Ch 4: Negligence

Question 1

What are the four elements of negligence?

Answer 1

• Duty
• Breach
• Causation
• Damages

These elements must be established by a preponderance of the evidence.

Question 2

What is the definition of Duty in negligence?

Answer 2

The obligation to protect another against unreasonable risk of injury

Duty is owed to anyone who may foreseeably be injured by the defendant’s failure to act as a reasonable person.

Question 3

What constitutes Breach in negligence?

Answer 3

The failure to meet the obligation of duty

A breach occurs when a defendant fails to act as a reasonable person would under similar circumstances.

Question 4

Define Causation in the context of negligence.

Answer 4

A close causal connection between the action and the injury

Causation links the breach of duty to the damages suffered.

Question 5

What are Damages in negligence?

Answer 5

The harm suffered by the plaintiff

Damages must be proven as a result of the defendant’s breach of duty.

Question 6

What is the Cardozo view regarding foreseeability of the plaintiff?

Answer 6

The defendant is liable only to plaintiffs who are within the zone of foreseeable harm

This view is a majority perspective on duty in negligence.

Question 7

What is the Andrews view regarding foreseeability of the plaintiff?

Answer 7

A duty is owed to everyone harmed if the defendant can foresee harm due to negligence

This is a minority view on the duty owed in negligence cases.

Question 8

True or False: There is generally a duty to act affirmatively in negligence cases.

Answer 8

False

A duty to act affirmatively may arise under certain conditions.

Question 9

List the conditions under which a duty to act affirmatively may be imposed.

Answer 9

• If the defendant assumes a duty
• If the defendant places another in peril
• If the defendant has actual authority to control another
• By a contract
• By a relationship
• By a statute

These conditions create an affirmative duty to act.

Question 10

What is the standard of care for a reasonably prudent person?

Answer 10

An objective standard that takes physical characteristics into account but not mental ones

This standard applies to all defendants, including those with special skills.

Question 11

How is a voluntarily intoxicated person treated under the standard of care?

Answer 11

Held to the same standard as a sober person

Intoxication does not excuse a breach of duty.

Question 12

What standard is applied to a child in negligence cases?

Answer 12

The standard of a reasonable child of similar age, intelligence, and experience

Children engaged in high-risk adult activities are held to an adult standard.

Question 13

True or False: A child under the age of five can be considered negligent.

Answer 13

False

Generally, children under five are not held to a negligence standard.

Question 14

What is the standard of care for common carriers?

Answer 14

Held to the highest duty of care consistent with the practical operation of the business

Common carriers can be liable for slight negligence.

Question 15

What is the liability standard for innkeepers?

Answer 15

Liable only for ordinary negligence

Historically, innkeepers could be held liable for slight negligence at common law.

Question 16

What duty do automobile drivers owe to their guests?

Answer 16

Ordinary care to their guests and passengers

This is unless a guest statute applies, which exists in a minority of jurisdictions.

Question 17

What is the duty of gratuitous bailors?

Answer 17

Need only inform the bailee of known dangerous defects

Compensated bailors must inform the bailee of defects they know or should have known about.

Question 18

What are the standards of care for possessors of land under the traditional approach?

Answer 18

• Invitees: Inspect and warn of unknown dangers
• Licensees: Warn of known dangers
• Known trespassers: Warn of concealed artificial dangers
• Other trespassers: Refrain from misconduct

These standards vary under the Third Restatement.

Question 19

What is the attractive nuisance doctrine?

Answer 19

Land possessors are liable for injuries to trespassing children if:
* An artificial condition poses an unreasonable risk of serious bodily injury to children
* Children cannot discover or appreciate the danger
* The utility of the condition is slight compared with the risk of injury
* The land possessor fails to exercise reasonable care

This doctrine aims to protect children from harm due to hazardous conditions on someone else’s property.

Question 20

When are landlords liable for injuries?

Answer 20

Landlords are liable for injuries occurring in:
* Common areas
* Hidden dangers not disclosed to tenants
* Premises leased for public use
* Hazards caused by negligent repair
* Hazards the landlord agreed to repair

Tenants are liable for injuries from dangerous conditions within their control.

Question 21

What duty do landowners owe to off-premises victims?

Answer 21

Landowners generally owe no duty to off-premises victims harmed by natural conditions, except for urban trees. For artificial conditions, they owe a duty to prevent unreasonable risk of harm.

This reflects the limited liability landowners have for conditions outside their property.

Question 22

What is the duty of sellers of real property?

Answer 22

Sellers must disclose any concealed and unreasonably dangerous conditions known to them. Their liability continues until the buyer has a reasonable opportunity to discover and remedy the defect.

This duty is crucial for ensuring buyer safety.

Question 23

What constitutes a breach of duty?

Answer 23

A breach of duty occurs when a defendant:
* Departs from the required standard of care
* Fails to act as a reasonable person
* Violates a statute without excuse
* Involves res ipsa loquitur in the absence of direct evidence

This concept is central to negligence claims.

Question 24

What is the traditional approach to determining negligent conduct?

Answer 24

Courts compare the defendant’s conduct with what a reasonably prudent person would have done under the circumstances (objective standard).

This approach serves as a baseline for evaluating negligence.

Question 25

What is the modern trend in evaluating negligence?

Answer 25

The modern trend and Third Restatement approach involves a cost-benefit analysis, considering: * Foreseeable likelihood of harm * Foreseeable severity of harm * Defendant’s burden in avoiding harm ## Footnote This approach allows for a more nuanced evaluation of negligence.

Question 26

How is custom evidence used in establishing the standard of care?

Answer 26

Custom evidence is admissible but not conclusive. For professionals, compliance or deviation from custom is dispositive evidence of a breach. ## Footnote This highlights the importance of industry standards in negligence cases.

Question 27

What standard do physicians adhere to in malpractice cases?

Answer 27

Physicians, including specialists, are held to a national standard in most jurisdictions, differing from the traditional 'same or similar locale' standard. ## Footnote This reflects a shift towards uniformity in medical malpractice standards.

Question 28

What constitutes negligence per se?

Answer 28

Negligence per se has four elements: * A statute imposes a specific duty * The defendant violates that duty * The plaintiff is in the protected class * The harm is of the type the statute protects against ## Footnote Establishing these elements leads to automatic liability unless defenses apply.

Question 29

What defenses can apply to negligence per se?

Answer 29

Defenses include: * Compliance was impossible or more dangerous * Violation was reasonable under circumstances * Statutory requirements were confusing * Compliance with federal regulations preempts common-law tort actions ## Footnote These defenses can mitigate or eliminate liability.

Question 30

What does res ipsa loquitur mean?

Answer 30

Res ipsa loquitur means 'the thing speaks for itself.' It allows inferring negligence from the circumstances of an accident without direct evidence. ## Footnote This doctrine is often applied in cases where direct evidence is unavailable.

Question 31

What are the requirements for res ipsa loquitur to apply?

Answer 31

Requirements include: * The accident ordinarily does not occur without negligence * Caused by an instrumentality within the exclusive control of the defendant * Not due to any action by the plaintiff ## Footnote This doctrine emphasizes circumstantial evidence in proving negligence.

Question 32

What is negligence per se?

Answer 32

Established if: * Law imposes duty on Δ * Δ violated law * � was in class of persons law intended to protect * � suffered type of harm law intended to prevent ## Footnote Δ = defendant; � = plaintiff.

Question 33

What are the conditions for res ipsa loquitur to be inferred?

Answer 33

Inferred if: * Accident of kind that usually does not occur in absence of negligence * Δ in exclusive control of thing that caused harm * � did not cause harm ## Footnote Δ = defendant; � = plaintiff.

Question 34

What must a plaintiff prove to establish causation in negligence?

Answer 34

A plaintiff must prove that the defendant’s actions were the cause of the plaintiff’s injury, requiring a showing of: * Actual cause (factual cause) * Proximate cause (legal cause) ## Footnote Actual cause means the injury would not have occurred but for the defendant’s conduct.

Question 35

What is actual cause (cause in fact) in negligence?

Answer 35

The defendant’s tortious conduct is the factual cause of the plaintiff’s injury if: * The injury would not have occurred but for the defendant’s conduct * The defendant’s conduct was a substantial factor in causing those injuries ## Footnote If unclear whose conduct caused the injury, the burden may shift to each defendant.

Question 36

What is proximate cause in negligence?

Answer 36

Proximate cause is a legal limitation on actual cause, focusing on foreseeability. * Majority rule: Defendants are liable for reasonably foreseeable consequences. * Minority rule: Defendants are liable for all direct consequences of their conduct. ## Footnote Plaintiffs can recover if their harm was within the scope of liability.

Question 37

What is an intervening cause?

Answer 37

An intervening cause is any cause that occurs after the defendant’s tortious act ## Footnote An unforeseeable intervening cause is a superseding cause that breaks the chain of proximate causation.

Question 38

What is the eggshell-skull rule?

Answer 38

Under the eggshell-skull rule, the defendant is liable for the full extent of a plaintiff’s injuries, even if those injuries were worsened by the plaintiff’s preexisting condition ## Footnote This applies to both negligence and intentional torts.

Question 39

What must a plaintiff prove to recover damages for actual physical harm?

Answer 39

The plaintiff must prove actual physical harm, which includes: * Bodily harm * Property damage ## Footnote Emotional distress may be added as parasitic damages.

Question 40

What are the types of damages for personal injury?

Answer 40

Damages for personal injury generally include: * Medical and rehabilitative expenses (past and future) * Pain and suffering (past and future) * Lost income * Reduction in future earnings capacity ## Footnote The eggshell-skull rule applies to personal injury damages.

Question 41

What is the collateral-source rule?

Answer 41

Under the traditional collateral-source rule, benefits from outside sources are not credited against the defendant’s liability ## Footnote Payments made by the defendant’s insurer are not from a collateral source.

Question 42

What are punitive damages?

Answer 42

Punitive damages are recoverable if there is clear and convincing evidence that the defendant acted: * Willfully and wantonly * Recklessly * With malice ## Footnote Awards generally cannot exceed a single-digit ratio between punitive and compensatory damages.

Question 43

What must a plaintiff prove under the zone-of-danger theory for negligent infliction of emotional distress?

Answer 43

The plaintiff must prove: * She was in the zone of danger (feared for her safety) * The threat of physical impact caused emotional distress ## Footnote Under the majority rule, emotional distress must be manifested by physical symptoms.

Question 44

What must a plaintiff prove under the zone-of-danger theory to recover for negligent infliction of emotional distress?

Answer 44

The plaintiff must prove that she was in the zone of danger and that the threat of physical impact caused emotional distress ## Footnote Under the majority rule, emotional distress must be manifested by physical symptoms, while the minority rule and the Third Restatement do not require physical symptoms.

Question 45

What is required for a plaintiff outside the zone of danger to recover under the bystander theory?

Answer 45

The plaintiff must be closely related to the injured person, present at the scene, and personally observed or perceived the injury ## Footnote Under the majority rule, physical symptoms of emotional distress are required.

Question 46

What is the general rule regarding the recovery of pure economic loss?

Answer 46

Economic damages are only recoverable alongside related personal injury or property damage.

Question 47

Who can bring a wrongful death action?

Answer 47

A decedent’s spouse, next of kin, or personal representative may bring suit.

Question 48

What damages can be recovered in wrongful death actions?

Answer 48

Damages for loss of support, companionship, society, and affection ## Footnote Pain and suffering are not recoverable.

Question 49

What can be pursued in survival actions?

Answer 49

Any claims that the decedent would have had at the time of death, including claims for pain and suffering.

Question 50

What is the rule regarding double recovery in wrongful-death and survival actions?

Answer 50

Double recovery is not allowed if the jurisdiction recognizes both wrongful-death and survival actions.

Question 51

What can a person recover for loss arising from injury to a family member?

Answer 51

Loss of consortium and society resulting from a physical or emotional injury to a spouse or child.

Question 52

What is a wrongful-life action?

Answer 52

A claim by a child based on the failure to properly perform a contraceptive procedure or diagnose a congenital defect.

Question 53

What can parents recover in wrongful birth or wrongful pregnancy actions?

Answer 53

Medical expenses of labor, pain and suffering, and potentially damages for caring for a disabled child ## Footnote Emotional distress may also be recoverable in some states.

Question 54

What is vicarious liability?

Answer 54

A form of strict liability where one person is liable for the tortious actions of another.

Question 55

What are the two conditions for an employer to be vicariously liable for an employee's tortious conduct?

Answer 55

1. An employer-employee relationship exists 2. The employee’s tortious conduct occurs within the scope of employment.

Question 56

Under what circumstances may an employer be liable for an employee's intentional torts?

Answer 56

1. The conduct involves work assigned by the employer 2. The tort is intended to benefit the employer 3. The employee is acting with apparent authority.

Question 57

What can an employer be directly liable for in relation to employees?

Answer 57

Negligently hiring, training, supervising, or otherwise controlling an employee.

Question 58

When may a person be vicariously liable for an independent contractor's torts?

Answer 58

1. Retains control over the source of tortious conduct 2. Performing abnormally dangerous activities or nondelegable duties 3. Acting with apparent agency.

Question 59

What is the general rule regarding liability for independent contractors?

Answer 59

A person who engages an independent contractor is generally not vicariously liable for the contractor’s torts.

Question 60

What is negligent entrustment?

Answer 60

Liability of a vehicle owner if they knew or should have known about the entrusted user’s negligent propensities.

Question 61

What is family purpose doctrine in relation to automobile owners?

Answer 61

An automobile owner may be liable for the tortious acts of a family member driving the car with permission.

Question 62

What is the general rule regarding parents' liability for their children's torts?

Answer 62

Parents are not vicariously liable unless the child was acting as their agent or a state statute applies.

Question 63

What must parents do to be directly liable for their child's torts?

Answer 63

Fail to use reasonable care to prevent their child from intentionally or negligently harming someone else.

Question 64

What is dram-shop liability?

Answer 64

A cause of action against the seller of intoxicating beverages when a third party is injured due to the buyer’s intoxication.

Question 65

Under what circumstances can dram-shop liability be invoked?

Answer 65

When the buyer was a minor or intoxicated at the time of sale.

Question 66

What act waives the U.S. government's immunity in tort actions?

Answer 66

Federal Tort Claims Act ## Footnote The act has specific exceptions where immunity is not waived.

Question 67

List the exceptions to the U.S. government's liability under the Federal Tort Claims Act.

Answer 67

* Enumerated torts * Discretionary functions * Government contractor in a products-liability case (unless failed to warn or conform to specifications) * Traditional government activities

Question 68

True or False: Immunity is waived for intentional torts by law enforcement officers.

Answer 68

True

Question 69

How does state government liability typically differ from federal government liability?

Answer 69

States have at least partially waived immunity, but tort claims acts vary by state.

Question 70

What governs the liability of municipalities and local governments?

Answer 70

State tort claims acts

Question 71

What is the public-duty rule?

Answer 71

No liability to any one citizen for failure to fulfill a duty to the public unless there is a special relationship creating a special duty.

Question 72

What is the status of interspousal immunity in most states?

Answer 72

Abolished

Question 73

Parent-child immunity is generally limited to what?

Answer 73

Core parenting activities

Question 74

What is the current status of charitable immunity in most states?

Answer 74

Totally or partially eliminated, with some states capping recoverable damages.

Question 75

What is the doctrine of joint and several liability?

Answer 75

Each defendant found liable for a single harm is liable for the entire harm.

Question 76

What is pure several liability?

Answer 76

Each defendant is liable only for his proportionate share of the plaintiff’s damages.

Question 77

Under joint and several liability, what can a defendant do if they pay more than their fair share?

Answer 77

Sue other defendants for contribution.

Question 78

What is indemnification?

Answer 78

Shifting the entire loss from one person to another.

Question 79

Define contributory fault.

Answer 79

When a plaintiff fails to exercise reasonable care for her own safety, sharing a percentage of fault.

Question 80

What happens under the traditional rule of contributory negligence?

Answer 80

The plaintiff’s contributory fault is a complete bar to recovery for negligence.

Question 81

What is the last-clear-chance rule?

Answer 81

Allows a plaintiff to mitigate their contributory fault if the defendant had the last clear chance to avoid injury.

Question 82

In pure comparative negligence jurisdictions, how are damages affected?

Answer 82

Damages are reduced by the plaintiff’s percentage of fault.

Question 83

What happens in modified comparative negligence jurisdictions if the plaintiff is more at fault than the defendant?

Answer 83

The plaintiff recovers nothing.

Question 84

What is the effect of assumption of risk in contributory-negligence jurisdictions?

Answer 84

It is a total bar to recovery.

Question 85

In comparative-negligence jurisdictions, what does assumption of risk do?

Answer 85

Merely reduces recovery.

Question 86

List the conditions under which courts will not enforce exculpatory provisions in contracts.

Answer 86

* Disclaim liability for reckless or wanton misconduct or gross negligence * Gross disparity in bargaining power * Services of great importance to the public * Subject to typical contract defenses like fraud or duress * Against public policy

Question 87

What is required for strict liability?

Answer 87

Proof of an absolute duty to make the plaintiff’s person/property safe, actual and proximate causation, and damages. ## Footnote Strict liability applies without proof of fault in specific situations.

Question 88

What situations fall under strict liability?

Answer 88

DAD (Dangerous activities, Animals, Defective or dangerous products) situations. ## Footnote These are the only scenarios where a defendant can be liable without proving fault.

Question 89

Define an abnormally dangerous activity.

Answer 89

An activity not commonly engaged in that creates a foreseeable and highly significant risk of physical harm. ## Footnote Courts evaluate the gravity of harm, appropriateness of the place, and the limited value of the activity.

Question 90

What factors do courts consider for abnormally dangerous activities?

Answer 90

* Gravity of the harm * Inappropriateness of the place * Limited value of the activity ## Footnote Strict liability is focused on the nature of the activity, not the defendant's care.

Question 91

What is the strict liability for the owner of a wild animal?

Answer 91

Strictly liable for harm arising from a dangerous propensity characteristic of the animal or known to the owner. ## Footnote This includes injuries from a plaintiff's fearful reaction to an unrestrained wild animal.

Question 92

What defines an abnormally dangerous animal?

Answer 92

An animal with dangerous propensities abnormal for its category or species known or should have been known by the owner. ## Footnote The owner is strictly liable for harm resulting from these propensities.

Question 93

What is the liability for trespassing animals?

Answer 93

Strictly liable for reasonably foreseeable damage caused by the animal while trespassing, except for household pets under certain conditions. ## Footnote General negligence applies if an animal strays onto a public road.

Question 94

Is contributory negligence a defense in strict liability cases?

Answer 94

No, in contributory-negligence jurisdictions, it does not bar recovery. ## Footnote This means plaintiffs can recover even if they were partially at fault.

Question 95

How does comparative fault affect recovery in strict liability cases?

Answer 95

In some jurisdictions, it does not reduce recovery; in others, it may reduce recovery based on the plaintiff's comparative fault. ## Footnote This is aligned with the Third Restatement principles.

Question 96

What is the effect of assumption of risk in strict liability?

Answer 96

It bars recovery if the plaintiff knowingly engages in contributory negligence. ## Footnote Assumption of risk indicates the plaintiff was aware of the risks involved.