Negligence

I. Issue: Negligence
II. Rule: Seeks to regulate UNREASONABLE risks.
a. Risks: Dangers which are known or should have been known.
b. The law cannot regulate all risks, that is why negligence is concerned with
unreasonable risks.
III. Analysis:
a. Duty (Common Law)
i. Objective/Rule: Ascertain whether or not the law is justified in imposing
the defendant to look out for the Plaintiffs best interests.
1. Analysis 1: Does a duty exist? (Unreasonable Risks): These
three tests are mutually exclusive because they factor in the same
circumstances and will render the same conclusion.
a. Magnitude of Risk (private)
i. Rule: Risk sufficiently great enough to require the
RPP to take a duty on them.
a. Probability of harm of a sufficient
magnitude combined with foreseeability.
b. Risk Utility Formula (Commercial)
i. Rule: Utility of activity or actor’s conduct
outweighs the risk associated then not negligent.
a. However, If a PRACTICAL, FEASIBLE
RISK REDUCTION
OPTION/ALTERNATIVE, Then a duty is
owed.
c. Carrol Towing (Maritime)
i. Rule: Burden of eliminating the risk of harm is less
than probability (x) injury, then a duty is owed.
2. Analysis 2: What is the duty?
a. The Reasonably Prudent Person (RPP)
i. Always the same standard
ii. An objective or community standard
iii. Neither existed on land or sea
iv. Has a Brain
v. Law is justified in imputing knowledge
vi. Don’t know CANNOT be an excuse
vii. Custom and Usage:
a. How a RPP would act – is admissible as
evidence, but is NOT conclusive.
b. Must also:
a. Be widely known in the community.
b. Defendant must have known about it.
viii. Child
 a. Subjective: Compare child to capacity of a
child of like age, experience, intelligence,
and education.
b. 2 Exceptions (then held to adult standard of
care):
a. Adult Activity
b. Inherently dangerous activity
b. Same or Similar Circumstances (SCC)
i. Quantum of Care differs under different
circumstances.
ii. Emergency might be a relevant circumstance IF
a. Deprives Defendant opportunity to
deliberate
b. Not of defendant’s own making
c. NOTE: Where defendant should have
foreseen emergency, then this standard is
not applicable.
iii. Physical Disabilities as a relevant circumstance.
a. Example: RP “blind” PSSC
iv. Insanity as a circumstance...must…be temporary --
must be WITHOUT forewarning and notice.
a. Affect the person’s ability to understand the
risks AND appreciate the magnitude there
of, AND
b. Note: Permanent insanity is NEVER a
relevant circumstance. (b/c this encourages
people to take better care of these people by
holding them responsible for their tortuous
acts.)
3. The professional
a. Professional: One who holds him/herself out as one who
has superior knowledge, skill or training.
b. RPPSSC – Compare to a member of that profession in good
standing within community.
i. NOTE: Locality Rule = Same or similar
community.
a. At common law, was used b/c US used to be
very rural, with disparity in education, and
transportation.
b. Now uniformity in Transportation,
communication, technology and
EDUCATION, - now all professionals are
subject to the same circumstances.
c. Now – a national standard of care
c. Any breach of…can lead to negligence:
 i. Must possess superior skill, knowledge, and
training.
ii. Must exercise best judgment and act in good faith
iii. Exercise superior skill knowledge and training in a
reasonable manner.
d. Expert Testimony (for plaintiff to prove the defendant was
negligent)
i. Expert must be a member of the profession in good
standing (in comm. locality rule see above
notation)
ii. What was the standard?
iii. How did the defendant deviate from the standard?
iv. EXCEPTION: when the negligence is do
GROSSLY NEGLIGENT that the lawman would
be able to understand it.
e. Whether or not a duty is owed turns on material risks.
i. Material risks are likely to affect the plaintiffs
decisions (attending risks and alternatives).
a. EXCEPTIONS:
a. If full disclosure would be harmful.
b. Risks that should be known.
c. Emergence Situation.
a.4. Common law duty analysis PUBLIC POLICY
1. General Rule: ALWAYS STARTS: There is no duty to help anyone, where
the risks were not of the defendant’s own making.
i. EXCEPTIONS
a. Existence of a preexisting special relationship.
1. Between plaintiff and defendant where the defendant
has control of the instrumentality.
2. Can be between the defendant and a third party.
3. Examples:: Master-Servant, Invitee-Inviter, Social Host
b. 3 Analytical Standards in cases of 1st impressions
1. Where defendant takes control of the situation
2. Where defendant enters upon an undertaking by
affirmative action
3. Where defendant gives a gratuitous promise.
2. Negligent Infliction of Emotional Distress
i. Mirrors the prima facie requirements of the intentional counterpart.
ii. General Rule: Only recover IF the plaintiff was in the Zone of Danger,
doesn’t have to be physical impact.
a. EXCEPTION – 50% of Jurisdictions – if it was
foreseeable that a third party would be injured.
a. Where plaintiff was located near the scene of the
accident.
b. Observance of the accident
c. Familial relationship.
 3. Unborn Children
i. Majority Rule: Viability establishes the line/time at which a cause of
action will prove in favor of the still born
ii. Minority Rule: a stillborn does not have a cause of action, must have
seen the light of day.
4. Owners and Occupiers of land – see other outline.
NOTE** the ANDREW’S dissent says give everyone a duty to the world, the heart and sole of
negligence is in causation. This would put everyone on notice to act cautiously.
a.3. Duty (Statutory)
1. Concerned with the applicability of quasi-criminal statutes leading to
negligence. (NEVER when the statute applies to a license).
2. In the absence of precedent, argue the common law in the alternative.
3. Where common law assesses risks to determine duty and breach, a statute has
already done that.
4. 2 Issues
i. Application
a. Rule: Determining the legislature’s intent.
b. Is the Plaintiff in the class to be protected?
c. Injures the type to be prevented
d. Public Policy – The appropriateness of the statute for the case.
1. Has the ability to TRUMP the other two.
ii. Procedural Effects (Maximum can get is Duty and Breach)
a. Prima Facie Evidence (Reputable Presumption)
1. The defendant is allowed to provide an excuse for
violating the statute.
a. if accepted, then the plaintiff must fall back on
the common law analysis.
b. If denied, then Negligence Per Se.
b. Negligence Per Se ( Negligence as a Matter of Law)
1. Enforces strict liability and give the plaintiff 1 & 2.
2. Plaintiff wants, because of the potential Impact of the
Jury instructions
c. Evidence of Negligence (Inference of Negligence)
1. The jury has broad discretion to consider greatly or
Broadly – unknown outcome.
a..4. Duty (Res Ispa loquitor)
1. Defined – A rare occurrence where the plaintiff does not have enough
information to meet its burden of proof.
2. “the thing that speaks for itself”
3. Circumstantial evidence.
4. Note – that in most jurisdictions, if Res Ispa Loquitor is pled, then the plaintiff
looses its right to plead the common law analysis
5. The plaintiff is excused from proving the elements of negligence. But must
prove :
1. Application
a. The event would not occur in the absence of some negligence.
 i. Rare and Unusual
1. Can be defined by expert testimony, judicial
notice, general knowledge, common to the
community.
ii. Generally not car accidents or slip and fall cases.
b. Whether or not the defendant had exclusive control of the
instrumentality that caused the injury.
i. The RIGHT to control not literal control.
ii. The plaintiff’s ability to point the “negligence arrow” in
the direction of the defendant.
1. Plaintiff must eliminate equal probabilities that
is would more likely than not to be the
defendant’s negligence.
c. **pre 1968 and in rare jurisdictions – was the Plaintiff
contributory negligent.
2. Procedural effects
a. Inference of the Jury (only 1&2)
b. Presumption, where the defendant failed to provide a sufficient
excuse.
c. the burden of proof is transferred to the defendant
b. Breach
i. Comes out of the Duty
c. Causation/Legal Cause
i. Objective: A two step analysis to show that the injury follows a natural,
unbroken causal relationship, cause-in-fact and proximate causes.
ii. Intervening Causes
1. Intervening Cause – When foreseeable – move onto Cause in Fact
2. Superseding Intervening Cause – When unforeseeable, this breaks
the causal chain and there is no causation.
a. Generally not suicide.
3. Need to differentiate between the original act of neg. and the act
that ACTUALLY caused the injury.
4. How to determine when something is foreseeable (scope of the
risks of the original acts of negligence.
a. Expert (standard and deviation)
5. Rescue Doctrine (Public Policy)
a. “peril invites rescue”
b. Rescue is ALWAYS foreseeable and never superceeding
c. It is foreseeable and presumed.
iii. Cause in Fact:
1. Objective: It is the plaintiff’s obligation to prove existence of
causal relationship between the defendant’s negligence and the
plaintiff’s injury.
2. The questions of WHO, WHAT, and HOW caused must be
answered to satisfy, then move on to the two tests. Usually these
elements are obvious, however when they are not, “Prayer for relief” – public
policy:
 Problems in determining which party caused
I. Where circumstances are beyond the Plaintiff’s ability to
meet its burden of proof, the Burden of Proof is shifted to the
defendants to absolve them self.
a. Plaintiff must GUARANTEE the right defendant is in
court.
b. Enterprise Liability
1. Concentrated Enterprise
a. Trade Assoc. for regulating safety.
b. Joint Control of risks.
1. Market Share Liability
a. If Plaintiffs can convince us that
they defendant’s can constitute a
large portion of the fair market
share value
b. Then Defendant has the burden of
proof.
3. At common law – 2 analytical standards in determining whether
the causal relationship exists.
a. Mutually exclusive.
b. The “But For” Test (only in single acts of negligence)
i. Creates a hypothetical fact situation in which we
remove/ignore the negligence of the defendant and
ask would these injuries be brought about even in
the absence of the defendant’s negligence.
a. if yes, then no relationship exists.
ii. Criticized:
a. Required the jury to ignore negligent
evidence as presented at trial.
b. WON”T work with CONCURRENT acts of
negligence.
c. The Substantial Factor Test
i. Nothing more then a “but for” application
ii. Used for BOTH single and concurrent acts of
negligence. Because of this 17 jurisdictions have
abolished the “but for” test.
iii. For a Single Act: Where the defendant’s actions
greatly multiplies the chances of accident and
naturally leads to occurrence.
a. Where yes, then there is cause in fact.
b. IF the probability is beyond a layman’s
knowledge, then an expert is necessary
(standard and how the defendant deviated
from it.)
a. IF testimony is undisputed, then the
jury is BOUND by it.
b. IF disputed then it is advisory.
iv. For Concurrent Causes:
a. 2 TYPES
 a. The injury would have happened
even in the absence of one of the
causes.
a. **Cannot use the ‘BUT
FOR” test because it leads to
finger pointing.
b. Where BOTH acts of negligence
must unite to bring about the harm.
a. Both defendants would be
liable.
iv. Proximate Cause
1. Objective – Public Policy driven objective of limiting defendant’s
liability to some socially acceptable reigns.
2. Arbitrary Limits
3. Foreseeability
a. A reasonable man would have realized or foreseen and
prevented the risk, if yes, then the Defendant is responsible.
b. Exception:
i. Egg Shell Rule
a. R – Law Places greater importance on
personal invasions than property invasions.
b. To apply – No outside agency is responsible
for the cause of the injury
a. Defendant cannot be charged is
traceable to another cause.
d. Actual Damages