1. TORT LAW Negligence Paralegal Certificate Program Class 3

2. Tonight We Are Covering Chapter 2: Negligence Chapter 3: Special Negligence Actions Chapter 4: Defenses to Negligence

3. Distinction between negligence and other areas of tort law TORTS Intentional torts INTENT = DESIRE TO BRING ABOUT CONSEQUENCES Negligence FAILURE TO ADHERE TO STANDARD OF CARE Strict liability LIABILITY REGARDLESS OF INTENT

4. Negligence Defined The failure to exercise a reasonable amount of care in a situation that causes harm to someone or something – Can be careless or failing to do something that should have been done – Can be gross negligence – meaning reckless or willful – Can be ordinary negligence – meaning failing to act as a reasonably careful person would – Can be slight – not much negligence at all

5. The 4 Elements of a Negligence Action 1. DUTY 2. BREACH 3. CAUSATION (Both factual/actual AND proximate) 4. DAMAGES Note: If you do not have one of these elements, there is No negligence and no need to move on to next element ALL elements are needed to prove negligence

6. 2 Questions to Ask in All Negligence Actions: 1. Was the Plaintiff foreseeable? – We only owe duty to those plaintiff’s that are foreseeable – the foreseeable plaintiff 2. If yes, then what is the applicable Standard of Care?

7. Element #1: DUTY The obligation to do or not do something…a responsibility to act reasonable so as to avoid injuring someone Legal obligations that result from our relationships with others (the nature of the duty varies with the nature of the relationship to another) Standard: Duty of reasonable care – Reasonable care: The responsibility to act reasonable to avoid injuring another Scope of Duty: A limitation on the persons to whom one owes a duty. Focuses on foreseeability

8. Element #2: BREACH - Foreseeability Limits the scope or extent of duty owed to others Always ask: “Was it reasonably foreseeable that the person injured would be harmed as a consequence of the tortfeasor’s actions?” – If yes, then person injured was a “foreseeable plaintiff”; otherwise, unforeseeable plaintiff – Example: Car accident: If changing lanes and do not look in rearview or side mirror, can assume someone driving next to you may get injured – foreseeable plaintiff. However, would not assume this action would injure person driving 4 miles in front of you – unforeseeable plaintiff – Example: No headlights on car next to you – cannot see them when legally changing lanes. Not reasonable would not have headlights, so not foreseeable, and no duty.

9. Standard of Care Basic Standard – The Reasonable Person – An objective standard – measuring a person’s conduct against what the average person would do Inquiry: Whether a reasonable person of ordinary prudence standing in the defendant’s shoes would have done the same thing that the defendant did. Very elusive concept in negligence law The reasonable person is imaginary and expected to act in a certain way in a given set of circumstances

10. Reasonable Person Standard Dependent upon who the Tortfeasor/Defendant is: – If special skill set, such as a plumber, attorney, doctor, engineer, etc. – then will be held to the standard of the reasonable prudent “plumber”, “attorney”, “doctor”, etc. – Professionals: this is often termed “professional community standard of care”: meaning the standard of reasonable care used in negligence cases involving defendants/tortfeasors with special skill sets. – Higher standard of care because of higher degree of knowledge due to training or experience Professional – look to standard in similar communities Specialists – can be held to community AND national standard

11. Reasonable Person Standard (cont) Respondents with special accommodations: – Emotionally unstable or substandard intelligence = no special allowances Mental state of Defendant not usually considered – Intoxicated = standard of a reasonable sober person – Insane person = courts vary Children: (ages 4-17) – Held to reasonable person of like age, intelligence and experience under like circumstances unless engaged in potentially dangerous activities normally reserved for adults. Example: Driving a car Note: Children under age of 4 are usually never liable – no capacity to be negligent.

12. Professional Malpractice and Medical Malpractice Professional Malpractice: A professional’s negligent failure to observe the appropriate standard of care in providing services to client/patient or misconduct while practicing their profession. – Look to other professionals in similar circumstances – Most states look to a same community – Has been expanded to similar community, similar locality and/or national standard Medical Malpractice: Expensive! Need experts – In Florida: requires more…prior to filing suit, need an opinion of a like medical professional to state that malpractice may have been committed.

13. Special Duty Based Upon Special Relationship Special Relationship between the parties: Although most negligence cases are based upon a duty to ACT, they can be based upon a FAILURE to act, or an act that is IMPROPERLY performed. Examples of special relationships: – Employer/employee; innkeeper/guest, parent/child; teacher/student If a teacher sees a student attempting to injure another student, duty to intervene and try to help – If Defendant is the one who caused the peril – If assume the duty – if begin to assist a person in peril, duty to follow through with reasonable care w/out putting self in peril

14. Proving Breach What is used as proof in litigation? – Evidence – oral testimony, written transcripts, documents, demonstrative evidence (photos, computer simulations, exhibits) Burdens of Proof – Preponderance of the evidence: Means the greater of the weight of evidence. More evidence showing defendant’s actions were negligent and caused the injury – Prima facie case – means met burden of proof to establish a cause of action. Met all the elements. Now defenses can be raised. – Burden of rejoinder – Defendant’s burden…often called persuasion or rebuttal to refute the plaintiff’s case

15. Res Ipsa Loquitur “The thing speaks for itself” – doctrine used when the plaintiff cannot gain access to information pertaining to the respondent’s conduct. The respondent’s negligence is presumed as a result of his/her actions and the burden shifts to the respondent to disprove his/her negligence. To apply this: the respondent must have been in exclusive control of the object, the plaintiff’s injury must have been of the type that would ordinarily not have happened without negligence, and the respondent must be in a better position to prove his/her lack of negligence than the plaintiff is to prove the respondent’s negligence. See asphalt mixture hypothetical on page 52

16. Causation Causal connection between the conduct and the injury. Actual cause – “cause-in-fact” – whether the respondent’s conduct was the actual, factual cause of the plaintiff’s injuries (usually not an issue unless there are multiple tortfeasorts) – But-for test Proximate cause – “legal cause” – revolves around foreseeability. The respondent should not be held responsible for consequences that are too remotely connected to the conduct (ie, was there an intervening factor).

17. Factual/Actual Cause Plaintiff bears the burden of proof by preponderance of the evidence (that it is probable that the injury would not have happened but for the respondent’s conduct) First step in proving causation

18. Proximate Cause Next step after actual cause is to show that the respondent’s proximity caused the injury. Foreseeability: Was the plaintiff’s injury a reasonably foreseeable consequence of the respondent’s conduct? Majority rule: The respondent is liable for all reasonably foreseeable consequences of his/her negligence and the respondent owes a duty of care to the reasonably foreseeable plaintiff. See zone of danger chart on page 38

19. Exceptions to the majority rule Eggshell Plaintiff: “Take the victim as you find him/her”. If the plaintiff suffers any foreseeable injury, the respondent is liable for any additional unforeseen physical consequences (ie, minor impact results in death)

20. Intervening Cause An intervening cause is anything that occurs after the respondent’s negligent act that contributes towards the plaintiff’s injuries. When an intervening cause becomes a SUPERCEDING, INTERVENING CAUSE, the respondent’s negligence is no longer deemed to be the cause of the plaintiff’s injuries. A Superceding Cause is when the intervening cause rises to such a level of importance that it precludes the respondent’s negligence from being the proximate cause of the plaintiff’s injury (it breaks the chain)

21. Damages Compensatory – compensation for actual loss or injury – General Damages: damages that typically result from the respondent’s conduct (ie, pain and suffering) – Special Damages (aka consequential damages): damages specifically tied to the plaintiff (ie, loss of earnings, medical expenses) Must be specifically plead and proved Nominal – able to prove that the tort was committed, but unable to prove actual loss – does NOT apply in negligence cases (in negligence cases, you must prove actual loss) Punitive – designed to punish – to deter future undesirable conduct Physical Harm to Property – compensated at fair market value

22. Damages, con’t 2 categories of Compensatory Damages: Economic: Out of pocket expenses – again, lost earnings, medical expenses Non-economic damages: Have no particular objective dollar amount to be placed upon them Subjective: pain, suffering, humiliation

23. Chapter 3 – Special Negligence Actions Vicarious Liability Premises Liability Distinctions between: trespassers, licensees and invitees Attractive Nuisance Negligent Infliction of Emotional Distress Negligence Per Se

24. Vicarious Liability The liability of the principal (one person) for the tortious actions of another person (called the agent) Commonly, employee/employer under the concept of respondeat superior (“let the master answer”) but must be within the scope of employment. Coming and Going rule/Frolic and Detour rule – Generally no liability in either situation – Exception: C&G: If employee performing work related activities on way to or from work – Exception: F&D: If “slight” detour No vicarious liability for independent contractors (independent contractor controls how he/she accomplishes the job). See summary of vicarious liability on pages 76-77 (table)

25. PREMISE LIABILITY General duty to act reasonably As stated earlier, duty also depends upon status of plaintiff 3 Categories: Trespassers, Licensees and Invitees Trespassers – overall, no duty of care owed to make the land safe or protect the trespasser. However, possessors of land cannot willfully or intentionally injure a trespasser. Exceptions – Discovered or Known trespassers: Duty to warn of or make safe known conditions if non-obvious and highly dangerous

26. Attractive Nuisance Doctrine – another exception to trespasser Elements: Plaintiff must prove : 1. A dangerous condition on the land that the owner is or should be aware of 2. The owner knows or should know children frequent the vicinity 3. The condition is likely to cause injury; and 4. The expense of remedying the situation is slight compared with the magnitude of risk NOTE: Need ALL 4 elements. The child DOES NOT have to be attracted onto the land by the dangerous condition. – Look to the child’s age, intelligence and experience to assess whether the doctrine applies.

27. Licensees A licensee has the possessor’s consent to be on the land, but does not have a business purpose for being there (social guests). Duty owed: Must warn/correct of dangerous condition owner knows or reasonable should know, exist on the premises. NO duty to discover and correct/inspect and repair unknown threats on the land

28. Invitees The “business invitee” Persons invited onto the land for a business purpose into areas of property that are not restricted (ie, no sign saying private or keep out). Express or implied invitation Highest duty of care owed. Responsible to make the premises reasonably safe. – Includes: not only repair of known dangers but also must inspect and correct or warn of unknown risks on the property.

29. Many courts just apply negligence standard Many courts do not distinguish between trespasser, invitee and licensee. Rather, courts apply a negligence standard with an inquiry of was the injury foreseeable, did the land owner’s scope of duty include the victim, did the owner cause the victim’s injury.

30. Negligent Infliction of Emotional Distress Elements 1. Conduct by the tortfeasor, which 2. The tortfeasor reasonably should have anticipated would produce 3. Significant and reasonably foreseeable emotional injury to the victim; 4. When the tortfeasor breached his or her duty of reasonable care to avoid causing such emotional harm to the victim; and 5. The victim was a reasonably foreseeable plaintiff Check local rules for jurisdiction, as they vary

31. Impact Rule v. Physical Manifestations Rule Impact Rule: Minority of courts follow. Requires some physical contact or impact to the victim. Can be very casual contact Physical Manifestations Rule: Marjority of Courts follow. Requires, in addition to mental suffering, some physical symptoms as a result of the emotional distress

32. Zone of Danger Rule for NIED Bystanders who fall within the zone of danger can recover for NIED. Must be threatened by the original negligent action AND reasonable feared for their own safety, or certain close family relation Family relationships rule: some courts permit recovery to bystander plaintiffs who are related to the victim Sensory perception rule: some courts permit recovery to bystanders who perceive the traumatic, negligent event through their senses (seeing a collision, hearing a child’s scream) Again, check your local rules to see what applies in your jurisdiction

33. Defenses to negligence per se Some jurisdictions do not allow you to assert any defenses (presumption of negligence) Some jurisdictions allow you to assert comparative negligence, contributory negligence and assumption of the risk.

34. Negligence Per Se Negligence that is beyond debate because the law (usually statutory) has established a duty of care that the respondent has violated causing injury to the plaintiff. Violation of a statute applicable to the facts of the case, causal link between the act constituting the violation of the statute and the plaintiff’s injury, the plaintiff was intended to be a member of the protected class (of the statute) and damages result

35. Judge versus Jury – who does what Judge: all questions of law. – Judge determined whether the respondent owed a duty of care to the plaintiff Jury: all questions of fact – Although the jury is the fact finder, the jury may do so only when the facts are such that a reasonable person could differ as to the nature of those facts (otherwise, directed verdict)

36. ParalegalSpace.com This website has great substantive material and sample exams for chapters 2 and 3. To supplement our Chapter 2 and Chapter 3 materials, log onto the ParaStudent website through ParalegalSpace.com. Review the problems and review questions on pages 57-58 and 87-88. Review the responses to the questions and problems on the paralegal student website to help you to understand the concepts and apply the materials. Review the notes from the chapters.

37. DEFENSES – legal justifications for the Respondent’s actions Defenses must be pled in the answer Negligence defenses are used by the Defendant against the Plaintiff Defenses are applied in response to the allegations that the Defendant acted negligently or with willful and wanton negligence (we are not talking about defenses to intentional torts here with an intent requirement)

38. 4 Defenses We Will Discuss 1. Contributory Negligence A. Last Clear Chance 2. Comparative Negligence 3. Assumption of Risk 4. Statute of Limitations

39. Contributory Negligence Plaintiff’s own negligence contributed to his/her injuries. Must prove Plaintiff also committed negligence – need to show the same elements (duty, breach, causation and injury) If contributory negligence is proven, in any amount, the plaintiff is barred from recovery unless the plaintiff can prove that the respondent had the “last clear chance” to prevent the harm (see chart on page 94) Last Clear Chance: Even though Plaintiff was contributorily negligent, Defendant had last opportunity to avert the harm and didn’t.

40. Comparative Negligence – Replaces Contributory Negligence in most states. Defined: Determining the amount of fault of all parties in causing the plaintiff’s injuries – Balancing act – determine percentages of negligence by Plaintiff and Defendant(s) – Percentages are determined by the trier of fact.

41. Two approaches – Pure approach: The plaintiff can recover even if the plaintiff was 99% at fault (can sue the respondent for 1% fault). – 50/50 fault: The plaintiff can recover if the plaintiff was up to (but not more than) 50% at fault. – Critics say these methods of calculating fault are imprecise

42. Assumption of the Risk – complete defense to negligence The respondent is insulated from negligence liability if the plaintiff voluntarily decided to engage in an activity that the plaintiff knew or reasonably should have known was dangerous (voluntarily accepted the risk of being injured). Plaintiff must fully understand the dangerous nature of the activity that he/she is voluntarily undertaking.

43. Two types of assumption of the risk Express assumption of the risk: plaintiff voluntarily assumes the risk by an express agreement (ie, signs a contract). Valid unless against public policy – Example: Boxing matches, tough-man competitions Implied assumption of the risk: the assumption is implied based on the parties’ conduct. (ie, enter an area that is barricaded with signs – Do Not Enter).

44. Statute of Limitations The time frame within which the plaintiff must file the cause of action has lapsed. The average SOL is 4 years (check local laws in statute books) If statute of limitations has lapsed, claim is barred forever.

45. ParalegalSpace.com This website has great substantive material and sample exams for chapter 4. To supplement our Chapter 4 materials, log onto ParalegalSpace.com and go into the ParaStudent tab to locate the substantive study support. ParalegalSpace.com Review the problems and review questions on pages 109. Review the responses to the questions and problems on the paralegal student website to help you to understand the concepts and apply the materials. Review the notes from the chapter.

46. Class Four Preparation Read Chapter 9: Strict or Absolute Liability Read Chapter 10: Products Liability Read Chapter 11: Special Tort Actions Read Chapter 12: Tort Immunities Review for Final Exam