#11083 - Negligence - Torts

Negligence is the conduct that falls below the standard established by law to protect others from unreasonable risk of harm.

Injury: quantifiable as damage at trial

Fault:

1. Duty: to take due care to prevent a foreseeable and unreasonable risk

2. Breach: of the duty by acting carelessly or by inaction

Causation

1. Actual cause

2. Proximate cause

Burden of proof: on plaintiff, generally by preponderance of evidence

Roadmap

1. Risk creating activity?

   1. No. Special relationship? Rescuer? Risk creator?

   2. Yes. Foreseeability of harm? Of plaintiff?

2. Policy?

   1. Danger of multiple lawsuits?

R3d §7 (a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.

Risk creation

1. An actor's conduct creates a risk when the actor's conduct results in greater risk to another than the other would have faced absent the conduct. (exposure to natural disaster)

Foreseeability

1. Foreseeable harm

2. Foreseeable class of plaintiff (most jurisdictions)

no countervailing policy/ principle

General rule: No duty to rescue or protect others

Exceptions/ Affirmative duty

1. Special relationship

2. Prior promise to aid, or start of aid

3. D created the risk requiring aid

4. D had special relationship to 3^rd party who caused harm

5. Statutory duty

Misfeasance v. nonfeasance FORK

R3d §40 (a) An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship.

Special duty:

1. common carrier with its passengers

2. an innkeeper with its guests

3. a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises

4. an employer with its employees who are:

   1. In imminent danger, or

   2. Injured or ill while at work and thereby rendered helpless

5. a school with its students

6. a landlord with its tenants

7. a custodian with those in its custody if

   1. The custodian is required by law to take custody or voluntarily takes custody of the other; and

   2. The custodian has a superior ability to protect the other

Arguments for imposing a special relationship

1. Differing information: who’s in the better position to appreciate the risk?

2. Trust: fiduciary duty or contractual duty to take due care

3. Conflict of interest: purpose of the study is to watch as people get poisoned

Who decides the duty?

1. Whether a special relationship gives rise to duty – question of law: judge

2. Whether parties are in that special relationship – question of fact: jury

R3d §44 (a) An actor who, despite no duty to do so, takes charge of another has a duty to exercise reasonable care while the other is within the actor's charge.

(b) An actor who discontinues aid or protection cannot put the other in a worse position than existed before the actor took charge of the other and, if the other reasonably appears to be in imminent peril of serious bodily harm at the time of termination, the actor has to exercise reasonable care with regard to the peril before terminating the rescue. (no worse position, when imminent peril- exercise reasonable care before termination)

Increasing the risk FORK

1. Majority approach:

   1. Not to have done so unreasonably; and

   2. To warn, protect, or rescue the person from that increased risk

2. Minority approach:

   1. The rescuer must increase the risk to be liable in tort

Promise to rescue:

1. There is liability in tort for negligent failure to perform a gratuitous undertaking if there is at least some partial performance and the failure to perform increases the risk of harm or leads to harm because of reliance on the promise.

2. Opportunity cost: others could have come to aid the victim had he not promised to help

Good-samaritan statute protecting rescuers from liability

R3d §39 When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.

1. A driver whose truck suddenly becomes disabled on the road has a duty to warn other drivers

Continuing duty: if the risk that D created is of a continuing nature, the duty to protect against that risk continues

R3d §41: (a) An actor in a special relationship with another owes a duty of reasonable care to third persons with regard to risks posed by the other that arise within the scope of the relationship.

(b) Special relationships include:

1. a parent with dependent children,

2. a custodian with those in its custody,

3. an employer with employees when the employment facilitates the employee's causing harm to third parties, and

4. a mental-health professional with patients

   1. risk to a particular person/ large, ill-defined class of people

   2. doctor in a better position to prevent harm

   3. confidentiality between the patient and the doctor

   4. a narrow duty: to warn the patient of the infectious nature of the disease

When a statute is silent on whether it creates a private right of action, a court looks at three factors to determine whether a duty is implied

1. P part of protected class

2. Allowing duty promotes the legislative purpose

3. Creating duty consistent with the legislative scheme

   1. Creation of enforcement mechanism in a statute suggests that a private right of action is not necessary

HARM:

1. The activities/ related issue are extremely dangerous

   1. Magnitude

   2. Frequency

   3. Likelihood of injury

2. Globalization of a harm (Haley, on behalf of every blind people)

3. Parades of horrible argument: if not negligence, people can do horrible things.

   1. Loss of livelihood

   2. Dependence on welfare system

   3. Less productive

BALANCE:

1. Cost- benefit analysis

   1. Cost: economic/ autonomy

2. Safety- autonomy analysis

   1. Protect landowner’s right

   2. Alternative conduct achieving the same goal

GOALS of tort law

1. Deterrence

2. Compensation

3. Improving safety

4. Prevent burdens on social welfare system

5. Prevent retribution

EFFICIENCY

1. Liability too big to owe duty

2. Too many litigations/ efficiency

3. Who’s better able to avoid the risk

Right to control the actor

Custom

Prospective law: by making a new rule and applying it to past events, you are making a law retroactive

For medical tests: in case of false positive results: unnecessary and risky treatment

Plaintiffs should argue the narrowest duty that will serve her purpose.

Whatever duty a landowner has with regard to a property is non-delegable: they can have an agent to do the job, but they will be responsible for the liability in the end; the duty is still with them.

1. P can sue the agent alone, the possessor alone, or both.

Trespassers: on the land without express or implied permission, overstayed permission or outside permission. (unconscious but someone dumps you on the land: not trespasser, but still in this category)

1. “no duty is owed to trespasser” – not correct

2. No duty of ordinary care is owed to unknown trespasser - incomplete

3. A landowner owes unknown trespassers only a duty to refrain from intentional and wanton acts, but owes known trespassers and trespassers who reasonably should have been known a duty of reasonable care with regard to known and not obvious dangerous conditions and all active operations.

   1. If you live in a high crime neighborhood trespassers may be foreseeable.

FORK: Licensees: entrants with express or implied permission but landowner has no interest in their visit.

1. A landowner owes a duty of reasonable care to licensees as to actually known hazardous conditions in areas where he knows or reasonably should know the licensee will be, and also reasonable care as to any active operations. Otherwise, the landlord owes the licensee a duty only to refrain from intentional and wanton acts.

FORK: Invitees: entrants with express or implied permission to public generally or where the landowner has an interest in their visit.

1. A landowner owes a duty of reasonable care to invitees both with regard to the condition of the land and any active operations on the land.

A great majority of the states use dichotomy: invitees+ licensees, and trespassers

1. Other states merge all three categories.

Treatment of children: the child usually has the same status as the accompanying adult.

1. Attractive nuisance doctrine: children are treated as invitees.

2. R2d §339 A possessor of land is subject to liability for physical harm to trespassing children if

   1. (a) the possessor knows or should know that children are likely to trespass, and

   2. (b) the condition is one D knows or should know involves an unreasonable risk of death or serious bodily harm to such children, and

   3. (c) the children because of their youth do not discover the condition or understand its risk, and

   4. (d) the utility of maintaining the condition and the burden of removing it are slight as compared with the risk to children involved, and

   5. (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Commercial setting: four approaches:

1. specific crime rule: only have to protect someone from a specific imminent harm. (emergency telephone use)

2. prior similar incident test: has the incident happened in the past? (windows lock easily open, requires installation of addition lock. How many incidents are required?)

3. totality of...