Professional Documents
Culture Documents
of plaintiffs Damages. Defenses for Contributory Negligence and Assumption of Risk. DUTY ORDINARILY A QUESTION OF LAW - NonFeasance, Failure to prevent a harm/ come to aid - - *Good Samaritan Doctrine: no general duty to aid another unless: - - - Special Relationship exists between you and other party. - - - - Exists in business and custodial relationships; a customer or - - - - - someone under the control of D. - - - - Must Exercise Reasonable Care to secure safety of other while - - - - - she is within actors charge. (Law presumes an individual who receives financial - - - - - benefit has agreed to assume a duty to come to aid.) - - - *Voluntarily Beginning to Provide Aid - - - - - if a person attempts to aid an injured individual then he voluntarily - - - - - enters a special relationship with them. - - - - - Cannot Discontinue Aid or Protection if it leaves other in a - - - - - - worse position than when actor took charge of him. - - - - - *Drawing the line of when to est. a know or should know duty to come to aid - - - - - - Difficulty 1. Objective manifestations indicate a willingness to aid a person who - - - - - - - they know or should know is in peril (Social Companions) - - - - - - Difficulty 2. Did the D's acts actively make the situation worse? - - - - - - Difficulty 3. Did the injured party justifiably rely? Morgan v. Yuba. - - - *Negligent Creation of Risk (through Misfeasance or Nonfeasance) - - - - If you Create a Risk of Injury there might be a duty to try to remove that risk, or - - - - - warn about the danger. - - - *Under the CL there is generally no duty to control the conduct of 3rd parties, - - - - except in respondeat superior or control of the the insane. - - - Statute Creation of a Duty - - - - Using a statute to establish a duty is separate from the standard of care. - - - - Generally criminal and civil statutes do NO create a duty; their fxn is limited to - - - - specifying the standard of care. - - - - Restatement 874(a) says Courts may use a Statute to impose a Duty - - - - - to Protect Others when there would not otherwise be a common - - - - - law duty to do so. Uhr v. East Greenbush - - - Statutory Private Rights of Action - - - Statute gives parties right to Sue for damages when harm arises - - - - from a Statute not being followed. Instead of leaving Statutory - - - - - enforcement solely up to gov. agencies or prosecutors. Uhr. - - - - - - 1. Whether the P is one of the class for whose benefit the statute was enacted - - - - - - 2. Whether the recognition of a private right of axn promotes the leg. purpose - - - - - - 3. Whether the creation of such a right is consistent w/ the leg. scheme - - Liability to Third Parties: a Question of Law - - - Factors Test to Determine if Liability Flows to Third Party (Rowland): - - - - - (1) Foreseeability of the Harm - - - - - (2) Relationship with the Person-Source of the Harm and Victim - - - - - (3) Utility of Conduct provided by the defendant to community - - - - - (4) Nature of the Risk of Harm - - - - - (5) Consequences of Imposing the Duty: Burden on D or Community - - - - - (6) Overall Public Interest in Preventing Future Harm - - - - - (7) Availability, Cost and Prevalence of Insurance for the Risk Involved - - - Product / Sales Liability of Manufacturer - - - - - You may now sue anyone in the product chain for whatever their - - - - - responsibility was for the introduction of a negligent flaw which - - - - - resulted in your harm. Macpherson v. Buick
- - - *Therapists (Extreme Example): Once a Therapist knows or Should Know, - - - - in some jurisdictions, no prior attacks necessary in others. No duty according to applicable Professional Standards, that a patient poses a risk to a third beyond vistors. party, the therapist Has a Duty to Warn the third party of that risk. Tarasoft v. - - *Non-Negligent Injury Regents of the University of California
- - - - If you create a risk of harm even though Non Negligent Actions, - - - - there might be a Duty of Due Care imposed to try and Remove that Risk, or - - - - to Warn others of the Risk. Rst. 3 7 (unadopted), an actor ordinarily has a duty to - - - - exercise reasonable care when the actor's conduct creates a risk of physical harm - - - - - subject to limitations based on public policy - - Denial of a Benefit or Negligent Removal which Causes Harm - - - Moch v. Rensselare Water Co. when the existence of the benefit has not become - - - - the expected norm to where people justifiably rely on its existence, its removal - - - - by the party providing it doesnt automatically trigger liability . - Misfeasance Active Causation of Harm - - - Hold Defendant liable for harm flowing from Affirmative Acts within - - - boundaries of Proximate Cause () - - Factors Varies by State, Cal. Factors Randi W. v. Muroc School Dist. - - - 1) Foreseeability of harm to plaintiff, 2) degree of certainty that plaintiff suffered - - - Public Invitees to Business Property Posecai v. WalMart Tests - - - injury, 3) closeness of connection between defendants conduct and - - Owners and Occupiers of Land injury, 4) moral - - - Traditional Common Law Rules - - - blame attached to conduct, 5) policy of preventing future harm, 6) - - - - 1. Trespassers extent of the - - - - - - You have NO Duty to prevent their harm from negligence on - - - burden to D, 6) consequences to community of imposing the duty, property, no traps 7) insurance - - - - 2. Licensees - - - - - Is to Take the Property as the Owner would take it. Owner need - *Privity of Contract - - - Have Duty only to those parties contracted with, and in Privity with - - - - - - not do anything to make the property better than what the those - - - - - - owner would take it as for himself. - - - - contracted with. Limited duty to active negligence dealing with - - - - - Owner only has a Duty to Warn the other party of Hidden sale of goods Dangers - - - - - - on property of which the Owner is already Aware. There is NO - Negligent Entrustment (Failure to perform Duty) - - When a D provides the instrumentality (chattel) of harm to a known - - - - - - Duty to go out to discover or correct dangerous conditions. negligent - - - - - Must also avoid Active Negligence - - -individual, D may be liable as creating risk of harm, bx the bailer - - - - 3. Invitees knows or - - - - - Duty to Maintain the premises in a Reasonably Safe Condition - - - - - Duty to eliminate Obvious Hazards, and avoid Active Negligence. - - - should know of the risk created, possible duty to warn. - - Where the D had no right to control the instrument of harm, the D - - - Modern Systems owed - - - - Some Merge Licensee and Invitee categories, force same Duty - - - no duty of care to a third person. Vince v. Wilson, pretty far both - - - - - toward Licensees as used to be only for Invitees. - - - - Factors: 1) Foreseeability of harm, 2) purpose of entrant to prop, - - - money-provider and car-seller may be liable. Loans don't count as chattel supply. 3) the time - - *Dram Shop Laws (Affirmative Act of Neglgience) - - - - - - manner and circumstances of entry to prop., 4) use to which - - - Analogous to a person negligently setting an instrument of danger prop. Is put, 5) - - - - - - reasonableness of repair or warning, 6) opportunity for repair or in motion that - - - causes harm, which means an affirmative act of negligence by the warning, 7) D. - - - - - - burden on owner in terms of providing adequate protection - - - Impose liability on business for harm resulting from intoxication - - - - In California and some others all three categories were merged, - - - when they serve a person to Point of Intoxication OR serve a - - - - - requiring same duty toward Trespassers as Invitees. - - - Already Intoxicated Person. Business held to a higher standard - - - - Difference between liability for Condition of Premises versus - - - due to their presumed greater degree of control over supply, ability Active Neg on Prop. to spread - - Landlord and Tenant - - - costs to drinkers rather than anyone, no social pressure to let - - - Traditional Rule people drink, and - - - - Landlord only Liable if Harm came from: - - - professional, expert knowledge telling people when to stop. - - - - - 1) A Hidden Danger in the premises of which the landlord, but - - Social Hosts not - - - Generally Do NOT have liability for providing guests alcohol unless - - - - - - the tenant, was aware. - - -they push it on drunk people. Gibson v. Kasey, Court used a statute - - - - - 2) Premises Leased for Public Use to set the - - - - - 3) Areas Retained under the Landlords Control, such as - - - standard of care for giving personal prescription drugs to nonstaircases prescribed person - - - - - 4) Premises Negligently repaired by the Landlord - - Hosts serving Minors alcohol usually not liable for damage done by - - - Modern Rule rd - - - - Courts impose Reasonable Person under the Circumstances test - - - minor to 3 parties. However host May be liable for harm suffered - - - by the Minor herself. Statutes prohibiting giving alcohol to minors - - - Liability for Harm caused by Criminals - - - intended to protect minors, so allowing Contributory Negligence of - - - - limited liability, courts consider risk of harm from third parties, - - - minor as a defense in this case would defeat the statutes purpose. repeated assaults in - - Negligently Encouraging Dangerous Activity - - - *Doctors (who have control over inform to their patients) - - - - Liable to third party when Dr. misdiagnoses, fail to notify of a contagious disease in - - - - her patient, and patient then gives disease to known third party - - - Negligent Misrepresentation (Letters of Recommendation) - - - - Rst. 311, (1) One who neg. gives false information to another is subject to liability - - - - for physical harm caused by axn taken y the other in reasonable reliance - - - - upon such info. where harm results a) to the other or b0 to such 3rd persons - - - - as the actor should reasonably be expected to put in peril by the axn taken. - - - - (2) Such negligence may consist of failure to exercise reasonable care (a) in - - - - ascertaining the accuracy of the information, or (b) in the manner in which it is - - - - communicated. Harm must be Physical, economic harm unlikely to motivate court - - - - to impose liability.
- - - Weirum v. RKO, D's contest encouraged dangerous conduct and - - - - to exhibit only an honest exercise of judgment; a lower standard - - - - Educational Malpractice no duty to ensure child is educated, created liability - - - - since a sudden and unforeseeable occurrence gives less time to - - - - - mandatory schooling for the good of society, not the child. STANDARD OF CARE react VICARIOUS LIABILITY RESPONDEAT SUPERIOR - Reasonable Person in the Situation Standard - - - Not every Jurisdiction allows this, leaving it just to the - When the EmployER is Liable for the actions of the EmployEE which - - Objective Standard, ignoring many individual peculiarities Circumstances are - - Creating the Standard of Care - - - - portion of the regular reasonable person test. - within the scope of employment. The Test: - - - Very generally Left to the Jury to decide - - Intra Family Liability - - - 1) Conduct must be of general kind the employee is hired to - - - Repetitive Occurrences - - - Parental Immunity old common law perform - - - - Judges create standard of care for trials of highly similar events. - - - - total immunity from Child brought Lawsuits. - - - 2) Conduct must occur substantially within the hours and - - - - - Problem is that it removes future incentive to improve safety. - - - Immunity with Exceptions for: (Wisconsin's Test) boundaries - - - Role of Custom - - - - *Exercise of Parental Authority over the Child, or - - - - of employment. - - - - Custom is not a conclusive proof or test of whether act is - - - - *Exercise of Ordinary Parental Discretion - - - 3) Conduct must be motivated at least in part by the purpose of reasonable. - - - - *Exercise of Negligent Supervision (but no immunity for active - - - - serving the employers interests. - - - - If defendant shows they were in line with Accepted Common neg., NY) - Negligent hiring of IC may impose liability as a failure to exercise due - - - - - Practice, then there is inertia to find them not negligent, so as - - - Reasonable and Prudent Parent Objective Test (AZ, CA) care. not - - - - Whether the Parents conduct comported with that of a - Independent Contractors - - - - - to impute majority of community. Reasonable - - Must be; (1) Specifically Contracted to do a Task(s), (2) employer has - - - - Defendant Strategy - - - - - and Prudent Parent in a Similar Situation; NO - - - - - 1) Suggest defendants act was in line with custom, forcing - - - - *Without: 1 creates family discord, 2 would reallocate family - - -Direct Control over how contractor does the job, and (3) the decision resources inconsistent contractor - - - - - - against defendant to have wide ranging impact. - - - - w/ the best interests of the family, 3 create possility for fraud, 4 if - - -works when needed, he does NOT Regularly Work for Employer. - - - - - 2) If defendant against custom, show is actions better than death of child - - Liability Generally Does NOT flow back to the Employer, UNLESS: custom - - - - parents would get the damages, and 5 would significantly impair - - - *Non Delegable Duty - - - - Plaintiff Strategy ability of parents - - - - Duties where the Indy Contractors Negligence stays with - - - - - 1) Show defendants competitors behaved in a better way, - - - - to direct the upbringing of their children. Employer meaning - - Qualified Governmental Immunity - - - - Found where there is a High Risk of Serious Bodily Injury - - - - - - defendant should have known better way to act. - - - Proprietary Services undertaken - - - - - 2) Show court holding defendant liable will NOT upset status quo - - - - Gov't engaged in traditionally private enterprises may be subject - - - - - by the employees business. - - - Statutory Creation of Standard of Care to the same - - - - Can allow Employer to indemnify IC to recover for injuries to 3rd - - - - If the purpose of the statute is advanced by applying it in a given - - - - - liability as private enterprise. Hospitals, rapid transit, utilities, persons. - - - - - situation, then it will set the Standard of Care. airports, assembly. - - - - If IC act was collateral to the dangerous job, then employer may - - - - Finding Legislative Purpose of whom the Statute is intended to - - - Governmental Services escape liability. - - - - - protect, and who gets the burden of proof, is thus Critical. - - - - Discretionary or Planning Decisions made by qualified Gov. - - - Apparent Agency Principle may be vicariously liable for its Agents - - - - Negligence per se: a) Violating a relevant criminal statute, when Authority - - - - TEST to establish Apparent Agency: b) the harm caused - - - - - are w/o Liability if decisions are not Plainly Inadequate, - - - - - 1) If by apparent authority the employer let it appear that the - - - - - is the harm sought to be prevented by the statute c) and injured unreasonable. - - - - - - actor was their agent and the plaintiff relied on this to his Harm. person is within - - - - Administrative Functions if the Gov. doesnt carry out its own - - - - - 2) Employer has acted in a way to Lead Customer to Believe that - - - - - the class of person sought to be protected d) without a legally plan to avoid harms the acceptable excuse. - - - - - then it may be held liable for those harms. No automatic liability; - - - - - - negligent actor is their Agent. - - - Cost of Negligence vs. Burden of Prevention Posner P must est. duty - Employee Assumption of Risk Doctrine - Specific Standards of Care - - - - - running from government entity to P. NY req. in Lauer a special - - If you are paid to work a dangerous job, you assume the risk of injury - - Physical Condition of Defendant IS taken into account relationship. on the job - - - the standard of a reasonable person w/ defendants physical - - - Combination Services - - - even if employer was negligent in maintaining safety standards handicap - - - - Some gov't services cannot pass the costs of accidents on to the - - - if you stay on the job knowing it was dangerous anyway. - - Experts consumer due to - - *Fellow Servant Doctrine - - - Expert Training - is akin to being given advanced warning in - - - - their inability to pay for services. Ex. Health Care and Housing for - - - The negligence of one employee which harms a fellow employee is situation the Poor. - - - NOT imputed to the mutual employer. - - - - which generates risk. Back-Date the situation to the point of - - - *Gov. usually has NO Duty to Protect generally CAUSE IN FACT - - - - getting expert training, making test reasonable person in the - - - - Courts wont step on Executive decision making, or Legislative - But For the Defendants negligent conduct, the harm to plaintiff - - - - situation having warning of enhanced risk. Or standard of budget allocation would - - - - reasonable person w/ expert skills. - - - - Individuals have a duty to protect themselves - - not have occurred, Question for the Jury. P. Burden. - - - Professionals - must exercise same degree of care as an ordinary - - - - Increasing liability would negatively impact all txpayers. - - Substantial Factor Test if there are multiple potential causes of - - - - member of their profession in the community or at a national level - - - - Cuffy Factors to test for special relationship of Government to injury (but few), - - - - depending on jurisdiction. the Injured Party - - - if D axn was a Substantial Factor, it triggers Cause in Fact. - - Children - - - - - 1) assumption by Gov. through promises or action of an - - Single Indivisible Injury Multiple causes of one injury. Ex. Neg. - - - Standard of a reasonable child of like age, intelligence, & affirmative duty Entrustment experience. - - - - - - to act on behalf of party who was injured, 2) knowledge in Gov. - - Joint and Several Liability Multiple potential tortfeasors combined - - - Old law, had Age Tiers Agents that neg. caused - - - - 0-7, non-negligent. - - - - - - inaction could lead to harm, 3) direct contact between Agents - - - harm to 1 plaintiff. P may sue anyone and collect all of the - - - - 7-14, presumption of non-negligence which can be overcome and injured party, damages, - - - - 14-21 presumed capable of negligence but this can be overcome - - - - - - AND 4) partys JUSTIFIABLE RELIANCE on Govs undertaking of - - - - forcing defendants to have burden of proof and to fight each - - - Children in Adult Activities are held to Adult Standard of Care protection. other - - Mass Transit / Common Carriers - - - - In Davidson v. City of Westminster, injured party did not rely on - - - - and push blame onto one another in order to collect Contribution - - - Old Law: Used to hold them to exercise of Utmost care, so far as police, bx she did (% of award) or - - - - human Skill and Foresight go. - - - - - know the police were staking out the laundry where she was - - - - - Indemnification (full award) from each other. - - - Modern: Reasonable Care under all the circumstances Bethel v. raped. No duty. - - Enterprise Wide Liability NY - - - Judges (maybe prosecutors) have Absolute Immunity - - - Percentage of National or Local Market share to calculate company - - Emergency Doctrine - - - Schools and Education liability for - - - a person confronting an emergency not of his own making is - - - - Are liable for Physical Harm done to students in their charge, but - - - - selling indistinguishable harmful commodity. Lilly case required - - - - - once a kid gets off bus, duty from school to child ends. Pratt
- - - - - 1, all companies must be negligent, 2 all companies must - - - 2) Victim Negligently put himself in danger, still has ability to manufacture remove himself - - - - - the same product, 3 some cooperation btw the companies, like - - - - from danger, but is UNAWARE of Danger. Defendant KNOWS an association. victim is - - Market Share Liability req: 1 fungible products identical, 2 - - - - unaware of danger, but negligently does not change his actions to generically marketed, avoid - - - 3 caused injury over a long period of time, and 4 (maybe) provoked - - - - causing harm to victim. Defendant is liable. Leg. response. - - Insanity - - - Several: If two successive tortfeasors did not act in concert and - - - Does not excuse negligent conduct which harms another party. - - - - are thus only responsible for the portion of the harm caused - - - - HOWEVER an insane plaintiff MAY be excused of Contributory individually, then Negligence. - - - - the P may only collect a portion of the damages claimed. (Ex. - - Rescuers Market Share) - - - Not held at fault for contributory negligence unless reckless. - - Compensation for Lost Opportunity - - Child / Parent - - - suing for reduced probability of avoiding physical harm, if plaintiff - - - court refused to impute negligence of parents to children for can Contrib. Neg. - - - prove the chance to avoid the harm without defendants negligence - - When a contributorily negligent triggering harm, is subsequently - - - was >50%, then plaintiff can collect the full value of the harm exacerbated by suffered. - - - negligent parties, plaintiff may recover damages for their Increase - - - If the chance was <50% then the plaintiff can only recover lost in the harm.- - Generally, except for loss of consortium, economic loss chance. from childs harm, PROXIMATE CAUSE - - - We DO NOT impute contributory negligence from victim to party - Question of law, whether to limit defendants liability, even though bringing suit. - - factual cause from defendants action. May be attached jury issues. ASSUMPTION OF RISK - Thin Skull Rule - Express Assumption of Risk (Exculpatory clauses) - - Take the Victim as you find her. D has the burden. D responsible for - Implied Assumption of Risk the full flow - - Primary Assumption of Risk is when a victim assumes the risk and - - - of actual damages from axn if the Type of harm was foreseeable thereby - - - even if specific victim is unforeseeably susceptible to damage. - - - completely releases the defendant from any duty of care. - - If D only Sped up the inevitable, damages can be reduced to - - One who takes part in a risky activity accepts the inherent dangers - - - match only the bit of time which was lost to victim. so far as they - Direct vs. Remote - - - are oblivious and necessary. - - Direct Damages flow Immediately from the defendants conduct - - A/R: Plaintiff Must have TEST - - Remote Damages are Too Far Removed in space and time from - - - 1) Knowledge of the Risk, AND action - - - 2) Appreciate the Risk, AND have - - Intervening Superseding Cause, Something which breaks causal - - - 3) Voluntarily and Freely Exposed himself to the Risk chain between D's - - - - In theory this is a Subjective Test, since it requires Knowledge. - - - action and P's Harm and is not something within the SCOPE OF RISK - - Public Policy Trump - - - (same general type of expected harm) created by defendants - - - if many people are constantly being injured doing a activity even negligent conduct. with implied - Foreseeable vs. Unforeseeable - - - assumption of risk, it could be found TOO RISKY as a matter of - - Foreseeability can reasonably foresee the consequences of conduct public policy and - - Unforeseeability cannot reasonably foresee the consequences - - - assumption of risk would Fail as a defense. - Irresistible Impulse created by Defendants Negligence - - Spectators - - where the choice made by victim was forced by the situation - - - Arena only needs to provide enough protected seating as might be - - - defendants negligence put him in. Defendant therefore liable for desired. it. - - Firefighters Rule (Levanodoski v. Cone) - - Suicide Kawasaki case - - - Public Servants who enter private property in pursuit of their job are - - - should victims suicide limit the defendants liability to the period treated as - - - - victim was alive, was Suicide a Irresistible impulse, or - - - - licensees in limiting owners liability for their injuries on his Superseding? property. - Duty to Reasonably Mitigate -- - - Firefighers pay has a built in risk premium, would be double - Extent of Harm Does the extent of the harm establish reasonable property tax. liability? Damages - Zone of Danger - *Compensatory - Trying to put the injured party back to their status - - Cardozo, Palsgraf - You only have duties which flow to individuals Pre-Accident. - - - within the Zone of Danger (damages of the foreseeable type) - - Pecuniary Damages Out of Pocket direct economic harm suffered CONTRIBUTORY NEGLIGENCE - - Non-Pecuniary Damages Pain and Suffering courts dont like - A duty of care owed to oneself, if P contributed in any way to his injury asking jury to this is a complete defense to liability for defendant. D's Burden. - - - calculate these by formula. Judge can, but rarely does, override jury - - Last Clear Chance defeats CN defense award. - Punitive Damages meant to punish wrongful conduct, often limited by states - - - 1) Victim violated Statute or acted Negligently to place himself in - Nominal Damages small award to plaintiff who proves an injury but not any danger to the - - - - point where he can no longer protect himself. Defendant is ALSO loss - Collateral Source Rule If you have some source of income, such as insurance, acting which offsets your - - - - negligently creating risk of harm to victim. expenses from the injury, the defendant cannot usually argue that income should - - - - - If defendant is the last party with ability to avoid the harm, but Offset their liability amount. negligently - - - - - does not, Defendant is liable regardless of Contributory Negligence.