In a negligence action, a plaintiff must show:
(1) That the D owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others,
(2) that the D’s conduct fell below the applicable standard of care, and
(3) that the D’s conduct was both the actual and proximate cause of P’s injuries.
Child’s duty of care
child of similar age, intelligence and experience, acting under similar circumstances
- Exception: a child engaged in an adult activity will be held to same standard of care as a reasonably prudent adult engaged in the same activity
Undiscovered Trespasser
Not owed a duty of care
Discovered Trespasser
Duty to warn or make safe any unreasonably dangerous concealed artificial conditions that the owner knows of
Attractive Nuisance
Premises possessor is liable if:
(1) knows or has reason to know children are likely to trespass,
(2) condition is one which he knows or should know involves unreasonable risk of death or serious bodily harm,
(3) children, because of their youth, do not discover the condition or realize the risk involved,
(4) burden of eliminating the risk is slight, and
(5) possessor fails to exercise reasonable care to protect the children
Licensee
Social guest
- Owner must warn or make safe all concealed dangers that the owner knows of
Invitee
Those that enter either to confer an economic benefit or enter land that is open to the public
- Owner has duty to warn or make safe all dangers that owner knows or should know of
- Also has duty to inspect!
Negligence Per Se
P can sue under negligence per se when P can show three elements:
(1) D violated a statute without excuse,
(2) P was in the class of people the statute was designed to protect, and
(3) P received the injury that the statute was trying to prevent
- Still need to prove CAUSE AND HARM
Res Ipsa Loquitur
Allows jury to infer negligence when:
(1) P’s harm would not have occurred had D used ordinary care,
(2) P is not responsible for the injury, and
(3) P’s injury was under D’s exclusive control
Eggshell Skull Rule
D takes his victim as he finds him
Negligent Infliction of Emotional Distress
D is negligent, P has not sustained actual injury, but P has physical manifestation of emotional distress
- Zone of danger of actual physical harm(relationship does not matter)
- Bystander (close relationship, perceived the accident)
- Special relationship (negligent handling of corpse, airline negligently notifying you parent died on plane)
Contributory Negligence (CL)
If jury finds that P contributed to his injuries to any degree, P cannot recover
Pure Comparative Negligence (Majority)
Amount of damages apportioned to P because of P’s negligence is subtracted from the total damage award
Partial Comparative Negligence
If jury finds P was more than 50% at fault, she cannot recover
Battery
An act with intent to cause a harmful or offensive contact or imminent apprehension of that contact and a harmful or offensive contact directly or indirectly results
False Imprisonment
Intent to confine another within boundaries, confinement occurs, ad victim is conscious of confinement or is harmed by it
- Shopkeeper can detain suspected shoplifter for reasonable amount of time
Employer/Employee Liability
Employer is vicariously liable for torts of their employees if tort was committed within scope of employment
- Not liable for intentional torts unless force was inherent to the job or employee was acting at employer’s wishes
- Liable for detour (minor deviation) but not for frolic (major deviation)
Strict Products Liability Elements
(1) product was defective,
(2) defect existed when left D’s control, and
(3) defect caused P’s injury when product was used in reasonably foreseeable way
Manufacturing Defect
Product does not conform to D’s own specifications
- All commercial sellers are liable for manufacturing defects
Failure to Warn Defect
(i) Foreseeable risk of harm,
(ii) Not obvious to ordinary user of product, and
(iii) risks could have been reduced or avoided with reasonable instructions or warnings
Design Defect
Consumer expectation test: dangerous beyond expectation of ordinary consumer
Risk-Utility Test: risks out weight benefits and reasonable alternative design that was available
