A. Negligence

Question 1

How much can Plaintiff recover for personal injury/property injury/wrongful death?*

Answer 1

Pure comparative negligence

- P can recover the amount D is liable for

Question 2

When may D assert defences?*

Answer 2

Contributory negligence
- D may recover X% from Co-Defendants (which D is NOT liable for)

Assumption of risk

• Implied
• Express (P voluntarily assumes known risk of injury)

Question 3

When does D voluntarily assume risk in participation in sports/recreational activities?

Answer 3

Risks inherent in + arise out of;

• Nature of the sport generally
• Flowing from participation

Question 4

What does violation of a state statute that ‘imposes specific duty’ constitute?*

Answer 4

Negligence per se

Violation of municipal ordinance/administrative rule/regulation

Question 5

What is the Landowner’s duty towards premises?*

Answer 5

1) Act as reasonable person
2) Maintain premises in reasonably safe condition

3) In view of all circumstances
- Likelihood of injury to others
- Seriousness of injury
- Burden of avoiding risk

4) To ALL parties
- Invitees
- Licensees
- Trespassers

Question 6

When does Landowner owe duty for recreational uses?*

Answer 6

Avoid wilful/malicious failure to guard/warn vs;

• Dangerous condition
• Injury suffered where permission to use property was granted for consideration

NO duty to keep premises safe for entry/use for;

• Hunting
• Fishing
• Boating
• Hiking
• Cross-country skiing
• Sledding
• Snowmobile operation

NO duty to give warning vs hazardous condition

Question 7

What is the rule of liability for negligent actions by parents on behalf of children?*

Answer 7

Foreseeable harm resulting from Child’s use of dangerous instrument on TP
- TP can bring action vs Parent

Negligent supervision
- Children/TP tortfeasors can NOT bring action vs Parents

Question 8

What is required for negligent infliction of emotional distress?*

Answer 8

1) P witnessed injury to P’s ‘immediate’ family member

2) P was in ‘zone-of-danger’
- Exposed to ‘unreasonable’ risk of injury due to D’s conduct

Question 9

What damages can P recover from negligent infliction of emotional distress?

Answer 9

1) Injuries suffered in consequence of shock/fright
2) Resulting from contemporaneous observation
3) Of serious physical injury/death of P’s immediate family

Question 10

When can P (Mother) recover damages for emotional distress from medical malpractice?*

Answer 10

Miscarriage

Stillbirth

Even in absence of independent injury to P

Question 11

What is the standard of care owed by Contractors/Owners/Agents to construction workers?*

Answer 11

1) Must furnish/erect
- Scaffolding
- Hoists
- Stays
- Ladders

2) To give proper protection to workers in building/structure
- Erection
- Demolition
- Repairing
- Altering
- Painting
- Cleaning
- Pointing

Question 12

Does Plaintiff’s comparative fault towards Contractors’ breach of duty towards construction workers reduce P’s recovery?

Answer 12

NO

UNLESS D is Owner of 1-2 family dwellings who contract for work (NOT direct/control work)

Question 13

When may Owner/Contractor/Agent be liable towards Construction Workers?*

Answer 13

1) Elevation-related injury
- Falling object
- Falling worker

2) Due to absence/improper use of required safety device

D is ‘absolutely’ liable (P’s negligence can NOT be used as defence)

• Cleaning
• Pointing
• Repairing

D is liable (P’s negligence can be used as defence)

• Construction
• Demolition
• Excavation

Question 14

What is required for liability of sale/assistance in unlawful sale of alcohol to others?*

Answer 14

1) Commercial sale of alcohol

2) Unlawful sale
- To minor
- To visibly intoxicated person
- To habitual drunkard

3) Injury to
- Person
- Property
- Means of support

Question 15

What damages may be recovered from unlawful sale of alcohol?

Answer 15

Actual damages

Exemplary damages

Question 16

Who else may liability of unlawful sale of alcohol extend to?*

Answer 16

Social host
1) Knowingly causes intoxication towards person under 21

2) Either;
- By furnishing (must be deliberate plan)
- Assisting in procuring alcohol to Minor

Question 17

What is required for Vehicle Owner to be vicariously liable?*

Answer 17

1) D negligently used/operated vehicle
2) Caused P’s death/injury OR property’s injury

3) With Owner’s permission (express/implied)
- UNLESS rebutted otherwise (by substantial evidence)

Question 18

What is required for liability of Parents towards child’s actions?*

Answer 18

1) Child is at least 10 years old
2) Child wilfully/maliciously/unlawfully
3) Damages/Destroys/Defaces property (public/private)

FYI Parent’s liability will be limited to $5,000

Question 19

What damages may Personal Representative of Decedent’s estate recover in wrongful death action?*

Answer 19

1) Pecuniary losses suffered
- Loss of financial contribution to Family (wages/potential pension benefits)
- Loss of guidance/companionship
- NOT proceeds of wrongful death action
- NOT grief

2) By Decedent’s ‘Distributees’
- Distributed to Heirs at law

Question 20

When may duty to speak with care arise?

Answer 20

X party would justifiably rely upon Y party for information

Question 21

What is required for liability towards negligent misrepresentation in commercial transactions?

Answer 21

1) Special relationship between parties
2) Giving rise to exceptional duty to commercial speech

3) Justifiable reliance on commercial speech
- D holds unique/special expertise
- Special relationship of trust/confidence
- D was aware of purpose of info + D supplied info for that purpose

Question 22

What is required for Accountant (D) to be liable for inaccurate financial records?

Answer 22

1) NO privity of contract
2) D held special/unique expertise
3) P detrimentally relied on D’s inaccurate financial reports
4) D was aware that the financial reports would be used for particular purpose
5) Known party (P) was intended to rely on reports (in furtherance of particular purpose)
6) D’s conduct linked him to P (which proves D’s understanding of P’s reliance)