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Mind map

Negligence

carpey0706 English

Mind map on negligence: elements, duty, breach of duty, causation, damages and NIED

Mind map: Negligence

Map content

Negligence

  1. Elements

    • Duty
      • Main question: Whether D had an obligation to be careful
        • General Duty of Care = to act as an ordinary, prudent, reasonable person
      • Misfeasance v. Nonfeasance
        • Misfeasance
          • Default duty from affirmative acts
            • AKA D's affirmative activity creates a foreseeable risk of physical harm
              • which triggers a duty to act with due care
            • Additions
              • D created risk
              • Undertakings
              • Special Relationships
              • Landowners to some trespassers, licensees, and invitees
            • Exceptions (no duty)
              • Undiscovered Trespassers
              • Pure Economic Losses
                • Rule: A P who suffers no personal physical injury or to his property cannot recover for pure economic losses caused by D’s negligence.
                  • NO general duty under Misfeasance
                  • Policy
                    • If court expands pure economic loss doctrine, D is potentially liable to everyone who suffers an economic loss (slippery slope).
                      • Would drive up insurance costs
                      • Would increase unpredictability
              • Purely emotional harms
        • Nonfeasance
          • No duty to take precautions against events that cannot reasonably be foreseen
            • NO duty, unless P can identify a special acceptance
              • Exceptions (Duty)
                • Duty to warn or rescue, when D created risk
                • Undertakings
                  • BUT, D only liable if D left P worse off
                  • when D undertakes assistance/rescue
                • Special relationships
                • Landowners to invitees & licensees
      • Special Relationships
        • Can be the basis for the duty to warn, protect, or rescue
          • IF
            • D has a Special relationship with P
            • OR, D has a relationship to a 3rd party who injures P
        • Types:
          • Carrier to passenger
          • Innkeeper to guest
          • Social host to guest
          • Doctor to patient
          • Parent to third party
            • look at outline for specifics
      • Landowners/ Occupiers
        • Trespassers
          • Undiscovered Trespassers
            • No duty to inspect to discover
            • NO duty for reasonable care
              • BUT, landowner can still be liable for intentional, wanton or reckless injury
          • Foreseeable child Trespasser
            • check outline for this
          • Constant Trespassers
            • D has knowledge of or reasonably should have had knowledge of P's presence
            • L has duty to conduct highly dangerous activities with reasonable care
          • Discovered Trespassers
            • Has a duty
        • ASSESS THE LANDOWNER'S LIABILITY FOR INJURIES AS WELL AS P's LIABILITY
        • Licensee
          • Anyone with express or implied permission, but on the premises for their own purpose, [social guest]. Presence may be known or unknown
            • Duty to warn of or make safe known conditions that are dangerous and not obvious.
        • Invitee
          • with permission and there to serve a purpose of the owner/occupier, e.g., business visitor, public visitor, public employees entering under certain privileges
            • Duty to conduct activities with reasonable care, unless danger is obvious.
            • Duty to make reasonable inspections to discover, warn of or make safe, dangerous conditions that are not obvious.
              • Applies to both Natural & Artificial conditions
    • Breach of Duty
      • When D's duty of care falls short of what is owed to the P.
        • up to the jury
      • Requirements for Due Care:
        • Reasonable Person Standard
          • On Exam, say: “A REASONABLE PERSON IN _____’S POSITION WOULD HAVE____ UNDER THE CIRCUMSTANCES”
          • Objective Test
            • Main question: "What a reasonably prudent person would do under the circumstances?"
              • A person of average intelligence & average judgement
              • Also, Identify the least burdensome precaution that would have worked (“but for”)
            • Modifications to the reasonable person
              • Impairments
                • Physical impairments are taken into account
                  • The reasonable person is modified. [If person is blind, RP is blind]
                • Mental impairments are not taken into account
                  • UNLESS
                    • D was aware of the mental Disability
              • Age
                • Look at outline for minority and majority rules
    • Causation
      • Actual
        • Poximate
    • Damages
  2. Separate Causes of Action in Negligence

    • The Negligent Infliction of Emotional Distress (NIED)
      • Duty
        • There is no general duty to avoid causing emotional distress.
          • A duty to avoid negligent infliction of emotional distress may be breached when the D creates a foreseeable risk of physical injury to the P.
            • Types of Foreseeable Risks where this can apply
              • Near Miss
              • Bystander
              • Freestanding

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Description
Mind Map on Negligence, created by carpey0706 on 10/12/2015.
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carpey0706
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