1. An injury that would not occur in the absence of negligence

2. Through an instrumentality in the exclusive control of the defendant.

3. Plaintiff did not contribute to the harm (not important in comparative negligence jurisdiction)

1. The Zone of Risk is a term referring to an area of time or space that is tied to D's negligent act. If a plaintiff is not within the zone of risk, he is not considered a "foreseeable plaintiff" and thus the defendant does not owe that P a duty.

2. Cardozo

3. Palsgraf

Three circumstances:

1. When D has a created the need for P to be rescued.

2. When there is a special relationship between P and D

3. When D makes a voluntary undertaking to rescue P

Yes, under certain circumstances.

1. When a D negligently injures or threatens the safety of a P

2. In minority of jurisdictions, when D's non-negligent conduct creates a foreseeable risk of harm (such as knocking a telephone pole into the road)

3. Restatement 321 requires that when a D does an and and realizes or should realize that it creates and unreasonable risk has a duty to to exercise due care to prevent the risk from occurring

1. Innkeeper/Guest

2. Common carriers/customers

3. Owners of land thrown open to the public (invitee)

4. School/pupils

5. Hospital/patients

6. Jailers/Prisoners

7. Businesses to customers (invitee)

Establishes voluntary undertaking duty of care based upon reliance. 

Elements

1. Affirmative promise on behalf of D

2. P's reliance on that promise

3. P would have acted differently without said reliance

The Rowland factors are:

1. Foreseeability of harm to P

2. Degree of certainty regarding harm

3. Connection between D's conduct and injury

4. Moral blame attached to D's conduct.

5. Policy of preventing future harm

6. Burden to D and consequences to community of imposing a duty

7. Availability of insurance

These factors are used to justify imposing a new special relationship requiring an affirmative duty/duty to third party

The most important is foreseeability of harm. 

Under Uhr, elements are:

1. P is in class of persons for whom statute was enacted

2. Duty promotes legislative purpose

3. Duty is consistent with legislative scheme

The doctrine of negligent entrustment establishes a duty to both third parties and principals who are negligently provided with a chattel (property) that the supplier knows or should know the principal will use in a manner creating an unreasonable risk of physical harm to themselves or others.

Supplier's knowledge is key. 

1. Near privity approach

- Those in contractual relations and those who are sufficiently close to it

-Intended a KNOWN 3rd party to rely on information

-3rd party DID rely

2. Restatement approach (MAJORITY)

-actual knowledge AT MOMENT INFO IS PUBLISHED by D

-regarding a limited group of potential 3rd parties who will rely on the information (AND DO)

-in a known, PARTICULAR transaction

3. Foreseeability approach

- duty arises if D could reasonably foresee that someone would receive and rely on information

Metro-North v. Buckley. The reasons are:

1. Difficulty in separating valid from invalid/trivial claims

2. Threat of unlimited liability 

3. Potential for flood of litigation

The zone of danger test. Elements

1. Negligent conduct by D

2. Fear of immediate, personal injury (zone of danger)

3. Resulting emotional distress...

4. That is severe enough to be compensable as a consequence of ACTUAL physical injury

1. Death or serious injury of another caused by D's negligence

2. Marital or intimate family relationship (immediate family) between P and injured person.

3. Observation of the death or injury AT THE SCENE OF THE ACCIDENT

4. Resulting in SEVERE emotional distress.

1. Whether the theory is testable by the scientific method

2. The potential rate of error, if applicable

3. Whether that theory is generally accepted

Statutes with a relevant safety purpose can be used to determine breach.

Elements of analysis:

1. P alleges type of harm legislature sought to prevent

2. P is a member of the class that legislature sought to protect

3. Court decides whether do adopt statute's standard of care.

Breach of these statutes is negligence per se. Burden then shifts to D to show why they were not negligent.

1. Invitee - duty to make safe known dangers and those that could be made safe upon a reasonable inspection

2. Licensees - duty to make safe known dangers

3. No duty -- avoid willful or wanton harm.

The modern approach combines invitee and licensees into a reasonable care standard. The factors to consider, from the Heins case, are:

1. Foreseeability of harm

2. Purpose of entry

3. Time, manner and circumstances for entry

4. Expected use of premises

5. Reasonableness of inspection, repair or warning (PBL)

6. Ease of repair or correction

7. Burden of providing protection (to landowner/community)

Landowners only have liability for foreseeable criminal acts. Four tests to determine foreseeability:

1. Specific harm -- no duty unless aware of specific and imminent harm about to befall P

2. Prior similar incidents -- forseeability is established by evidence of previous crimes on or near premises considering time, frequency and similarity

3. Totality of circumstances (majority test) -- takes additional factors into account such as nature, condition and location of land, as well as other factors

4. Balancing test -- balances the foreseeability of the harm against the burden of imposing a duty to protect against criminal acts of third persons (Posecai case)

Landowner is liable for child trespassers injuries if:

1. The place is one where landowner knows or has reason to know that children are LIKELY to be present

2. The condition is one which the landowner knows or should know creates a risk of serious injury to those children

3. The children, because of their youth, do no realize the risk of the condition 

4. The utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight compared of risk to children

5. The landowner fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

Conformance with custom is not always useful, since custom is often based upon cost/benefit factors as opposed to safety concerns. Failure to comply with custom can be highly useful if P can demonstrate:

1. What was actually done was not only different than but more dangerous than what is usually done

2. That the custom was well-defined in the industry

3. ...to avoid the kind of harm suffered by P.

1. Majority: Permits and inference of negligence without any other proof of it.

2. California/Minority approach -- rebuttable presumption of negligence. If D cannot rebut, jury MUST find breach

The harm within the risk rule helps establish actual causation through the substantial factor test. It's elements are:

1. A negligent act deemed wrongful because act increased the chances of a type of harm occurring

2. That type of harm does, in fact, occur

3. Jury may find negligent behavior caused harm

It is a rebuttable presumption.

1. Malice -- means intentional harm or disregard of potential harm

2. Oppression -- despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of person's rights

3. Fraud -- intentional misrepresentation, deceit, or concealment of material facts with intent to harm

1. D's conduct more culpable -- D's recklessness versus P's negligence

2. Last Clear Chance -- where D was negligent AFTER the plaintiff was

1. Pure comparative negligence -- P may recover any percentage of harm suffered, even if less than 50% at fault

2. Modified "No Greater Than" -- P can recover so long as negligence is no greater than D's

3. Modified "Not as Great As" -- P can recover if negligence is less than that of D