Torts Negligence MBE Outline Fall 10

Law 3211 Fall 2010

NEGLIGENCE

§ 1 Elements

Plaintiff seeking to establish liability in negligence must prove each of the following elements:

1. Defendant owed a legal duty to plaintiff.2. Defendant's conduct breached that duty.3. Defendant's breach of duty was the actual and legal (proximate) cause of injury to plaintiff.4. Plaintiff suffered damages as a result of defendant's conduct.

§ 2 Duty

§ 2.1 General Rule--Duty to Foreseeable Plaintiffs

The element of "duty" is usually described as an obligation, recognized by law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risk. Where defendant engages in conduct which is claimed to have injured plaintiff, the issue could be framed: did defendant have a duty to plaintiff to conform to a certain standard of conduct? In the famous Palsgraf case, Justice Cardozo articulated the rule that defendant owes a duty only to "foreseeable" plaintiffs. (Justice Andrews' dissent in that case argued that "[e]veryone owes to the world at large the duty of refraining from those acts which unreasonably threaten the safety of others.") Justice Cardozo's view is probably the "majority" view.

§ 2.2 Analytical Approach

For analytical purposes, the question is more usefully formulated as follows: under the circumstances, can it be said that defendant has no duty to plaintiff? (This is for analytical value only; the rule should be articulated that plaintiff must prove that defendant owed a duty as part of the prima facie case of negligence, and that the existence of a duty is determined by whether the plaintiff is "foreseeable.") Most frequently tested are situations in which the defendant's allegedly wrongful "conduct" is a failure or omission to act.

§ 2.3 Duty to Take Affirmative Action--Failure or Omission to Act

§ 2.3(A) General Rule--No Duty to Act for the Protection of Others

The traditional rule is that there is no affirmative duty to take action (as opposed to doing nothing) to aid or protect a plaintiff who is at risk of injury unless such action is taken. The law does recognize certain situations, however, in which a duty to take action does arise.

§ 2.3(B) Exceptions to General Rule

(1) Defendant's Conduct Causes PerilIf defendant's conduct is responsible for placing plaintiff in a position where she requires aid, defendant has a duty to take action to aid plaintiff.

(1)(a) Nature of defendant's conductThe traditional application of this exception recognized a duty to act only when defendant's conduct which caused plaintiff to be in peril was itself negligent. The modern approach is to recognize a duty to take action even when defendant's conduct creating the peril was not tortious.

(2) Defendant Takes Action or Promises to Do SoAlthough defendant has no general duty to take affirmative action to aid plaintiff, once defendant actually takes such action, or promises to take such action to aid plaintiff, defendant has a duty to exercise due care as to his subsequent conduct.

Law 3211 Fall 2010

(2)(a) The Good Samaritan ruleWhere defendant voluntarily takes action to aid plaintiff, defendant must exercise due care in giving assistance. This means that defendant must not discontinue aiding plaintiff if doing so would leave plaintiff in a worse position than when the aid began.

(2)(a)(i) Good Samaritan statutes: In some jurisdictions, statutes provide immunity from civil liability for persons, often physicians and nurses, who give emergency aid to others. Such statutes usually limit the immunity to negligent conduct (i.e., a defendant otherwise within the statute's protection would be liable if the action taken in aid of plaintiff was reckless.)

(2)(b) Defendant promises to take action--no liability for nonfeasanceThe majority rule is that a defendant who gratuitously promises to take action to aid plaintiff has no duty to actually take the promised action. This is so even if plaintiff relied on the promise to his detriment. (This is often referred to as "nonfeasance," a complete failure to render the promised aid.)

(2)(b)(i) Exception to majority rule--liability for malfeasance: Having made a gratuitous promise to aid plaintiff, once defendant attempts to give the promised aid, defendant has a duty to exercise reasonable care in doing so. Due to the perceived harshness of the nonfeasance rule, courts readily find that a defendant who makes a gratuitous promise to aid plaintiff has subsequently taken action which constitutes an attempted performance of the promise.

(2)(b)(ii) Minority rule--liability for nonfeasance: In a minority of jurisdictions, defendant is liable for a complete failure to perform a gratuitous promise of aid, if plaintiff relied on the promise to his detriment (e.g., by foregoing other aid).

(3) Special Relationship between Defendant and PlaintiffDefendant has a duty to take affirmative action in aid of plaintiff where a special relationship exists between defendant and plaintiff. This special relationship is most frequently tested in three contexts--(1) duty to care for plaintiff, (2) duty to control others, and (3) duty to warn plaintiff of danger.

(3)(a) Duty to care for plaintiffDefendant has a duty to take affirmative action to benefit plaintiff where there exists a special relationships between defendant and plaintiff from which defendant derives economic benefit or as to which defendant occupies a position of power over plaintiff (e.g., plaintiff is particularly vulnerable and dependent upon defendant). The following relationships have been generally recognized as triggering the duty to care for plaintiff--(a) employer/employee (during and in the scope of employment), (b) common carrier and innkeeper/ customer, (c) school/pupil, (d) parent/child, and (e) jailer/prisoner.

(3)(b) Duty to control othersDefendant has a duty to take affirmative action to protect plaintiff where defendant has a special relationship with a third person that gives defendant power to control the behavior of the third person. Defendant must exercise due care to prevent the person under control from injuring plaintiff. Relationships which have been recognized as triggering the duty to control others include (a) employer/employee, (b) parent/child, (c) bailor/bailee (e.g., car owner/driver), (d) partner or joint enterpriser/another partner or joint enterpriser, and (e) in some circumstances, dispenser of liquor/customer.

Law 3211 Fall 2010

(3)(b)(i) Negligent hiring: Defendant/employer has a duty to plaintiff to exercise reasonable care in hiring employees, such that defendant may be liable to plaintiff if an employee subsequently injures plaintiff. (Distinguish the vicarious liability of an employer for her employee's torts--respondeat superior--where the negligent conduct is that of the employee, which is attributed by law to the employer. In negligent hiring, the employer is liable for her own negligence in hiring the employee, not vicariously liable for the wrongful conduct of the employee.)

(3)(b)(ii) Negligent entrustment: Where defendant permits a third person to use his personal property, defendant has a duty to control such use and to exercise due care in permitting the third person to use the property. The context in which this issue is frequently tested is an auto owner/defendant who permits a member of his family (e.g., his minor child) to drive his car.

(3)(c) Duty to warn plaintiff of dangerIn some jurisdictions, a defendant who has the requisite special relationship with a third person who becomes aware that the third person intends to do specific harm to an identified plaintiff has a duty to warn plaintiff of the harm. The special relationships which have been recognized as triggering this duty include (a) psychotherapist-patient and (b) custodian/prisoner or patient.

§3 Breach of Duty

§3.1 General RuleIn general, defendant breaches the duty to plaintiff if he fails to conduct himself as a reasonable person would in the same circumstances.

§ 3.1(A) Learned Hand Breach of Duty FormulaIn determining whether defendant's conduct constituted a breach of duty under the "reasonable person" standard, Judge Learned Hand offered the following analysis: if the burden (or cost) on defendant of taking precautions against the threatened risk was outweighed by the likelihood (or probability) that plaintiff would be injured by the risk-producing activity, considering also the gravity (or severity) of the injury to plaintiff if the risk manifests itself, and considering the social utility of the activity in which defendant is engaged, then defendant failed to act as a reasonable person would. In short, if the burden of taking precautions is less than the probability of injury "times" the severity of that injury, plus the social utility of defendant's activity, defendant breached his duty of care by not taking such precautions. Although legal problems cannot be reduced to simple mathematical formulae, this is a useful way to remember and to articulate the relevant considerations.

(1) Social Utility of Defendant's ActivityThe greater the benefit society derives, viewed in the aggregate, from the activity engaged in by defendant, the more likely defendant will not be found to have breached a duty to plaintiff merely by engaging in such an activity or by not undertaking certain precautions. For example, driving a car presents a fairly high probability of colliding with others, and a relatively severe danger of death or great injury, which might be thought to justify significant precautions, such as driving very slowly, or avoiding driving at all when there is great congestion or pedestrian activity. However, the social utility of driving is also very great, so that such precautions are considered to be "outweighed" in the Learned Hand calculus, and a reasonable person would not undertake them. Less burdensome precautions such as remaining alert and operating the vehicle competently are regarded as sufficient to fulfill the duty of care.

Law 3211 Fall 2010

§ 3.1(B) Reasonable Person

(1) Knowledge and Mental AbilityIn assessing breach of duty, the "reasonable person" standard is applied as though the reasonable person possessed the knowledge and mental capabilities of an average member of the community, even if defendant did not herself actually possess that knowledge or mental capability. For purposes of negligence analysis, the conduct of defendants whose cognitive abilities are diminished due to mental illness, mental disability or intoxication is assessed without such diminishment of abilities. However, to the extent that defendant possessed greater knowledge (or expertise) than the average person, the "reasonable" person to whom defendant is compared is thought of as also possessing that greater knowledge (or expertise).

(2) Physical CharacteristicsThe reasonable person standard is applied as though the reasonable person possessed the same physical characteristics as defendant. Thus, the trier of fact assesses what conduct a reasonable person of the same height, weight, ability to see or hear, and disabilities as the defendant would have done under the circumstances.

(2)(a) Exception--voluntary intoxicationThe reasonable person standard is not altered to account for defendant's physical disability if the disability is the result of defendant's voluntary intoxication.

(3) AgeThe reasonable person standard specifically takes account of age when defendant is a minor. In the majority of jurisdictions, a minor defendant's conduct is assessed according to what a reasonable child of the same age, education, intelligence and experience would have done. A minority of states follow the traditional rule, which divided--minors into three age levels--age six and below, as to which the defendant was conclusively presumed incapable of being negligent; age seven to thirteen, as to which it was rebuttably presumed that the defendant was not negligent; and age fourteen and up, as to which it was rebuttably presumed that the defendant was capable of being negligent.

(3)(a) Adult activitiesMany states alter the breach of duty analysis for minor defendants when they engage in adult activities (such as driving a car or a boat). Minors engaged in adult activities are held to the same standard of care as a reasonable adult in the same circumstances.

§ 3.1(C) Same Circumstances

(1) Effect of CustomIn determining how a reasonable person would behave under the circumstances, it is relevant how a person engaging in defendant's activity would customarily behave. But evidence of custom is not conclusive; the trier of fact may find either that the customary manner of behavior was not reasonable under the circumstances, or that a reasonable person would not have engaged in customary behavior.

(2) Effect of EmergencyWhere defendant's conduct occurred in an emergency situation, it is recognized that a reasonable person might accept greater risk or have less opportunity for reflection in determining the reasonable course of action.

(2)(a) Exception--defendant's negligence caused emergencyIf defendant's own negligent conduct is responsible for creating the emergency situation, the above principle is not applied in assessing the reasonableness of defendant's conduct during the emergency.

Law 3211 Fall 2010

§ 3.2 Effect of Violation of Statute

§ 3.2(A) Civil StatuteA statute which provides for civil liability supersedes the common law of torts. Defendant's civil liability is determined by the specific statutory provisions.

§ 3.2(B) Criminal StatuteWhere defendant's conduct also violates a statute that does not provide for civil liability (which will usually be a criminal statute), the statute may establish the standard of conduct for breach of duty purposes. In a majority of jurisdictions, this means that it is conclusively established that defendant breached his duty to plaintiff (often referred to as "negligence per se.") Other (minority) jurisdictions regard a qualifying violation of statute by defendant as either raising a rebuttable presumption (plaintiff wins unless defendant introduces enough evidence to overcome the presumption) or as prima facie evidence (plaintiff wins unless defendant introduces any evidence, but plaintiff retains burden of proof if defendant offers evidence) that defendant's conduct breached the duty to plaintiff.

(1) When Violation Is "Negligence Per Se"In a jurisdiction that has adopted a "negligence per se" rule, defendant's violation of a criminal statute has the effect of establishing the standard of care only when all of the following three conditions are present:

a. The injury caused by defendant's conduct is the type which the statute was intended to prevent.b. Plaintiff is a member of the class intended to be protected by the statute.c. Defendant's violation of the statute is not excused.

(2) When Violation of Statute ExcusedDefendant's violation of an applicable statute is excused if compliance with the statute (1) would have resulted in a harm greater than the harm produced by the violation, or (2) would have been impossible.

(2)(a) Non-excusable violationsSome statutes are regarded as so important that their violation cannot be excused as a matter of law (e.g., the statutory obligation to maintain a vehicle's brakes in proper working order).

(3) Effect of Compliance with StatuteCompliance with a statute is regarded as mere evidence on the issue of whether defendant breached his duty of care, and does not raise any presumption in the defendant's favor, conclusive or otherwise.

§ 3.3 Higher Standard of Care

Historically, defendants who engaged in certain activities were held to a "higher" standard of care to the public or to their customers. (Some of these types of defendants were also discussed above in connection with a duty to take affirmative action to protect plaintiffs.)

§ 3.3(A) Common CarriersCommon carriers (e.g., trains, bus lines) were traditionally said to have a duty to avoid harm to their passengers through exercise of "the highest degree of vigilance, care and precaution," or "the utmost caution characteristic of very careful prudent persons."

§ 3.3(B) InnkeepersSome jurisdictions utilize the same standard of care for assessing the conduct of innkeepers toward their customers as that applied to a common carrier regarding its passengers.

§ 3.3(C) Public UtilitiesThe dangerous products or services dispensed by public utilities (e.g., electricity, gas) caused many jurisdictions to impose a duty of care which required that such utilities "take every reasonable precaution suggested by experience or prudence" to avoid injury to the public.

Law 3211 Fall 2010

§ 3.4 Malpractice (Greater Than Average Knowledge or Expertise)

If defendant possesses knowledge or expertise that is greater than the average person's, breach of duty is assessed as though the reasonable person possessed the customary level of specialized knowledge and expertise of a practitioner in good standing of the same or a similar trade or profession as the defendant.

§ 3.4(A) Customary Level of Knowledge and ExpertiseThe effect of the above rule is that defendant will be found to have breached the standard of care if he did not conduct himself as would a competent member of the trade or profession with minimally adequate knowledge and expertise. If defendant is a specialist within a trade or profession, the standard of care is applied according to the higher standards appropriate to that specialty.

(1) Varying Standards Within ProfessionWhere recognized differences in doctrine exist within a profession, the standard of care applied to defendant is that of the "school" or doctrine to which she belongs.

§ 3.4(B) Standard of Care as Affected by Geographical AreaTraditionally, the conduct of a defendant with specialized skill or expertise was assessed for reasonable person/breach of duty purposes with regard to the community in which defendant practiced his trade or profession. Some jurisdictions apply a more modern, national standard, recognizing that technology permits communication and exchange of knowledge that transcends traditional geographic limitations. Specialists are particularly likely to be held to a national standard.

§ 3.4(C) Informed ConsentSome jurisdictions follow the traditional rule which held a physician liable for the intentional tort of battery if he failed to properly inform a plaintiff/patient about the risks and alternatives of a proposed medical procedure or treatment. (Plaintiff's consent was said to be vitiated by the lack of disclosure.) Other jurisdictions utilize a breach of duty analysis--the physician has a duty to inform the patient of such matters, the breach of which constitutes negligence. What must be disclosed under this duty is determined by comparison with what a reasonable, minimally competent member of the medical profession would tell the plaintiff/patient under the same circumstances.

(1) Disclosure as Measured by Patient's Desire for InformationSome jurisdictions determine what information must be disclosed by defendant/physician to meet the standard of care with reference solely to what a reasonable patient would believe was material in making the decision to undertake the medical procedure or treatment.

§ 3.5 Guest Statutes

Statutes in many jurisdictions reduce the duty of care owed by the driver of an automobile to a "guest" (a nonpaying passenger) in that auto. Such statutes frequently provide that the driver of an auto is not liable for injuries suffered by the guest unless the driver's wrongful conduct amounted to gross negligence or recklessness.

§ 3.6 Owners and Occupiers of Land

§ 3.6 (A) General ConsiderationsFor historical reasons, most jurisdictions modify the general "reasonable person" standard of care when assessing breach of duty where defendant is an owner or occupier of land and plaintiff is a person injured while on or adjacent to defendant's land.

(1) Categories of RisksThe standard of care applied to owners and occupiers of land varies according to which of three categories of danger or activity were involved in the injury to plaintiff. These categories are:

a. Activities--the injury to plaintiff derived from the conduct of persons on the land.b. Artificial conditions--the injury to plaintiff derived from circumstances created by persons on the land,

Law 3211 Fall 2010

such as buildings, excavations, cultivation, etc.c. Natural conditions--the injury to plaintiff derived from circumstances not created by persons but existing

on the land, such as natural bodies of water, trees occurring naturally, falling boulders, etc.

(2) Categories of PlaintiffsIn addition to considering the category of danger or activity which injured plaintiff, analysis of standard of care varies according to categories of plaintiffs who claim injury:

A Persons not on the land (but adjacent to it)B. Persons on the land

1. Trespassers(a) unknown(b) known(c) frequent(d) children

2. Licensees3. Invitees4. Privileged entrants

(3) Owner or OccupierThe defendant to whom the standard of care is applied is the person in possession of the land, which includes the owner, a tenant, a vendee, or an adverse possessor. Standard of care may also vary if the possessor of land is a lessor/landlord or a vendor/seller of land.

§ 3.6(B) Standards of Care

(1) Plaintiffs Not on the Land (but Adjacent to It)(1)(a) ActivitiesDefendant must exercise reasonable care to prevent injury to a plaintiff not on defendant's land, deriving from defendant's activities or the activities of others conducted on defendant's land.

(1)(b) Artificial conditionsDefendant must exercise reasonable care to prevent injury to a plaintiff not on his land, deriving from unreasonably dangerous artificial conditions which abut or protrude onto adjacent land. Defendant must also exercise reasonable care to protect passersby on a public street from injury deriving from dangerous artificial conditions on defendant's land.

(1)(c) Natural conditionsA majority of jurisdictions impose no duty on defendant to protect a plaintiff not on defendant's land from dangers deriving from natural conditions on defendant's land. The minority rule is that defendant must exercise reasonable care to prevent injury to a plaintiff not on defendant's land from dangers deriving from natural conditions on defendant's land.

(1)(c)(i) Exception to majority rule---native trees in urban areas: Many jurisdictions require that in urban areas, defendant must exercise reasonable care to protect a plaintiff passing by defendant's land on adjacent public streets from injuries deriving from native trees on defendant's land.

(2) Plaintiffs on the Land

(2)(a) Trespassers

(2)(a)(i) Trespasser defined: If plaintiff enters onto defendant's land without defendant's permission or without a privilege to so enter, plaintiff is classified as a trespasser. The trespasser category is further broken down into four sub-categories, as to which the standard of care may vary.

Law 3211 Fall 2010

(2)(a)(ii) Standards of care

(2)(a)(ii)(A) Unknown trespasser: Defendant has no duty of care as to a trespasser whose presence is unknown to defendant. Defendant also has no duty to inspect his land to attempt to discover unknown trespassers.

(2)(a)(ii)(B) Known trespasser: If defendant becomes aware that a particular plaintiff has trespassed on his property (or becomes aware of facts from which he should reasonably conclude that plaintiff has trespassed), the plaintiff is regarded as a known trespasser. The applicable standard of care varies according to category of danger.

Activities: Most jurisdictions require defendant to exercise reasonable care to prevent injuries to a known trespasser deriving from activities conducted on defendant's land.

Artificial conditions: Defendant must exercise reasonable care to warn a known trespasser of hidden dangers of which (1) defendant is aware and (2) the known trespasser is unaware.

Natural conditions: Defendant has no duty to prevent injury to a known trespasser deriving from natural conditions on defendant's land.

(2)(a)(ii)(C) Frequent trespasser: If defendant knows or reasonably should know that trespassers frequently enter upon a portion of defendant's land, the standard may be higher than that normally applicable to unknown trespassers. For example, if defendant observed that a beaten path cuts across his property, he would be alerted to the presence of frequent trespassers. Frequent trespassers are owed the same duty of care as known trespassers, even though defendant may not be aware that a particular plaintiff is present on defendant's land, and without regard to whether a particular plaintiff has ever previously trespassed upon defendant's property.

(2)(a)(ii)(D) Children trespassers: Where activities and natural conditions are involved, the standard of care as to children who trespass is the same as for the applicable category of adult trespassers. A heightened standard of care may apply as to artificial conditions on defendant's land.

Heightened duty--to exercise reasonable care: If the heightened standard of care as to children trespassers is invoked, defendant has a duty to exercise reasonable care to prevent injury to the children (applicable to dangerous artificial conditions).

When heightened standard of care arises: The heightened standard of care set forth above arises if four prerequisites are shown to exist:

(1) The artificial condition is a foreseeable risk of unreasonable danger to trespassing children.

(2) It is foreseeable that children are likely to trespass where the artificial condition is located.

(3) The child trespasser is unaware of the risk.

(4) The risk of danger of the artificial condition outweighs its utility.

Discussion of prerequisites:

(1) Foreseeable risk An artificial condition on defendant's land poses a foreseeable, unreasonable risk of danger to children trespassers if defendant knows or reasonably should know of the existence and nature of the artificial condition. Defendant has no independent duty to inspect the land to discover such artificial conditions.

Nature of risk as unreasonable danger. It is relevant to whether a condition poses a foreseeably

Law 3211 Fall 2010

unreasonable danger to children trespassers that the danger is one which a child might ordinarily be expected to recognize. Thus, a child old enough to play without immediate parental supervision can ordinarily be expected to recognize the danger represented by water (drowning), by fire, and by falling (from a height or into a hole), etc. Therefore, such conditions do not present a foreseeably unreasonable risk of danger with regard to appropriate children trespassers.

(2) Foreseeable that children are likely to trespass--If defendant has no reason to anticipate that children are likely to trespass where an artificial condition is located, the heightened standard of care is not triggered. Foreseeability of the likelihood of children trespassers may arise from defendant's knowledge of past trespasses, proximity to places where children are likely to be, accessibility to the artificial condition, and other relevant factors. Thus, if the artificial condition is located near a park or playground, or near a street, or is easily climbed, defendant should reasonably know that children are likely to trespass there. (It was from this aspect of foreseeability that the traditional label "attractive nuisance doctrine" was derived.)

(3) Child trespasser unaware of risk--This prerequisite is satisfied if the child trespasser, due to her age or immaturity, did not discover the condition or did not appreciate the danger it represented. If the child trespasser is aware of the condition, understands the risk of danger it poses, and is able to avoid that risk, defendant owes no heightened duty to prevent injury to that child (i.e., the child is treated as if he were an adult trespasser).

(4) Risk outweighs utility--It is said that the utility of maintaining the dangerous artificial condition must be "slight" compared to the risk to trespassing children in order for this prerequisite to be satisfied. This is similar to the negligence calculus (cost of precautions balanced against probability and gravity of harm considering social utility); whether it represents any different balancing than "reasonability" ordinarily calls for is less important than articulating the prerequisite and discussing it.

(2)(b) LicenseesA licensee is a person who enters onto defendant's land with defendant's express or implied permission, and who does not enter for a purpose benefiting defendant or defendant's activities. Examples are visiting relatives, social guests, and door-to-door salespersons. (Note that invitees who exceed the scope of defendant's invitation are treated as licensees. See discussion of invitees, below.)

(2)(b)(i) Standard of care

(2)(b)(i)(A) Activities: As to licensees, defendant has a duty to exercise reasonable care to protect them from injury arising from activities conducted by defendant or on defendant's behalf. It is usually sufficient for defendant to warn plaintiff/licensee, but defendant's duty includes the exercise of reasonable care to discover licensees of whom he is not aware. (Compare treatment of trespassers, discussed above.)

(2)(b)(i)(B) Artificial conditions: Defendant has a duty to exercise reasonable care to warn of any artificial conditions (a) of which he is aware or reasonably should be aware, (b) which present an unreasonable danger, and (c) of which the plaintiff/licensee is unaware and unlikely to discover. Defendant has no duty to inspect his land for such dangerous artificial conditions.

(2)(b)(i)(C) Natural conditions: The standard of care applicable to licensees requires defendant to protect them from dangerous natural conditions to the same extent required as to artificial conditions,

(2)(c) InviteesAn invitee is a person who enters onto defendant's land at defendant's express or implied invitation, and who enters for a purpose relating to defendant's interests or activities. Invitees are classified as either business invitees or public invitees.

(2)(c)(i) Business invitees: A business invitee is an invitee who enters onto defendant's land for a purpose related to defendant's business activities or interests. Customers and persons accompanying them,

Law 3211 Fall 2010

delivery persons, salespersons (if reasonable to expect that someone on the non-private, nonresidential premises may be interested in purchasing), job applicants (if reasonable to expect that employment may be available) are examples of business invitees.

(2)(c)(ii) Public invitees: A public invitee is a member of the public who enters onto defendant's land for a purpose as to which the land is held open to the public. Examples include visitors to airports and visitors to churches.

(2) (c) (ii) (A) Minority--no public invitees: In a minority of jurisdictions, the classification of public invitee is not recognized. However, courts in such jurisdictions readily find a business purpose in the visits by persons who would otherwise be considered public invitees.

(2)(c)(iii) Standard of care

(2)(c)(iii)(A) Activities: Defendant has a duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on defendant's land.

(2)(c)(iii)(B) Artificial conditions: Defendant has a duty to exercise reasonable care to (a) discover dangerous artificial conditions which invitees would not reasonably be aware of, and (b) to warn invitees of the existence of such conditions. If it would be insufficient to make the dangerous condition reasonably safe by providing only a warning, defendant's duty includes reasonable care to provide other precautions.

(2)(c)(iii)(C) Natural conditions: Defendant's duty to invitees with regard to dangerous natural conditions is the same as that applicable to artificial conditions.

(2)(c)(iv) Invitee exceeds scope of invitation: An invitee may be regarded as a licensee or even as a trespasser if the invitee enters areas of defendant's property to which his invitation does not extend, or if the invitee stays in a permitted area longer than was contemplated by the invitation.

(2)(d) Privileged entrantsWhere there has been no express or implied permission or invitation extended by defendant, certain persons are nevertheless privileged by law to enter onto defendant's land. These include police officers or fire fighters responding to an emergency, census takers, or private persons exercising a privilege (e.g., unauthorized entry is necessary to avoid a greater harm). Privileged entrants are classified as either licensees or invitees, usually depending on the purpose for which they entered.

(2)(d)(i) Public entrants: If the public purpose on which the privileged entrant was acting has a connection with defendant's activities conducted on the premises, the privileged entrant is regarded as an invitee for standard of care purposes. Courts readily find that such a connection exists.

(2)(d)(i)(A) Police and fire fighter: Police and fire fighters entering onto premises have traditionally been regarded by the courts as licensees. As set forth above, defendant has no duty to inspect and discover dangerous conditions as to licensees.

(2)(d)(ii) Private entrants: A private person entering onto defendant's land under some legal privilege is regarded as a licensee.

(3) Landlords and TenantsThe standard of care applicable to owners and occupiers of land is invoked in connection with possession of land. Thus, the appropriate standard of care (determined as discussed above) applies when defendant is a tenant in possession of leased premises. Areas retained in possession of the landlord, such as common areas in multiple housing units, remain the responsibility of the landlord (as to whom the appropriate standard of care also applies). Under certain circumstances, however, a landlord may be liable to the tenant or to third persons for injuries they suffer on areas as to which the landlord has surrendered possession to the tenant.

Law 3211 Fall 2010

(3)(a) Liability for criminal attacks in common areas of multiple housing unitsModernly, a minority of jurisdictions impose a duty on a landlord to exercise reasonable care to protect residential tenants from foreseeable criminal attacks which occur in the common areas as to which the landlord has retained control.

(3)(b) Landlord's duty to persons outside tenant's premisesA landlord has a duty to exercise reasonable care to discover and repair (or, at minimum, warn tenant of) dangerous artificial conditions existing on the premises at the time possession is transferred to the tenant. If a dangerous condition arises after transfer of possession to the tenant, the landlord has no such duty unless the landlord covenanted to make repairs or actually undertook them.

(3)(b)(i) Landlord's duty as to natural conditions: If an owner/occupier of land would have a duty to prevent harm from natural conditions (e.g., branches of native trees overhanging public streets) as to particular premises, a landlord would have the duty mentioned immediately above as to those premises in the hands of a tenant.

(3)(b)(ii) Duration of landlord's duty: The duty imposed on landlords to protect persons not on premises (leased to a tenant) from harm continues only for a reasonable period, which period terminates when the tenant has had a reasonable time to discover and remedy any defects. If the landlord actively concealed a dangerous condition, the period is extended until the tenant actually discovers the concealed condition.

(3)(c) Landlord's duty to tenant on leased premisesThe nature and extent of the landlord's duty to protect tenant in possession from harm arising from a dangerous condition on the premises varies according to whether the defect was patent, latent, or arose after the transfer of possession.

(3)(c)(i) Patent defects: Dangerous natural or artificial conditions which are or should be reasonably apparent to the tenant upon transfer of possession are called patent defects. The landlord is under no duty to warn of or repair such obvious conditions.

(3)(c)(ii) Latent defects: Dangerous natural or artificial conditions of which (1) the tenant is unaware and are not reasonably apparent to her, and (2) the landlord is or reasonably should be aware are classified as latent defects. The landlord has a duty to warn the tenant of such dangers or repair them. The landlord has no duty to inspect the premises for latent dangers.

(3)(c)(iii) Defects arising after transfer of possession: The landlord has no duty to exercise reasonable care as to dangerous conditions which arise after possession has been transferred to the tenant, unless the landlord actually undertakes to repair such conditions or covenants to repair them. (This latter view is a modern minority position, imposing liability where the tenant is injured because the landlord failed to perform a contractual duty to repair a dangerous condition of which the landlord knew or should have known and as to which the landlord had a reasonable opportunity to repair.)

(3)(d) Landlord's duty to third persons (not tenants) on leased premisesUnder the traditional view, a landlord had no duty to protect third persons from injuries arising from dangerous conditions or activities on the leased premises. Modernly, many jurisdictions treat third persons who would otherwise be classified as licensees or invitees of the tenant as though they were tenants themselves in assessing the tort liability of the landlord.

(3)(d)(i) Exception to traditional view--leased premises to be open to public: Even under the traditional view, if the landlord knew that the tenant intended to open the leased premises to the public, the landlord had a duty to prevent injury to members of the public who came onto the premises. This standard of care required the landlord to exercise reasonable care to discover and repair any dangerous natural or artificial conditions existing at the time of transfer of possession.

Law 3211 Fall 2010

(4) Sellers of LandWhere defendant transfers both possession and ownership of land to another, there is generally no further duty to protect anyone from injuries arising out of the conditions of the land or from activities conducted thereon. Under limited circumstances, however, vendor/seller of land has a continuing duty even after the transfer of possession and title.

(4)(a) Seller liable for latent dangerous conditionsA defendant/seller has a duty to disclose to the purchaser of land any hidden dangerous natural or artificial conditions (a) of which the seller knows or reasonably should know and (b) which the seller reasonably could anticipate the purchaser will not discover. The duty to disclose non-disclosed hidden dangers continues until the purchaser has had a reasonable chance to discover and remedy the dangers.

(4)(a)(i) To whom duty is owed: The seller's duty to disclose hidden dangerous conditions applies both to the purchaser and to the purchaser's invitees and licensees (as to injuries occurring on the land), and also to persons not on the land (if the dangerous conditions create an unreasonable risk as to such persons).

(4)(a)(ii) Seller's active concealment extends period of duty: Where the defendant/seller actively conceals the existence of a dangerous condition (as opposed to negligently failing to disclose it), the duty to disclose continues until the purchaser actually discovers the dangerous condition and remedies it (i.e., seller may not argue that the purchaser reasonably should have discovered the condition).

(4)(b) Seller is also builder of residenceIn many jurisdictions, the builder of a residence has a tort law duty to exercise reasonable care in construction, so that such a builder remains liable for defects in its construction.

§ 3.7 Proving Breach of Duty--Res Ipsa Loquitur

Plaintiff generally meets his burden of proving breach of duty by establishing that defendant's conduct fails to conform to the applicable standard of care. This is rendered difficult or impossible where plaintiff does not know and cannot effectively determine specifically what defendant's injurious conduct was. The doctrine of res ipsa loquitur ("the thing speaks for itself") ameliorates this difficulty.

§ 3.7(A) Effect of Res Ipsa Loquitur Doctrine--May Satisfy Prima Facie Showing of BreachIn the majority of jurisdictions, if plaintiff makes a qualifying showing of res ipsa loquitur, he has produced evidence sufficient, if believed by the jury, to support a finding that defendant failed to meet the applicable standard of care. Res ipsa loquitur is thus merely a means of adducing evidence of breach of duty to satisfy the burden of producing evidence and the burden of persuasion. If the jury does not credit plaintiff's res ipsa loquitur evidence, it may still find that the breach of duty element is not proven, and issue a verdict in favor of defendant even if the defendant offers no contrary evidence.

(1) Minority View--Res Ipsa Loquitur Shifts Burden of Producing EvidenceA small minority of jurisdictions regard a qualifying showing of res ipsa loquitur as shifting the burden of producing evidence to defendant as to the issue of breach of duty. Defendant must then produce sufficient evidence to support a verdict in his favor, or the court will instruct the jury that breach of duty is established. If defendant produces qualifying evidence, the burden of persuasion remains on plaintiff, and the jury may find for defendant if plaintiff has not established breach of duty by a preponderance of the evidence.

(2) Minority View--Res Ipsa Loquitur Also Shifts Burden of PersuasionSome jurisdictions--another small minority--give a qualifying showing of res ipsa loquitur the effect of shifting the burden of persuasion to defendant. If defendant does not then persuade the jury, by a preponderance of the evidence, that he did meet the applicable standard of care, breach of duty is established.

§ 3.7(B) Demonstrating Res Ipsa LoquiturPlaintiff must establish that three requisites are present in order to invoke the doctrine of res ipsa loquitur:

Law 3211 Fall 2010

1. The event which caused plaintiff's injury was one which would not ordinarily occur in the absence of negligence.2. It is more likely than not that it was defendant's negligence which was responsible for the injury-causing event.3. Plaintiff was not responsible for the event which caused injury.

§ 3.7(C) Nature of Elements

(1) Establishing Inference of NegligenceThe trier of fact may determine whether an event is one which would not ordinarily occur in the absence of negligence with reference to common experience or, if that is not sufficient, by resort to evidence provided by plaintiff. Expert testimony may be required to establish that negligence is the likely cause of the injury-causing event. This does not require that plaintiff show negligence was the only possible cause of the injury-causing event; it is enough if the trier of fact finds that negligence was more likely than not the cause.

(2) Establishing Defendant Was ResponsibleTraditionally, plaintiff was required to show that defendant was in exclusive control of the instrumentality (or instrumentalities) that inflicted injury upon plaintiff. Modernly, it is sufficient if plaintiff shows that it is more likely than not that defendant was responsible for the negligent event. Control, either exclusive or not, is merely a circumstance relevant to determination of defendant's responsibility.

(3) Establishing That Plaintiff Was Not ResponsiblePlaintiff must demonstrate that she did not set in motion the forces that resulted in her injury. It is immaterial in this regard that plaintiff placed herself in a situation of peril or that she did not take precautions to avoid injury.

§ 4 Actual Cause

§4.1 General RuleDefendant's breach of duty must have been the cause-in-fact of plaintiff's injury.

§ 4.2 "But For" TestDefendant's conduct was the cause-in-fact of an event if that event would not have occurred but for the existence of the conduct.

§ 4.2(A) Successive LiabilityIf plaintiff's injuries are the result of conduct by multiple defendants, acting independently and at distinct times, each and every defendant's conduct is regarded as a "but for" cause of all injuries to plaintiff, unless a particular defendant can show that her conduct caused only an identified injury.

§ 4.2(B) Concurrent LiabilityIf plaintiff's injury is a result of the conduct of more than one defendant, and the conduct of each defendant, taken alone, would not have been sufficient to cause the injury, each and every defendant's conduct is regarded as a "but for" cause of the injury.

§ 4.3 Substantial Factor TestA defendant's conduct is the cause-in-fact of plaintiff's injury if that conduct was a substantial factor in bringing about the injury. This accounts for the situation where the conduct of two or more defendants results in injury to plaintiff, and each individual defendant's conduct, taken alone, would have been sufficient to directly cause the injury. A mechanical application of the "but for" test would permit each defendant to claim that plaintiff's injury would have occurred whether he acted or not, and thus "but for" causation did not exist.

§ 4.4 Summers v. Tice TestWhere plaintiff's injury arises from the conduct of two or more independently acting defendants, only one of whom can actually be responsible, and plaintiff is unable to establish which defendant is in fact responsible, each and every defendant's conduct is regarded as a cause-in-fact of the injury, unless a defendant can prove that he did not cause plaintiff's injury. In effect, the burden of proof as to cause-in-fact is shifted from plaintiff to defendant.

Law 3211 Fall 2010

§ 4.5 Market Share LiabilityWhere plaintiff demonstrates that the injury resulted from conduct engaged in by several defendants, each acting independently, but plaintiff cannot identify which particular defendant's conduct actually injured him, each defendant's conduct may be regarded as a cause-in-fact of plaintiff's injury. Liability is apportioned among the defendants (assuming other elements of negligence are established) based upon the economic benefit (measured by percentage or market share) each defendant derived from the risk-producing conduct.

§5 Legal (Proximate) Cause

§5.1 General RuleDefendant's breach of duty must be the legal, or proximate, cause of plaintiff's injury.

§ 5.2 Legal Cause as Limitation on LiabilityThe requirement that defendant's conduct be the legal cause of plaintiff's injury serves to limit what otherwise might be the near-infinite liability of a defendant whose breach of duty was the actual cause of harm to plaintiff. Legal/proximate cause involves examination of the causal connection between defendant's breach of duty and plaintiff's injury considering (1) directness versus indirectness, (2) nearness versus remoteness in time and space, and (3) principles of policy and justice.

§ 5.3 Direct CauseIf the actual cause of plaintiff's injury is a force applied directly by defendant or forces set in motion by defendant without intervention by force from a third party, analysis of legal cause turns on whether the injury itself was foreseeable.

§ 5.3(A) Foreseeable InjuryIf a reasonable person would have anticipated that the extent and type of plaintiff's injury was threatened by defendant's risk-creating conduct, plaintiff's injury was "foreseeable," and defendant's conduct is the legal or proximate cause thereof.

§ 5.3(B) Unforeseeable InjuryIf a reasonable person would not have anticipated that plaintiff would be injured as a result of defendant's conduct, further analysis is necessary. Legal or proximate cause is present depending on whether it was the extent or the type of plaintiff's injury which was unforeseeable.

(1) Unforeseeable Extent of InjuryIf a reasonable person would have foreseen that defendant's conduct threatened the type of injury suffered by plaintiff, but would not have reasonably anticipated the extent of damage suffered by plaintiff, defendant's conduct is nevertheless the legal or proximate cause of the injury. This is the "thin skull" or "eggshell skull" doctrine, in which defendant "takes the plaintiff as he finds him."

(2) Unforeseeable Type of InjuryIf a reasonable person could not have foreseen that defendant's conduct threatened the type of injury suffered by plaintiff, whether it was the legal or proximate cause of plaintiff's injury varies according to whether the jurisdiction follows one of two leading cases.

(2)(a) Polemis jurisdictionsJurisdictions that follow the analysis of In re Polemis, an English case, find proximate cause whenever the injury is a direct result of defendant's breach of duty (i.e., it is not the product of an intervening force). It is immaterial that the nature of the injury was unforeseeable under this view.

Polemis involved a ship whose unloaders negligently knocked a wooden plank into the hold, which was filled with flammable gas. A spark struck by the falling plank ignited the gas, with the result that the ship was destroyed. Even though explosion and fire were not the type of injuries reasonably foreseeable from the negligent unloading of wood (since wood is unlikely to strike a spark), the court held defendants (employers of the dock workers) liable to plaintiffs (the ship

Law 3211 Fall 2010

owners) because the injury was a direct result of the negligent act, and not the product of any intervening forces.

(2)(b) Wagon Mound I jurisdictionsJurisdictions that follow the analysis of Wagon Mound I, another English case, find legal or proximate cause where plaintiff's injury resulted directly from defendant's breach of duty, only if the type of injury is one that could have been reasonably foreseen.

Wagon Mound I involved a freighter (owned by defendant) from which furnace oil was negligently permitted to leak into the bay in which plaintiff's dock was located. The oil was carried by the water about 600 feet to the dock, where it was set on fire by molten metal falling onto cotton waste floating amongst the oil. The dock was destroyed by the resulting fire. The English court held that defendant's negligent discharge of the oil was not the proximate cause of the destruction of the dock because it was unforeseeable that the discharge of oil would result in that injury. Since furnace oil had a very high ignition point, it was regarded as highly unlikely that it would catch fire while floating on water.

§ 5.3(C) Foreseeable Injury Brought About in Unforeseeable MannerIf defendant's breach of duty results in a type of injury which could reasonably have been foreseen, but the manner in which the injury was brought about was unforeseeable, there are also two different approaches to the legal/proximate cause analysis, discussed below.

(1) Defendant's Breach Was Direct Cause of Plaintiff's InjurySome jurisdictions focus on the foreseeability of the injury as a direct consequence of defendant's activity, finding that defendant's breach was the proximate cause of plaintiff's injury if that was a type of injury that could have been reasonably foreseen, without regard to the unusual sequence of events which brought it about.

(2) Plaintiff's Injury Occurred in Highly Extraordinary MannerOther jurisdictions follow the Restatement view, which holds that even a foreseeable injury is not proximately caused by defendant's breach if the injury came about in a highly extraordinary manner.

§ 5.4 Indirect CauseIndirect causation is present where the injury to plaintiff is brought about by a combination of defendant's conduct and an intervening force set in motion by a third party. Here, analysis considers whether the intervening force is dependent or independent, and whether resulting injury is foreseeable or unforeseeable. Intervening forces which cut off defendant's liability (for conduct which is an actual cause of plaintiff's injury) are said to "supersede" defendant's breach of duty.

§ 5.4(A) Intervening ForceA force that combines with defendant's conduct is "intervening" if it arises after defendant's conduct has begun.

(1) Sources of Intervening ForcesIntervening forces can arise from persons other than defendant and plaintiff, from animals, or from nature itself.

(2) Compare Preexisting ConditionsDefendant's conduct may combine with preexisting conditions which were in place before defendant took action. This is regarded as a direct cause situation (rather than indirect cause, which requires an intervening force). See the analysis of direct cause, above.

Law 3211 Fall 2010

§ 5.4(B) Dependent Intervening ForceA dependent intervening force is one that arises in response to defendant's act. Defendant is liable if the dependant intervening force is normal or foreseeable. Legal cause does not exist if the dependent intervening force is abnormal.

(1) Normal or Foreseeable Dependent Intervening ForcesDependent intervening forces that are normal or foreseeable and that will support a finding of proximate cause include:

a. rescue/protection--defendant's breach of duty places plaintiff, third persons, or their property in peril, and plaintiff is injured during a negligent rescue or escape;b. negligent medical treatment--defendant's breach of duty injures plaintiff, who seeks medical treatment, and that treatment is itself negligent (Note: reckless or intentional misconduct by the medical provider is regarded as abnormal and thus is a superseding dependent intervening force);c. suicide--defendant's breach of duty injures plaintiff non-fatally but plaintiff becomes insane and takes his own life. If a sane plaintiff takes his own life because nonfatal pain or disability caused by defendant becomes unbearable, the suicide is regarded as unforeseeable and is a superseding dependent intervening force.

(2) Abnormal/Unforeseeable Dependent Intervening ForcesAbnormal or highly unusual reactions to defendant's breach of duty are viewed as unforeseeable and thus supersede defendant's liability.

(2)(a) Exception--unforeseeable reaction causes foreseeable injury If the type of injury plaintiff suffers is one which is foreseeable given the nature of defendant's conduct, some courts will find proximate cause even where that injury is brought about by an abnormal/ unforeseeable dependent intervening force.

§ 5.4(C) Independent Intervening ForceAn independent intervening force is one which does not arise in response to defendant's breach of duty. Independent intervening forces which are reasonably foreseeable do not supersede defendant's negligence. Unforeseeable independent intervening forces result in a finding that defendant's conduct was not the proximate cause of plaintiff's injury.

(1) Foreseeable Independent Intervening Force. Foreseeable independent intervening forces include:

a. negligence of third party--defendant's breach of duty places plaintiff in a position of increased danger from third party's negligence;b. illness--defendant's breach of duty causes injury to plaintiff that weakens plaintiff, who dies or whose recovery is delayed or diminished;c. accident--defendant's breach of duty weakens plaintiff, which weakness brings about a subsequent accident.

(2) Foreseeable Independent Intervening Force Causes Unforeseeable InjuryIf the independent intervening force that operates in combination with defendant's breach of duty to cause an injury to plaintiff is foreseeable, but the injury itself is not foreseeable, there is a split in authority similar to the Polemis-Wagon Mound I variations (see section 5.3(B)(2)(a) and (b), above).

(2)(a) Unforeseeable extent of injurySome jurisdictions find proximate cause where the type of injury brought about by the combination of defendant's breach of duty and an independent intervening force is foreseeable, even though the extent of the injury caused thereby is not.

The leading case exemplary of this view is known as Kinsman I. There, defendant's negligently moored ship was ripped from its mooring by ice and debris in a river. The first ship floated downstream, struck another moored ship, and both ships then rammed a negligently lowered

Law 3211 Fall 2010

bridge. The resulting pileup of wreckage and ice flooded the surrounding city extensively. Plaintiffs' businesses, located downstream of defendant's mooring place but upstream from the bridge, were damaged by the flooding. The court held that because the forces causing risk to downstream plaintiffs were foreseeable, i.e., that the current would accumulate debris and sever the mooring lines of defendant's negligently moored ship, defendant was liable for the combination of his breach of duty and the foreseeable independent intervening forces, even though the extent of the injury ultimately caused was much greater than could reasonably have been foreseen.

(2)(b) Unforeseeable type of injuryMost jurisdictions do not regard defendant's breach of duty as the proximate cause of plaintiff's injury where that injury was not within the risk created by defendant's conduct, even if the independent intervening force that combined with defendant's breach was foreseeable.

A leading case is Kinsman II, which arose from the same circumstances of Kinsman I, above. Plaintiff was a grain shipper located downstream of the bridge where defendant's negligently moored ship had come to rest. Plaintiff was unable to transport his grain upstream by ship because the river was blocked by the wreckage, and incurred economic losses in obtaining alternate transportation and replacement grain for his customers. The court held that although the risk that commerce on the river would be blocked was a foreseeable one, plaintiff's economic losses were too tenuous and remote from defendant's negligence, and thus no proximate cause was present.

(3) Unforeseeable ForceAn unforeseeable independent intervening force is generally viewed as superseding defendant's breach of duty so that defendant's negligence is not the proximate cause of plaintiff's injury. Analysis varies where the type of injury produced is nevertheless foreseeable.

(3)(a) Foreseeable injury produced by unforeseeable intervening forceIf the injury plaintiff suffers is within the risk generated by defendant's breach of duty, many courts will find proximate cause present even though the independent intervening force that combined with defendant's conduct was unforeseeable.

(3)(a)(i) Exception--unforeseeable criminal or tortious acts: If the independent intervening force acting in combination with defendant's conduct is a criminal or an intentional or reckless tortious act, courts generally regard the intervening force as superseding, even though the type of injury to plaintiff was foreseeable. The criminal or intentional/ reckless wrongdoing of the third party "shifts responsibility" from defendant to the third party.

(3)(a)(ii) Foreseeable criminal or tortious acts: The above exception does not apply where defendant's conduct increases the risk that plaintiff will suffer a criminal or intentional/reckless tortious act. If such an act occurs, it is considered a foreseeable independent intervening force which does not supersede defendant's liability.

(3)(b) Unforeseeable injury produced by unforeseeable intervening forceAll jurisdictions agree that where plaintiff's injury is not the type reasonably threatened by defendant's negligence, intervention of an unforeseeable independent force supersedes defendant's breach of duty and there is no proximate causation.

Law 3211 Fall 2010

§6 Defenses

§ 6.1 Contributory Negligence

§ 6.1(A) In GeneralTort law requires a plaintiff to exercise due care to protect himself from injury by defendant. Thus, the plaintiff's own negligence--called contributory negligence at common law--may bar plaintiff's recovery. Analysis is similar to that for defendant's negligence--did plaintiff act as a reasonable person would under the same circumstances.

(1) Effect of Contributory Negligence---Complete Bar to Plaintiff's RecoverTraditionally, if plaintiff is found to have engaged in contributory negligence he is barred from recovery for defendant's otherwise negligent conduct.

(2) No Effect on Other TortsContributory negligence does not bar recovery if plaintiff's theory is intentional tort, recklessness or strict liability.

§ 6.1(B) Emergency/RescueRisks or dangerous acts undertaken by plaintiff which might otherwise be regarded as contributory negligence are often viewed as reasonable in an emergency (i.e., plaintiff is threatened with immediate danger of bodily harm or death because of defendant's negligence), or if plaintiff is attempting to rescue someone.

§ 6.1(C) ChildrenAnalysis of whether a child plaintiff is contributorily negligent is similar to the negligence analysis for children generally. A majority of jurisdictions apply the "reasonable child" standard: Would a child of the same age, education, intelligence and experience, in the same circumstances, have acted as the plaintiff did? A minority of states utilize the traditional age categories---below age six, contributory negligence is precluded as a matter of law; age seven to thirteen, the child/plaintiff is rebuttably presumed incapable of contributory negligence; fourteen and older, the child/plaintiff is rebuttably presumed capable of contributory negligence.

§ 6.1(D) Plaintiff's Conduct Is Violation of StatuteThe concept of "negligence per se" discussed above in connection with defendant's breach of duty is applicable to plaintiff in a contributory negligence situation.

(1) Plaintiff Member of Protected ClassContributory negligence is not available, even though plaintiff's conduct violates a statute, where defendant's negligent act violates the same statute, plaintiff is a member of the class of persons the statute was intended to protect, and the harm suffered by plaintiff is the type the statute was intended to avoid.

§ 6.1(E) Plaintiff's Contributory Negligence Must Be Proximate Cause of Injuries SufferedIn order to invoke contributory negligence, defendant must prove that plaintiff's conduct is the legal or proximate cause of the injuries suffered by plaintiff. (See discussion of legal/proximate cause, above.)

§ 6.1(F) Imputed Contributory NegligenceIn two limited situations, the contributory negligence of a third person may be imputed to plaintiff so as to bar recovery against defendant. These are:

1. Plaintiff and the contributorily negligent third person are sufficiently related that plaintiff would be vicariously liable for the third person's negligence (e.g., partners and joint enterprisers, employers and employees).

2. Plaintiff's claim against defendant is completely derivative of the third person who was contributorily negligent (e.g., wrongful death, loss of consortium).

(1) Minority View--No Imputed Contributory Negligence in Loss of ConsortiumA minority of states do not impute one spouse's contributory negligence to another in an action against a

Law 3211 Fall 2010

defendant for loss of consortium.

§ 6.1(G) Last Clear ChanceThe "last clear chance" doctrine provides a basis for recovery even where plaintiff is otherwise contributorily negligent. The focus is on the time period after plaintiff has engaged in contributory negligence--if injury to plaintiff could still have been avoided through a subsequent exercise of due care by defendant, then defendant is said to have had the last clear chance to avoid harm, and plaintiff's contributory fault does not bar recovery.

(1) When Plaintiff May Assert Last Clear ChanceIf defendant is aware that his breach of duty has placed plaintiff in danger, the last clear chance doctrine is always available to plaintiff. The majority of jurisdictions deny plaintiff the benefit of the last clear chance doctrine if (1) defendant is not aware that plaintiff is in danger, and (b) plaintiff is in "helpless peril" (rather than "inattentive peril"). A minority of states apply the last clear chance doctrine whenever defendant reasonably should have known of the danger to plaintiff, and make no distinction between helpless peril and inattentive peril.

(1)(a) Helpless peril versus inattentive perilPlaintiff is in helpless peril when his negligence has placed him in a position of danger from which he cannot extricate himself. Plaintiff is in inattentive peril when his contributory negligence has placed him in a position of danger from which he could escape if observant enough to recognize his peril.

(1)(a)(i) Defendant under duty to discover: In majority jurisdictions, if defendant was under a duty to discover danger to plaintiff (e.g., owner/occupier of land has duty to exercise due care to discover dangerous conditions and protect invitees from them), no distinction is made between helpless and inattentive danger.

§ 6.2 Comparative Negligence

Under a modern comparative negligence regime, where plaintiff's negligence has contributed to her own injuries, the total damages caused by defendant may be apportioned based upon a determination of the relative fault of each party. A majority of states have adopted comparative negligence systems, either by statute or judicial decision.

§ 6.2(A) Pure Comparative NegligenceSome states have adopted a "pure" system of comparative negligence. In such states, apportionment of damages tracks apportionment of fault perfectly--if defendant is 25% responsible and plaintiff is 75% responsible, plaintiff recovers from defendant 25% of the total damages he suffered. This is the rule that you are to assume applies to MBE questions, unless the question states otherwise.

§ 6.2(B) Partial Comparative NegligenceOther states adopted a "partial" comparative negligence system. Here, damages are apportioned only if defendant's responsibility exceeds plaintiff's responsibility. Plaintiff is denied any recovery if he is responsible for 50% or more of his own damages. (Some of these states deny plaintiff recovery only if he is "more" responsible than defendant, i.e., plaintiff is denied recovery completely only if his responsibility is 51% or greater.)

§ 6.2(C) Multiple DefendantsIf there are two or more defendants, and the defendants are not jointly liable, two different systems of comparative negligence have been developed, the "aggregate" system and the "individual equality" system.

(1) Aggregate System. In an aggregate system, the percent responsibilities of all defendants are combined, and apportioned only if this total exceeds plaintiff's percentage responsibility. If plaintiff is responsible for a greater percentage than the total responsibility of all defendants, recovery is barred.

(2) Individual Equality System. Under an individual equality system, plaintiff does not recover anything if her responsibility exceeds that of any single defendant. Thus, if two defendants each contributed 33% of plaintiff's damages, and plaintiff contributed 34%, plaintiff would be barred from recovery.

Law 3211 Fall 2010

§ 6.3 Assumption of Risk

Plaintiff "assumes the risk" of injury from defendant's negligence if plaintiff expressly or impliedly consents to undergo the risk created by defendant's conduct. Assumption of the risk bars plaintiff completely from recovery.

§ 6.3(A) When AvailablePlaintiff is barred from recovery under the assumption of the risk doctrine if defendant establishes that (a) plaintiff had knowledge of and appreciated the nature of the danger involved, and (b) plaintiff voluntarily chose to subject himself to that danger.

(1) Knowledge and Appreciation of RiskThis is a subjective standard. Youth, lack of information, or lack of experience may justify a finding that plaintiff actually failed to comprehend the risk involved. If so, there can be no assumption of the risk, even if a “reasonable plaintiff” would have recognized the danger under similar circumstances.

(1)(a) Plaintiff must appreciate specific dangerPlaintiff must appreciate the specific danger which injured him in order to have assumed the risk of injury from defendant's negligent conduct. For example, a plaintiff who knowingly agrees to ride in a car where the driver is speeding does not assume the risk that the driver might also be intoxicated.

(1)(b) Obvious risksSome risks are regarded as so obvious that any competent adult is expected to be aware of them. Examples include the danger of falling through an unguarded opening, or slipping on ice, or of being struck by a baseball at a baseball game.

(2) Voluntary Choice to Assume RiskVoluntariness can be established by express consent (e.g., an exculpatory clause in a contract providing one party will hold the other party harmless for injuries caused by the other party), or consent may be implied from the fact that plaintiff continued in the face of a known danger. With regard to implied assumption of the risk, courts examine closely whether behavior is voluntary when there is a lack of alternatives.

(3) Plaintiff Member of Statutory Protected ClassAssumption of the risk may not be asserted where plaintiff is a member of a class intended to be protected by a statute, and defendant's conduct both violates the statute and threatens the risk the statute was designed to prevent. In some states, any risk-creating violation by defendant of a public safety statute has the above effect.