Negligence: (54.

30)

1. Duty ** (two ways duty is form: Paul’s Raft case 1.02.00)  Anthony Cardozio. Proximate cause and what
the duty was?
2. Breach
3. Actual Cause
4. Proximate Cause *
5. Harm

Most of the actions in the world of negligence is by far the common cause of actions. (encompasses product liability
(bought a toaster that blew up), car accidents, general the case that most people don’t intend to cause harm).

The duty to trespasser is generally that you don’t have any special duty to care except open (example: big whole on the
floor in your house and you just cover that up with a carpet. And a burglar comes in to your house and falls into that
whole. That burglar can have a cause of action against the homeowner).

Negligence CONTINUE…. (Folder D, Number 3)

Duty notes (1 minute):

Generally, everyone has a legal duty to act reasonably.

Specifically, for most of us, that duty is:

To act as a reasonable adult with:

a. Ordinary knowledge and skill AND

b. Any superior knowledge or skill he or she possesses AND
c. Ordinary level of mental capacity AND
d. His or her own physical attributes

Duty (for minors)- for children older than the age of 7 years old, younger than 14

To act as a reasonable minor with the age, mental capacity, and experience of a minor of similar age. (9 year old is
compare to 9 year olds, 8 year old is compare to 8 year old, ect)

UNLESS the minor is engaged in an adult activity that is INHERENTLY DANGEROUS (example: student driver, 11 year old
driving a car, that is an adult activity, inherently dangerous, held at adult standard).

(A child younger than seven cannot be held liable for negligence).

DUTY (FOR PROFESSIONAL, such as doctors, lawyers, accountants):

To possess (and exercise) the skill and knowledge of an ordinary professional in the field who is in good standing in the
national community (if you come from a rural community, small town, where none of the dentist are very good, it’s ok. It
has to apply “to national” community)).

(note: This standard applies is the person is actually a professional or merely holds themselves out as one.)

See on the exam (9 minutes) a whole story laid out for you….
(10:15) Special Duties

1. Duties owed by landowners to entrants onto their land

a. Trespassers: An owner of land DOES NOT owe a duty of reasonable care to trespassers but must merely
refrain from WILLFUL, WANTON, OR REACKLESS CONDUCT (a trespasser can sue the owner of land for
injury)
i. Exception 1: owner knows (or should know) that the trespasser is on the land, the owner must
act reasonably.
ii. Exception 2: owner must warn of concealed traps.
iii. Exception 3: child trespassers incur reasonable care. (if a child steps on a land and steps on a
rake, questionable if that was a reasonable thing to do, however, sueing for negligence, that was
not a reasonable thing to do. And if a child steps on the rake, they have a higher chance of
winning this negligence case).
b. Licensees (someone who comes on to your property without your explicit permission, such as door-to-
door salesman, friends) and Invitees (those who come on to the owner’s with the consent – real or
implied – of owner, such as you have a business on your land and your customer comes to your home)
Owners of land owe licensees and invitees a full duty of reasonable care.

2. Strict Liability (statutory rape) 24:00 minutes

In some circumstances, or with some activities, actors may be held to a Strict Liability standard in which the elements of
DUTY and BREACH are not relevant. The law has decided that, for some activities, any harm that results will have liability
for the actor, regardless of whether or not that actor was negligent (breached a duty of reasonableness, etc.)

In a civil sense, (25 min), if the action happen and the harm occurred, then you are liable.

3. Special duties regard to animals, strict liability ( 27 minute)

Animals (and Strict Liability)

a. Wild Animals – Defendant will be held to a strict liability standard if defendant owns or controls the animal
(like a tiger, if you have a pet tiger, bites someone, you are responsible)
b. Domesticated Animals – Defendant will be held to a strict liability standard only if defendant had reason to
know of the animal’s dangerous propensities. (every dog gets a free bite) (pitbull are not domestic animal in
some sense. They are known for their aggressiveness so you have a chance of arguing for this case).

(special duty, strict liability, 33 minutes) Abnormally Dangerous Activities

a. Activities that are adjudged to be ABNORMALLY DANGEROUS are subject to Strict Liability for harms that
occur as a direct result of such activities. (transporting nuclear activity by railroads)

(no comprehensive list of which activities are “abnormally dangerous” but simply a legal concept to be applied
to each new set of facts.)

38:30 (special duties)

Rescuers
 a. Generally, there is never a duty to rescue (exceptions: special relationships (employer, employee, mother
and child, instrumentality, like if you cause the peril then you have the duty to rescue them)
b. A rescue, once begun, must be completed (or attempted to be completed). Because once begin rescue, it
discourages other people to do the rescue.
c. Good Samaritan laws protect rescuers from liability for harm caused during the rescue. (this is like, if
someone was choking and I helped them and I end up breaking their ribs, some states protect me from
breaking the person’s rib while helping them out.

(42:18) BREACH

1. Common sense – did the defendant act reasonably or unreasonably?

2. BPL (analysis methods propose by the Chicago School of Economics)– the burden of taking precautions must
be LESS THAN the probability of harm multiplied by the loss (does the utility of the action outweigh the risk
of harm?)
3. Did defendant violate a custom (persuasive evidence, but not dispositive)
4. Did defendant violate a statute or other law (maybe negligence PER SE, this means if you drive over the
speed limit, and cause an accident, you have to prove to judge why you were driving over the speed limit)
5. Res Ipsa Loquitor “The thing it self speak” (if you can’t prove it, we can’t impute it). (48 minutes, an
example).

Is there a duty and was it fulfill or not? So let say the harm was 100K. (if this asset was to be spilled and harm others),
but it cost only 20K to help protect that spill from happening. 10% likely to spill. Spend less to protect public instead of
risking. If it cause 20K to protect public and the probability of harm is 10% and the amount is 100K, this is not breach…

Actual cause (49:15)

1. Was defendant the BUT-FOR cause of the harm? (train guy, guy with explosive, scale fail on lady) Train guy is the
but-for cause of the harm… (if I didn’t to x, would Y even happen?)

PROXIMATE CAUSE (55 minutes)

1. Was the harm FORESEEABLE?

2. Was the harm caused by some interceding event that was NOT foreseeable? (if the intervening act was, itself,
foreseeable, then liability will still attach) (ex: 56:30) in the long change of event, some other person introduce a
new negligence in the scenario, it can cut off your negligence.
3. The THIN SKULL RULE ( You take your plaintiff as you find them. If they have a a thin skull, then it’s still your
fault. Or if you get in a car accident with a famous football player, it’s still your fault)
4. Peril invites rescue (Rescuers are always foreseeable, and, thus, harm to rescuers is as well)
5. Is it “fair” to hold the defendant liable?) (If I push this person in the water (in peril), and someone else rescues
that person and that rescuer gets injure, then you are responsible for his injury).

So for example: So if the hospital comes and save they person you injured and gets in the car accident because the
driver was drunk, you can use this as a defense saying the the hospital driver has a greater negligence than you because
he was drunk!
DEFENSES TO NEGLIGENCE (1.03.15)

1. Comparative negligence (pure)

a. Perform the negligence analysis to Plaintiff’s actions
b. If all elements have been satisfied, what is the percentage of the harm attributable to Plaintiff?
c. Plaintiff’s recovery is reduced by the percentage. (if plaintiff were responsible for 30% of that damage,
they will only get 70 %)
Example: You hand firecracker to your friend and it explodes in his hand and he sues you. But you can tell court
that he had responsible to act too, 50% of that, so he can only collect 50% of damage).
2. Comparative Negligence (modified – the 50% rule)
a. Perform the negligence analysis to Plaintiff’s actions
b. Does Plaintiff’s percentage of fault exceed Defendant’s (51%)? (if plaintiff was more responsible, plaintiff
does not get anything)
c. If YES, this is a TOTAL BAR to recovery, otherwise…
d. Plaintiff’s recovery is reduced by that percentage attributable to her.
3. Express assumption of Risk
a. Three requirements:
i. Release given to defendant must have been CLEAR, UNAMBIGUOUS, and EXPLICIT in expressing
intent to release the defendant from liability. (talked about if I rent a 4 wheelers, they usually
have you sign a release waiver. So they will be saved if they were sued for negligence).
ii. The act of negligence that led to the harm must be reasonably related to the purpose for which
the release was given. (Example: Certain you can release the company of 4 wheelers. But if the
wheel flies off, then it’s probably not reasonably related to the lease you gave so you’ll be in
trouble).
iii. The Release must not be contrary to public policy. (like a child, it against policy to release
permission to like a 14 year old).
b. If all three: TOTAL BAR to recovery. (if they can show that you release them from the harm, then they
are recovered. (the company)).
4. Implied Assumption of Risk
a. The Plaintiff voluntarily participated in the activity which led to the harm.
b. The harm fell within the “scope of risk” assumed by the Plaintiff (those injury causing events which are
either known, apparent, or reasonably foreseeable possible consequences of participation.)
c. If both of the foregoing are satisfied: TOTAL BAR TO RECOVERY.
i. Example: Football game. You voluntarily participated into the activity. It does not imply if a tree
branch fell on you because the bbq guy somehow burned off the branch. What about ski resort?
5. Plaintiff Failed to Mitigate Damages
a. The plaintiff has a duty to mitigate her damages if she can; if she fails to do so, her award can be
reduced or denied, based upon the circumstances.
i. Example: You have a duty to mitigate damages. If I’m a renter and you got evicted, the landlord
has to demonstrate that she tried to sell the apartment before she can sue you for her
damages/loss. If your skiing and you break your leg, you have to go to the hospital, not go home.
Have to do something to make your harm less. And if you don’t do so, this is a defense for the
other person that they can use.
Example: Golf course owner somehow set a spark on a piece of grassy area because the rock chip hit like some
electrical stuff and started a public wildfire. Burned down someone’s house. That someone goes and sue the golf
course. So start off with the duty, the duty has been breach, and why.