The ABCs of: Negligence
Here is a collection of 26 important concepts, from A to Z, you need to know about negligence for the bar exam:
A – Attractive nuisance: Attractive nuisance is a dangerous condition on a landowner's property that is likely to attract children and pose a risk of injury to them. Where there is an attractive nuisance on the landowner’s property, the landowner must exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by the artificial condition on the property. When determining whether there is an attractive nuisance, the following elements must be established: (i) there is a dangerous condition present on the land of which the owner is or should be aware; (ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition; (iii) the condition is likely to cause injury; and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.
B – Business invitees: Think of business invitees as customers. What distinguishes an invitee from a licensee is that an invitee enters the land for the landowner’s benefit rather than for her own purpose or business. An owner or occupier of land owes an invitee the same duties owed to a licensee (e.g., the duty to warn of or make safe nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property) as well as the additional duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe. See also “Guests (licensees).”
C – Collateral source rule: The collateral source rule prevents a monetary award from being reduced if the costs are covered by another source, like insurance. This means that a defendant may not introduce evidence of other financial sources that may offset the plaintiff’s recovery.
D – Danger invites rescue: The danger-invites-rescue doctrine provides that when someone is in danger, it's natural for others to try to rescue that person. This means that a rescuer is a foreseeable plaintiff, and the defendant could be liable for the plaintiff’s injuries suffered during the rescue.
E – Emergency situations: When a defendant provides aid in an emergency situation, the circumstances surrounding the emergency can be considered to determine whether the defendant acted as a reasonably prudent person under the same emergency. However, if the defendant created the emergency situation, then the emergency won’t be considered when examining the reasonableness of the defendant’s actions.
F – Foreseeable plaintiff: A duty of care is owed only to foreseeable plaintiffs—e.g., individuals who are foreseeably endangered by the defendant’s negligence conduct. See “zone of danger.”
G – Guests (licensees): Social guests are licensees. A licensee is someone who enters the landowner’s property with permission. What distinguishes a licensee from an invitee is that a licensee enters the land for her own purpose or business rather than for the landowner’s benefit. An owner or occupier of land owes a licensee a duty to warn of or make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. See also “Business invitees.”
H – Harm: Damage is an essential element of plaintiff’s prima facie case for negligence. This means actual harm or injury won’t be presumed.
I – Intervening forces: In indirect cause cases, where an intervening force combines with the defendant’s conduct to cause the plaintiff’s injury, proximate cause exists only if the defendant’s negligence caused a foreseeable harm or caused a foreseeable reaction from an intervening force. Intervening events that produce a harm outside of the scope of what one would normally anticipate from the defendant’s negligence are generally deemed unforeseeable and superseding. Such a superseding event will break the chain of causation and relieve the defendant of liability.
J – Joint and several liability: When two defendants combine to cause an injury, the plaintiff can recover the full amount of damages from either of defendant under joint and several liability rules. The defendant who is recovered against can then turn around and seek contribution from the other responsible party. Remember that the NCBE notes that all torts questions occur in a jurisdiction that has joint and several liability with pure comparative negligence.
K – Knowledge: Think assumption of the risk. To have assumed the risk, either expressly or impliedly, the plaintiff must have known of the risk and voluntarily assumed it. Knowledge may be implied where the risk is one that the average person would clearly appreciate.
L – Last clear chance doctrine: If a jurisdiction has adopted contributory negligence (i.e., it replaces the exam’s default rule of pure comparative fault), then always examine the last clear chance doctrine. This doctrine considers which party had the last opportunity to avoid the accident that caused the harm. Therefore, a negligent plaintiff may still recover damages if the plaintiff can show the defendant had the last clear chance to avoid the accident—but didn’t.
M – Mitigation: Injured plaintiffs always have a duty to take reasonable steps to mitigate damages. In property damage cases, the duty to mitigate damages includes preserving and safeguarding the property. In personal injury cases, the duty to mitigate includes seeking appropriate treatment to heal or prevent aggravation of an injury. Failure to mitigate prevents recovery of any additional damages caused by aggravation of the injury.
N – negligence per se: Where a defendant has violated an applicable statute, the violation of the statute is “negligence per se.” This means that the plaintiff has conclusively established the prima facie elements of duty and breach. The plaintiff, however, still must establish the remaining elements of causation and damages to find the defendant liable for negligence. Don’t make the mistake of equating “negligence per se” with a finding of negligence. You’re only halfway to establishing a prima facie for negligence by relying on “negligence per se.”
O – Owners and occupiers of land: Under the traditional rule followed in many jurisdictions, the nature of a duty owed by an owner or occupier of land to those on the premises for dangerous conditions on the land depends on the legal status of the plaintiff with regard to the property. See also “Business invitees,” “Guests (licensees),” and “trespassers.”
P – Pure comparative negligence: Jurisdictions that recognize pure contributory negligence—the default rule on the bar exam—permit a negligent plaintiff to recover in a negligence action regardless of the extent of the plaintiff’s fault. The plaintiff’s negligence will simply reduce the amount of damages the plaintiff can recover from the defendant. Remember that the NCBE notes that all torts questions occur in a jurisdiction that has joint and several liability with pure comparative negligence.
Q – Question of fact: Whether the duty of care is breached in an individual case is a question of fact. Sometimes, in bar exam essays, the question might be a close call. However, for bar exam purposes on the essay, it’s generally a good strategy to establish a breach—even as an alternative argument—so that the issues of causation and damages can be examined as well.
R – Res ipsa loquitur: The res ipsa loquitur doctrine enables a plaintiff to establish breach of duty just from the fact that an injury occurred that would not ordinarily occur unless someone was negligent. The following requirements must be met: (i) the event is of a kind which ordinarily doesn’t occur in the absence of negligence; (ii) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (iii) the indicated negligence is within the scope of the defendant’s duty to the plaintiff. When more than one person was in control of the instrumentality that caused the injury, res ipsa loquitur generally may not be used.
S – Subsequent medical malpractice: On the bar exam, the original defendant is liable for the aggravation of the plaintiff’s condition caused by the medical malpractice of the plaintiff’s treating physician. In other words, subsequent medical malpractice is always a foreseeable intervening force that doesn’t cut off the defendant’s liability for the plaintiff’s injury.
T – Trespassers: Since a defendant owes a duty a care to a foreseeable plaintiff, an owner or occupier of land owes no duty to an undiscovered trespasser, as an undiscovered trespasser is not foreseeable. However, if a trespasser is discovered or anticipated, the owner or occupier of land owes a duty to warn of or make safe highly dangerous artificial conditions that the trespasser is unlikely to discover.
U – Usage: Usage or custom may be considered to establish the standard of care applicable in a negligence action. However, deviating from that usage or custom isn’t conclusive for controlling the question of whether certain conduct amounted to negligence.
V – Violation of a statute: The default reasonably prudent person standard of care can be replaced with an applicable statute where the plaintiff can show that (i) she is within the class of people intended to be protected by the statute and (ii) she suffered the type of harm that the statute was designed to protect against. In this situation, a defendant’s violation of the statute results in “negligence per se.” See “negligence per se.”
W – Wanton and willful: Punitive damages generally aren’t available in negligence cases. However, if the defendant’s conduct was “wanton and willful,” reckless, or malicious, most jurisdictions permit recovery of punitive damages.
X – X-factor: Okay, this will be a stretch, but hang with me. An “x-factor” is a “circumstance, quality, or person that has a strong but unpredictable influence,” according to Merriam-Webster. When it comes to proximate causation, acts of God won’t cut off the defendant’s liability if they are foreseeable. Acts of God are events outside of human control or activity, such as a natural disaster like a flood or an earthquake.
Y – Youth (as in children): The general standard of care owed to children is that of a child of like age, education, intelligence, and experience. However, when a child engages in a potentially dangerous activity that is normally undertaken only by adults, the child will be required to conform to the same standard of care as adults engaging in the activity. These activities include driving an automobile, flying an airplane, driving a motorboat, and operating a snowmobile.
Z – Zone of danger: A duty of care is owed only to foreseeable plaintiffs. See “foreseeable plaintiffs.” Under the Cardozo holding in Palsgraf, someone who isn’t within the “zone of danger” from the defendant’s conduct cannot recover. However, some courts follow the Andrews dissent in that case, whereby a duty of care is owed to anyone who suffers injuries proximately caused by the defendant’s negligence.
