Flashcards in Chapter 7 torts Deck (22):
List the five elements of a negligent tort
1. Duty of care
3. Factual Cause
4. Forseeable Harm
Explain "duty of care"
• If you are a plumber you should do it as a reasonable and prudent plumber would
How does a duty arise?
• There has to be a duty owed before there is a breach of duty
• If the duty doesn’t arise by some special relationship, agreement, or job requirement
o By law- if the government creates one ( as a driver we are required to stop if we are in an accident that causes injury)
o By agreement- plumber example
What liability/duty of care do “Dram Shop” laws address?
• Dram shop= any operation that sells alcohol= anything other than socially giving away
Explain the duty of care (if the law recognizes it) for General landowners to trespassers
owe nothing to a trespasser, they are there illegally entering and you owe them nothing
Explain the duty of care (if the law recognizes it) for General landowners to trespassing children
doctrine of attractive nonsense= minors, anything man made and reasonably expected to attract and injure children—swimming pools must have fences—take precautions required by law to protect the child, abandon buildings—must be boarded up
Explain the duty of care (if the law recognizes it) for General landowners to social guests
you owe a duty if you invite them over, warn them of any dangers on the property, don’t use the back stairs—they’re broken
Explain the duty of care (if the law recognizes it) for General landowners to business invitees
to make the premises safe—not just warn them; shovel snow, dry floors
What constitutes a breach of a duty?—
not performing that duty to the level that would be expected of a reasonable and prudent employee
Does a plaintiff have to prove negligence if the defendant’s actions constitute negligence per se?
What are the elements of negligence per se?
automatic negligence= arises when there is a statute involved:
* law must create a clear duty
* duty must exist to protect someone
- example: land owner must shovel snow
the link between the breach and the injury
What does Palsgraf v. Long Island Railroad (pages 157 -158) tell us about causation?
• Explosives go off, penny thing falls on child, pushing a passenger to get him in the door
Explain causation in fact
the injury wouldn’t have occurred but/for the negligence
Explain proximate cause
forseeablity (2)—it’s not foreseeable that pushing a passenger would cause an explosion
What does “foreseeability” mean?—
reasonably knowing that something will happen
How does a finding by a court of res ipsa loquitur affect a negligent tort case?
• The thing speaks for itself, there are something’s that are so obviously caused by negligence, the defendant must have control over the process- the injury cannot be caused unless there is negligence (scalpel) (air conditioning unit)
List and explain the three requirements for a finding of res ipsa loquitur.
• The defendant must have exclusive control
• Doesn’t happen but/for negligent conduct
• The plaintiff was injured
How does the doctrine of contributory negligence work? Is it widely used today? Why?
• If in fact you as the plaintiff were negligent and were injured, you cannot recover
How does the doctrine of comparative negligence work? How does “pure” comparative negligence differ from the “50% rule”? Give an example of the application of both to a negligence case.
• Looking at two different things or more, when the plaintiff and defendant are both negligent we compare the negligence
• 50% RULE= plaintiffs negligence accounts for 50% or more of your injury then you get nothing and you revert back to contributory negligence
Explain “assumption of the risk” as an affirmative defense to a claim of negligence, and address the recognized limit upon the defense.
• Assume by conduct or by specific agreement—roller coasters