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A action in negligence requires 1) a duty of due care owing by the defendant to the plaintiff, 2) a breach of that duty by a failure to exercise due care, 3) a causal connection between the breach and the harm to the plaintiff in terms of actual and proximate negligence action. That is, damages must be proved.
Elements of Negligence:
The elements of negligence are duty, breach, causation, and damages.
General Duty:
The general rule of duty holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm.
Cardozo Rule on Duty:
The majority opinion expressed by Justice Cardozo in the landmark and very important case of Palsgraf vs. Long Island Railroad Co. held that the defendant owes a duty of due care only to those persons to whom the defendant can reasonably foresee some injury to by reason of said defendant's negligent act. Therefore, according to the rule, there is no duty owing to the plaintiff who was in a position of apparent safety when the tortious act occurred. This is the so-called "orbit of danger" test.
The Andrews Rule of Duty:
The dissenting opinion that was expressed by Justice Andrews in the Palsgraf vs. Long Island Railroad Co. case rejected the concept that no duty is owing to the unforeseeable plaintiff and adopted a rule of unlimited duty. Therefore, according to the Andrews view, if a defendant can reasonably foresee that his/her conduct is such that it endangers someone, anyone, then that defendant owes a duty of care to the "whole world". The Andrews view has had substantial support and has been applied as the majority opinion in other cases. Both the Cardozo view and the Andrews view are used today in different jurisdictions.
Duty Owed to a Rescuer:
A plaintiff rescuer may proceed against a defendant on a negligence theory when the plaintiff is injured by reason of the fact that the plaintiff engaged in an act of rescue and the negligent act of a defendant created the situation that necessitated the rescue.
Duty Owed to a Guest Passenger:
A driver of a motor vehicle, in the absence of a statute otherwise, owes to persons riding in the vehicle a duty of driving with due care. However, a number of jurisdictions have statutes that provide that a guest passenger in an automobile cannot recover from the owner or operator of the automobile unless the owner or operator is guilty of willful misconduct, recklessness, or intoxication.
Duty Owed to Those Injured by Drunk Driver:
A person who serves alcoholic beverages to one who is intoxicated is not, in the absence of a statute stating otherwise, liable for the damages done by the drunkard. However, under statutes traditionally referred to as Dram Shop Acts, an owner, a bartender or other persons serving alcoholic beverages to persons who are intoxicated can be held liable for the foreseeable damage caused by the drunkard.
Owner Liability Statutes:
Certain statutes impose liability upon owners of vehicles for the tortious acts committed by persons whom the owner intentionally furnishes the vehicle to.
Family Purpose Doctrine:
A parent who furnishes a vehicle to the members of his or her family for customary convenience, assumes liability for the tortious acts committed by those persons when the car is being driven for a family purpose.
Duty Owed by a Good Samaritan:
A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is under a duty to render those services with due care. This person, however, is under no duty to complete the performance of the services unless abandonment of such performance would prejudice the other party's position. The rendering of aid in an emergency is a form of rendering services and imposes certain duties upon the person who undertakes to render such aid. The rendering of other gratuitous services for other individuals will likewise create certain duties upon the person who undertakes the performance of those services. Some jurisdictions have enacted statutes designed to encourage the rendering of emergency aid by physicians by limiting the liability that could otherwise be imposed upon them. Generally speaking, liability can only be imposed upon them for reckless or wanton misconduct.
Omission to Act:
An omission to act, or nonfeasance as it is sometimes called, creates no tort liability where the defendant fails to act to prevent injury to the plaintiff unless, because of a special relationship or special circumstance the defendant has an affirmative duty to protect the plaintiff. Such a relationship or circumstance might arise out of the relationship between husband and wife, parent and child, hotel keeper and guest, common carrier and passenger, or by way of a statutory duty such as the duty imposed by hit and run statutes which require drivers of vehicles involved in an accident to stop and aid one who has been injured.
Business Invitee:
A business invitee is a person who has an express or implied invitation to enter certain business property to do business with the land occupier thereon.
Public Invitee:
Public invitees enter land, in the possession of another, for a purpose for which the land is held open to the public. It is not required that a business purpose be involved.
A licensee is a person who enters certain property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business.
A trespasser is someone who enters the real property of another without express or implied consent to do so.
Constant Trespasser Upon a Limited Area:
A constant trespasser upon a limited area is a person who enters the real property of another without express consent, however, the land occupier knows or should know of the presence of the trespasser because of the trespasser's repeated acts of trespassing.
Duty Owed to a Business Invitee:
The land occupier owes to the business invitee the duty of rendering the premises reasonably safe was to known and discoverable dangerous conditions. This includes the duty of inspecting the premises to discover those defects which a reasonable inspection would reveal.
Duty Owed to Licensee:
The land occupier owes to the licensee the duty of warning of known dangerous conditions, unless they are obvious. The licensee assumes the risk of obvious dangers and those of which he or she is aware. While the land occupier has the option of avoiding liability by correcting the dangerous condition, he or she owes no duty to do so and need only give an adequate warning that the condition exists.
Duty Owed to the Trespasser:
The land occupier generally owes no duty of care to the trespasser unless the trespasser is a constant trespasser upon a limited area or a child.
Duty Owed to a Constant Trespasser Upon a Limited Area:
A land occupier owes a duty to constant trespassers upon a limited area to warn them of known dangerous artificial conditions unless such conditions are obvious.
Duty Owed to the Child Trespasser:
A land occupier owes a child trespasser the same duty as owed to an adult trespasser unless the case is one in which the attractive nuisance doctrine applies.
Attractive Nuisance Doctrine:
The Attractive Nuisance Doctrine, recognized in most jurisdictions, provides for the imposition of certain duties upon landowners for the protection of young children whose trespasses are to be anticipated and whose immaturity renders them particularly susceptible to injury from dangerous conditions upon the land. A duty is imposed upon land occupiers to exercise reasonable care to eliminate the danger or to otherwise protect the children when the following elements are present:
1. foreseeability of trespass,
2. foreseeability of serious harm,
3. the child is unaware of the danger, and
4. the utility of the condition is great and the burden of eliminating the condition is slight when balanced against the risk of harm to children
Duty Owed to Persons Off the Premises:
The land occupier owes a duty to maintain the premises in a reasonably safe condition for the protection of passersby and occupiers of adjoining premises. This includes the duty of inspection to discover and correct those defects which a reasonable inspection would reveal.
Rowland vs. Christian:
The modernly recent landmark case of Rowland vs. Christian eliminated the distinction between business invitee, licensee, and trespasser and found that the land occupier owes a duty to act as a "reasonable man" for purposes of rendering the occupied property safe for others.
Natural Conditions:
A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property. However, a court in one recent case imposed a duty of reasonable care as to natural conditions, at least in those situations where the condition is known to the landowner.
Res Ipsa Loquitur:
The doctrine of plaintiff in proving the element of breach of duty when the plaintiff is unable to establish by other evidence that the defendant acted unreasonably. The doctrine proceeds upon the theory that the occurrence itself speaks of negligence and it is unnecessary for the plaintiff to show the exact circumstances whereby defendant breached his or her duty of care. The plaintiff must prove that: res ipsa loquitur is a rule of evidence which aids the
1. defendant was in complete control of the instrument that caused the harm;
2. plaintiff is not guilty of contributory negligence;
3. defendant is in a better position to explain what happened; and
4. injuries of this type do not normally occur absent such negligence.
The literal interpretation of ‘
res ipsa loquitor’, a Latin phrase, is "the thing speaks for itself".
Actual Cause or Cause in Fact:
Actual cause or cause in fact is that cause which starts, ignites or makes possible the act which follows and that which satisfies the "but for" or "substantial factor" test.
Proximate Cause:
Proximate Cause is an act which in a natural and continuous sequence of events, unbroken by unforeseeable, independent, intervening acts, causes injury to the plaintiff, without which the injury would not have occurred.
Independent Intervening Act:
An independent intervening act is one which would have occurred even in the absence of the original negligence. The act must be foreseeable, otherwise it breaks the chain of causation.
Dependent Intervening Act:
A dependent intervening act is an act which would not have occurred in the absence of the original negligence and is a normal reaction to the negligent act. A dependent intervening act does not break the chain of causation unless it was highly unforeseeable.
The "But For" Test:
The "but for" test is used for purposes of establishing actual cause. According to this rule, the defendant’s negligence must be an essential ingredient in producing the plaintiff's injury. To apply the test in negligence questions after having established duty and breach, you must ask "but for" the defendant's negligence, would the plaintiff have been injured? If the answer is no - that the plaintiff would not have been injured if the defendant had not be negligent - then the defendant is deemed to be an essential contributing factor to the plaintiff's injury even though other factors also contributed.
The "Substantial Factor" Test:
The "substantial factor" test is also used for purposes of establishing actual cause. The defendant is said to be an actual cause of the plaintiff's  injury if the defendant is a substantial factor in bringing the injury about. This means that the defendant's negligent act must contribute to the happening of the plaintiff's injury to more than a trivial degree. This test should be used in addition to the "but for" test because sometimes it is more workable, especially when involved with questions related to the combined effect of more than one fire, explosion or similar condition. "But for" the one fire or explosion the plaintiff's property might have burned anyway by reason of the other fire or explosion. However, using the substantial factor test it is clear that the negligence of each fire or explosion has contributed to the plaintiff's damage to more than a trivial degree. Therefore, since the damages are not capable of being apportioned, both parties can be held liable for the entire amount of the damage.
The Doctrine of Avoidable Consequence:
The Doctrine of Avoidable Consequences holds that an injured party must act reasonably to minimize his or her loss or injury, and where through neglect, damages are unnecessarily aggravated or increased, he or she cannot recover the additional damages.
Negligence Per Se:
Negligence per se involves the use of the defendant's unexcused violation of a statute or an ordinance to prove the elements of duty and breach of duty, if it can be established that the statute in question was designed to protect this class of plaintiffs from this type of injury.
Contributory Negligence:
Contributory negligence relates to the plaintiff's failure to exercise due care in his or her own protection which is a contributing factor to the happening of the plaintiff's injury. In some jurisdictions, the plaintiff's contributory negligence will result in a complete bar to recovery from the defendant without regard to the relative fault on the part of the defendant.
Comparative Negligence:
Comparative negligence relates to the extent that the plaintiff's fault has contributed to the plaintiff's injury and acts to diminish the plaintiff's recovery in situations where the plaintiff is shown to have been in violation of a duty of reasonable care to the plaintiff's own person. Most states have adopted the comparative negligence system as a replacement for the contributory negligence system. Therefore, fault on the part of the plaintiff does not operate as a complete bar to recovery in every case in those jurisdictions that apply the comparative negligence theory.
Last Clear Chance Doctrine:
The Last Clear Chance Doctrine is used in jurisdictions where the contributory negligence of the plaintiff can operate as a complete bar to recovery. Under this doctrine the plaintiff will be permitted to recover even though the plaintiff's own negligence has contributed to his or her injury when it can be established that the defendant had a superior opportunity to avoid the accident and failed to do so. Traditionally, the defendant will be held liable on the last clear chance theory where it can be shown that the plaintiff, through his/her own negligence, was in a position of helpless or inattentive peril and was thereby unable to avoid the impending accident, and the defendant, after discovering the plaintiff's position of peril, could have avoided the accident through the exercise of due care, but failed to do so.
Assumption of the Risk:
The Assumption of the Risk Doctrine proceeds on the theory that the plaintiff has expressly or impliedly consented to the dangers arising out of the defendant's conduct. Such consent may be created by an agreement between the parties or it may arise by way of the conduct of the plaintiff in voluntarily subjecting himself/herself to a known and appreciated risk. Assumption of the risk is a complete bar to recovery when established in a negligence action.
Vicarious Liability:
Vicarious liability arises out of employment relationships, joint enterprises or vehicle ownership situations (where some person, other than the owner, is driving the vehicle with the owner's consent). Vicarious liability relates to a situation where the defendant is not charged with personal fault or wrongdoing but, because of some relationship between the defendant and the actual tortfeasor or the other special circumstances, the defendant is made liable anyway. If a defendant is held liable on a vicarious liability theory, that defendant has the right for indemnification for the purpose of being reimbursed for the amount of the actual liability.
Joint Tortfeasors:
Joint tortfeasors consist of two or more persons who join together to commit a tortious act. Their status is similar to that of co-conspirators in criminal law, and each is vicariously liable for the acts done by the other joint tortfeasor in the furtherance of the common design.
Concurrent Tortfeasors:
Concurrent tortfeasors are those who are not acting in concert with each other but whose acts combine to produce a single injury to the plaintiff. Liability, possibly even for the entire amount of the plaintiff's claim, will be imposed against the concurrent tortfeasors for each tortfeasor's acts of negligence. Vicarious liability does not apply.
Successive Tortfeasors:
A successive tortfeasor is one whose negligence follows an initial injury and adds to or aggravates the existing injury. Under the rules of causation, liability for the injury caused by the second tortfeasor can be imposed on the first tortfeasor when the second tortfeasor's negligence is considered to be a dependent intervening act that did not break the chain of causation set into motion by the first tortfeasor. Accordingly, if the second tortfeasor's negligence resulted from an independent, unforeseeable intervening act, the first tortfeasor would not be liable for the damages that resulted from said second tortfeasor's negligence, since the chain of causation would have been broken. The first tortfeasor, in this situation, would only be liable for his or her own negligence.
Joint and Several Liability:
Joint and several liability is imposed upon joint and concurrent (but not successive) tortfeasors. This means that each is responsible for the full amount of the plaintiff's injury and the full amount of a related court judgment. Judgments for the full amount may be obtained against each tortfeasor, but satisfaction from one will discharge the liability of the other.
Contribution relates to a claim by one concurrent tortfeasor that is brought against the other concurrent tortfeasor or tortfeasors, requesting entitlement for reimbursement as to their pro-rated share of a court judgment.
Indemnity relates to a claim by one who has wholly or partially satisfied a judgment and is brought against a concurrent tortfeasor, or one whose act created vicarious liability and involves total reimbursement, thus placing the entire loss on the other person. A concurrent tortfeasor is allowed such total reimbursement only when his or her act resulted in passive negligence and the other tortfeasor's act is construed to be active negligence, those terms being subject to varied interpretations. A defendant found vicariously liable in the usual case is almost always entitled to total reimbursement from the actual tortfeasor. Some jurisdictions are adopting a rule of partial indemnity on the basis of relative fault of the parties. Such a rule has been adopted in California and is referred to as the "Comparative Indemnity Rule".
Husband-Wife Immunity:
Husband and wife immunity at common law prevented a spouse from maintaining an action against the other. It was argued that such suits between spouses would disrupt domestic tranquility. Modernly, such immunity does not exist in most jurisdictions.
Parent-Child Immunity:
Parent and child immunity, traditionally, has been applied so that a parent and minor child are immune from suits against each other in connection with torts against the other person, although suits involving interferences with property interests have been freely allowed. Many jurisdictions have abolished immunities of this type.
Charitable Immunity:
Charitable immunity traditionally prevented non-paying recipients from suing a charity whereas paying recipients could sue the charity because, as to them, it was not a charity; it was a business. Modernly, the trend is to abolish the immunity and  to hold non-profit organizations liable to the same extent as any other wrongdoing defendant.
Governmental Immunity:
Governmental immunity has been applied to prevent suits against governmental entities unless that entity has consented to the suit. A substantial number of jurisdictions have totally abolished the immunity of municipal governments, and in several states, the immunity of the state government has also been terminated.
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