NEGLIGENCE FRAMEWORK

Negligence
To show negligence, a plaintiff (P) must show duty, breach, causation and damages.

Duty

Defendants (D) owe a duty of care to foreseeable plaintiffs. Courts adopt either the
Andrews of Cardozo approach to determine if the D owed a duty of care.

Cardozo

Under the Cardozo approach, a duty of care is owed to a foreseeable plaintiff within the
zone of danger created by the D’s conduct.

Andrews

Under the Andrews approach, a duty of care is owed to all persons injured by the D’s
conduct.

Standard of Care

A Defendant owes a duty to act as a reasonably prudent person (RPP) under the same or
similar circumstances.

Landowner Duty

The standard of care depends on the status of the person entering the land. There are 3
types of status.

A trespasser is one who enters the land without owner’s permission. There is no duty
owed to trespassers unless they are “known” trespassers. If a trespasser is known or
anticipated, then there is a duty to warn of hidden or known dangers

A Child Trespasser (“Attractive Nuisance Doctrine”) is owed a duty of care when:

1) owner knows or has reason to know that children are likely to trespass
2) the condition involves unreasonable risk of death/serious bodily harm
3) the child is unable to appreciate the risk involved because of his age
4) Cost of eliminating the harm is small compared to the risk

Children are almost always more vulnerable to harm because they fail to understand the
dangers involved. As such, it is NOT necessary that he child be attracted onto the land
for the duty to be owed
A Licensee is one who is on the land with owner’s permission, but there for their own
purpose and not for any economic benefit to the landowner. Duty owed is to warn
Licensee of any known defects on the land.

An Invitee is one who enters the land for the potential financial benefit to the
landowner. The duty owed is to use reasonable care to maintain premises and take
active steps to make property safe, and to make inspections to discover any potential
dangers on the property

Professional/Doctor

A professional or Doctor must exercise the skill, knowledge, and care normally exercised
by other members of the profession.

In medical cases, a doctor must disclose all material information about the nature of any
risks associated with using a prescription drug. Whether a risk is “material” depends on
the severity and likelihood of the risk.

Children

A child is required to act as a reasonably prudent child of like age, intelligence and
experience. If the child is engaged in an adult activity, she will be held to the dame
standard as an adult.

Common Carrier/ Innkeeper

Rescuers

Special Relationships
Breach

Breach occurs when the D’s conduct falls below the applicable standard of care by
creating an unreasonable risk of harm by failing to act as an RPP.

Causation

Actual Cause

The test for actual cause is the but-for test. P must prove that “but-for” the D’s
conduct, then P would not have suffered harm.

Proximate cause

Proximate cuase requires that the injury to the P was the foreseeable result of the D’s
conduct. Proximate cuase is concerned with limiting the D’s liability.

Eggshell Skull Rule

The D is liable for all harms harms caused by his negligent conduct even though the
extent of the harm is unforeseebale. The D must take the Plaintiff as he finds him.

Intervening Cause

The D’s liability will be cut off if there was an unforeseeable intervening force that was
unforeseeable.

Damages
P must allege either personal injury or property damages to recover.

Pure Economic Loss

Not recoverable in negligence action. Economic damages refer to lost wages or loss of a
business opportunity.
Emotional Harm

P may “tack on” damages for emotional distress as a parasitic eleemnt when P suffers
physical harm.

Compensatory Damages

P is entitled to recover all expense that he incuured as a result of the injury (pain and
suffering, medical bills, ect). If the D has caused physical damgaed to P’s property, then
P may recover the cost to repair or replace.

Consequential Damages

When a tort to property has occurred, damages such as lost profits or other forms of
lost use are recoverable, but must be proven with reasonable certainty.

Defenses

Contributory Negligence

Under the common law, any negligence by the Plaintiff is a complete bar to his
recovery.

Comparative Negligence

Comparative negligence reduces the P’s recovery by a percentage of fault that he

contributed.

Pure Comparitive Negligence allows P to recover no matter how negligent he was.

Assumption of the Risk

A P assumews the risk of injury when he knows of a particular risk and voluntarily
assumes it. This is a complete defense to negligemce and strict liability.

Firefighter’s Rule

When Firefighters and police officers are injured by risks inherent in their job, they have
no claim for recovery against the person who created the danger.