1. What is Negligence?
1.1. Conduct that falls below the standard of care of what a reasonable person would have done under the circumstances
1.2. There are 5 elements that must be met to find that D was negligent, they are:
1.2.1. Duty
1.2.2. Breach
1.2.3. Cause in fact
1.2.4. Proximate cause
1.2.5. Harm
1.3. Standard of Care for Minors
1.3.1. Courts have adopted 2 standards
1.3.2. (1) A child's conduct is negligent if it does not conform to that of a reasonable person of the same age, intelligence, and experience--Exceptions:
1.3.2.1. A child less than 5 years old is incapable of negligence
1.3.2.2. The rule does not apply when the child is engaging in dangerous activity that is usually undertaken by adults
1.3.3. (2) Rule of 7's
1.3.3.1. If child is over 14 years old the presumption is that the child is able to meet the adult reasonable person standard--and no allowance is made for age, intellegence, and experience
1.3.3.2. If the child is between 7-14 years old the presumption is that the child is incapable of meeting the adult standard
1.3.3.3. If the child is under the age of 7 the child can not be found negligent
2. Duty
2.1. P must show that D owed some duty to P to act reasonably
2.2. D has a duty to exercise reasonable care to avoid subjecting others (and their property) to unreasonable risks of physical harm
2.3. Standard of Care
2.3.1. What duty was owed?
2.3.2. The degree of prudence and caution required by a person who is under a duty of care
2.3.3. Extremely fact sensitive to find if this duty had been breached
2.4. Duty to Rescue
2.4.1. Actor whose conduct has not created a risk of physical or emotional harm has no duty to rescue
2.4.2. When actor's prior non-tortous conduct creates a risk of harm, the actor has a duty to attempt to minimize or eliminate risk of harm
2.5. Special Relationships Giving Rise to Duty to Rescue
2.5.1. An actor with a special relationship owes other person a duty of reasonable care with regard to the risks that arise within the scope of that relationship
2.5.1.1. Only owes a duty of reasonable care under the circumstances--could just be calling 911 or to warn of danger
2.5.2. Examples of Special Relationships:
2.5.2.1. - Common carrier with its passenger - Inkeeper with its guests - Public business and people lawfully at business - School with its students - Landlord with its tenants - Custodian with people in its custody
2.5.3. An actor who takes charge of another who reasonably appears to be in peril has a duty to help that person
2.6. Special Relationships Between D and a 3rd Person Who Poses a Threat to a P
2.6.1. Most important consideration in establishing this kind of duty is foreseeability
2.6.1.1. Example: If a therapist determines that patient poses a serious threat of violence to others, the therapist owes a duty to exercise reasonable care to protect the foreseeable victim of that danger.
2.6.2. When a statue requires an actor to act for the protection of another, the court may rely on the statute to decide if an affirmative duty exists and to determine the scope of the duty.
2.7. Duty's for Owners & Occupiers of Land
2.7.1. There are three categories of people who are on someone else's land, and the court will determine what category the person falls under
2.7.1.1. Whose benefit was is to have this person on the land?
2.7.2. Trespasser
2.7.2.1. One who enters or remains on land without possessors consent.
2.7.2.2. Duties Owed to Trespassers:
2.7.2.2.1. - Duty 1: not to act in a willful or wanton manner toward trespasser - Duty 2: must put trespasser on notice of any known hidden danger - Duty 3: must use reasonable care in engaging in activities involving risk of serious bodily harm or death when owner knows or should know that trespasser constantly enters land - Duty 4: must have extra care for children trespassers
2.7.3. Licensees
2.7.3.1. One who is privileged to enter or remain on land only by virtue of the possessor's consent. Typically entering land to benefit themselves as much or more then the possessor (an example is a social guest)
2.7.3.2. Duties owed to licensees are the same as those duties owed to a trespasser
2.7.4. Invitees
2.7.4.1. There are two types of invitees: (1) a public invitee is a person invited to enter on land as a member of the public for a purpose which the land is open to the public (an example is a park) (2) a business invitee is a person who in invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land
2.7.4.2. Duties owed to invitees are a full duty of reasonable care, duty to inspect and protect the invitee from danger
2.7.5. While a majority of courts still use these categories, a minority of courts have abolished a these classifications and do not hold a distinction between the duty owed based on these categories
2.7.6. Land owners have no duty to protect against natural conditions on their premises that leave their premises and cause harm (like a tree branch which falls on their neighbors roof). However, they do have a duty to protect against artificial conditions.
2.8. Duties Owed by Lessors
2.8.1. Landlord typically has no duty to his lessees. However, a landlord does have a duty:
2.8.1.1. to warn lessees about a hidden danger on the property of which the landlord is aware of and the tenant is not
2.8.1.2. to protect the lessee when the premises are leased for public use
2.8.1.3. to protect lessees in areas under the landlord's control
2.8.1.4. to not make negligent repairs on the premises
2.8.1.4.1. A majority of states follow this rule
2.8.2. Landlord owes the same duty of care owed by everyone else
2.8.2.1. A minority of states follow this rule
2.9. Emergency Responder Rule
2.9.1. In most states, a person who calls for an emergency responder (like a firefighter or a police officer) does not have a duty to the emergency responder.
2.9.1.1. Exceptions to this rule:
2.9.1.1.1. When an individual engages in negligent acts after the emergency responder has entered the scene
2.9.1.1.2. When an individual fails to warn the emergency responder of known hidden danger on the individual's premises
2.10. Recreational Use Statutes
2.10.1. Landowners do not owe a duty to individuals whom the landowner has allowed to use his land for recreational use
3. Breach
3.1. Occurs when D has a duty to P, and D fails to uphold that duty, and breach of that duty caused P's harm
3.2. Breach of duty occurs when D fails to act in a way a reasonable person would
3.2.1. A Reasonable Person:
3.2.1.1. uses caution such as a man of prudence would
3.2.1.2. can't use substandard skills or knowledge as an excuse
3.2.1.3. is held responsible for specialized skills or knowledge they may have
3.2.1.4. may act differently in an emergency
3.2.1.5. usually follows customary practice--but sometimes may be reasonable not to do so--and may sometimes be unreasonable to do so
3.2.1.6. physical impairment is a circumstance to be considered--must look at what a reasonable person would do in the situation if he had the same physical impairment
3.2.1.7. has the mental attributes of an ordinary person
3.2.1.8. age is a consideration--unless the minor is engaged in an adult activity
4. Cause in Fact
4.1. But-For Test
4.1.1. But-for D's negligence the harm would not occur
4.1.2. It was more probable than not that the harm was caused by the tortuous conduct of D
4.1.3. P has the burden to prove that D's negligent conduct caused the harm
4.2. Special Problems with Proof
4.2.1. Standard used for technical evidence?
4.2.1.1. Daubert Test
4.2.1.1.1. Addresses when and how scientific theories can be used to establish causation based on a number of considerations. Court must focus solely on principles and methodology, not on the conclusions they generate.
4.2.1.1.2. 4 factors used to determine reliability of scientific evidence
4.2.1.1.3. Used in most states
4.2.1.2. Frye Standard
4.2.1.2.1. Will allow scientific theory if it has gained general acceptance
4.2.1.2.2. Used in some states
4.3. Loss of Chance Doctine
4.3.1. Allows malpractice claims to be established on the basis that negligent treatment caused P to lose an opportunity to avoid or reduce on ultimate injurty
4.3.2. Majority
4.3.2.1. Allows loss-of-chance claims to reach a jury even when P can't prove that D was more likely then not the cause of P's harm
4.3.3. Minority
4.3.3.1. Refuses to allow recovery for loss-of-chance unless P can establish causation under the traditional negligence standard. P must show that D's failure to diagnose or treat P did more likely than not cause P harm.
4.4. Indivisible Harm
4.4.1. Separate negligent acts from multiple D's caused injury
4.4.2. Each D is responsible for entire damage, even if each D's act alone wouldn't have caused it. P is only entitled to one full recovery.
4.5. Concerted Action
4.5.1. All those in pursuance of a common plan or design to commit a tortuous act--by taking part in it OR encouraging the wrongdoer OR taking part in it by cooperation--are all equally liable because they are still part of the But-For test.
4.6. Vicarious Liability
4.6.1. You can be liable if you support the tortuous actions of another
4.7. Alternative Liability
4.7.1. Both D's are negligent parties, at least one had to be proximate cause of injury. Burden is on D's to establish who caused the injury. P must show both D's were negligent, both breached duty, and at least one caused injury
4.8. Joint Liablity
4.8.1. P can sue D's in same action
4.9. Several Liability
4.9.1. Each D is fully liable for P's damages. P is only entitled to one recovery
5. Proximate Cause
5.1. D's liability is limited to the harms that result from the risks that made D's conduct tortuous
5.2. There is no proximate cause when D has no duty to P
5.2.1. D generally has no duty to control the conduct of a third person
5.2.1.1. **Exception is when D's relationship with either the tortfeasor OR the plaintiff places D in the best position to prevent harm
5.3. What risks make conduct a breach of duty?
5.3.1. **Jury must decide the limitations D's liability and if harm was foreseeable from breach--focus on the type of risk that made a conduct a breach
5.4. What are the foreseeable risk of breaching the duty?
5.4.1. D is liable if a foreseeable risk of harm occurs from D's negligent breach of duty
5.5. What risks made the conduct negligent?
5.5.1. Liability is limited to those harms that result from the risks that made D's actions negligent
5.6. Thin-skull rule
5.6.1. If pre-existing condition causes P to have greater harm, D is liable, D must take P as he finds him
5.6.2. D is responsible for the direct effects of his negligent acts, even if more serious, in cases of the sick and infirm, as well as in those of healthy and robust people
5.7. Superseding Causes
5.7.1. Was the superseding act something that was foreseeable in the situation created by D's negligence?
5.7.2. If an intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or for removed from D's conduct, it may be a superseding act which breaks the causal nexus.
5.8. Concurrent Causes
5.8.1. Operative at the moment of injury and acted with another to cause the harm--both parties are responsble
5.8.1.1. When causes are concurrent they are not superseding
5.9. Intervening Cause
5.9.1. Absolves D of liability ONLY if it supersedes D's negligence
5.9.2. One which actively operates in producing harm to another after D's negligent act
5.9.3. Act of God
5.9.3.1. Typically not responsible for an intervening cause that is an act of god--but not always!
5.9.4. Rescue Doctine
5.9.4.1. "Danger invites rescue" -- it is a normal foreseeable thing for someone to try to help in times of peril
5.9.4.2. Focuses on whether one result that can be expected from an initial act of negligence is an attempt by another person to save life or property
5.9.4.2.1. Is it foreseeable that a person's negligent act will invite someone to come to the rescue?
5.9.4.3. NOT a superseding cause--because the rescue is foreseeable
5.10. Social Host Liability
5.10.1. Some states hold social hosts liable for when a guest becomes intoxicated and then the guest goes out and hurts someone
5.10.1.1. **Ohio holds social hosts liable when underage people are intoxicated and the underage guest goes out and hurt someone
5.10.2. Most states do not hold social hosts liable for their intoxicated guests' actions
6. Harm
6.1. Occurs when P is worse off because of D's breach of duty
6.2. Harm can be physical, emotional, and/or economic
6.2.1. Physical = bodily harm
6.2.2. Emotional = impairment or injury to emotional tranquility
6.2.3. Economic = monetary loss, like loss of wages or loss of profits
7. Negligence Per Se
7.1. Occurs when D violates a statute that is designed to protect against the type of accident D's conduct causes--and against a person the statue was designed to protect
7.2. Under negligence per se D is negligent as a matter of law
7.2.1. Jury does not have to find that a reasonable person would have acted differently
7.2.2. Jury only finds actual cause, proximate cause, and damages
7.3. 3 Views on the Effect of a Violation of a Statue
7.3.1. Violation is some evidence of negligence
7.3.2. Violation can create a prima facia case of negligence
7.3.3. Violation can establish negligence per se
7.4. When is D's violation of the statue excused?
7.4.1. When the violation is reasonable because D is a child, physically disabled, or physically incapacitated
7.4.2. When D exercises reasonable care or diligence to comply with the statue
7.4.3. When D neither knows or should know the factual circumstances that render the statute applicable
7.4.4. When the requirements of the statue are presented to the public in a confusing way
7.4.5. When compliance would involve a greater risk of physical harm to D or other than non compliance
8. Negligence Res Ipsa Loquitur
8.1. Means: The thing speaks for itself
8.2. A way to prove negligence when the evidence of exactly what went wrong is lacking
8.3. The event is something that does not ordinarily happen unless someone has been negligent
8.4. Shifts the burden of proof of negligence-- when the facts pertaining to the existence of negligence are exclusively within the knowledge of D because D has exclusive control of the environment
8.4.1. Something where a D has exclusive control
8.4.1.1. Exclusive control looks at control at the time of the negligent act which is not necessarily the time of the injury
9. Negligent Infliction of Emotional Distress
9.1. P can recover for emotional distress caused by D's negligence. Under the Restatement 3rd, P does not have to show there has been physical harm.
9.2. D can be liable for these reasons:
9.2.1. Parasitic Damages
9.2.1.1. D's negligence caused P physical harm and P suffered emotional harm as well
9.2.2. Zone of Danger
9.2.2.1. D placed P in danger of immediate bodily harm
9.2.3. Special Relationship
9.2.3.1. D's negligence caused P emotional harm, and D is liable because P and D had a special relationship
9.3. Impact Rule
9.3.1. Emotional distress must be coupled with physical injury OR impact to be actionable
9.4. Zone of Danger Rule
9.4.1. To hold D liable, P must be:
9.4.1.1. (1) in danger of physical impact; (2) reasonably fear for her physical safety; AND (3) suffered serious emotional distress as a result
9.5. Bystander Rule
9.5.1. What happens when P is outside the zone of danger, but suffers emotional distress from witnessing D negligently harm a third person?
9.5.1.1. How the Dillon court answered this question:
9.5.1.1.1. P can recover in this situation when:
9.5.1.2. How the Thing court answered this question:
9.5.1.2.1. Majority Opinion: Bystander can only recover if they are closely related to the person who was harmed AND witnessed the harm
9.5.1.2.2. Concurring Opinion: Bystander should not be able to recover for NIED if they were not in the zone of danger
9.5.1.2.3. Dissenting Opinion: Dillon standard is supposed to be used as a guideline and court should not put ridged elements should not be imposed to determine bystander recovery
9.5.2. The Restatement 3rd and most courts agree with the majority opinion in Thing