Negligence is a cause of action for unintentional torts.
A person acts negligently if the person does not exercise reasonable care under all the circumstances.
Negligence has four elements to it:
A duty of care is a responsibility to another person that arises from circumstances that create a risk.
Everyone owes a duty of care to all reasonably foreseeable plaintiffs.
The standard of care required of people is that of what a reasonably prudent person would do under the same or similar circumstances.
The person whose conduct is being evaluated is deemed to have the knowledge that the ordinary prudent person would have.
The standard of care of a person in an emergency is that of a reasonably prudent person in that emergency.
- The emergency must be sudden and unforeseeable.
- The emergency must not be of the defendant's own making.
If reasonable precautions can be taken without reducing public benefit, standard of care requires that such precautions must be taken.
Disabled people have the same standard of care as abled people.
The reasonably prudent person has the same physical characteristics as the defendant.
Mentally ill people are held to the same standard of liability. A minority of states make an exception for sudden mental illness.
The majority standard for children is that of "what it is reasonable to expect of children of like age, intelligence, and experience."
This should not be applied when the child engages "in an activity which is normally undertaken only by adults, and for which adult qualifications are required."
Children engaging in inherently dangerous activities normally undertaken by adults are held to an adult standard of care.
Children under five are incapable of negligence under the 3rd Restatement.
A professional is a worker in a business or profession that requires technical knowledge.
Expert testimony is needed in technical cases.
- Includes knowledge, training, and skill of an ordinary member of that profession
Lawyers who act in good faith and an honest belief that their advice and acts are well-founded and in the best interest of their client are not liable for mere errors of judgment or mistakes in points of law not yet settled by a court of last resort in his state and on which reasonable doubt may be entertained by well-intentioned lawyers.
Lawyers' conduct may be questioned in:
- Possession of knowledge or skill
- Exercise of best judgment
- Use of due care
The majority of jurisdictions have adopted a "similar community in similar circumstances" test instead.
Some jurisdictions have also done completely away with the locality rule and adopted a "national standard," especially for board-certified specialists.
Reasonable physician standard
- Required to inform patient that which a reasonable physician would usually disclose.
Reasonable patient standard
- Required to inform patient that which a reasonable patient would want to know.
- Majority rule
Needs to be informed of:
- Adequate information about the treatment
- Available alternatives to the treatment
- Material risks involved
- i.e., relevant risks
- Risks that either ought to be known by everyone or are already known to the patient
- Where full disclosure would be detrimental to a patient's total care and best interests
- In an emergency and the patient is in no condition to determine for himself whether treatment should be administered
As the risk and chance thereof increase, so does the information required to be disclosed.
A physician must disclose personal interests unrelated to the patient's health, which research or economic, that may affect the physician's professional judgment.
- One licensed to practice medicine is presumed to possess the degree of skill and learning which is possessed by the average member of the medical profession in good standing in the community in which he practices, and to apply that skill and learning, or if he does not apply it, he is guilty of malpractice.
- Before a physician or surgeon can be held liable as for malpractice, he must have done something in his treatment of his patient which recognized standard of good medical practice in the community in which hie is practicing forbids in such cases, or he must have neglected to do something which such standard requires
- In order to sustain a verdict for the plaintiffs in an action for malpractice, the standard of medical practice in the community must be shown by affirmative evidence, and, unless there is evidence of such a standard, a jury may not be permitted to speculate as to what the required standard is, or whether the defendant has departed therefrom.
- Negligence on the part of a physician or surgeon in the treatment of a case is never presumed but must be affirmatively proven, and no presumption of negligence nor want of skill arises from the mere fact that a treatment was unsuccessful, failed to bring the best results, or that the patient died.
- The accepted rule is that negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony, unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it.
- The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant is not sufficient to establish malpractice unless it also appears that the course of treatment followed deviated form on the methods of treatment approved by the standard in that community.
Some jurisdictions have "degrees of care." This says that certain people who deal with things known to be dangerous, like people working with explosives, or those who have accepted a special responsibility towards other, such as common carriers, are held to a higher degree of care. This says that they are required to exercise "the highest degree of care" or "the utmost caution characteristic of very careful prudent persons."
Other jurisdictions reject degrees of care though. These would just say that the standard of care is the same, but since this standard is based off the circumstances, such people would merely have to use more care because of the circumstances.
- Slight negligence is failure to use great care
- Ordinary negligence is failure to use reasonable care
- Gross negligence is failure to use even slight care
This idea has since been rejected by almost all states. It mainly only remains in the law of bailments and in automobile guest statutes.
Misfeasance is when the defendant attempts performance but misperforms the contract.
Misfeasance attaches liability to misfeasor.
People generally do not have a duty to rescue, but if one starts to rescue, he has a duty to act like a reasonably prudent person would.
Special relationships where the defendant has actual ability and authority to control a third person impose a duty to rescue.
Special relationships that involve a level of control
- Common Carrier/Passenger
- Inn Keeper/Guest
- Temporary Legal Custodian/Charge
People generally do not have a duty to warn or protect others from the criminal acts of a third person.
Such a duty can exist when a special relationship exists between the defendant and the plaintiff or between the plaintiff and the criminal actor.
Certain special relationships impose a duty to warn when the danger of third-party criminal acts is known or reasonably foreseeable:
- Common Carrier/Passenger
Others impose a duty to warn of third party criminal acts only where there is an "imminent probability of injury" from a third-party criminal act:
- Business Owner/Invitee
A duty to warn may exist based on particular knowledge or a special reason to know of the particular type of injury towards a reasonably identifiable victim.
The majority says a duty exists to unborn children.
A reasonably close causal connection between the conduct and the resulting injury is commonly called causation.
Causation in fact is generally determined by the "but for" test.
In statistical evidence, the risk of the harm occurring must have more than doubled.
In cases where two or more actively operating forces, only one of which the defendant was responsible for, combine to bring about the harm, the "substantial factor" test applies instead.
A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.
For hazardous chemical cases, to be a substantial factor requires "evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked."
There are four different tests that are used in various types of circumstances to determine if there is proximate cause:
An injury doesn't have to be likely or probable in order to be foreseeable.
The risk to be reasonably perceived defines the duty to be obeyed.
Another rule used sometimes in determining the issue of proximate cause is the direct cause rule. Polemis. The direct cause rule provides that a defendant is responsible for all consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act. Such consequences are natural and proximate, and the defendant’s negligence is the proximate cause. The defendant does not have to foresee the exact kind of harm as long as some harm was foreseeable.
The rule from Palsgraf is often used when addressing proximate cause issues when the plaintiff is not directly involved in the event or accident that leads to his injury. Palsgraf provides that proximate cause extends liability to those whose conduct harms persons within the zone of the reasonably foreseeable plaintiff. The concept of foreseeability limits liability to the consequences of an act that can reasonably be foreseen. If a person is not a reasonably foreseeable plaintiff, a defendant cannot reasonably foresee an unreasonable risk of harm to him; therefore, the defendant’s negligence would not be the proximate cause of an unforeseeable plaintiff’s injury.
- A defendant is responsible for harms that have only a small risk if the resulting damage is great. A defendant is liable for a risk that does not have a disadvantage to preventing it, no matter how small the risk is. A defendant may be liable for even a small risk if a great harm would result. Wagon Mound No. 2.
- This is another take on the reasonable foreseeability rule, applying only in certain situations.
The "eggshell skull" rule states that one is liable for all physical injuries even if another person wouldn't have suffered those injuries. Simply put, a defendant takes the plaintiff as he find him.
When a third person intervenes between the defendant's conduct and the plaintiff's injury, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence.
A superseding act breaks the causal nexus of proximate cause. An intervening act may well be superseding if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct.
To achieve rescuer status one must demonstrate:
- The defendant was negligent to the person rescued and such negligence cause the peril or appearance of peril to the person rescued.
- The peril or appearance of peril was imminent.
- A reasonably prudent person would have concluded such peril or appearance of peril existed.
- The rescuer acted with reasonable care in effectuating the rescue.
Elements of violation of statute:
- Plaintiff is a member of the class of people the legislature intended to protect.
- Harm is the type of harm the statute intended to prevent.
- It is appropriate to impose tort liability.
A series of factors determines whether it's appropriate to impose tort liability based off statute violations:
- Whether there is a relevant common law duty
- Whether the statute clearly defines the prohibited or required conduct
- Whether applying negligence per se to the statute would create liability without fault
- Whether negligence per se would impose ruinous liability disproportionate to the seriousness of the defendant's conduct
- Whether the injury resulted directly or indirectly from the violation of the statute
A minority of jurisdictions extend violation of statute to apply to regulations as well.
Three positions on violation of statute:
- Majority position of negligence per se:
Negligence per se
- In a minority of jurisdictions, violation of statute only gives prima facie (a rebuttable presumption of) negligence. While both allow excuses, a rebuttable presumption also allows for the defendant to show he was acting reasonably without using an actual excuse.
- In another minority of jurisdictions, violation of statute is merely evidence the jury can consider and does not even give a presumption of liability.
- The violation is reasonable because of the actor's incapacity
- He neither knew nor should have known 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 others
List is not exclusive
Some statute violations do not allow excuses
Compliance with statute is not proof it was not negligent, only evidence of due care.
There has to be evidence that the defendant knew of the potential hazard for him to be liable.
When the "operating methods" present a continuous or easily foreseeable danger, notice is not needed for an individual event thereof.
To prove negligence of someone's mode of operation being hazardous, one must prove:
- The business had actual or constructive knowledge of a condition on the premises
- The condition posed an unreasonable risk of harm
- The business did not exercise reasonable care to reduce or to eliminate the risk
- The business's failure to use such care proximately caused the plaintiff's injuries
Some rare occurrences can be sufficient evidence of negligence by the mere fact that they happened at all.
Elements of res ipsa loquitur:
- The defendant or his servants have management or (exclusive) control of the thing involved
- The accident is the kind of thing that does not occur in the ordinary course of things
- Based on common experience and general knowledge
Some jurisdictions (& BARBRI) add:
- The event cannot have been brought about by the plaintiff's conduct
Res ipsa loquitur cannot apply to drivers colliding with others. Some courts make an exception for common carriers. Does apply when a driver causes an accident by going off the road without apparent cause and causes harm.
Three possible effects of res ipsa loquitur:
- It warrants an inference of negligence which the jury may draw or not, as their judgment dictates.
- It raises a presumption of negligence which requires the jury to find negligence if defendant does not produce evidence sufficient to rebut the presumption.
- It not only raises such a presumption but also shifts the ultimate burden of proof to defendant and requires him to prove by a preponderance of all the evidence that the injury was not caused by his negligence.
Negligent infliction of emotional distress has two elements:
- Impact or Physical Manifestation
The impact rule is the minority rule.
The physical manifestation or physical injury requirement requires the plaintiff to suffer a physical symptom as a result of the distress.
A definite nervous disorder is a physical injury.
The physical manifestation requirement is the majority rule.
The physical manifestation requirement has two well-recognized exceptions:
- Death-telegram rule, in a minority of states
- Negligent interference with dead bodies
A bystander is someone who is:
- is closely related to the injury victim;
- is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and
- as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.