Negligence 1) Duty:

an obligation one owes another. Duty is a policy-based portal for the negligence cause of action 2) Breach of Duty: the misconduct/negligent act of D breaches a duty owed to P. 3) Cause in Fact: which means that there was a relationship between the wrongful conduct and the harm. a) But For test of causation. b) There can be Multiple Causes-in-Fact but Defendants conduct must be a substantial factor to be liable. i) Substantial Factor Test: - When 2 Defendants acting independently did something negligent (two negligently set fires) - If either act could have cause the harm (burn down house of another), both can be liable unless one was a Substantial Factor. 4) Proximate Cause: whether the causal link (between the harm and injury) was within close enough proximity to hold the D liable for the wrongdoing. a) Determines where the line of liability should be drawn. b) Foreseeability c) ISSUE OF FACT: For the JURY to decide d) Direct causation (Polemis): i) Negligent conduct was proximate cause of the injury even though defendant couldnt have foreseen it ii) if act was negligent and some damage could be anticipated, doesnt matter that actual damage caused was unexpected iii) unforeseeability of damage immaterial as long as damage is directly traceable to the negligent act and not because of independent causes e) Foreseeable risks i) Wagon Mound: proximate cause is to be tested by the reasonable foreseeability of that type of risk 5) Damages/Harm: the damage a plaintiff suffers as a proximate result of a defendant's breach of duty. Whether a Statue Sets the Standard of Care First, P will most likely rely on the _____ statute to set D's standard of care and to determine if there was a breach. Whether or not the statute sets the standard of care is a matter of law to be decided by the judge. The judge consider the following three questions: First the judge will consider whether P is within the class of persons intended to be protected by the statute. Here, the statute is meant to protect ______. Since P is/is not a _____, she falls/does not fall within this category of individuals to be protected. Next, the judge will consider whether the harm suffered by P is one of the harms the statute meant to protect people from. Here, the statute is mean to protect people from ________. Since P suffered/did not suffer these types of harms, she meets/does not meet this requirement. Finally, the judge will consider if it is appropriate to use the statute to set the standard of due care in this particular case. Pick a few: a) The statute does/does not create a duty not recognized at common law.

b) The statute does/does not clearly defines what conduct is reasonable. c) The statute does/does not create liability without fault d) The statute will/will not create ruinous liability disproportionate to the seriousness of the conduct. e) The statute will/will not create a burden for people who are found liable for violating it f) If injury occurs directly/indirectly from violating the statute. (Decide if judge will allow it to set standard) It seems probable that the judge will find that the statute does/does not set the standard of care in this case. If and when that happens, the jury will then consider whether or not D violated the statute (thus breaching her duty owed to P) and whether the violation was the causation of Ps injuries. **If the judge determines that the statute doesn't set the standard, we must analyze the issue under the ordinary elements of a negligence claim. Whether or not the statute was violated and there was causation is a question for the jury. If the jury concludes that D did in fact violate the statute, there are three jurisdictional effects. Two of these jurisdictions operate similarly by saying that violation of the statute is either evidence of negligence per sewhere the judge will require the jury to direct a verdict for Por create a presumption of negligencewhere the presumption can be rebutted by an excuse by D. The third possibility is available in a very small number of jurisdictions that decide that the violation of the statute merely serves as evidence of negligence which will be weighed collectively with all of the other evidence. Excused violation of a statute: (unless the statute is construed not to permit such excuse) Violation is reasonable because of the actors incapacity He neither knows nor should know of the occasion for compliance He is unable after reasonable diligence or care to comply He is confronted by an emergency not due to his own misconduct Compliance would involve a greater risk of harm to the actor or to others. If excuse is raised judge determines whether proffered excuse is appropriate and jury determines whether the facts establish the excuse. Compliance with Statute Compliance with statute is merely evidence of reasonableness. Compliance with statute does not set the standard of care. Standard of Care o General: The general standard of care is to act in the same manner that a reasonable, prudent person would behave in the same situation. o Children: General Rule: Kids below the age of four are not liable for negligence. The standard for children above the age of four is that of a reasonable person of like age, education, intelligence and experience. (you want your kid to be dumb) Exception: Kids engaged in inherently dangerous adult activities will be held to the adult standard. Some jurisdictions: Rule of 7s - 0-7: incapable of negligence;

- 7-14: presumed incapable of negligence (rebuttable) -14+: capable of negligence (rebuttable) o Insanity: MAJ: Mental capacity is not considered. RPP. Minority: You cannot hold someone negligent when their mental insanity was unforeseen and unavoidable. A RPP who had an unforeseen, sudden mental illness (thats never happened before) would not have reacted reasonably.
o

Ex: Breunig v. Am Fam (Batman Case) The court made a rare exception that many jurisdictions probably wouldnt do. It is not likely that someone is going to be walking along when mental illness hits?

o Professionals: o One who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities Standard of skill and knowledge required of the actor who practices a profession or trade is that which is commonly possessed by members of that profession or trade in goods standing. It is that standard common to those who are recognized in the profession or trade itself as qualified, and competent to engage in it. o Requires Proof by: Expert testimony is usually needed to prove a prima facie case of negligence against a professional because the jury has no way of knowing what the reasonable physician, lawyer, pilot or other professional would do under the circumstances without testimony from a like expert. o Standard set by relevant community: Common Law: Strict locality rule: (generally only applied to medical malpractice) but - Standard was that of those doctors employed in the same community as the defendant. MAJORITY: Most jurisdictions have rejected the strict locality rule and have instead adopted a standard of the same or similar locality as that of the defendant. (Restatement: the standard is that of persons engaged in similar practices in similar localities, considering geographical location, size and the character of the community in general.) MINORITY: Some jurisdictions have adopted a national community standard under the circumstances. Where the physician is a licensed specialist, generally a national community standard. o Intoxicated: o A voluntarily intoxicated person is in effect held to the standard of a reasonably sober person. o Medical Standard: o Modern Medical Standard/Majority: held to a national standard (nationally certified) o Small number of jurisdictions apply a Locality Standard for Medical Practitioners: Held to the standard of professionals in a local region. o Common Carriers: (transportation) o Standard is that they exercise a higher degree of care to ensure the safety of their passengers and cargo. o Emergency o The standard of care applicable to a person acting in the face of sudden emergency is the RPP in an emergency.

Ex: Cordas v Peerless Transportation (Cabbie jumps out of cab containing 2 thieves) Look at reasonable prudent person in context of the circumstances during the conduct.

o Superior Knowledge or Skill: o RPP with same knowledge and skill. o Automobile Drivers---TO GUEST o Common Law: Licensee o Modern: Liable for only gross, wanton or willful misconduct. o Conduct of Others o There is a standard duty to protect yourself against the negligence of other people. (look both ways before you cross the street, watch for kids while driving through a neighborhood)

**If following the Speed Limit: The jury can conclude that a reasonable, prudent person would drive lower than the posted speed limit. Since W was driving the speed limit, that would only be some evidence of his exercising due care.

o Land:

Artificial Conditions No duty WARN/MAKE SAFE KNOWN/NONOBVIOUS HIGHLY dangerous WARN/MAKE SAFE If FORESEEABLE risk to kid OUTWEIGHS the expense of remedying danger. WARN/MAKE SAFE KNOWN/NONOBVIOUS Dangerous WARN/MAKE SAFE KNOWN/NONOBVIOUS REAS INSPECTIONS to discover Natural Conditions No duty No duty Active No duty Reasonable Care

Status Undiscovered TPs Discovered TPs Anticipated TPs

Children

No duty (unless child is a LICENSEE or INVITEE) WARN/MAKE SAFE KNOWN/NONOBVIOUS Dangerous WARN/MAKE SAFE KNOWN/NONOBVIOUS REAS INSPECTIONS to discover

Reasonable Care

Licensee - Social Guests Invitee - Business-related - Economic Interest

Reasonable Care

Reasonable Care

Negligent Infliction of Emotional Distress/Liability to Bystanders Proximity Questions: Must be proximately close connection between the wrongdoing and the injuries. Some jurisdictions will say that she must be in the zone of danger for D to be liable to her. If she was outside the scope of liability of D she may not recover. She is an unforeseeable plaintiff if her injuries were not foreseeable. Dillon v. Legg : Must be proximately close connection between the wrongdoing and the injuries. Some jurisdictions will say that she must be in the zone of danger for D to be liable to her. If she was outside the scope of liability of D she may not recover. She is an unforeseeable plaintiff if her injuries were not foreseeable. (1) P was located near the scene & sees sudden/serious injury to another they were (2) closely related to (3) and suffers serious emotional harm due to seeing the event happen

Breach of Duty (1) Identify the wrongful conduct (2) Determine whether D acted reasonably - If its unclear WHAT caused the injury or WHO caused the injury, try Res Ipsa Loquitor (N-E-S) 1) Event was one that would NOT NORMALLY happen in absence of negligence. 2) Item causing injury was under the exclusive control of the D. 3) Eliminate others who may have caused (P must rule out himself) Effect of Res Ipsa Can be conclusive evidence of negligence (directed verdict) Can be a presumption of negligence Can SHIFT the BURDEN to D Res Ipsa in Medical Malpractice (Ybarra) Where the patient is injured during the course of a procedure while unconscious and the 1. Type of injury is one which would not occur without negligence and 2. All those involved in the procedure owed a duty to the plaintiff: All defendants who had any control over the plaintiffs body or the instrumentalities which might have caused the harm are subject to suit and must be joined in the suit. Burden shifts to defendants to establish that any one of them was not negligent in the absence of exculpating evidence all held jointly liable

1. NONDISCLOSURE OF REQUIRED INFORMATION (If no consent: battery. If there was consent, it could be negligence.) a. Physician Standard of Disclosure - The doctor must disclose those risks which other doctors in the relevant community would have disclosed. Burden on doctor to prove privilege of non-disclosure Requires expert testimony to establish the standard of what other doctors would disclose. b. Patient Standard of Disclosure - The doctor must disclose material risks. Burden on Patient Generally does not require expert testimony A material risk is a risk of which a physician knows or should of known and which he can reasonably expect a patient would want to consider in determining whether to undergo the medical procedure. When is a Risk Material? If the doctors knows the patient attaches special importance to a particular matter it would be material even if most other people would not be concerned about it. Generally judged by an objective standard and is information which a reasonable patient would consider in deciding whether to undergo the medical procedure. Materiality generally depends on the likelihood and severity of harm and is generally a question for the jury. 2. CAUSATION a. Objective (MAJORITY) Plaintiff/Patient must show reasonable patient in her situation would NOT have had the procedure if she had been told of that risk AND that SHE would not have chosen to have the treatment/procedure if she had been informed of the risks.

b. Subjective (Small minority) Plaintiff/Patient must show SHE would not have chosen to have the treatment/procedure if she had been informed of the risks. 3. DAMAGES (resulting from the risk which was not disclosed) u PRIVILEGES of Non-Disclosure (Physicians Defense) 1. Common Risk: No need to disclose risks everyone knows or risks that are known by the patient. 2. Emergency: Where there is an emergency and the patient is in no condition to determine for himself to give informed consent. 3. Therapeutic privilege: Where full disclosure would be detrimental to the patients total care and best interests the physician may withhold disclosure. This is where disclosure would alarm an emotionally upset or apprehensive patient. - Non ex: Dr. knows Chadwick fears surgery, but there is a 5 hour-long surgery. She agrees but he didn't tell her about the anesthesia having a side effect and knows she wouldve refused if she knew that. NOT OK - Ex: Chadwick getting open heart surgery. Dr. knows if he tells her that she could die from the surgery would in effect possibly cause her to have a heart attack upon hearing of the risk. So he doesnt tell her. OK

Defense: Contributory Negligence Defense: Comparative Negligence