NEGLIGENCE TABLE OF CONTENTS. Chapter 1: How to Craft Negligence Answers...2. Chapter 2: Negligence Issues...4

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1 NEGLIGENCE TABLE OF CONTENTS Chapter 1: How to Craft Negligence Answers Chapter 2: Negligence Issues Chapter 3: Spotting Negligence Issues Chapter 4: Negligence Rules and Definitions NEGLIGENCE 1

2 NEGLIGENCE Ch. 1: How to Craft Negligence Answers 1. INTRODUCTORY PASSAGE? If the essay question concerns negligence and nothing but negligence the "overall" issue is negligence but each element of proof (duty, breach, actual cause, proximate cause, damages) become the main issues of discussion. In this case you can start with an introductory passage that defines negligence as the cause of action and then presents these elements of proof as the individual issues. But if there are intentional torts, defamation, nuisance or similar issues presented, negligence is just a single issue and should be addressed as a single issue. 2. CONSIDER NEGLIGENCE PER SE FIRST. If a plaintiff violated a statute or rule consider getting negligence per se out of the way first. In this case the DUTY is based on statute and the violation is the BREACH. But this makes essay answer too easy (Yikes!) so usually the purpose of the statute is not to protect the plaintiff from the type of injury suffered. 3. IF DUTY IS BASED ON PERIL ALWAYS MENTION PALSGRAF. The whole point of Palsgraf is DUTY based on peril is only to those with in the "zone of danger" (both Cardozo and Andrews were in agreement on that), but Cardozo thought LIABILITY should only be to those owed a duty while Andrews felt it should extend to those who were injured, even those who were not owed a duty because they were not in the "zone of danger", the same as with the RESCUER DOCTRINE. Your professor may think Palsgraf is about BREACH, but it is not. And she may say Andrews argued "a duty to one is a duty to all", but that is wrong too. But, DO NOT try to correct your professor! Humor her! In regards to Palsgraf ust say that, "Under Palsgraf Cardozo said that defendants that create peril do not owe a duty to protect those outside the zone of danger created by their acts so they should not be liable to them. But Andrews said defendants who breach duties based on peril should be liable to everyone actually and proximately caused injury, even if they are outside the zone of danger, the same as is true under the Rescuer Doctrine." Don't misspell "Cardozo". It is NOT "Cardoza". Remember "Cardozo was a Bozo." 4. CONSIDER RES IPSA LOQUITUR (RIL). If there is no witness to the cause of an accident consider RIL as a means of proving BREACH. It creates a presumption of breach when there are no actual facts to prove a breach by the defendant. It is a negligence issue and also arises often in product liability when there are no facts to prove if the product was always dangerous or became dangerous because of mishandling while being passed from manufacturer to wholesaler to retailer. Look for vague facts like these "an accident occurred" "a plane crashed in the ocean" "the engine malfunctioned" "there were no witnesses"

3 "everyone was killed" "the plaintiff cannot remember the accident" "the product was discovered to be defective" 5. HOW MUCH TIME AND ANALYSIS? If the negligence issue is combined with some intentional tort issues, spend twice as much time on the negligence issue as on any intentional tort issue. But analyze DUTY, BREACH, ACTUAL and PROXIMATE CAUSE and DAMAGES as elements within your one negligence issue. Be sure to analyze CONTRIBUTORY and COMPARATIVE NEGLIGENCE as separate issues. But if the WHOLE question involves NEGLIGENCE and there are no intentional torts, then you should analyze each element of negligence as a separate issue. 6. PHRASE ISSUES FOR NEGLIGENCE AS FOLLOWS: I like clear issue statements like the following but they are not absolutely necessary: 1. NEGLIGENCE for injury to plaintiff? 2. DUTY? 3. BREACH? 4. RES IPSA LOQUITUR? 5. ACTUAL CAUSE? 6. PROXIMATE CAUSE? 7. DAMAGES? 8. CONTRIBUTORY or COMPARATIVE NEGLIGENCE? 9. ASSUMPTION OF THE RISK? NEGLIGENCE 3

4 Ch. 2: Negligence Issues The following show how to phrase and answer the most common issues presented by negligence essay questions. A full analysis and conclusion of the first issue is presented below as an example.. BE AWARE of the Two Negligence Fact Patterns! There are two kinds of negligence questions calling for two different essay approaches: 1. Type ONE: Both intentional torts and negligence. For this type of fact pattern you probably do not have enough time to analyze each element of negligence as a separate issue. Discuss the intentional torts first. Then say the ISSUE is "Negligence?" and discuss the elements of DUTY, BREACH, CAUSATION and DAMAGES as paragraphs within the negligence issue analysis. For example suppose the question says, "Don's gun went off at the crowded New Year's party and Vic was hit." Here Don may have been trying to scare people, so that raises issues of tortious assault, battery and intentional infliction. Plus, he may have just been careless, so you must discuss negligence too. This question does not call for a "full-blown" analysis of each of the elements of negligence and you simply do not have time for that! 2. Type TWO: Negligence alone. This type of fact pattern calls for a full-blown analysis of negligence. You must discuss the negligence elements of DUTY, BREACH, CAUSATION and DAMAGES thoroughly, each as a separate issue. So define "negligence" in an introductory statement and make your individual ISSUES "Duty?", "Breach?", etc. For example suppose the question says, "Don's gun went off accidentally at the crowded New Year's party and Vic was hit on the head four blocks away by a dead seagull killed in flight by the bullet." Here there clearly are no intentional torts. Here you must analyze DUTY, BREACH, CAUSATION and DAMAGES all as separate issues and simply define "negligence" in an introductory statement. o Did Don have a DUTY to Vic? Discuss Palsgraf and Cardozo's zone of danger concept. o Did Don BREACH his duty? Discuss Res Ipsa Loquitur! o Was Don't breach the PROXIMATE CAUSE of Vic's injury? Discuss intervening events. o Did Vic suffer DAMAGES? Maybe it was a trivial event. Following are model issue and answer statements for negligence questions: 1. NEGLIGENCE? Under tort law NEGLIGENCE is a failure to exercise that degree of care that a reasonably prudent person would use in the same situation. To prevail the plaintiff must usually prove DUTY, BREACH, ACTUAL and PROXIMATE CAUSATION and DAMAGES. Important!

5 [If this is a 'type 1' negligence question combined with some intentional tort issues at this point you should give a very abbreviated discussion of duty, breach, actual cause, proximate cause and damages, all in one single issue analysis. Also, a very short abbreviated definition and analysis of negligence is required in discussing products liability and defamation because each of those fact patterns raise negligence issues. Otherwise where an entire essay question involves nothing but a tort action for negligence, just conclude this 'issue' as follows If B can prove the elements of a prima facie case of negligence A may be liable. Then analyze duty, breach, etc. each as a separate issue.] 2. STRICT LIABILITY? Under tort law a defendant that engages in any of three activities is STRICTLY LIABLE to any person who is actually and proximately caused injury. These three activities are: 1) keeping a KNOWN, DANGEROUS ANIMAL, 2) keeping an EXOTIC ANIMAL of a type that is not commonly domesticated, or 3) engaging in ULTRA-HAZARDOUS ACTIVITIES that are unusual, pose extreme risks to others, and are usually subject to strict safety regulations. If a defendant engages in these activities duty is presumed, and if anyone is caused injured as a result breach is presumed as well. Here because Therefore 3. DUTY? [Note: Product liability also can pose strict liability, but that is better addressed as part of a product liability analysis, not a strict liability in negligence analysis.] Under tort law the general rule is that a person has no duty to act to defend others from harm. A DUTY to act to protect others from harm ONLY arises under five scenarios: [SCRAP] STATUTE, CONTRACT, RELATIONSHIP, ASSUMPTION or where PERIL to the plaintiff is caused by the defendant. Important! Important in criminal law as well. [If a duty based on STATUTE is suggested say the following:] A defendant that 1) violates a STATUTE or rule causing injury to the plaintiff will be NEGLIGENT PER SE if 2) the statute was intended to protect people like the plaintiff from 3) injuries like those suffered. [Only cite this where relevant.] [If a duty based on PERIL is suggested say the following:] NEGLIGENCE 5

6 Under tort law defendants that create reasonably foreseeable dangers to others have a DUTY based on PERIL to act reasonably to protect others from those dangers. In PALSGRAF, CARDOZO argued that defendants who fail to act reasonably to protect others from the perils they have created should only be liable to plaintiffs who were actually in the ZONE OF DANGER at the time of their breach. The Zone of Danger is the area where the acts of the defendant created reasonably foreseeable dangers to others. ANDREWS argued that defendants who fail to act reasonably to protect others from the perils they have created had always been liable to RESCUERS under the RESCUER DOCTRINE, whether they were in the Zone of Danger or not, (because peril invites rescue ) and the same principal should be applied to all plaintiffs actually and proximately caused injury by the defendants breach of duty. Important! Here the ZONE OF DANGER was because [If a duty based on PREMISES LIABILITY say the following:] Under tort law an OCCUPIER OF LAND has a duty to both those who come onto the land and to those off the land. This is a form of duty based on RELATIONSHIP. Under the common law an occupier of land had no duty to UNKNOWN TRESPASSERS. The occupier had a duty to warn and protect KNOWN TRESPASSERS and LICENSEES from known, hidden dangers and artificial conditions. Licensees are people allowed onto the land but not for the occupier s benefit. The occupier had a duty to reasonably inspect the land and warn and protect INVITEES from known, hidden dangers and artificial conditions. Invitees are people invited or allowed onto the land for the occupier s benefit. Finally the occupier of land had a duty to conduct and control activities on the land with due care to prevent injury to PEOPLE OFF THE LAND. Modernly these rigid rules by classification have often been modified by both statute and Court decision to create a balancing test under which the occupier of land has a duty of due care to ALL PEOPLE to act as a reasonable person would in inspecting, maintaining and using his property so that it does pose known dangers to others. Here because.therefore. [If a duty based on CONTRACT, ASSUMPTION or other RELATIONSHIPS (beside premises liability) the liability of the defendant is usually narrowly limited to only those owed the duty.] 4. ATTRACTIVE NUISANCE DOCTRINE? Under the ATTRACTIVE NUISANCE DOCTRINE an OCCUPIER OF LAND who knows that children have or may in the future trespassed onto her land has a strict duty to inspect for and

7 eliminate any condition posing dangers the children might not fully appreciate because of their young age. This is a duty based on RELATIONSHIP which poses almost strict liability. The only defense the landowner may raise is assumption of the risk. Here because.therefore... [This is almost always the intended issue when a child (plaintiff) gets hurt on the property of the defendant.] 5. BREACH? Under tort law BREACH means that the defendant did not exercise the DEGREE OF CARE a reasonable person would use in the same circumstances. In assessing reasonableness the STANDARD OF CARE that would be applied to the defendant is [Note: Normally little if anything has to be said about the STANDARD OF CARE. But, if the defendant is a CHILD engaged in childlike activities, the standard is the level of care a child of that age and experience would normally use. A child engaged in adult activities is held to an adult standard. And if the defendant is (or represents self to be) a highly trained PROFESSIONAL, a higher standard of care applies. Also, the standard of MEDICAL CARE is the standard in the community or the nation (split opinions). But if the defendant is MENTALLY RETARDED, insane or ignorant, the standard of care is NOT LOWERED below that set for the average member of the community.] Here there was a BREACH because a reasonable person in the same circumstances would have 6. RES IPSA LOQUITUR? Under the doctrine of RES IPSA LOQUITUR an INFERENCE OF BREACH exists if 1) negligence by someone is implied by the facts, 2) the defendant had control of the event or instrument that caused injury, and 3) the plaintiff had no control over the event or instrument causing injury. Here negligence by someone is implied because and the defendant had control over the event (or cause of injury) because and the plaintiff had no control over the event (or cause of injury) because Therefore, BREACH could be inferred based on RES IPSA LOQUITUR. NEGLIGENCE 7

8 [This is the intended issue when you are not given any facts to explain why an accident occurred. Perhaps a building mysteriously catches on fire or a ship is lost at sea and there is no evidence what happened to cause the accident.] 7. BREACH BASED ON NEGLIGENT ENTRUSTMENT? Under tort law defendants who NEGLIGENTLY ENTRUST third parties with resources or authority are directly liable for injuries actually and proximately caused as a result. Here because Therefore. [This is the intended issue when a defendant negligently gives or loans someone else an object (e.g. a car to a drunk driver) or otherwise puts them in a position where they have the power and ability to hurt the plaintiff. If the defendant SELLS the object to the other person (e.g. sells a car to a known alcoholic) the law is far less likely to find the defendant liable.] 8. ACTUAL CAUSE or a SUBSTANTIAL FACTOR? Under tort law the defendant is the ACTUAL CAUSE of injury if the plaintiff would not have been injured BUT FOR the acts of the defendant. If two or more defendants acted negligently, the plaintiff would not have been injured if neither had acted, and the plaintiff cannot reasonably prove she would not have been injured but for the acts of each alone, then each defendant is a SUBSTANTIAL FACTOR causing injury. Important! Here the defendant was the ACTUAL cause of injury (or else a SUBSTANTIAL FACTOR) because but for 9. PROXIMATE CAUSE? Under tort law PROXIMATE CAUSE means that the injury suffered by the plaintiff was so DIRECT, NATURAL and FORESEEABLE, so close in time and place, resulting from a CHAIN OF CAUSATION begun by the defendant s acts, unbroken by UNFORESEEABLE INTERVENING EVENTS that the law will impose liability for the result. Important! Generally if two or more events are actual causes of the plaintiff s injury, the last event will be an UNFORESEEABLE INTERVENING EVENT cutting off the liability of all defendants who acted earlier. However, it is a matter of settled law that negligent acts by others are FORESEEABLE so they can never be intervening events. Acts of nature [e.g. tornados] and criminal or intentionally tortious acts by third parties [e.g. thefts, batteries] are presumed to be UNFORESEEABLE and will terminate defendants liability unless extrinsic evidence shows defendants were aware the subsequent events were likely to occur. Important! Here there was (no) PROXIMATE CAUSATION because...

9 10. DAMAGES? Under tort law the plaintiff in a negligence action must almost always show ACTUAL INJURY resulting from the acts of the defendant. SPECIAL damages are the plaintiff's out-of-pocket costs, and GENERAL damages are allowed for pain and suffering. However under SURVIVAL RULES generally only SPECIAL DAMAGES can be awarded to the estate of a deceased tort plaintiff and NO GENERAL DAMAGES are allowed. Further, PUNITIVE DAMAGES can only be awarded in a negligence action if the acts of the defendant rise to the level of gross negligence (deliberate breach of a duty) or recklessness (deliberate creation of extreme risks to others) with a showing of fraud, oppression or malice. NO PUNITIVE DAMAGES can be awarded if only ordinary NEGLIGENCE (accidental creation of risks to others) is proven. 11. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS? Under tort law, a BYSTANDER to an event may bring an action for NEGLIGENT INFLICTION if they suffer severe emotional distress and there is a nexus between the negligent act and the injury based on a PROXIMITY IN TIME, PLACE and RELATIONSHIP. In some jurisdictions a physical manifestation of emotional distress must be shown. Here because Therefore VICARIOUS LIABILITY BASED ON RESPONDEAT SUPERIOR? Under the doctrine of RESPONDEAT SUPERIOR an employer, master or principal is vicariously liable for all torts committed by an employee, servant or agent, respectively, if the tort is committed within the scope of the employment or agency relationship. Respondeat superior does not apply to independent contractors. Here because Therefore VICARIOUS LIABILITY for JOINT ENTERPRISE? Under tort law each member of a JOINT ENTERPRISE is vicariously liable for all torts committed by other members within the scope of the enterprise relationship. A joint enterprise is one in which two or more parties agree to work together for mutual benefit and each shares equal rights of control over assets and activities. Here because Therefore... NEGLIGENCE 9

10 14. VICARIOUS LIABILITY for acts of INDEPENDENT CONTRACTOR? Under tort law defendant who hires an INDEPENDENT CONTRACTOR to perform duties that are not non-delegable by law is NOT vicariously liable for torts committed by the contractor and can only be directly liable because of negligent selection or negligent entrustment of the contractor by the defendant. An independent contractor is a person selected to provide labor services without close and regular supervision. Here because Therefore. [See Nailing the Bar's "Simple Torts Outline" to learn which duties are "non-delegable" and which are not.] 15. CONTRIBUTORY or COMPARATIVE NEGLIGENCE? Under tort law CONTRIBUTORY NEGLIGENCE completely bars a plaintiff from recovery if any negligence by the plaintiff helped cause their injury. This often produces harsh results and many jurisdictions use the LAST CLEAR CHANCE DOCTRINE to allow a negligent plaintiff to still recover where if the defendant had the last clear opportunity to avoid the accident. Where negligence by the plaintiff does not cause an accident but does contribute to the injuries many Courts use the AVOIDABLE INJURY DOCTRINE to allocate the injuries between the parties. In many States the COMPARATIVE NEGLIGENCE approach does not bar the negligent plaintiff from recovery but reduces the plaintiff s recovery to reflect the degree of fault shared by the plaintiff. Some states bar a plaintiff from recovery if they are over half to blame for an accident. Here because [Combine the issues of contributory and comparative negligence like this to SAVE TIME, but ONLY when LAST CLEAR CHANCE and AVOIDABLE INJURY are not intended issues. But if the plaintiff is somewhat negligent (e.g. was not wearing a seatbelt or other safety equipment) AND the defendant had the LAST CLEAR CHANCE to avoid an accident, separate the issues of CONTRIBUTORY NEGLIGENCE and COMPARATIVE NEGLIGENCE and explain LAST CLEAR CHANCE and AVOIDABLE INJURY with respect to contributory negligence alone.] [Note: Contributory and comparative negligence are NOT ALLOWED DEFENSES to causes of action claiming Strict Liability and Attractive Nuisance!] 16. EGG-SHELL PLAINTIFF?

11 Under the EGG -SHELL PLAINTIFF concept, defendants are liable for all damages they actually cause plaintiffs, even if the plaintiffs, through no fault of their own, have pre-existing conditions that make them especially vulnerable to injury. The doctrine of the law is that defendants must take plaintiffs as they find them. Here because Therefore [Discussion of "egg-shell plaintiffs" is the intended issue when the plaintiff is a partial cause of her own injury, but is not negligent because any other reasonable person in the same situation would do the same thing (e.g. a little old lady walks across the street slowly because that is as fast as she can walk). See Nailing the Bar's "Simple Torts Outline".] 16. ASSUMPTION OF THE RISK? Under tort law ASSUMPTION OF THE RISK is a complete bar to recovery for negligence if 1) plaintiffs deliberately put themselves at risk 2) with full awareness of the risks and 3) a conscious acceptance of the risks. Here because [Note: Assumption of the risk is the only possible affirmative defense to a proven claim of Strict Liability or Attractive Nuisance Doctrine.] Note: The above issue statements provide virtually every important issue, definition, rule and term that you will ever see on a TORTS examination in law school or on a Bar Exam dealing strictly with NEGLIGENCE actions. If you know the above issues and responses you have everything you really need. NEGLIGENCE 11

12 Ch. 3: Spotting Negligence Issues Issue Area and Coded Hint: 1. Plaintiff remote at time of injury: 2. Unforeseeable plaintiff: 3. Unforeseeable injury: 4. Frail plaintiff: DUTY ISSUES: Intended Issue: Palsgraf -- Did the defendant have a DUTY to plaintiff? Duty? Or maybe not breach of reasonable care? "Eggshell" plaintiff? Or maybe not proximate cause? "Eggshell" plaintiff? Take the plaintiff as you find them. 5. Plaintiff injured in rescue: Rescuer Doctrine -- DUTY not to create peril. 6. Defendant failed to act: Did defendant have a DUTY to act? 7. Defendant "knew act was dangerous": BREACH ISSUES: Did knowledge rise to level of INTENTIONAL TORT? 8. Injury despite reasonable actions: Was there any Breach? 9. Defendant is child: What is the STANDARD OF CARE? 10. Defendant is mentally ill, retarded: What is the STANDARD OF CARE? 11. Defendant is professional? What is the STANDARD OF CARE? 12. Defendant falsely claims professional? Held to the higher STANDARD OF CARE? 13. Unforeseeable plaintiff/injury: Maybe no breach of reasonable care? 14. No witness to the accident: Res Ipsa Loquitur. 15. Defamation without research: 16. Violation of statute or regulation: 17. Negligent acts of two cause injury: 18. Aggravation of prior injuries: 19. Violation of statute or regulation: ACTUAL CAUSATION ISSUES: PROXIMATE CAUSATION ISSUES: Was defendant negligent in investigation of truth? The law establishes the STANDARD OF CARE. Each a SUBSTANTIAL CAUSE of injury? Joint liability? "Eggshell" plaintiff - Take the plaintiff as you find them. Did the violation ACTUALLY CAUSE INJURY?

13 20. Chain of events lead to injury: 21. Criminal causes the injury: Wagon Mound - Actual cause without proximate cause? Intervening superceding event? Foreseeable direct result? 22. Unforeseeable injury: No proximate cause or "Eggshell" plaintiff? DAMAGES ISSUES: 23. Unstated injury: Lack of damages? 24. All negligence questions: 25. Contributory negligence: DEFENSE ISSUES: ALWAYS analyze contributory/comparative negligence. ALWAYS consider LAST CLEAR CHANCE doctrine. 26. Plaintiff "didn't see" danger: Contributory negligence? 27. Plaintiff injured by own act: AN ISSUE SPOTTING EXAMPLE: Assumption of the risk? Aware of danger? Conscious disregard? Example 1: "Al went to a deserted farm house to shoot his gun. But Bob the wino had gone to sleep in the house the night before in a drunken stupor. Al didn't think anybody was there because it was a remote spot and no cars were around. He shot out the windows of the old farm house and a bullet hit Bob. What actions can Bob bring against Al, and what are Al's defenses?" Issues: 1) BATTERY because Al was intentionally acting to "shoot out the windows" of the house. His intent and act were to commit a trespass to land. It became a battery on Bob by transferred intent. Bob cannot bring an action for trespass to land because it was not his house. 2) NEGLIGENCE. Did Al have a duty to Bob? Yes, because Al created peril and Bob was within the zone of danger created by Al's act. Did he breach the duty by not being careful? Yes, because it was unreasonably dangerous to be shooting into a house, even an abandoned one, without looking to see if someone was inside. Was Al the actual cause of Bob's injury? Yes, because Bob would not have been "hit" if Al had not "shot." Was Al the proximate cause of Bob's injury? Yes, because the injury was the direct and natural result of Al's act. 3) CONTRIBUTORY NEGLIGENCE. Clearly Bob helped cause his injury because he went to sleep in a "deserted farm house" in a "drunken stupor". If he had not done that, he would not have been in a dangerous place. 4) COMPARATIVE NEGLIGENCE -- same thing. NEGLIGENCE 13

14 5) ASSUMPTION OF THE RISK -- Bob was not aware of risk and did not consciously disregard danger because he was "in a drunken stupor."

15 Ch. 4: Negligence Rules and Definitions 1. ASSUMPTION OF THE RISK (TORTS): Assumption of the risk is a defense to negligence that acts as a complete bar to recovery if plaintiffs 1) put themselves at risk, 2) with full awareness of the risks, and 3) consciously acceptance of the risks. 2. AVOIDABLE INJURY (TORTS): Under the Avoidable Injury doctrine some Courts in jurisdictions that recognized CONTRIBUTORY NEGLIGENCE (which see) as a complete bar to recovery often held that if a plaintiff s negligence did not help cause an accident and only contributed to the degree of injury, the Court would consider the plaintiff s acts in allocating damages but would not consider it a total bar to recovery. 3. BREACH (TORTS): A breach in negligence is a failure by defendant with an existing duty to meet the applicable STANDARD OF CARE by acting as a reasonable person like the defendant would normally use in the same circumstance. (see STANDARD OF CARE, RES IPSA LOQUITUR.) 4. COMPARATIVE NEGLIGENCE (TORTS): In the MAJORITY of States plaintiffs in negligence actions will have damage awards proportionately reduced by the amount of their own COMPARATIVE NEGLIGENCE. Some States completely bar plaintiffs from recovery if they cause over 50 percent of their own injury. Some States also bar plaintiffs from recovery against any defendant less at fault than the plaintiffs. 5. CONTRIBUTORY NEGLIGENCE (TORTS): In a MINORITY of States plaintiffs in negligence actions are completely barred from any recovery if their own CONTRIBUTORY NEGLIGENCE caused any part of their injury. But many States following this approach will not bar plaintiffs from recovery if the defendant had the LAST CLEAR CHANCE (which see) to avoid the accident. And under the AVOIDABLE INJURY DOCTRINE (which see) some Courts have allocated damages on comparative negligence principals when the plaintiffs negligence did not cause the accident but only caused their injuries to be more severe. 6. DUTY (TORTS): Generally a person has NO DUTY to act to protect others. But a DUTY may be established by STATUTE, CONTRACT, RELATIONSHIP, ASSUMPTION or creation of PERIL [SCRAP]. Violation of a duty created by STATUTE usually gives rise to a claim of NEGLIGENCE PER SE. The duties of occupiers of land are governed by the principles of PREMISES LIABILITY, a form of duty based on RELATIONSHIP. And any person who creates PERIL to others has a duty as discussed by Cardozo and Andrews in PALSGRAF. (See NEGLIGENCE PER SE, PREMISES LIABILITY, PALSGRAF.) 7. EGG-SHELL PLAINTIFF (TORTS): The doctrine that defendants are liable for all injury suffered by plaintiffs who are extraordinarily susceptible to injury through no fault of their own because "the defendant must take his plaintiff as he finds him." This is to be distinguished from the AVOIDABLE INJURY DOCTRINE situation where the plaintiff's own negligence causes them to be "extraordinarily susceptible" to injury. 8. FIREMAN S RULE (TORT): Under broadly adopted modern statutes defendants who create dangerous situations that cause accidental injury to professional rescuers like firemen are generally not liable to them for negligence under the RESCUER DOCTRINE. These statutes are generally based on the view that professional rescuers both assume the risks of their professions and are compensated for by insurance plans like the workman s compensation program. 9. GROSS NEGLIGENCE: (TORTS): The deliberate breach of a pre-existing duty. Deliberateness of the breach distinguishes gross negligence from ordinary negligence. If it causes others to be exposed to extreme resulting in harm it may be called criminal negligence (which see) NEGLIGENCE 15

16 10. LAST CLEAR CHANCE (TORTS): The SAVING DOCTRINE in jurisdictions that recognize CONTRIBUTORY NEGLIGENCE (which see) as a bar to recovery that even if a plaintiff was negligent, that is not a bar to recovery if the defendant had the LAST CLEAR CHANCE to avoid the accident. 11. LANDLORD LIABILITY: A tenant who rents or leases real property generally assumes all liability and risks posed by any hazards on the land. Exceptions are that a landlord that leases land to a tenant remains liable for known, hidden dangers that are not revealed to the tenant, at least until the tenant has occupied the land long enough that the dangers should have been discovered. The landlord also has continuing liability for dangers in the common areas under the landlord's control, for conditions the landlord promised to repair and correct at the time of lease, and for any hazards caused by the landlord's negligence prior to or after lease of the property. 12. NEGLIGENCE (TORTS): Negligence is the failure to exercise the degree of care that a reasonably prudent person would use in the same situation. But to prevail in an action for negligence the plaintiff must show the defendant had a DUTY, BREACHED the duty, and that the breach was the ACTUAL and PROXIMATE CAUSE of DAMAGES suffered by the plaintiff (which see). 13. NEGLIGENCE IN PRODUCT LIABILITY SITUATIONS (TORTS): Any person that releases a dangerous product into the stream of commerce creates peril, and that peril charges them with a DUTY to act to protect all foreseeable plaintiffs, those who are in the zone of danger created by their conduct, from that peril. If the product is unreasonably dangerous they have breached their duty and will be liable for all injuries that are actually and proximately caused by the product. (See PRODUCT LIABILITY in the Week 1 area for the other theories upon which a product liability action might be brought.) 14. NEGLIGENCE PER SE (TORTS): If a duty is created by a statute, a defendant who violates the statute is negligent per se and liable to all plaintiffs who are actually and proximately caused injury as a result if the plaintiffs are in the CLASS of people the statute was intended to protect and they are caused the TYPE of injury the statute was intended to prevent. (see DUTY.) 15. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (TORTS): Negligent Infliction of Emotional Distress (NIED) is an action by a bystander for severe emotional distress in situations that do not support an action for IIED or a regular negligence action because 1) the plaintiff suffered no physical injury or property damage and either 2) the acts of the defendant were unintentional or 3) the plaintiff only witnessed some other person or thing being injured. To recover under a claim of NIED the plaintiff must establish 1) severe emotional distress by clear and convincing evidence, and some States require physical manifestations of distress. And 2) when the plaintiff is only a bystander or witness to injury suffered by another person a nexus must be proven showing that the plaintiff was close in time, place or relationship to the person or thing injured. 16. PALSGRAF (TORTS): A duty based on PERIL is created whenever the defendant acts in a manner that creates reasonably foreseeable harm to others. Under Palsgraf Cardozo argued that defendants should only be LIABLE to plaintiffs who were in the ZONE OF DANGER created by their acts, because they only owed a duty to due care to those people. The ZONE OF DANGER is the area (in time and place) where the acts of the defendants created reasonably foreseeable danger to others. Andrews argued that if a duty based on PERIL is owed to anyone and breached, defendants should be liable to everyone who is actually and proximately harmed by the breach even if they were not owed a duty of due care originally, the same as with the RESCUER DOCTRINE. (see RESCUER DOCTRINE, ZONE OF DANGER). 17. PREMISES LIABILITY (TORT): Premises liability is a form of duty based on RELATIONSHIP. Under the common law an occupier of land had no duty to unknown trespassers, a duty to protect people off the land from hazardous activities on the land, a duty to

17 warn and protect both known trespassers and licensees from known, hidden hazards and activities on the land, and a duty to inspect, warn and protect invitees from hidden hazards and activities on the land. Modernly these categorical distinctions have generally been replaced by a general duty to protect all parties from unreasonably hazardous conditions and activities on the land. (See DUTY.) 18. PROXIMATE CAUSE (TORTS): Proximate cause means that a defendant s act actually caused injury that was so direct and natural, close in time and place, by a chain of causation unbroken by UNFORESEEABLE INTERVENING EVENTS that the law will impose liability. (see UNFORESEEABLE INTERVENING EVENTS.) 19. RECKLESSNESS (TORTS): Recklessness is the deliberate creation of extreme risks to others. 20. RES IPSA LOQUITUR (TORTS): Under RES IPSA LOQUITUR a plaintiff may establish a presumption of breach by the defendant if 1) negligence by someone is implied by the facts, 2) the defendant had substantial control over the situation that caused injury, and 3) the plaintiff had no control over the situation that caused them injury. By proving the elements of RIL the plaintiff may shift the burden of proof to the defendant to prove she did not breach her duty of due care. 21. RESCUER DOCTRINE (TORT): Under tort law a defendant who creates a perilous situation is liable to all who are accidentally injured coming to the rescue (except for professional rescuers; see the FIREMAN S RULE) even though the rescuers who are injured are not in the ZONE OF DANGER created by the defendant s acts or injured by the dangers created. 22. RESTITUTION (TORTS): Restitution in tort is an award (usually in the form of a money judgment) prevent UNJUST ENRICHMENT, to PROTECT THE PUBLIC INTEREST by PREVENTING FRUSTRATION OF REASONABLE COMMERCIAL EXPECTATIONS, or otherwise to RESTORE THE STATUS QUO. 23. STANDARD OF CARE (TORTS): Normally the standard of due care is the level of care a reasonably prudent person would use. If the defendant is a CHILD engaged in childlike activities the standard is the level of care a reasonable child of the same age and experience would use. A child engaged in adult activities is held to an adult standard. For defendants that are (or claim to be) HIGHLY TRAINED or PROFESSIONAL the standard of care is that of a professional with that training. The standard of MEDICAL CARE is the standard in the community (or nation in some jurisdictions). There is not a lowered standard of care for INCOMPETENTS. (see BREACH (TORTS).) 24. STANDING (TORTS): Standing means that a plaintiff has a right to pursue a legal remedy because they have suffered actual damages. 25. STRICT LIABILITY (TORTS): Defendants are strictly liable for negligence if plaintiffs are caused injury by 1) the keeping of a known dangerous animal (other than normally domesticated farm animals), 2) the keeping of exotic animals (if the injury is of a reasonably foreseeable type), 3) excavating by the defendant that causes a subsidence of the plaintiff s land, or 4) ultrahazardous activities. This is a form of NEGLIGENCE action. 26. SUBSTANTIAL FACTOR (TORTS): The acts of a defendant are a SUBSTANTIAL FACTOR in causing the injuries of a plaintiff if 1) two or more defendants acted negligently, 2) the plaintiff would not have been injured if none of the defendants had acted, and 3) no evidence shows the defendant did not cause the injury to the plaintiff. 27. ULTRA-HAZARDOUS ACTIVITIES: Ultra-hazardous activities are those that are so dangerous they are highly regulated by government agencies and can only be legally engaged in by large companies with highly trained personnel. Examples would be mining, quarries, chemical plants, and nuclear power plants. Activities that average people can engage in without strict government regulation are not ultra-hazardous activities. Examples would be playing with firecrackers and using readily available chemicals. NEGLIGENCE 17

18 28. UNFORESEEABLE INTERVENING EVENTS (TORTS): If a subsequent act by a third party, or natural event ( act of God ) is also an actual cause of the injury suffered by a plaintiff or victim, if will generally be viewed as an unforeseeable intervening event that terminates proximate cause and ends the liability of defendants that acted earlier. But negligence by a third party is presumed to be foreseeable and will not terminate proximate causation or liability. Criminal acts and intentional torts by third parties are presumed to be unforeseeable and will terminate all liability of defendants that acted earlier UNLESS the defendant knew the subsequent criminal act or intentional tort by the third party was likely to occur. (see PROXIMATE CAUSE.) 29. UNJUST ENRICHMENT (TORTS): A Court may award a remedy (usually a money judgment) in RESTITUTION to prevent an unjust enrichment rather than a remedy based on damages. (see RESTITUTION) 30. ZONE OF DANGER (TORTS): The zone of danger is the area where the acts of a defendant cause reasonably foreseeable dangers. (see PALSGRAF.)

19 INTENTIONALLY LEFT BLANK NEGLIGENCE 19