Negligence
Elements of Negligence
Breach of Duty
1) There's duty 2 use rsbl care & behav. rsbly 2 protect
others from unrsbl risk
2) Breach when there's failure 2 use rsbl care/behav. unrsbly
Causation
1) Causation in fact--cause of the fact
2) Proximate causation
Damages
1) Must B present
2) No nominal damages allowed
Breach of Duty
Rsbl Care/Standard
1) Foreseeability
1. Draw precautions & foreseeability 2 a pt. only
2. Econ. arg. that U should only guard against
what rsbl person can foresee
2) Inherently dang. obj's
1. Take extra care 4 inherently dang. objs b/c
rsbl person would take more precaution
2. Ez'er 2 take care of only few dang. things
3) Rsbl person takes remedy against something anticipated
1. Can anticipate unusual events but not
foreseeable from constructive/actual notice
2. Rsbl person takes axn 2 remedy from
constructive/actual notice
3. Likelihood of harm, extent of harm, & ease of
avoiding risk looked @ 4 suff. 2 induce rsbl person 2 avoid;
` NOT probability
4) Use of Dang. Objs
1. Dang. may B insig. against benefit 2 the soc.
2. If making dang. obj. safe is high cost
outweighing benefit, it's unrsbl 2 use it
3. Rsbly safe isn't absolute safety but gets rid
of lot of risk @ low cost
4. Foreseeable but unlikely harm, still take care
5) Stand.of Rsblness changes w/X
Cost Benefit Analysis
1) If B is less than Lp (burden is less than probability x gravity of harm), then
neg. not 2 take precaution
2) Policy 2 min. own cost & motivate 2 internalize soc. cost
1. Cost of risk & harm = harm caused + cost 2 precaution
2. D shouldn't pay both b/c no incentive 2 avoid harm
3) Rest.
1. Neg. if risk outweigh utility
2. Risk of harm, likelihood, extent v.
utility/benefit, burden of things safer
Rsbl Persons Stand.
1) Obj. Stand. of rsbly prudent person
1. Knows certain things like objs fall, fire
burns, etc.
2. Shouldn't need 2 prove certain things & liable
even if lack knowledge b/c min. stand. of knowledge req'ed
2) Custom
1. Doesn't prove by itself rsbl & neg.
2. Relevance b/c [1] experience & judgment, [2]
constructive notice, [3] opp. 2 do things safely & [4] feasibility
3. Irrelevance b/c may not always B rsbl
3) Circs 4 rsbl prudent person
(1) Circs incl. emergency & imminent peril b/c
ord. person not hero
(2) Disability
1. If blind, stand. is rsbl prudent
person who's blind
2. Disability taken into circ.
(3) Incl's superior attention, memory, info,
intelligence, & judgment (iffy on last 2 b/c rest. didn't give exs)
(4) Child
1. Usually 4 neg. of children, apply age,
experience & intelligence 4 a child that age
2. Adult stand. used when the activity is
inherently dang. like operating machinery
(5) Insanity
1. Usual stand. 4 insane people is rsbl
persons stand. w/o insanity taken into acct.
2. Policy rsns of compensation,
deterrence, & false claims
3. Maj. do not take insanity into acct.
even if it's sudden b/c ez'er 2 fake
4. If insane P, then taken into acct b/c
compensation goal dif. where everybody is a tortfeasor
5. If insanity prevents P from
understanding the sit., then P's not barred from recovery
(6) Sudden Physical Collapse--taken into acct
(7) Mental Deficiency
1. Taken into acct. if prevented P from
understanding but not into acct if can understand
2. False claim less likely b/c can look @ history
3. Stand. is btwn childs & insane
(8) Profession
1. Rsbl in the field / profession
2. Rsbl member who has knowledge that's
poss'ed normally/ord'ly in the profession
3. Usually need expert testimonies
4. Not need expert testimony if the circ.
calls that even layman knows
(9) Doctors
1. If a specialist, then it's stand. of
rsbl specialist
2. Locality Rule--Dr's meas'ed by same
locality; used in rural areas
3. Informed Consent--breach of duty when
not inform material risks & alt.s that would likely
affect P's dec's
[1] P must show that if informed,
wouldn't have perf'ed/consented
[2] Stand. of obj. (rsbl patient)
v. subj. (the particular patient)
[3] Risk not warned must materialize
[4] Dr's must disclose pers. int.
that may effect Dr's judgment
4. Exceptions 2 disclosure
[1] Risk ought 2 B known/already known
[2] Disclosure would B
detrimental 2 patients int. (probs)
[3] If in ER, the patient isn't in
condition 2 det. 4 himself
4) Aggravated Neg.
1. Automobile Guest Statutes
2. In CA, if by gratuitous favor there's only ord.
duty of care & can only recover if there's aggravated neg.
3. Probs in distinguishing guests & increased misconduct
Rules of Law
1) 4 ways 4 rsbl persons stand.
1. Applying 2 the facts of the case by judge/jury
2. Est. by leg. / adm. regulation
3. Est.'ed by jud. dec.; part. cond. under the
matter of law
4. Adopted by Ct. of leg./adm. reg.; usually no
civil liabs but use the statute 2 det. unrsbl behav.
2) Violation of Statutes
1. Statutes give fixed stand. 2 det. neg.
2. If statute imposes specif. duty 4
protection/benefit then liab.
3. Statutory purpose doc.--look 2 protected
people & harm intended 2 prevent
4. Ct. doesn't have 2 accept all the statutes
5. Not adopt Sun. blue laws b/c not adopt rsbl
cond. when protect int. of state/secure indiv's enjoy of rt.
& privileges
3) Neg. Per Se
1. Maj. & Rest. view
2. Once the stand. is set by the statute,
unexcused violation is neg. per se
3. Excused Violation 4 Neg. Per Se
[1] Rsbl violation b/c of the actors incapacity
[2] D doesn't know/shouldn't know of
complying w/it
[3] D is unable 2 comply after rsbl care
[4] D is confronted w/emergency unrel'ed 2
his miscond.
[5] Greater risk of harm 2 D/others by complying
[6] Not exclusive list of excuses
4) Presumption of Neg.
1. When P shows that statute should B used, then
it's prima facie case of neg.
2. If there's no rebuttal, then D is neg.
3. Rsbl excuses allowed
4. If D evens the scale, D wins; If P tips by
preponderance, P wins
5) Evid. of Neg.
1. Still the scale idea but D can put forth anything
2. Jury decides if P's evid. tilts the scale / not
3. P in theory can win even w/o presenting anything
6) Neg. per se v. Presumption of Neg.
1. In excuses, Neg. per se only allows recog'ed
excuses which the judge decs v. Presumption of neg. allows any
excuse that's 4 rsbl behav. which jury dec's
2. In rebuttal, Neg. per se only recog. violation
if excused v. Presumption of Neg. where D can rebut
Proof Of Neg.
1) Circ. Evid.
1. Actual notice is when person actually knew
2. Constructive notice is when by judging the
condition of the evid., rsbl person would've noticed; should've
known it was there
3. Inference from inferences
4. Infer from 1 fact 2 another fact
2) Res Ipsa Loquitur (RIL): Special Kind of Circ. Evid.
(1) Deals w/the gap in the evid.
(2) If U know, then can't use RIL
(3) Reqts
1. D had exclusive control of the instrumentality
2. The occurrence doesn't ord'ly occur w/o neg.
3. There was no contrib. neg.
(4) Rebuttals
1. If D can show that there was due care
exercised, then it precludes neg.
2. Rebuttal must B specific not gen. due care
(5) If by 3 reqts of RIL, even if there R other
possibilities, if it's more likely than not Ds neg., then D's neg.
(6) D usually loses
(7) Medicine & RIL
1. If common hazard, then no RIL
2. Inherent risk despite due care exception
[1] If there's low risk but can
happen despite all due care, ct's won't draw inference
[2] If P took calculated risk
which is rare but real
that injury can occur, RIL doesn't apply
(8) Superior Knowledge of D Theory
1. Smoke out evid. by RIL b/c D is in the
better position 2 obtain evid.
2. Even w/o superior knowledge, if all
the reqts met, then more likely that D was neg. &
probably liable so unfairer 2 P not 2 apply
(9) Ybarra Exception: Policy rsns
1. Each Dr's has specific role & none
liable solely but anyone may B liab.
2. Little possibility of smoking out
3. Dr's R insured so not so unfair
4. All the D's had control of instr. @
some X so better 2 put burden on them
5. When patient is unconsc., all D's have
control of instr., & where unusual injury occurs, apply RIL
6. Specif. exception b/c spec.
responsibility by med. profession, vicarious liab., & shared control
7. Usually, P can't win against 2/more D
by showing merely neg. by 1 or the other must have neg.
(10) D can show lack of neg. 2 jury
(11) RIL imp. b/c would've dismissed before even
getting 2 the jury
(12) Dif. Approaches 2 RIL
[1] Inference
1. Maj. Rule even though weakest
2. Jury may infer whether / not D neg.
[2] Presumption
1. D must put a box 2 rebut the presumption
2. P still has 2 prove so heavier
burden (CA's)
3. If scale even, D wins
[3] Shifting Burden of Proof
1. D must tilt the scale
2. If even, P wins
3. Min. view
(13) Similarities & Comparisons 2 violation of
statute rules
1. Neg. per se --strongest & maj. but not
shift burden
2. Presumption similar 2 Presumption of RIL
3. Evidence similar 2 Inference of RIL
4. Inference --weakest in RIL but maj.
Causation
2 Types
1) Causation in Fact
2) Proximate Causation
Causation in Fact
1) But 4 Causation Test
1. But 4 D's unrsbl behav., the accident wouldn't
have occurred
2. Can have lots of but 4 causes 4 single harm
3. Another way of saying that D's neg. is subst.
factor of harm
4. Doesn't apply when wrong place @ the wrong X incidents
2) More Likely Than Not
1. More likely than not D's neg. was subst. factor
then possibility of something else occurring is discounted
2. Must make ed'ed guess
3. More likely than not means 1/2 or more
3) Injury Caused by Neg.
1. Coexistence of injury & neg. isn't enough
2. Neg. must have caused the injury
3. Can infer causation from circ. evid.
4) Burden of Proof
1. D only needs 2 show that more likely than not
injury wasn't the cause
2. D doesn't have 2 prove another specific cause
3. Relev. 2 incl. anything 2 disprove causation
5) Exception 2 But 4 tests & more likely than not
(Herskovits Case)
1. No but 4 cause b/c lwr than 50% chance of
surviving so wouldve died anyway w/o neg.
2. Lost chances of life that was unrecoverable so
make an exception
3. Proportionate amt. of recovery not all the
harm 4 D's neg.
4. Only use this approach if show statistically
more likely than not harm was caused by D's neg. in medicine
(Merrell Dow Case); Can't use it in birth defect cases where
can't tell if the harm was caused by the drug
6) Concurrent Cause
1. Can have more than 1 causations & all R liab.
2. Each persons liab. alone may not have caused
the harm but sep. axns combined & prod'ed the single harm
3. One persons liab. doesn't negate the others liab.
4. When neither axns R but 4 causes
(1) Each causes were subst. part of the
harm & should B liabl.
(2) Think of but 4/more likely than not
1st; then look 2 subst. part of the harm
(3) Subst Factor Test
[1] Reverse But 4 Cause--Ds neg.
behav. alone would've caused & would've been but
4 cause in the absence of other causes
[2] Double But 4 Cause--each
would've been the but 4 cause, but 4 the other cause
[3] Book Note Def.--each alone
would've been suff. 2 bring about the harm
7) Joint Tortfeasors
1. Each neg. & 2 neg. acts together caused single
injury OR
2. Both acted in concert w/common plan design act
in purpose
8) Joint Tortfeasor Probs/Exceptions
1. Summers Case--shifted the burden of proof 2 D
2 absolve themselves b/c can't say each more likely than not
did it; both acted neg'ly & smaller # than Ybarra so more fair
2 hold them liab.
2. Sindell Case--can't prove which mfgr'ed DES that
P's mom took; new theory where similar 2 Summers, burden
of proof shifted 2 D 2 show they didn't make DES & each
liab. 4 it's share by sev. liab.
(1) Consumers would B helpless w/o it
(2) Mfgr's R in better position
(3) D's R better able 2 bear the cost;
risk spreading
(4) Delayed effects of the drug
(5) Deter from happening again
(6) All the D prod'ed ID formula
Proximate Causation
1) Policy
1. Not about cause but limiting legal responsibility
2. No formula 4 prox. causes
3. Fact oriented; result 1st & rsning later
2) Thin Skull Doctrine
1. Take P as U find them
2. Limited; conseq. of PI 2 persons
3. D pays by harm not by unrsblness b/c goal 2
compensate against people who act tortiously
3) Tools 4 Prox. Causation
1. Natural & cont. sequence
2. Subst. factor in prod'ing the effect
3. Dir. cnxn w/o intervening
4. Too attenuated
5. Likely 2 result
6. Foreseeable result
7. Remoteness of X & space
8. Dir / indir.
9. Foreseeability
4) Direct
1. A factor in prox. cause not end all
2. Being dir/indir. doesn't really tell who is
more unrsbl
3. Polemis ct. said damages 4 dir; if indir.
harm, then must have 2 foresee
4. Def. --Conseq's flow in unbroken seq. w/o
intervening cause from the orig. neg. act; act on a set stage w/o
intervening axns
5) Foreseeability
1. Probably most imp. factor
2. Wagon Mound ct. said no liab. 4 unforeseeable
harm; not reconciliable w/thin skull doc.
3. As long as type of harm was foreseeable, then
doesn't matter about the extent of harm
4. Remote risk can B rsbly foreseeable
6) Palsgraf Case
(1) Andrews Factors
1. Dir. cnxn--nat. & cont. seq; no indep. cause
2. No remoteness in X & space
3. Foreseeable
(2) Cardozo
1. Foreseeable Ps--harm 2 part. P in
breach of duty
7) Major Tools 2 Analyze Prox. Cause
1. Dir. / indir.
2. Foreseeable conseq./harm
3. Foreseeable P
4. Scope of risk
5. Tenuousness & potency of peril
Intervening Cause
1) Def.
1. Harm by later cause of indep. origin which D
isn't responsible 4
2. Intervening Acts come after neg. & before injury
3. Relev. 2 Prox. cause
2) General Norm
1. Indep. intervening act cut off liab. but not
every intervening act is superseding
2. Ord'ly neg. intervening act does NOT supersede
3) Foreseeability & Liability
1. If intervening acts R foreseeable, then D is liable
2. Even if not foreseeable P, liab. if
foreseeable result/harm
3. Even if not foreseeable manner, liab. if
foreseeable result
4. Notion of basic scope of actors cond. / part
of the risk
4) Exceptions when Intervening Acts R Superseding
1. If both intervening act & result
unforeseeable, then superseding & no liability
2. Wrong X, wrong place so no incr. in P's risk;
if neg. of D doesn't incr. P's risk
3. If it wasn't w/in the scope of risk
Special Theories of Superseding Causes
1) Intentional Crim. Acts
1. Usually, superseding & no liab. if intervening
act was intentional crim. act b/c extraord. even if
foreseeable result w/unforeseeable act/manner
2. Exception --if D's neg. created unrsbl risk 4
crim. act, then not superseding; if the intervening crim. intentional
act was unrsbl risk then not superseding
2) Purveyors of Liquor
1. Commercial sellers R liab. 4 neg. of others
who drive after drinking b/c can stop serving & spread liab. by insurance
2. Most ct's don't hold soc. host liab. when the
recipient is adult
3. Soc. host liab. if the recipient is a child
b/c illegal 2 serve minors in the 1st place
3) Rescuers
1. Rescue doc.--Ord'ly rescuer allowed recovery
unless reckless whether rescuer injures himself, 3rd party,
rescuee, / neg. party
2. Reckless is higher stand. than rsbl
3. Attempt 2 escape dang. then can recover unless reckless
4. Most ct. apply rescue doc. 2 rescue of prop.
as well
5. Doc. b/c 2 some extent rescuers R foreseeable P
4) Medicine Neg.
1. Genly med. neg. isnt superseding unless highly unusual
2. Exceptions
(1) Dr. intentionally inflicted
(2) Misperf. on operation/wrong operation
(3) Wrong patient
(4) NOT a gross neg. stand.
3. P injured by D & gets disease in the hospital
(1) If incr'ed risk b/c of D, then liab.
(2) If risk isn't incr'ed by D's liab., then
no liab.
5) Suicide
1. Usually suicide is a superseding event b/c it's
an intentional act that breaks the chain
2. Exceptions
(1) Not know he's committing suicide
(2) B/c of irresistable impulse committed suicide
Joint Tortfeasors
Types of Joint Tortfeasors
1) Acting in Concert
1. Express / tacit agmt 2 coop. 2 induce certain result
2. Agree 2 do something unrsbl creating unrsbl
risk/induce unrsbl risk
2) Joint Duty
1. Ex. of owner & manger having duty 2 elevator
3) Vicarious Liab.
1. Employer liab. 4 employee when act w/in scope
of the job
4) Concurrent Tortfeasors
1. Indep. acts concurring creating harm 2 P of
indivisible injuries
Joint & Several Liability
1) Collecting Damages
1. P can collect all the damage from 1 of the 2
joint tortfeasors
2. P can only get it once though
3. P can collect in whatever way he likes
4. In C/L, can join Ds in concert of axn but not
4 concurrent tortfeasors
2) Reconciling Comparative Neg. w/Joint & Sev. Liab.
1. If D1 is judgment proof & there's no joint &
sev. liab., P
2. Min. --no joint & sev. liab. in comparative neg.
3. Maj. --Joint & sev. liab. w/comparative neg.
so D's stuck if the other D can't pay
4. Exceptions
(1) Sindell Case--responsible 4 own portion
(2) CA--not apply joint & sev. liab. in
non-econ. damages
(3) If D's have very low %s
(4) Apply only 2 certain types of Ds
3) Satisfaction & Release
(1) Unjust Enrichment Avoided
1. If already got compensation of full
judgment, then full satisfaction & other D's shouldnt'
have 2 pay P again in sep. judgment
(2) Partial Satisfaction
1. Part compensation will B credited &
subtracted when collect from sep. 2nd judgment
2. There's possibility of inconsistent judgment
(3) Release
1. In C/L, if release 1 joint tortfeasor,
then releases all the joint tortfeasors
2. If call it covenant & / reserve
explicitly not 2 release, then won't release other joint tortfeasors
(4) Mary Carter Agmt
1. P would enter agmt w/D that D would
pay @ least certain amt.
2. If the amt. from trial goes over what
D thinks, then P would pay D the excess amt.; but D cant
profit from P
3. Probs b/c deprive of fair trial from
c collusion btwn D & P
4. Valued b/c risk reduced & incr. settlement
4) Contribution & Indemnity
(1) Apportionment
1. Contribution --The other D pays its
share 2 the D who paid
2. Indemnity --D pays 4 the entire damage
3. In C/L, indemnity was allowed by
contrib. wasn't
(2) Contribution
1. Today allow contrib. except in
intentional torts there's no contrib.
2. Contribution available only btwn joint
judgment debtors (when P sues both); rejected in Knell Case
3. Div. =ly in the old approach; div. by
proportions of fault now
(3) Interspousal Immunity
1. Maj. --D can't B liable 4 Ds spouse;
since no joint liab., no contrib. allowed
2. Min. --Allow contrib. btwn spouse b/c
there's tort liab. but spouse can't bring suit; since liab.
then joint tortfeasor allowed so contrib. allowed
(4) Allocation Prob. when P settles w/D1; Can D2
get compensation from D1?
1. Permit Contrib.--D1 pays but unfair
b b/c the value of settling w/ P disappears; not use this method
2. D1 discharged so long as good
faith--Unfair 2 D2 b/c
can't get contrib.; proof probs on good
faith so lots of litigations
3. Settlement w/D1 means selling 1/2 of
C/A w/D1--D2 would only pay 4 its share of fault;
unfair 2 P b/c might not get full compensation so would B
reluctant 2 settle / not settle w/marginal Ds; greatest
equity of all 3 methods
