8/14/2019 SparkNotes Negligence 1 2

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occurs when there is a breach of a dutycare that occurs with factual and proximate caused creates damages. Each of these elements mustpresent for a valid negligence claim. Even if all

e elements are present there are several defensesnegligence that can reduce the culpability of anddgment against the defendent.

nfeosance (failure to act): Generally, individuals have noty to act to help another in distress. Since the law typicallyes not te ll individuals to take specif ic act ions, i t does notr punishing individuals for inaction. However, there areee major exceptions:Special relationship exception: A duty to act may be pres-ent when there is a special relat ionship between the par-ties, such as: familial relationships (e.g., parent and child);landowners and their invi tees; shopkeepers and theircustomers; and schools and their students. However, evenwhen aspecial relationship is present, there isonlya dUtytotake reasonable action. Iftaking action would endanger the'defendant, there is generally noduty to act.Undertaking exception: Even when a duty to act wouldnot normal ly exist, once a defendant takes cer ta in acts,a duty may be created. This general ly happens when thedefendant's acts cause the victim to rely onthe defendant'sassistance.

Creation of peril exception: When a defendant negligentlyplaces the plaintiff in peril, the defendant has anaffirmativeduty to take reasonable action to remove the plaintiff fromthat peril.sfeasance (acting negligentlyl: The defendant has takenme kind of negligent action that 'has caused another harm.e majority view is that the defendant only owes a dutyward a victim who was in the foreseeable zone of danger.e minori ty v iew is that a duty exists toward anyone in therect path of negligence and all victims of negligence are inforeseeable zone.

The drowning victimDave falls into a lake and begins drowning. Alexisnotices that Daveis drowning but decides not to help orcall for help. Alexis is an expert swimmer and has a cellphone that could be usedto alert rescuers. There isa lifepreserver attached toa long rope lying on the ground infront of Alexis. Alexis would not be in any danger i f sheassists Dave. Alexis walks away and Dave subsequentlydrowns. Did Alexis have a duty to act?

Scenario 1:Alexis and Daveare strangers. The ver'dict: Alexis had no duty to act. Itmay seemmorallyreprehensible, but legally, Alexiswas not required tolend assistance, even when it would have requiredminimal effort and would not have put her in anyharm.Scenario 2: Alexis is Dave's mother. The verdict:Alexis probabty had a duty to act. Thisfalls underthe special relationship exception.Scenario 3: Alexis pushed Dave into the lake. Theverdict: Alexis probably had a duty to act. Thisfallsunder the creation of peril exception. SinceAlexis'sacts contributed to Dave's harm, she owed him aduty.Scenario 4: Assume that instead of walking away.Alexis grabs the life preserver and throws it in thewater. Davesees the life preserver and attempts tomove closer to i t. Just as Daveis about to gr itAlexis pulls the life preserver back to shore beforeDave can reach i t. The verdict : Alexis probablyhad a duty to act. This falls under the undertak-ing exception. Once Alexis threw the life preservertoward Dave, he relied on her rescue attempt andshe owed him a duty to continue her act.

Duty to control another's actions: In very limited circum-stances, a duty to control another's actions can exist. Theremust be both a special relationship between the parties anda foreseeable harm (e.g., assume Rick owns a car. Cherylasks Rick to borrow his car. Cheryl is visibly drunk, but Rick

i ve s h er t he ke ys a nd l et s her b or ro w t he c ar. C hery l t henhits pedestr ian Jeff with Rick s car. The verdict: Rick couldbe found to owe a duty to J ef f be ca us e h e h ad a specialrelationship with cheryl auto-owner and driver), and it wasforeseeable that Cheryl could cause harm to Jeff).

Duty of landowners: Whether a landowner owes a duty to aperson injured on his or her landdepends on the legal status ofthe victim. There are three major legal classifications of status:Trespasser: An individual who is on the owner's land with-out permission. Generally,a landowner owes no duty to tres-passers that are injured on his or her land. However, thereare two major exceptions:Discovered trespasser exception: A duty may exist when

the landowner knows about or could reasonably predictthe trespasser's presence. Some jurisdictions considerthe discovered trespasser a licensee, Other jurisdictionsassign the landowner a duty to warn the discovered tres-passer or make safe any known artificial conditions thatcould seriously harm the trespasser.Children exception:A landowner awes a child trespasser adUty of care when the landowner knows that children arelikely to trespassand that a condition existson the landthatthe child does not realize is dangerous.When there is anattractive nuisance (somethingon the land that isparticular-1yinviting to children), the landowner owes an even greaterduty to a child trespasser. Generally, the landowner has aduty to correct the attractive nuisance. The landowner canbe held liableeven if the child is hurt on the land by some-thing other than the object that attracted him or her to it.licensee: An individual who is on the land with permis-

sion, but isnot there for the landowner's benefit (e.g., socialguests). Thisalso includes a guest that is invited out of eco-nomic motives (e.g., trying to impress the boss to get a raise)or that provides an incidental service. The landowner has aduty to warn the l icensee of or make safe any known natu-ral or artificial conditions that could harm the licensee. Thelandowner does not havea duty to inspect the premises fordangerous conditions.tnvi tee: An individual who is on the land with permissionand for a purpose connected with the use of the premises e.g.,business customer, hospital visitor, or museum visitor).However, the individual is only considered an invitee whilein areas of the land held open for the purpose of the vis it .Nonbusiness hours can change the legal status of the indi-v idual . The landowner has a duty to warn the invitee of ormake safe aI/known natural or artificial conditions that couldharm the invitee. The landowner also has a duty to inspectthe premises for dangerous conditions.

BREACHTo determine whether a duty of care has been breached(violated . it is vital to establish what standard af carewas required. It is important to understand what proofcan be used to demonstrate that the defendant 'sconduct did not meet that standard of care.Standards of care: The general rule is the reasonabte personstandard-a defendant must act as a reasonable person wouldhave under the same or similarcircumstances. Thisstandard isrigid andno allowances aremade forthe defendant s shortcom-ings (e.g., mental incompetence . Even if a defendant uses his orher best judgment, the defendant will be held to the standard ofa reasonable person. There are several limited exceptions:

Held to a lower standardPhysical condition: Physical condition is taken intoaccount when applying the reasonable person s tandard(e.g .. a blind person would be held to the standard of areasonable blind person .Children: Children are held to the standard of a reason-able child of like age, intelligence, and experience. If thechild is engaged in anadult activity (e.g., driving a car , thechildis held to the regular reason~ble person standard.Held to a higher standardProfessionals: Generally,professionals(e.g.,doctorsorlaw-yers must exercise the same degree of care as an ordinarymember of their profession. Many jurisdictions only comparethe defendant to professionals ina like community. However,some jurisdictions hold professionals to a national standard.Possessing special knowledge/skills: Individuals withspecial knowledge (e.g., an expert sailor) are expected touse those skills and are held to a standard of a reasonableperson with those special skil ls .Landowners: The standard of care that a landowner must

exercise is.determined by the legal status of the victimastrespasser, licensee, or invitee.Negligence per se (as a matter of lawl: Inlimitedcircum-stances (usually when the defendant has violated a statute), thecourt determines whether the defendant s act ions were negli -gentand then instructsthe jury. Courts generallyfindnegligenceperse when theviolatedstatute is designedto both protect thekind of party that got injuredinthe case (classof person) andprevent the type of harm that occurred(classof risk).

Who are foreseeable plaintiffs?The landmark case regarding foreseeability was Palsgrafv. Long Island Railroad Co.,1928,248N.Y.339.Inthis case.a passenger was standing on a train platform. Employeesof the train company knocked a package out of the pas-senger's arms that fell and exploded, causing somescales, which were several feet away, to overturn andinjure the plaintiff. The majority view held that although thedefendant's conduct was negligent. there was no liabil-ity because it was not foreseeable that the plaintiff wouldhave been injured. The dissent argued that the defendantshould have been liable because 'when an act unreason,ably threatens the safety of others. the wrongdoer is liablefor all proximate consequences regardless of whether theyare unforeseeable or unexpected: Today, most casesadhere to the majority view,although the dissent is oftencited in arguments and policy discussions.

Proving negligence: The plaintiffhas the burden to provethat the defendant s conduct fell below the standard of carerequired. The plaintiff can use documentary (e.g., videotapeof accident and direct (e.g. , eyewitness testimony evidence.Custom can be used as evidence, but it can not be conclusiveon i ts own. There isone major exception to the general rule, theres ipsa loquitur doctrine, which is used when the plaint iff can-not determine precisely what the defendant didwrong.

Requirements for res ipsa loquitur ( the thing speoksfor itself ): There are three main conditions that mustbe met.It must be highly probable that the injury would not haveoccurred without a negl igent act.The ins trument of harm must be in the exclusive controlof the defendant.The plaint if f or a thi rd party must not have contributed tothe plaintiff s injuries.Consequences of res ipsa loquitur: Generally, res ipsaloquitur creates an inference that the defendant was

negl igent , and the jury may accept or reject this inference.However, in a minority of jurisdictions, res ipsa loquiturshifts the burden of proof to the defendant. T.hen, if thedefendant submits evidence sufficient to support a findingof fact in his or her favor, the burden shifts back to the plain-tiff to prove negligence.

FACTUAL ( BUT FOR ) CAUSATIONTo support a claim of negligence, the plaintiff mustshow a causal l ink between defendant 's actionsand plaintiff's injury. This is the but for test. where thefactfinder must determine if 'but for' thenegl igence of the defendant, the plaint if f would nothave been injured.Multiple couses of injury: Sometimes, there ismorethan onecause of injury to the plaint iff , where each one alone could havecaused the injury. Under these circumstances, the substant ialfactor test is applied. If the defendant was a substantial fac-tor in bringing about the injury, factual causation is present.In the case where there are multiple defendants involved (e.g.,multiple pol/uters , the majority of jurisdictions allow joint andseveral liability. Each defendant can be charged separately andheld responsible for 100 percent of the damages, so long as theplainti ff s total recovery does not exceed 100 percent .Alternotive liablity: Inthis case, there are multiple defendants,each of whom was negligent, but only one caused the injury.under these circumstances, the burden of proof is shifted toeach defendant to prove that he or she was not the one to inflictthe injury. If a defendant cannot meet this burden of proof, heor she will be held jointly or severally l iable. Al ternative l iabil -ity only applies when aI/ the defendants acted negligent ly ,and is not applicable if only one of the possible defendantsis negligent.PROXIMATE CAUSATIONOnce factual causation is established, proximate lorlegal cause must be found. Proximate cause testswhether l iabili ty is fa ir under the circumstances. I t hingeson foreseeability of harm.

Direct causes : If t he plaintiff s injury is the direct result of thedefendant s actions, proximate cause is typically found aslong as the defendant could foresee the type of damage thatresulted to the plaintiff. It is not necessary for the plaintiff toforesee the extent of damage. According to the eggshell skulldoctrine. a plainti ff s pre-existing condit ions do not lessen thedefendant s responsibility e.g., assume that Jer~my negligently