In order for Plaintiff to recover in negligence s/he must plead and prove duty, breach, actual causation, proximate causation and damages.

A. DUTY

1. General Duty:

Defendant has a duty to act as a reasonable person would in like or similar circumstances to avoid causing unreasonable risk of harm to others.

2. Special Duty Issues:

a. AGE, MENTAL AND PHYSICAL DISABILITIES

Children -- Are held to standard of care of a reasonable child of like age, intelligence and experience.

Adults with Mental Disabilities -- Are held to the same standard of care as non-disabled.

Adults with Physical Disabilities -- Are held to standard of care of reasonable blind, deaf or differently abled person in like or similar circumstances.

b. PROFESSIONALS

Doctors
(i) Specialists -- Are held to a national standard of care and must conduct themselves as a reasonable specialist would nationally.
(ii) Generalists -- Are held to standard of care of reasonable physician in same or similar locality.

Other Professionals
Must possess the minimum, common skill of members in good standing in the profession. Professionals must act as a reasonable expert would in like or similar circumstances.

Example: Architects, lawyers, accountants, engineers.

Problem with celebrities.

Test: Publications which are so intimate as to outrage the average person's notions of decency and which disclose facts which did not occur in public are not privileged.

Matters of Public Record. Absolute Constitutional privilege -- Cox.
 

c. VIOLATION OF CRIMINAL / CIVIL STATUTE OR "EXPRESS RULES"

For criminal statute, civil statute or "express rule of employer" to establish a civil standard of care you must establish that:

(i) Plaintiff was in the class of persons the statute or rule was designed to protect, and;
(ii) The injury was the type the statute or rule was designed to protect against, and;
(iii) Defendant violated the statute and Plaintiff's injury was caused by violation of the statute.

Jurisdictions vary in how they treat violation of a criminal statute in setting the civil standard of care. Some treat it as:

(a) Negligence Per Se -- Violation of statute amounts to negligence per se. Defendant may not argue conduct was reasonable.
(b) Rebuttable Presumption of Negligence -- Violation of statute raises inference of negligence but Defendant can rebut with evidence of reasonable behavior.
(c) Mere evidence of negligence.

d. GUESTS AND COMMON CARRIERS

Common Carriers --

Are held to a higher standard of care to prevent risk of harm to others.
Automobile Guests -- The standard of care will depend on the jurisdiction and whether the guest is paying or gratuitous.

(i) Common Law -- Driver owed full duty of care in operation of vehicle.
(ii) Paying Passenger -- Driver owes full duty of care.
(iii) Gratuitous Passenger -- Driver held liable only if grossly negligent.

e. OWNERS AND OCCUPIERS OF LAND

Liability rests on the status of the person coming into the land:

Adult Trespasser -- No duty is owed by land occupier to make premises safe.

Modernly: Roland v Christian -- Full duty is owed even to trespassers.

Known Adult Trespasser -- Land occupier had duty to warn of dangerous conditions on the land.

Child Trespassers -- "Attractive Nuisance Theory." Land occupier is liable to children if:
(1) Possessor knows or has reason to know that children are likely to trespass.
(2) Land occupier knows or has reason to know condition is dangerous to children.
(3) The risk to the child outweighs the utility of maintaining the condition and the burden of eliminating the danger.
(4) The child is too young to appreciate and understand the risk.

Licensees -- People who come onto the land for their own benefit (Social guests, Charity Workers, Police). The duty is to warn the licensee of a known dangerous condition on the land.

Note: owner/occupier has no duty to inspect or repair known defects.

Invitees -- People who come onto the land to confer some benefit on the occupier e.g.( paying customer). Duty is to inspect, warn and make safe dangerous conditions on the land.

People outside the Land -- Land Occupier is required to correct conditions which are unreasonably dangerous to those outside the land.

f. OMISSIONS TO ACT

ISSUE: Will Defendant's failure to act result in liability being imposed on Defendant?

RULE:
As a general rule, Defendant's failure to act will not result in liability being imposed on Defendant for injury caused thereby. However, liability will be imposed if there was an affirmative duty to act and Defendant failed to act.

Bar Exam Hint: Whenever a fact pattern indicates that the culpable conduct may be that of an omission to act, give the general rule of "no duty" then examine the facts for an exception.

Exceptions: Affirmative Duty to Act

1. Duty to Aid Others:
Common Law: Defendant is never under a duty to go to the aid of Plaintiff where the Plaintiff's predicament was in no way Defendant's fault (However, if Defendant is at fault, Defendant must aid).

Modernly: Some statutes make it a criminal offense for drivers of autos to fail to aid any person involved in an accident even though Defendant was not involved in any way.

Good Samaritan Rule: One who, though under no legal duty to do so, aids a person who is hurt or in peril, must exercise due care not to worsen the victim's situation.

2. Duty to Control Third Persons:

Bailment Cases:
If the owner of chattels permits a third person to use his chattel, the bailor will be liable for failure to exercise due care to prevent intentional or negligent acts of bailee if committed in his presence, or if he knows or has reason to know that such bailee is likely to commit such acts.

Public Premises Cases:
Those who hold premises open to public must use due care to protect persons coming onto the premises from theft of property, attack, etc. from other persons on the premises. (This includes restaurants, innkeepers, common carriers).

Duty to Control Children Cases:
Parent will be liable for acts of child if parents know or should have known of the child's dangerous propensities and had an opportunity to exercise control over the child. Otherwise, parents are generally not vicariously responsible for acts of child committed in their presence or otherwise.

Special Relationships:
Defendant may be under a duty to act where there is a special relationship such as school-pupil, hospital-patient, jail keeper- prisoner.

B. TO WHOM THE DUTY IS OWED

Bar Exam Hint: Discuss this issue only when the injured Plaintiff is arguably outside the zone of danger created by Defendant.

Palsgraf
(a) Cardozo -- A duty is owed to foreseeable Plaintiffs in D's physical zone of danger.
(b) Andrews -- One owes a duty to the whole world to behave in a manner so as to not create unreasonable risk of harm.

NOTE: This entire analysis is not a proximate cause analysis. Do not confuse this with proximate causation!

C. BREACH OF DUTY

1. Breach of duty is basically a factual discussion. You simply take the standard of care you have established in duty and apply it to the facts to determine if Defendant breached his duty to Plaintiff.

(Bar Exam Hint: Always discuss what a reasonable person would have done in the same circumstances.

2. Where the facts are silent: Often in a question the facts are silent as to exactly how the accident occurred or what the Defendant did. This usually requires discussion of Res Ipsa Loquitur.

(A) Res Ipsa Loquitur -- To apply this doctrine you must establish:
(a) The accident would not have occurred in the absence of someone's negligence.
(b) The event was caused by an instrumentality in the exclusive control of Defendant.
(c) Plaintiff did not contribute to her own injuries.

D. ACTUAL CAUSATION

1. But-for Test -- Where the facts only involve one defendant, state: "Defendant is the actual cause of Plaintiff's injuries because but for _____ (Defendant's act), the accident would not have occurred."

2. Substantial Factor Test -- Where several causes/defendants concur to bring about an injury -- and any one alone might have been sufficient to bring about the injury, state: "Each (act or defendant) was a substantial factor in causing Plaintiff's injuries. Either of act/Defendant's operating alone would have been sufficient to produce the results."

E. PROXIMATE CAUSATION (Only do full analysis below when proximate cause is a MAJOR issue)

ISSUE: Did anything intervene between Defendant's negligent act and Plaintiff's injuries such that Defendant will be relieved of liability?

RULE: Proximate cause is a policy consideration that in certain instances will limit Defendant's liability.

Sub-Issue: Was causation direct or indirect?
Did anything intervene between Defendant's act and Plaintiff's injuries?

DIRECT CAUSATION - MINOR ISSUE:

Sub-Issue: Direct Causation -- Where causation is direct, proximate cause is ALWAYS A MINOR ISSUE.

State on The Bar: "Causation is direct here, since there were no intervening acts between P's injury and D's Act. Further, it is foreseeable when D did ___________someone would be injured."
(State the above and then move on to the next issue

INDIRECT CAUSATION- MAJOR ISSUE

Sub-Issue: Indirect Causation -- (something intervened between Defendant's negligent act and Plaintiff's injuries), you must then discuss whether the intervening force was dependent (define) or independent (define). Then discuss if the intervening act was foreseeable or unforseeable. If the intervening act was unforseeable, then the chain of causation is broken (MAJOR ISSUE).

First Ask is Causation Direct or Indirect?

F. DAMAGES

Plaintiff is entitled to recover all compensatory damages, including general damages such as pain and suffering, and special damages, which must be specifically pleaded and proved. Punitive damages are NOT recoverable for negligence.

G. DEFENSES

Bar Hint: You must always raise these defenses, even if briefly in a sentence or two.

1. Contributory Negligence -- Plaintiff has a duty to act as a reasonable person would in like or similar circumstances to prevent an unreasonable risk of harm to himself.

2. Contributory Negligence Per Se -- If PLAINTIFF violates a statute or express rule of employer (see Duty Section-negligence) then same standard applies. Watch out for this situation. Often the facts are given which show that the PLAINTIFF violated a statute or express rule of employer.

Two Prong Test if P violates a STATUTE OR EXPRESS RULE OF EMPLOYER

a. Class of Persons -- Is plaintiff within the class of persons the statute or rule was designed to protect?
b. Type of Injury -- Is plaintiff's injury the type the statute was designed to protect against?

3. Comparative Negligence -- Some jurisdictions will assign a percentage of fault attributable to P's negligence and reduce P's damage award by that percent.

4. Assumption of Risk -- The test is whether Plaintiff knew of the risk and voluntarily assumed it.

a. Rescue Attempts -- Exception
Where Defendant voluntarily attempts a rescue of one in peril, the court will not find the rescuer either contributorily negligent or to have assumed the risk. Public policy encourages rescue attempts. Particularly where the Plaintiff is forced to make an emergency decision concerning saving the life of a fellow human being. Technically, the Plaintiff did not "assume the risk" in such a situation but only reacted to the emergency before him.