Negligence Study Guide Duty

Reasonable Person Standard – defendant’s actions should be judged based on what an objective reasonable person would have done under the circumstances Hayrick case – the “reasonable person should take under consideration the circumstances, not necessarily the actual person’s characteristics (lesser intelligence, etc) Nitro-glycerine case – unavoidable accident (reasonable person at the time wouldn’t have known of properties of nitro-glycerine

Learned Hand Formula – an actor is negligent if the burden is less than the probability of loss multiplied by the magnitude of loss B<PL (have to consider the knowledge that the actor had or should have had at the time)

Dangerous Instruments – Only one standard of care, but the care in which it is reasonable to require will vary with the danger involved and is proportionate to it (ex: repairing fuel tank)

Child Standard of Care – Allow kids to be kids, but protect them. 2 Steps 1 – subjective part – age, intelligence, maturity, experience 2 – reasonably careful under the circumstances Ex: child throwing matches into gas can Inherently dangerous/adults only activity – presents a grave danger to actor and others if an adult reasonable person duty of care is not used (not limited to motorized vehicles, but that is common case) ex: snowmobile accident 13yr-old Illinois Rule – some states hold it that a child under 7 is not capable of negligence as a matter of law (in TX it is 4) Liability of Parent or Guardian of child under 18 – a parent who fails or neglects to exercise reasonable supervision and control of the conduct of such child, shall be liable in civil action for willful, malicious or unlawful injury or destruction by such child of real or personal property of another (some states cap amount)

Emergency jury instruction – 1 – party seeking the instruction had not been negligent prior to the emergency 2 – the emergency had come about suddenly and without warning 3 – reaction to the emergency was spontaneous, without time for reflection (ex: Mr. Magoo case) Physical Disabilities – the physically disabled actor must act as well as a reasonable person with that physical disability would act Ex: elevated walkway/blind man case

Gifted/Talented Actor – If a person has greater skill/knowledge, that should be placed on the shoulders of the reasonable man Ex: Black ice case (Cervelli v. Graves)

Mental Disabilities – the mentally disabled actor’s conduct is compared to that of a reasonable person without the mental disability Duty of care: 3 factors to balance duty (1) Relationship between parties (2) Reasonable foreseeability of harm to injured party (3) Public policy

Recklessness/Gross Negligence/Wanton Misconduct – (Failure to act if there is a duty to act as well as affirmative conduct) An intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another. The risk of death or grave bodily injury must be known or reasonably apparent, and the harm just be a probably consequence of the defendant’s election to run that risk or of his failure to reasonably recognize it. Elements: (1) knows of the risk of harm created by the conduct or knows of facts that make that risk obvious to anyone in that situation and (2) the precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution as a demonstration of the person’s indifference of the risk


(principal cause of accident unknown to victim) . Boadle – barrel falling from 2d window. springboard dock case **negligence per se is stronger than Res ipsa Loquitur Presumption may be rebutted if: 1 – the person violating the statute.The type of injury was usually associated with negligence 2 – the defendant had exclusive control over whatever caused the injury 3 – the plaintiff made no causal contribution to the harm 4 – the defendant’s access to information about the event was superior to the plaintiffs 2 . 1% of the time a statute or rule will be used to help determine what the standard of ordinary care is.allows jury to infer negligence without actual evidence.helps jury decide what reasonable care is under circumstances Res Ipsa Loquitur – use of circumstantial evidence as proof of breach – the thing speaks for itself (last resort) . intelligence.the statute must be designed to protect the class of persons injured/harmed from the type of injury/harm that occurred (ex: Wawanesa case – cigarette into log pile) . Still have to prove causation and harm* . and capacity under similar circumstances (unless adult only activity or inherently dangerous) Elements: 1. or 2 – The person violating the statute was a child and exercised the degree of care ordinarily exercised by persons of his maturity.helps plaintiff avoid directed verdict . and complying doesn’t prove innocence .Industry standard is just evidence (does not replace reasonable person) . or regulation did what might be reasonably expected of a person of ordinary prudence.innocently ignorant – a reasonable person under those circumstances wouldn’t have known any more or acted differently (ex: deck case) Industry Custom – evidence of negligence or lack thereof – standards that industries set for themselves – breaching doesn’t prove negligence. who desired to comply with the law.Monkey bars case (plaintiff uses as a sword) .ex – Byrne v. acting under the same circumstances. ordinance. Negligence Per Se – negligence in and of itself violation of statutes – there is a code or statute that (1) applies and (2) was there to prevent the harm that occurred (1% of cases) *only proves duty & breach.Tug boat case (defendant uses industry standard as shield) .Negligence Study Guide Breach: 99% off the time breach is analyzed/ resolved by using the ordinary reasonable person standard.

for each of the defendants’ acts would Asbestos – only takes one fiber. but likely that only one of them actually caused the harm really 1. the harm would not have occurred. defendant’s state of mind the 3d person Alternative Liability – exposes an actor to liability even where there is a possibility that the plaintiff’s harm was entirely caused by someone else (more of a factual ignorance problem) *all defendants acted negligently. no accident) Alternatives to But. for the conduct of the defendant. constitutes a breach of duty to 5. or 3. nature of the wrongful act tort if they give substantial assistance a. does a tortuous act in concert with the other or pursuant to a common 2. so no longer appropriate to use Alt. the kind and amount of assistance to the other in accomplishing a design with him. relation of the parties tortious result. 2 or more tortfeasors harm. knows that the other’s conduct constitutes a breach of duty and gives 4. independent tortfeasors – burden shifts to each defendant to prove which one actually did it. gives substantial assistance to the other in accomplishing a tortuous result wrongful act and his own conduct. for cause – Lyons pulled out in front of defendant (if she hadn’t pulled out. there is no recovery) Concert of Action – (like its own COA) RST §876 Persons Acting in Concert Factors relevant to substantially lending aid/participaiting in tort For harm resulting to a 3d person from the tortuous conduct of another. the to cause the harm to the plaintiff Ex: not a “substantial factor” in producing actor might be less liable two fires the harm (in cases where one cause is natural. For Multiple Independent Sufficient Rule: once plaintiff demonstrates that Ex: 2 fires Multiple Sufficient Factors: (in MISC) Causes (MISC) . not the but. Tice (hunting accident) Burke v.problem: but. or defendant at the occurrence of the breach of duty to the 3d party c. 2. and his own conduct b. Was # of other factors could release multiple tortfeasors have been sufficient to cause the exposed to fibers from a bunch of How they contributed from liability. For – “but. necessary link in chain of causation (there can be multiple but. Liability 3 . separately considered. aka God.Negligence Study Guide Causation Causation (Actual) – Cause-in-fact/ But. LA) design of bridg was part of but for cause of him falling over/being killed Lyons v. the burden of proof shifts to employers…can’t tell which one was **if other factors contributed more. plaintiff proves multiple. Schaffner (pinned against car by truck/who hit the gas pedal?) – one party settled. one is assisting wrongdoer: makes a 3d party liable for original subject to liability if he: 1. must be more than one defendant who acted negligently AND all tortfeasors must be a party to the suit * don’t want to let negligent defendants off the hook by letting them just point fingers at each other * more fair for them to prove who caused the harm than the innocent plaintiff * defendants are more likely to know who cause the harm(but could strategically withhold the info) ***Meant only for small groups of defendants where there is a high probability that one of those defendants actually caused the harm Ex: Summers v. Midnight Sun – even though the defendant was driving. for causes) must be proved more likely than not Examples: Leapin Cajun (Cay v. presence or absence of the (separately considered) constitutes a substantial assistance or encouragement to the other so to conduct himself. conduct was sufficient independently each defendant to prove its act was the one that gave him cancer or were more likely to contribute.

independent parallel conduct by each of the companies. as long as the plaintiff can prove the defendants negligence increased her harm to some degree. the plaintiff may recover the portion of damages actually attributable to the defendant 4 . for Continued Market Share Liability – a modified alternative liability theory for victims harmed by a product that was produced by a number of manufacturers to identical specifications Plaintiff has no way of identifying the sources of the product that caused the injury and cannot be sure that he has sued the actor or actors who actually caused the injury TX doesn’t recognize Doesn’t usually work in asbestos cases(too many products contain asbestos) Elements: 1 – injury or illness occasioned by a fungible produce (identical type of product) made by all defendants. pose serious problems for typical causation doctrines 3 general approaches Increased Risk of Harm (Petriello v Kalman – plaintiff had increased chance of injury in future – ct used flexcare) Majority sticks with all-ornothing approach for this Traditional (all or nothing) If plaintiff proves that he was deprived of greater than 51% chance of more favorable outcome than he actually received. he can recover for the entire preexisting illness or condition. plaintiff can only recover percentage of national market from each defendant 3. this approach can either be perfect (if injury occurs and plaintiff has recovered or vice versa) or totally wrong (if injury occurs and plaintiff has not recovered) TX follows this approach Worst of Both Worlds (All or Nothing +) Relaxes the standard of proof of causation. but only allows damages for the lost opportunity. must be the same product with a similar risk of harm 2 – injury or illness due to a design hazard. the plaintiff can recover for the whole preexisting condition Cases: DES . bring a substantial share of the market to court 2. if you prove that you couldn’t have caused plaintiff’s injury – doesn’t matter -.Ct.too many defendants – couldn’t shift the burden – hard to get them all into court – fairness is lowered when you look at odds (1 or 2/300 is very different than 1/2 or 1/3) less likely that the actual liable party found . looked to CA – “substantial share” of the defendants must be before the Ct Majority (proportional/flexcare) Includes the relaxed standard form from All or Nothing +. Burden of proof a. with each defendant having been found to have sold the same type of product in a manner that made it unreasonably dangerous 3 – inability to identify the specific manufacturer that brought about the injury 4 – joinder of substantial share of the market Steps: If each defendant’s product has an equal probability of harm: 1.concerned with justice for the public Lost Chance of Recovery – Cases where a doctor acts negligently but the patient would have likely suffered some harm even with good medical treatment. but weren’t acting in concert (can’t use concert of action) .defendant not in any better place than plaintiff to show whether or not they supplied the pills .Negligence Study Guide Alternatives to But. only can escape liability by proving that not part of the market b. if the plaintiff can establish a causal link between the defendant’s negligence and the lost opportunity.

whether the actor’s conduct has created a force or series of forces which are damages in continuous and active operation up to the time of the harm.different from direct – don’t see the necessity of causal link Ex: In Re Polemis.must have reasonability of danger to plaintiff by defendant’s actions Andrews – wrong result – right reason Duty to all members of society .Intervening Acts “break the chain” Tieder duty to Palsgraf . for defendant’s action and plaintiff’s plaintiff’s harm and harm that .there is a connection between the .natural and continuous sequence? Direct connection? Foreseeable? Remoteness in time and space? Etc… Palsgraff under 3 tests: Direct Consequences: Yes (no intervening acts) Foreseeability: not generally what ou would expect from helping someone on a train – maybe a jury instruction Substantial factor test – probably – definitely jury question Direct Test: Foreseeability Test: Substantial Factor Test: .there can be multiple substantial factors . or has created a situation harmless unless acted upon by other forces for which the actor is not responsible. defendant’s conduct (intervening acts .sometimes used for cause-in-fact when can’t use but.Maybe the RR was negligent. for of accident/injury is a reasonable plaintiff cause foreseeable consequence of the . RR employees helped him on from the train and on the connection between the . the number of other factors which contribute in producing the harm and the take that into consideration) – don’t extent of the effect which they have in producing it. have to foresee the extent of b. Long Island RR Plaintiff was standing on a RR platform when she was injured A man was trying to jump on a moving train.foreseeable risk of harm creats the duty (orbit of nature) .not many courts follow anymore Eggshell plaintiff rule: you take the property… plaintiff as they are (applies to extent RST 2d §433 The following considerations are in themselves or in combination of harm) with one another important in determining whether the actor’s conduct is a Shabby millionaire: have to pay even substantial factor in bringing about harm to another if the plaintiff is really rich (jury can’t a. but must be negligent to the plaintiff . c. Laureano with the line drawing in causation . It contained fireworks. to foreseeability test Louzoun (boiling water) don’t matter) .sometimes see similar lang. Cardozo – best result – wrong reason Starts with duty – no duty .innocently ignorant of the contents of the package .considers whether the contribution of a party’s act was relatively important injury (foreseeability not taken into defendant risks. A package he was carrying fell on the tracks.Negligence Study Guide Causation (Legal) – 3 Tests for Proximate Cause Palsgraf v. Thorne Equip – woman left garbage on her .sometimes need to cut off duty – ties to policy . The fireworks went off and caused scales to fall on the plaintiff. and the general type compared with the other but for causes in producing the harm suffered by the consideration) ** there is but. Little (crazy car jumped curb) Ex: American Truck Leasing v. lapse of time 5 .

but must be considered requirement separately (ex: decide on substantial Union Pump v. can be given factor test as a second actual cause together. Allbritton case factor. because it was passive Intervening/Superseding Causes – (under foreseeability test) Intervening act – any 3d party conduct that comes after the defendant’s act in the chain of events leading to injury Superseding Act – any intervening act that was not reasonably foreseeable to someone in the defendant’s position All Medical treatment is an intervening act – not superseding unless EXTRAORDINARY Generally medical treatment sought by an injured person is considered a normal consequence of the tortfeasor’s conduct.Negligence Study Guide Combined Approach . The actor is liable for a bodily injury. Cooley – left keys in car. no proximate cause under the foreseeability test . he is also subject to liability resulting from normal efforts of medical treatment required by the injury – irrespective of whether or not done in a proper or negligent manner TX Rules for Cause (3 Steps) 1.ex: McClenahan v. stolen & in car wreck/killed family – JURY Q – was not unforeseeable that someone would have stolen car .different tests TX uses a foreseeability test for for proximate cause can be combined proximate cause but uses substantial in certain jurisdictions. thus frees the original defendant from liability . Foreseeability .ex: Bush mask case. But. but not foreseeability…) proximate. Substantial Factor 3. for was a but.if there is a superseding act. Security alarm Case (superseding…jury Q) Special Duty Rules: 6 .a superseding act breaks the causal connection between the original negligent act and the injury. for cause. then decide on .

but didn’t have to Otis Engineering v.The original tortfeasor owes a duty Firefighter Rule . Boyls v. must still be but. policeman injured in pursuit of truck after it was stolen) Duty to Protect 3d Parties – Generally no duty i. protect voluntary rescuers Ex: Snellenberger v. Zezulka (TX) – mental patient killed father-in-law. Kerr – sex tape – can’t collect NIED damages alone in TX 7 . EMTs…) process proximate cause (rescue foreseeable. firefighters. TC used impact rule/no duty – App. defendant/victim iii.special relationship . can be liable if you leave the person attack0 in a worse condition Rescue Doctrine . reversed and remanded (used zone of Danger test) Cases: Emerich v. Admar of NJ (Casino heart ii. City of Racine – victim was a dog (no close relationship & if looked at it as property can’t recover). required elements – . adequate warning Bradshaw v. have to take affirmative action (social guest/host relationship only works in NJ) Duty Limited by Type of Harm (NIED) – 3 rules . can’t receive damages for injury no superseding cause) caused to them as a result of a tortfeasor’s negligence Good Samaritan Statutes – i. Penn RR – woman almost got hit by train. Daniel – Rocky Mtn Spotted Fever – had duty to warn immediate family Thapar v. for/cause-in-fact & rescuers (police. Rodriguez (police officer had heart attack at scene of crime where woman had ran over kid) Moody v. No duty to warn in TX – could have called police. defendant/person who needs to be controlled watched sis get killed in accident w/garbage truck.specific and immediate threat of serious bodily injury that has been communicated to the professional . Rabidea v. have to have control over 3d party ii.Negligence Study Guide Cardozo – only duty in danger zone/orbit of danger/scope of risk (foreseeability mattered) Judge decides if duty exists Rescuers – Special Relationship Voluntary Assumption of Duty to Default: No duty to help or rescue Common carrier/passenger Help – Employer/employee i. Grotts v. can be liable for not performing the Inkeeper/guests duty reasonably Ex: Lundy v.witness injury to victim .negligent mishandling of corpses is its own special exception – duty in that case Exception: Special Relationship i. Clark – Drunk at work case – duty – went to jury Zone of Danger (direct or bystander) .close relationship (strict) *physical manifestation Cases: James v. Lieb – bystander.Professional chooses to rescue and is hurt in the i. Zahner – fiance killed in accident – no “close relationship”.physical contact *physical manifestation Ex: Robb v.near scene -sensory & contemporaneous observance . Delta Western (DW employee left keys in fuel truck. Philly Center for Human Development – Crazy ex-boyfriend killed girl – Doc told gf “do not go to the apartment” – b/c of circumstances.immediate area of physical danger *physical manifestation Bystander .person who .close relationship Dillon Test (bystander) – most cts follow some version of this test (looks at foreseeability of plaintiffs) . enacted to help promote helping others ii.specific/readily identifiable victim Impact Rule (direct) . Ct.

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