Loading presentation...

Present Remotely

Send the link below via email or IM

Copy

Present to your audience

Start remote presentation

  • Invited audience members will follow you as you navigate and present
  • People invited to a presentation do not need a Prezi account
  • This link expires 10 minutes after you close the presentation
  • A maximum of 30 users can follow your presentation
  • Learn more about this feature in our knowledge base article

Do you really want to delete this prezi?

Neither you, nor the coeditors you shared it with will be able to recover it again.

DeleteCancel

Make your likes visible on Facebook?

Connect your Facebook account to Prezi and let your likes appear on your timeline.
You can change this under Settings & Account at any time.

No, thanks

Negligence - A Bird's Eye View

This Prezi summarizes the major tort doctrines covered in my Introduction to Civil Litigation II course. You are welcome to leave a comment, ask a question, or share this Prezi.
by

Brigham Fordham

on 20 January 2015

Comments (0)

Please log in to add your comment.

Report abuse

Transcript of Negligence - A Bird's Eye View

1. duty
2. breach of duty
3. cause in fact
4. proximate cause
5. damages
1. contributory negligence
2. assumption of the risk
respondeat superior
What will p claim d did wrong?
can p claim d did something carelessly?
can p claim d failed to do something?
was p injured on d's land?
d failed to act when ...
If an actor’s conduct innocently or tortiously renders someone helpless and in danger of further harm, the actor has a duty to prevent the further harm.
When one undertakes to assist another, one has a duty to use reasonable care to prevent harm to the other within the scope of the undertaking.
When one has a special relationship with another, one has a duty to use reasonable care to prevent harm to the other and to prevent the other from harming third parties.

THERE’S NO DUTY TO WARN SOMEONE YOU CAN’T IDENTIFY.

BUT YOU STILL MIGHT HAVE A DUTY TO USE REASONABLE CARE TO PREVENT HARM TO FORESEEABLE VICTIMS.

If one’s conduct creates a risk of harm to others, one has a duty to use reasonable care to prevent harm to others.
misfeasance
nonfeasance
analyzing duty
premises liability
A land occupier's duty depends on the status of plaintiff.
trespassers:
No duty (or only a
duty to not act “willfully and wantonly”)
BUT there are exceptions:
attractive nuisance
known/ expected trespassers
public danger
Licensee (social guest):
Duty to use reasonable care and warn about dangers that are known or should be known.
Invitee (business visitor or public on land open to public):
Duty to make reasonable efforts to make premises safe (including duty warn of known dangerous conditions and to inspect premises for potential hazards).

what about rescuers?
what standard will d be held to?
analyzing breach - part i
A defendant breaches his or her duty if he or she fails to act as a
would under like circumstances.
a professional in the same field and specialty
a reasonable person
a reasonable person with like faculties
a reasonable person with like disability
a reasonable child of like age
a reasonable child of like age, intelligence, and experience
analyzing breach - part ii
Did d violate the standard?
common-sense analysis
Would a reasonable ______ act differently under the same circumstances?
cost-benefit analysis
What did d actually do?
what might p claim d should have done instead?
what d did
what d could have done
if a reasonable person were in d's shoes at the time d decided what to do, what would that person think?
this is a good option because ... (benefits)
this is a good option because ... (benefits)
this isn't a good option because... (costs)
this isn't a good option because... (costs)
option #1
(what d actually did)
option #2
(what p says d should have done)
p will argue that under the circumstances, doing this:
would have been more reasonable than doing this:
d will argue that under the circumstances, doing this:
was more reasonable than doing this:
borrow a standard from a criminal statute
Majority Rule: a violation of a statute is Negligence per se if:
Plaintiff
is member of the class of persons the statute was intended to protect, and
Plaintiff’s
harm is the kind the statute was intended to prevent, and
the violation is Not excused
res ipsa loquitur
The accident occurred as a result of an instrumentality that was under defendant’s exclusive control;
the jury may infer negligence if:
The type of accident is one that only occurs when someone is negligent; and
Plaintiff is not in a position to show the particular circumstances which caused the accident.
first, analyze the standard
second, analyze whether the standard was breached
third, apply the exceptions for rescuers
even if d failed to use reasonable care while attempting to rescue p, d may be liable only if:
d's negligence increased the risk of harm to p, or
p was harmed because of reliance on the rescuer
In addition, most states have
good Samaritan statutes
, which hold a rescuer liable only if the rescuer was
grossly negligent
duty
breach
What did d actually do?
what might p claim d should have done instead?
what d did
what d could have done
what harms did p suffer?
ouch!
but-for causation
if d would have done this:
what p says d should have done
p would not have suffered this:
more likely than not,
there can be more than one cause in fact!
p's harm
if and only if but-for causation cannot be shown, apply an exception.
there were multiple causes, and p can't show d's negligence was a but-for cause.
there was only one cause, but p can't show which d is responsible.
The defendant’s conduct is a cause in fact of plaintiff’s harm if
the harm would not have occurred if defendant had not been negligent.
Under the substantial factor test, a defendant may be held liable for plaintiff’s damages if defendant’s negligence would have by itself been sufficient to cause plaintiff’s damages.
would
have been sufficient by itself to cause
?
Where there are multiple defendants but only one caused p’s harm, the burden shifts to the defendants to show lack of causation if:
All of the ds were negligent,
All of the ds are equally likely to have caused p’s harm, and
It is impossible to know which d caused p’s harm
cause in fact
“An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.” Rest 3d Torts 29.
is generally considered negligent because it creates an unreasonable risk of
the kind of thing d did or failed to do
a certain kind of harm
is this the kind of harm p suffered?
proximate cause
Proximate cause is essentially a policy question:

How far should liability reach?
easy cases
general rule
Egg-shell skulls
Harm negligently caused by rescuers and medical personnel
Harm to rescuers
more subtle cases
A defendant is liable for the harm caused by torts and crimes of others if
potential exposure to such risks is one of the risks that makes defendant’s conduct tortious, or
defendant knew or should have known his negligence would expose plaintiff to an increased risk of such conduct.
harm while recovering from injury is foreseeable so long as p's activity is foreseeable.
when determining what "risks" are associated with d's negligent act, we also consider what kinds of plaintiffs are foreseeable.
the palsgraf problem
torts & crimes by others
related injuries
damages
to satisfy the "damages" element of negligence, p must have suffered physical harm or property damage
If p’s injuries are due in whole or in part to p’s failure to use reasonable care, p is contributorily negligent.
Some jurisdictions use the old “contributory negligence”
approach:

If plaintiff’s injury was at all due to plaintiff’s own negligence, plaintiff recovers nothing.
Most jurisdictions use the new “comparative negligence” approach:

The jury must compare plaintiff’s negligence with defendants’ negligence and apportion negligence between the two.
How do we determine whether p failed to use reasonable care?
1. Determine which standard applies to p
what standard will
p
be held to?
analyzing breach - part i
A
plaintiff

breaches his or her duty if he or she fails to act as a
would under like circumstances.
a professional in the same field and specialty
a reasonable person
a reasonable person with like faculties
a reasonable person with like disability
a reasonable child of like age
a reasonable child of like age, intelligence, and experience
analyzing breach - part ii
Did
p
violate the standard?
common-sense analysis
Would a reasonable ______ act differently under the same circumstances?
cost-benefit analysis
What did
p
actually do?
what might d claim
p
should have done instead?
what p did
what
p
could have done
if a reasonable person were in
p'
s shoes at the time
p
decided what to do, what would that person think?
this is a good option because ... (benefits)
this is a good option because ... (benefits)
this isn't a good option because... (costs)
this isn't a good option because... (costs)
option #1
(what p actually did)
option #2
(what d says p should have done)
d will argue that under the circumstances, doing this:
would have been more reasonable than doing this:
p
will argue that under the circumstances, doing this:
was more reasonable than doing this:
borrow a standard from a criminal statute
Majority Rule: a violation of a statute is Negligence per se if:
Plaintiff
is member of the class of persons the statute was intended to protect, and
Plaintiff
’s harm is the kind the statute was intended to prevent, and
the violation is Not excused
2. Determine whether p violated that standard.
assumption of the risk
plaintiff may be completely or partially barred from recovery if plaintiff
knowingly
and
voluntarily
encountered the risk.
"Knowingly" is subjective! You can't assume a risk you didn't know about.
negligence
affirmative defenses to negligence
the prima facia case for negligence
An employer is liable for the tort of an employee if the employee was acting within the scope of his employment
Respondeat superior allows an employer to be liable for the tort of someone the employer hired
did someone commit a tort while employed by someone else?
was the tortfeasor an employee or independent contractor?
employee
Factors a court might consider in deciding if the act was within the “scope of employment”:
The wrongful act was “foreseeable” or an inherent risk of the business;
The employee was acting within the general time and space limits of the job;
The employee was acting at least in part to serve the employer;
The employee was doing the general type of work she was hired to do.
independent contractor
An employer is not liable for the tort of an independent contractor unless the employer had a non-delegable duty.
a bird's-eye view
A prior act imposed a duty to act
An undertaking imposed a duty to act
A special relationship imposed a duty to act
if p has no idea what went wrong, try
negligence per se
negligence per se
this is a good option because ... (benefits)
this is a good option because ... (benefits)
this isn't a good option because... (costs)
this isn't a good option because... (costs)
start with the same negligence and untaken precaution you used in breach
think elevator conversation
Full transcript