Negligence

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