclose relevant information about the treatment to allow the patient to make an informed decision about the treatment
Bonus: What is the prudent patient standard?
What are the elements to establish res ipsa? (3)
(1) Injury must have happen in a way that ordinarily does not occur absent carelessness
(2) Instrumentality causing injury must have been in defendant's EXCLUSIVE control
(3) Injury must NOT have arisen from acts of carelessness on the part of the plantiff
What type of duty arises when there is a nonfeaseance?
Special duty
What are the duties owed to invitee, to licensee, to trespasser under the traditional approach?
Modern approach?
Trad:
(1) Invitee = to keep a reasonably safe premise
(2) Licensee = tell of known, hidden dangers
(3) Trespasser = no duty of care
Modern:
(1) Invitee and Licensee = to use reasonable care for the safety of all such persons invited upon the premises
(2) Trespasser = no duty of care
What is the "TJ Hooper" Rule?
the industry standard does NOT dictate the standard of care but may be relevant to determining breach
*noncompliance with industry standards is NOT automatically a breach
On a hot summer afternoon, Dana owns and operates Riverbend Grill, a casual restaurant located next to a public riverfront. The restaurant has an outdoor patio that sits above a steep embankment leading down to the river. The embankment is unfenced, though Dana knows that people often walk along it to fish or take photos. A weathered sign near the edge reads “CAUTION: UNEVEN GROUND,” but it is partially obscured by foliage.
Dana employs Sam as a server. During Sam’s shift, a visibly intoxicated patron, Paul, wanders from the patio toward the embankment. Several customers notice Paul stumble near the edge. Sam sees this but does nothing, assuming Paul will regain his balance. What duty of care, if any, does Dana owe to Paul? Sam owed to Paul?
Nearby, Lily, a non-customer, is kayaking on the river. She hears shouting from the patio and looks up just as Paul falls down the embankment and into the water. Lily paddles over and attempts to rescue Paul. The kayak flips over when Lily tries to pull Paul onboard. Lily decides that Paul is not worth it and paddles away without him. What duty of care, if any, does Lily owe to Paul?
Later that evening, Evan, a regular customer of Riverbend Grill, reads about the incident online. Evan was not present at the restaurant but becomes extremely distressed after learning that Dana had previously refused to install a fence despite knowing people frequently walk near the embankment. Evan begins experiencing anxiety and insomnia. What duty of care, if any, did Dana owe to Evan?
Separately, earlier that day, a neighborhood child had wandered onto the embankment area chasing a ball. Dana was aware that children from a nearby apartment complex often played near the river but had taken no additional precautions beyond the warning sign. What duty of care, if any, does Dana owe to the neighborhood child?
(1) Duty owed to Paul by Dana = special duty owed to Paul for invitor/invitee relationship to keep premise safe
(2) Duty owed to Paul by Sam = likely no duty owed (either to rescue or to keep the premise safe)
(3) Lily to Paul = originally, Lily had no duty to rescue but since she began to rescue Paul and then stopped, she may be liable
(4) Dana to Evan = no duty ; not a foreseeable victim
(5) Dana to child = attractive nuisance exception to the general "no duty" to trespassers ; had duty to take reasonable steps to secure area to prevent harm from children
MetroStorage, Inc. operates a large self-storage facility in a densely populated urban area. The facility contains several multi-story storage buildings connected by outdoor walkways. During rainy weather, water tends to accumulate on one particular metal walkway, making it slick. MetroStorage has been aware of this condition for several years after receiving multiple customer complaints and two prior incident reports involving minor slips, though no serious injuries had occurred.
Engineers hired by MetroStorage recommended installing a textured, slip-resistant coating on the walkway at a cost of $3,000. Alternatively, MetroStorage could require employees to place temporary warning cones on the walkway during rainstorms, which would require additional staff time and cost approximately $200 per year. MetroStorage chose not to implement either measure, reasoning that serious injuries were unlikely.
One afternoon after a heavy rain, Paula, a paying customer, slipped on the walkway and fell over the railing, suffering severe spinal injuries that resulted in permanent partial paralysis. Medical evidence establishes that such an injury, while rare, carries devastating consequences when it occurs.
Paula brings a negligence action against MetroStorage, alleging that the company breached its duty of reasonable care by failing to take precautions to prevent slipping on the walkway.
Assuming MetroStorage owed Paula a duty of reasonable care, analyze whether MetroStorage breached that duty.
B(urden) or precaution = $3,000 or $200 more a year (with staff and cones)
L(injury) magnitude = severe spinal injuries
x
P(robability) of harm = knew of two reports of slips and had multiple customer complaints
Result = burden of precaution is LESS than LxP. Therefore, Metro's conduct fell below the standard of reasonable care.