Mindmap of Negligence

Dated September 4, 2007

Torts I

Prof. Eric E. Johnson, University of North Dakota School of Law

NEGLIGENCE

i. Elements

1. Duty

a. General duty

i. A general duty of care is owed to all foreseeable plaintiffs

b. Specific situations

i. Rescuers

1. A rescuer is a foreseeable plaintiff where the defendant negligently put the self or a third person in peril. "Danger invites rescue."

c. Unborn, unconceived children

i. Differs by jurisdiction.

ii. Wrongful birth

iii. Wrongful life

d. No affirmative duty to act

i. Exceptions

1. Assumption of duty by acting

a. Exception: good samaritan statutes exempting medical professionals from liability for ordinary, but not gross, negligence in voluntarily acting to help someone

2. Peril caused by negligence

a. Defendant has a duty to assist someone in peril because of the defendant's negligence

3. Common carriers, innkeepers, shopkeepers

a. Those who solicit and gather the public for their own profit owe a duty to aid patrons

2. Standard of care

a. General standard

i. Reasonable person

1. The care that would be exercised by a reasonable person under the circumstances

2. Example: Looking in the rear-view mirror before backing up

ii. Objective standard

1. Mental deficiencies not taken into account

2. Inexperience not taken into account

3. Physical disabilities and limitations are taken into account

b. Specific standards

i. Professionals

1. General practitioner

a. The knowledge, skill, and custom of practice among practitioners in the local community

2. Specialist

a. The knowledge, skill, and custom of practice among members of the specialty across the nation

ii. Children

1. That of a child of like age, education, intelligence, and experience

2. Children under four generally do not have the capacity to be negligent

3. Exception: children engaged in an adult activity

a. The relevant adult standard of care for the activity

iii. Bailment

1. Bailor

a. Gratuitous bailment

i. Must inform of known, dangerous defects in chattel

b. Bailment for hire

i. Must inform of known and reasonably discoverable defects in the chattel

2. Bailee

a. Sole benefit of bailor

i. Low standard

b. Mutual benefit of bailor and bailee

i. Ordinary care standard

c. Sole benefit of bailee

i. High standard of care

iv. Owners/occupiers of land
(shifted to the left, below)

o Trespassers

§ Undiscovered

· No duty

§ Discovered/anticipated

· Duty to warn or make safe concealed artificial conditions, known to the owner/occupier, involving risk of death or serious bodily injury

o Infant trespassers

§ "Attractive nuisance" doctrine

· Duty to avoid foreseeable risk to children caused by artificial conditions, if:

o A dangerous artificial condition the owner/occupier does or should know about

o The owner/occupier knows or should know that children frequent the area

o The condition is dangerous to children

o Cost/benefit analysis: the expense of remedying condition is slight compared to magnitude of risk

§ Licensees

· Persons who enter land with permission for their own benefit, rather than the benefit of the owner/occupier. (Licensees include friends and contractors coming on to the premises to make sales or repairs.)

· Duty to warn of or make safe any known, concealed dangerous condition (whether natural or artificial)

· No duty to inspect

§ Invitees

· Persons entering land with permission for the owner/occupier's business or as members of the public on land open to the public

· Same duty as to licensees, plus a duty to inspect and render safe concealed dangers

v. Statutory standard (negligence per se)

1. When applicable, statute's specific standard replaces the general negligence standard

2. Test: class-of-persons/class-of-risk

a. The plaintiff is in the class of persons the statute was designed to protect

b. The harm suffered is among the risks that the statute was designed to protect against

3. Breach of duty

a. Generally

i. Issue for jury or trier of fact

b. Special case

i. Res ipsa loquitor

1. The very occurrence of an event may rebuttably establish negligence, if:

a. The accident is of the type that would not normally occur absent negligence

b. The instrumentalities of the accident were in defendant's sole control

4. Actual causation

a. Generally

i. "But for" test

b. Joint causes

i. Substantial factor test

c. Summers v. Tice problem

i. Multiple defendants acted, but only one caused injury

1. Burden of proof shifts to defendants, each to negate his or her own neglience

5. Proximate causation

a. Foresseeability test

i. The extent or severity of harm is always considered foreseeable (eggshell plaintiff rule)

ii. Negligence of medical professionals is always considered foreseeable

6. Damages

a. Sufficient kinds of compensatory damages

i. Personal injury

ii. Property damage

iii. Severe emotional distress (for NIED only)

iv. Not mere economic damages, harm to reputation, or other oblique injuries

1. (But note that oblique injuries may create liability covered under the heading of oblique torts)

b. Punitive damages

i. Compensatory damages are a prerequisite

ii. Conduct must be wonton, willful, reckless, or malicious

c. Duty to mitigate

d. Collateral source rule

i. Damages are not reduced because plaintiff has collateral sources (insurance, charity)

ii. Defenses

1. Plaintiff's negligence

a. Contributory negligence

i. Complete bar to recovery

ii. Most jurisdictions have rejected contributory negligence in favor of comparative negligence

b. Comparative negligence

i. Pure comparative negligence

1. Plaintiff's award is reduced by percentage of fault

ii. Partial comparative negligence

1. Plaintiff's award is contingent upon defendant meeting a certain threshold percentage of fault

2. Plaintiff's award is then reduced by percentage of fault

2. Assumption of risk

a. Express agreement

i. Not valid for certain defendants, including common carriers

ii. Not valid for gross negligence or willful acts

b. Implied

i. Based on the circumstances, plaintiff impliedly assumed the risk