Defendant has a duty to act as a reasonable person would in like or similar circumstances to avoid causing unreasonable risk of harm to others.

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1 NEGLIGENCE (Heavily Tested) (Write On the Bar): In order for Plaintiff to recover in Negligence, she or he must plead and prove: DUTY, BREACH OF DUTY, ACTUAL CAUSATION, PROXIMATE CAUSATION, AND DAMAGES. (Head note and analyze each element) Bar Note: When Negligence is tested on the California Bar, it is usually a MAJOR ISSUE, worth at least points. It requires a full analysis with the headings, rules and sub headings structured below. Use the exact headings, format and structure on the bar exam. All you then essentially will have to do is apply the facts from the fact pattern to this structure. A. Duty 1. General Duty Defendant has a duty to act as a reasonable person would in like or similar circumstances to avoid causing unreasonable risk of harm to others. 2. Special Duty a. Children, Mental Disabilities, Physical Disabilities i. Children: A child is held to the standard of care of a reasonable child of like age, intelligence, and experience. ii. Adults With Mental Disabilities: Adults with mental disabilities are held to the same standard of care as nondisabled. iii. Adults With Physical Disabilities: Adults with physical disabilities are held to the standard of care of a reasonable blind, deaf or disabled person in like or similar circumstances. b. Professionals i. Doctors A. Specialists: Specialists are held to a national standard of care and must conduct themselves as a reasonable specialist would nationally. B. Generalists: Generalists are held to standard of care of a reasonable physician in same or similar locality.

2 ii. Other Professionals Professionals must possess the minimum, common skill of members in good standing in the profession. Professionals must act as a reasonable expert would in like or similar circumstances. Example: Architects, lawyers, accountants, engineers. c. Violation of Criminal/Civil Statute or Express Rule i. For a criminal statute, civil statute, or express rule of employer to establish a civil standard of care, Plaintiff must establish: ii. A. Plaintiff was in the class of persons the statute or rule was designed to protect; B. The injury was the type the statute or rule was designed to protect against, and C. Defendant violated the statute or rule and Plaintiff s injury was caused by the violation. Jurisdictions vary in how they treat a violation of a criminal statute in setting the civil standard of care. Some treat it as: A. Negligence Per Se: The violation of the statute amounts to negligence per se and Defendant may not argue her or his conduct was reasonable, B. Rebuttable Presumption of Negligence: The violation of the statute raises an inference of negligence, but Defendant can rebut with evidence of reasonable behavior, or C. Mere evidence of negligence. d. Guests and Common Carriers i. Common Carriers: Common carriers are held to a higher standard of care to prevent risk of harm to others. ii. Automobile Guests: The standard of care depends on the jurisdiction and whether the guest is paying or gratuitous: A. Common Law: Driver owes full duty of care in operation of vehicle. B. Paying Passenger: Driver owes full duty of care. C. Gratuitous Passenger: Driver held liable only if grossly negligent.

3 e. Owners and Occupiers of Land (heavily tested) (Write On Bar): Liability rests on the STATUS of the person coming into the land. i. Unknown Adult Trespasser Under the Common Law, no duty is owed by land owner/occupier to make the premises safe. Modernly, in Roland v Christian, full duty is owed even to unknown trespassers. ii. Known Adult Trespassers Land owner/occupier owes a duty to warn of dangerous conditions on the land. iii. Licensees Licensees are people who come onto the land for their own benefit (for example, Social guests, Charity Workers, Police). Land owner/occupier owes the licensee a duty to warn of a known dangerous condition on the land. ** Note: Land owner/occupier has no duty to inspect for defects or to repair known defects. iv. Invitees Invitees are people who come onto the land to confer some benefit on the occupier (for example, Paying Customers). Land owner/occupier owes Invitee a duty is to inspect, warn, and make safe dangerous conditions on the land. v. People Outside the Land Land owner/occupier is required to correct conditions that are unreasonably dangerous to those outside the land. vi. Child Trespassers: Attractive Nuisance Theory Land occupier is liable to children only if: A. Land occupier knows or has reason to know that children are likely to trespass; B. Land occupier knows or has reason to know condition is dangerous to children; C. Risk to the child outweighs the utility of

4 maintaining the condition and the burden of eliminating the danger; and D. Child is too young to appreciate and understand the risk. BAR HINT: An Attractive Nuisance must be a dangerous condition on the land (for example, a giant hole being dug for a swimming pool. However, a can of bug spray with pretty roses on the label is NOT considered an attractive nuisance). This issue is rarely tested and only under obvious, precise facts giving rise to it. f. Omission To Act As a general rule, Defendant s failure to act will not result in liability being imposed on Defendant for injury caused thereby. However, liability will be imposed if there was an affirmative duty to act and Defendant failed to act. BAR HINT: Whenever a fact pattern indicates that the culpable conduct may be that of an omission to act, give the general rule of no duty then examine the facts for an exception. i. Affirmative Duty To Act A. Common Law: Defendant is under no duty to go to the aid of Plaintiff where Defendant did not cause Plaintiff s predicament. However, if Defendant is at fault, Defendant must aid. B. Modernly: Some statutes make it a criminal offense for drivers of automobiles to fail to aid any person involved in an accident, even though Defendant was not involved in any way. C. Good Samaritan Rule: One who, though under no legal duty to do so, aids a person who is hurt or in peril, must exercise due care not to worsen the victim s situation. ii. Duty to Control Third Persons A. Bailment Cases: If the owner of chattels permits a third person to use his chattel, the Bailor will be liable for failure to exercise due care to prevent intentional or negligent acts of Bailee if committed in his presence, or if she or he knows or has reason

5 to know that such Bailee is likely to commit such acts. B. Public Premises Cases: Those who hold premises open to the public must use due care to protect persons coming onto the premises from theft of property, attack, etc., from other persons on the premises. This includes restaurants, innkeepers, common carriers, etc. C. Duty to Control Children Cases: Parents will be liable for acts of child if parents know or should have known of the child s dangerous propensities and had an opportunity to exercise control over the child. Otherwise, parents are generally not vicariously responsible for acts of child committed in their presence or otherwise. D. Special Relationships: Defendant may be under a duty to act where there is a special relationship, such as school-pupil, hospital-patient, jail keeperprisoner, etc. B. To Whom Is the Duty Owed (Do not confuse this issue with proximate causation!) Under Palsgraf, Cardozo held that a duty is owed to foreseeable Plaintiffs in Defendant s physical zone of danger. Andrews argued that one owes a duty to the whole world to behave in a manner so as to not create unreasonable risk of harm. BAR HINT: Discuss this issue more fully when the injured Plaintiff is arguably outside the physical zone of danger created by Defendant. (If the P is in D s physical zone of danger write this issue and apply the facts in one quick sentence.) C. Breach Of Duty Breach of duty is basically a factual discussion. Take the standard of care you have established under duty and apply it to the facts to determine if Defendant breached his duty to Plaintiff. BAR HINT: Always discuss what a reasonable person would have done in the same or similar circumstances. 1. Res Ipsa Loquitur Often in a question the facts are silent as to exactly how the accident occurred or

6 what the Defendant did. This usually requires discussion of Res Ipsa Loquitur. To apply this doctrine, Plaintiff must establish the: (a) Accident would not have occurred in the absence of someone s negligence; (b) Event was caused by an instrumentality in Defendant s exclusive control; and (c) Plaintiff did not contribute to her or his own injuries. D. Actual Causation 1. Where there is only ONE D: But-for Test: (Write On Bar): Defendant is the actual cause of Plaintiff s injuries because but for Defendant s acts, Plaintiff would not have been injured. 2. Where there are TWO OR MORE Defendants: Substantial Factor Test: Applies where several defendants concur to bring about an injury and any one alone might have been sufficient to bring about the injury. (Write On Bar): Each Defendant was a substantial factor in causing Plaintiff s injuries. Either Defendants act alone would have been sufficient to cause the result; thus, both are a substantial factor in bringing about Plaintiff s harm. E. Proximate Causation (Only Do Full Analysis if MAJOR ISSUE) (Write On Bar): Proximate cause is a policy consideration that in certain instances will limit Defendant s liability. 1. Direct v. Indirect Causation Ask yourself: Did anything intervene between Defendant s negligent act and Plaintiff s injury such that Defendant will be relieved of liability? a. Direct Causation ** Note: Where causation is direct, proximate cause is ALWAYS A MINOR ISSUE. Causation is direct where nothing has intervened between Defendant s act and Plaintiff s injury. Thus, Plaintiff s injury is foreseeable and Defendant will be held responsible. (Write On Bar): Here, causation is direct because there were no intervening acts between Plaintiff s injury and Defendant s act. Further, it is foreseeable when Defendant did, someone would be injured.

7 b. Indirect Causation Indirect Causation may exist when something has come between Defendant s negligent act and Plaintiff s injuries. i. Dependent v. Independent Intervening Act A. Dependent Intervening Act Dependent forces are those which occur as a result of Defendant s original negligent act (for example, Medical malpractice, injuries occurring en route to the hospital, and rescuers). 1. Foreseeable v. Unforeseeable If there is no break in the chain of causation, Plaintiff s injury is foreseeable. Dependent intervening forces are usually foreseeable. If foreseeable, Defendant is the proximate cause of Plaintiff s injuries. B. Independent Intervening Act Independent forces not arising from Defendant s act, for example, acts of God, animals, and intentional criminal acts, may relieve Defendant of liability if unforeseeable. These forces are called independent intervening acts or superseding acts. F. DAMAGES 1. Foreseeable v. Unforeseeable If there is no break in the chain of causation, Plaintiff s injury is foreseeable. If foreseeable, Defendant is the proximate cause of Plaintiff s injury. (Write On Bar): Plaintiff is entitled to recover all compensatory damages, including general damages, such as pain and suffering, and special damages, which must be specifically pleaded and proved. Punitive damages are NOT recoverable for negligence UNLESS facts specifically show Defendant s conduct was wanton, willful, or reckless. (Don t imply facts).

8 G. DEFENSES BAR HINT: You must always raise these defenses, even if briefly in a sentence or two. 1. Contributory Negligence Plaintiff has a duty to act as a reasonable person would in like or similar circumstances to prevent an unreasonable risk of harm to herself or himself. If the Plaintiff was Contributorily Negligent, it is a complete bar to recovery in Contributory Negligence jurisdictions. a. Contributory Negligence Per Se (i) If Plaintiff violates a statute or an express rule of employer, Plaintiff is contributorily negligent per se if: (ii) Plaintiff was in the class of persons the statute or rule was designed to protect and (iii) the injury was the type the statute or rule was designed to protect against. 2. Comparative Negligence Plaintiff s negligence is assigned a percentage of fault and Plaintiff s damage award is reduced by that percentage. Plaintiff can only sue for the percentage of damages attributable to the defendant. (Write On Bar): If this is a Contributory Negligence jurisdiction, (complete bar to Plaintiff s recovery) then Plaintiff would not recover as she was contributorily negligent when she jaywalked in the middle of the street and was hit by D s car. If this is a Comparative Negligence jurisdiction (such as California), then Plaintiff can only sue for the percentage of damages attributable to the defendant. 3. Assumption of Risk Defendant is not liable if Plaintiff knew of the exact risk and voluntarily assumed it. 4. Exception: Rescue Attempts Where Plaintiff voluntarily attempts to rescue one in peril, the court will not find the rescuer contributorily negligent, comparatively negligent, nor to have assumed the risk. Public policy encourages rescue attempts, particularly where Plaintiff is forced to make an emergency decision concerning saving the life of a fellow human being. Technically, Plaintiff did not assume the risk in such a situation, but only reacted to the emergency before her or him because danger invites rescue.

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