Negligence Flashcards
(97 cards)
1
Q
What is the tort of negligence?
A
The tort of negligence arises when an actor fails to exercise reasonable care and in doing so, causes harm to the victim. The actor must owe a duty to the victim, and breach that duty to be liable.
2
Q
What is a duty?
A
A duty arises when a person is required to act in a particular way because, if he does not, he might be subject to liability for injury to a person to whom the duty is owed.
3
Q
Does an actor have a duty, or duty of care to everyone?
A
No, a duty or duty of care arises if it is reasonably foreseeable that the actors conduct might harm someone else.
4
Q
What is the standard of care?
A
The standard of care is the standard imposed by law for the protection of others against unreasonable risk of harm. Unless a special standard of care applies, the standard of care is that a reasonable person would exercise under similar circumstances.
5
Q
What is a breach of duty?
A
A breach of duty is an actor’s failure to conform his or her behavior to the applicable standard of care. In negligence, the threshold question is whether an actor owes a duty of care to anyone. If that question is answered affirmatively, the next question is what that owed duty, or standard of care is. Once the duty is defined the next question is whether the actor failed to conform his or her behavior to that standard of care. if so the actor has breached the duty.
6
Q
What is the rescue doctrine?
A
Legal principle that provides that if a defendant negligent puts himself or another in danger, the defendant owes a duty of care to any would be rescuers.
7
Q
What is misfeasance?
A
Misfeasance is a harmful act. Most torts arise because the actor has committed some misfeasance that harmed the victim.
8
Q
What is nonfeasance?
A
Nonfeasance is the failure to act. Generally a person is not liable in tort for nonfeasance, because a person usually has no affirmative duty to act on another’s behalf. But if a person is under a duty to act, the nonfeasance may be a sufficient basis for tort liability.
9
Q
What is the specific harm rule?
A
The specific harm rule provides that if the business proprietor is aware of specific harm about to happen to a particular invitee, the proprietor has a duty to protect the invitee.
10
Q
What is the majority rule for defining the scope of the defendants general duty to foreseeable victims?
A
A defendant generally owes a duty of care only to foreseeable plaintiffs for foreseeable harms. This is known as the Cardozo view .
11
Q
Once it is established that a defendant owes the plaintiff a duty, what is the next step in negligence analysis?
A
The next step in the negligence analysis is to determine the standard of care that the duty required the defendant to exercise. Generally, the standard of care is the reasonable person standard.
12
Q
What is the reasonable person standard?
A
The reasonable person standard is the most general standard of care. The reasonable person standard provides that: 1. if a reasonable person in the defendants position would recognize 2. that his or her conduct creates an unreasonable risk of harm to others, 3. then the defendant must take the same precautions that a reasonable person would take to eliminate that risk. If a defendant fails to act in accordance with the standard, the defendant has breach the duty of care.
13
Q
What are the elements for a general negligence claim?
A
The defendant owed the plaintiff a duty to conform to a particular standard of care
The defendant breach that duty by failing to conform to that standard of care
The breach actually and proximately caused legally cognizable harm to the plaintiff
14
Q
In a medical malpractice action who bears the burden of establishing the applicable standard of care?
A
The plaintiff always bears the burden, if the plaintiff fails to establish the standard of care the defendant prevails.
15
Q
What is a good Samaritan statue?
A
A law immunizing a physician or other rescuer from liability for negligence while helping someone who is injured. There are several exceptions to the immunity.
16
Q
What is negligence Per se?
A
A Doctrine under which the specific requirements of a law, such as a statue, regulation, or ordinance, replace the general standard of reasonable care with a standard set forth in the law. Therefore the reasonable person standard is applicable if negligence per se applies.
17
Q
What is the difference between duty and standard of care?
A
The difference is that once A duty arises, an actor must behave according to an applicable standard of care. Standard of care is not the same in every situation in which A duty exists. In other words, unless they duty exists, no standard of care applies
18
Q
What does the term res ipsa loquitur mean?
A
“The thing speaks for itself.”
Res ipsa loquitur means a Doctorine that applies in situations in which the mere occurrence of harm is sufficient evidence to permit a jury to conclude that the defendant breached a duty.
19
Q
In addition to proving duty, the standard of care, and breach of that duty, what else must a negligence plaintiff prove?
A
The plaintiff must prove that the defendants breach of duty was the cause in fact, or actual cause, of the plaintiffs injury. In other words the plaintiff must connect the defendants conduct to the plaintiffs resultant har
20
Q
For purposes of negligence what is legal harm?
A
Legal harm is some actual loss or detriment to a person, an object, or thing. In other words legal harm arises only if the plaintiff is worse off in someway, as an actual and legal result of the defendants breach of duty.
21
Q
What is physical harm?
A
Physical harm in tort law means some impairment of the human body, real property, or tangible personal property. Physical harm includes the exacerbation of a prior injury or condition. A plaintiff in a negligence case may always recover for the full extent of the physical harm suffered as a result of the defendants negligence. If the plaintiff suffered harm to real or tangible personal property, the plaintiff may recover the cost to repair the property’s damage or, if the property was destroyed, the propertys fair market value at the time of destruc
22
Q
What are the three basic types of legal harm in negligence?
A
Physical harm
Emotional or mental harm
Economic harm
23
Q
What is the “but for” test for actual causation?
A
A test that asks whether the plaintiffs injury would not have occurred without the defendant’s action. For this test, courts ask whether the same harm would’ve happened to the plaintiff if the defendant has not acted at all. If the answer is no, then the defendants actions are seen as an actual cause of the plaintiffs harm.
24
Q
What is the concurrent-causes doctrine?
A
The concurrent-causes doctrine is a special test of but-for causation that finds causation if:
multiple forces combined to cause the plaintiff’s harm, andno single force, by itself, would have been sufficient to cause the harm.
25
What is the substantial-factor test for actual causation?
Courts use the substantial-factor test for actual causation if:
multiple forces combined simultaneously to cause the plaintiff’s harm,
any one of these forces would have been sufficient to cause the harm by itself, and
it is impossible to tell which force caused what portion of the harm.If these three elements are present, courts will use the substantial-factor test to determine the element of causation, rather than the more common but-for test. Under the substantial-factor test, if the defendant’s negligence was a substantial factor in causing the harm, then the defendant’s negligence will be treated as the actual cause of the plaintiff’s injury even if there are other, independent forces that contributed to the harm
26
For purposes of negligence, what are the major theories under which causation may be proven?
```
For purposes of negligence, the major theories under which causation may be proven are:
the but-for test,
the concurrent-causes doctrine,
the substantial-factor test, and
the alternative-causes doctrine.
```
27
What is the difference between general and specific causation?
The difference between general and specific causation is the difference between the potential for harm and the actual occurrence of harm. More particularly, general causation asks whether an activity or substance has the potential to cause the type of harm that a victim suffered; specific causation asks whether an actor’s particular activity or substance actually caused a specific victim’s particular harm.
28
For purposes of a negligence claim, what is the doctrine of alternative causes?
The doctrine of alternative causes is one possible test for the element of actual causation in a negligence claim. The doctrine of alternative causes applies if:
multiple defendants were negligent,
at least one of the defendants caused the plaintiff’s harm, and
the plaintiff cannot show which defendant’s negligence caused the harm.
If these elements are all present and the doctrine of alternative causes applies, then the burden of proof for causation is shifted to the multiple defendants. This means that each negligent defendant must show that his or her negligence did not cause the injury.
29
What is the doctrine of market-share liability?
The doctrine of market-share liability is one possible test for the element of actual causation that is primarily used in products-liability cases. The doctrine of market-share liability applies if a plaintiff: (1) can prove that a product injured her but (2) cannot prove which of several defendants that produce identical products manufactured that particular product.
If the doctrine of market-share liability applies, then courts will shift the burden to each defendant to prove that its product did not cause the harm.
30
If multiple tortfeasors were responsible for a plaintiff’s harm, will a court apportion the responsibility among the various culpable parties?
Yes. If multiple tortfeasors were responsible for a plaintiff’s harm, the court will apportion the responsibility among the various culpable parties. How the apportionment is done generally depends on whether the respective tortfeasors were acting independently or in concert.
31
For purposes of apportionment of responsibility among multiple culpable parties, what is a divisible injury?
A divisible injury is an injury in which multiple culpable parties contributed to the plaintiff’s harm, and it is possible for the fact finder to discern which tortfeasor caused what portion of the harm. If the plaintiff’s injury is divisible, the fact finder may apportion responsibility on the basis of actual causation.
32
For purposes of apportionment of responsibility among multiple culpable parties, what is an indivisible injury?
An indivisible injury is an injury in which multiple culpable parties contributed to a plaintiff’s harm, and it is not possible for the fact finder to discern which tortfeasor caused what portion of the harm. In these cases, responsibility must be apportioned on the basis of the fact finder’s percentage allocation of fault to each party, rather than on the basis of individual causation.
33
What are the two methods by which a court will apportion responsibility for harm caused by separate tortfeasors acting independently of one another.
The two methods by which a court will apportion responsibility for harm caused by separate tortfeasors acting independently of one another are:
causal apportionment and
fault allocation.
Causal apportionment is used to apportion responsibility for divisible injuries, and fault allocation is used to apportion responsibility for indivisible injuries.
34
For purposes of apportioning responsibility among multiple tortfeasors found liable for an indivisible injury, what is several liability?
For purposes of apportioning responsibility among multiple tortfeasors found liable for an indivisible injury, several liability permits a plaintiff to recover from a given defendant only that particular defendant’s proportional share of the damages. This is true even if plaintiff is unable to collect the remaining damages from the other defendant or defendants.
35
what s the doctrine of joint and several liability?
Under the The doctrine of joint-and-several liability, a plaintiff may recover the entire amount of the plaintiff’s damages from any defendant who was found jointly and severally liable for the plaintiff’s harm. This is true even if other defendants were also found jointly and severally liable for the same harm.
36
For purposes of a plaintiff’s recovery for damages in tort, what is satisfaction?
For purposes of a plaintiff’s recovery for damages in tort, satisfaction means that the plaintiff has been fully compensated for his or her harm. Therefore, satisfaction discharges all tortfeasors from further liability to the plaintiff.
37
For purposes of a plaintiff’s recovery for damages in tort, what is a release?
For purposes of a plaintiff’s recovery for damages in tort, a release relinquishes a plaintiff’s claim against those tortfeasors named in the release. Any unnamed tortfeasors may still be held liable. A plaintiff may sign a release as part of a settlement agreement.
Keep in mind that a release is significantly different from a satisfaction. A release is a deliberate relinquishment of a claim against one or more tortfeasors, whereas satisfaction means that the plaintiff has been fully compensated and is not entitled to further compensation.
38
What is the one-satisfaction rule?
The one-satisfaction rule limits a plaintiff to recovering only once for the plaintiff’s damages. A plaintiff may be required to seek recovery from multiple tortfeasors, but the total recovery cannot exceed 100 percent of the plaintiff’s damages. In other words, the plaintiff can receive only one satisfaction.
39
What is the collateral-source rule in negligence?
In tort law, the collateral-source rule is the common-law rule that a plaintiff’s recovery is not affected by any compensation the plaintiff receives from sources other than the defendant, such as insurance payments.
Many jurisdictions have altered this rule by statute, especially in medical-malpractice cases, to limit a plaintiff’s recovery to his or her actual damages and foreclose a windfall. In addition, many insurance contracts contain subrogation clauses that transfer the plaintiff’s right of recovery to the insurer, up to the policy limits.
40
What is proximate cause?
Proximate cause is the legal cause of the harm. Proximate cause is one of the elements of the tort of negligence. The requirement of proximate cause ensures that the defendant’s actions, in addition to being the actual cause of the plaintiff’s harm, were also sufficiently related to the harm to justify imposing liability on the defendant. This relationship hinges on whether the harm the defendant caused was generally foreseeable as a risk of the defendant’s conduct.
41
Is a defendant liable for all harm that results from his or her conduct?
No. A defendant is not liable for all harm that results from his or her conduct. A defendant will be held liable only for harm that is a reasonably foreseeable result of the defendant’s conduct.
42
What is an intervening cause in tort law?
An intervening cause is an event that occurs after a tortfeasor's initial act of negligence and causes injury or harm to a victim. An intervening cause does not break the causal chain if it was reasonably foreseeable. To break the causal chain, an intervening cause must have been unforeseeable.
43
What is a superseding cause in tort law?
A superseding cause is an unforeseeable, intervening cause. That is, a superseding cause is an event that occurs after a tortfeasor’s initial act of negligence and causes injury or harm to a victim that was not reasonably foreseeable. A superseding cause breaks the causal chain between the defendant’s breach of duty and the victim’s harm, and thus a superseding cause absolves the defendant of liability.
44
Is a tortfeasor generally liable for harm resulting from other people’s responses to the tortfeasor’s negligence?
Yes. A tortfeasor is generally liable for harm resulting from other people’s natural and foreseeable responses to the tortfeasor’s negligence. However, if another person’s response to the tortfeasor’s negligence was not foreseeable, the tortfeasor will not be liable for harm arising from that response.
45
What is the lost-chance doctrine in the context of medical negligence?
In medical negligence, the lost-chance doctrine holds that a defendant’s negligent actions may be the proximate cause of a person’s death if those negligent actions reduced the person’s overall chance of survival by some degree. The lost-chance doctrine applies even if the person was more likely than not to die had the negligent action not occurred.
46
Does a possessor of land owe any duty to those who enter upon the land?
Yes. Someone who owns or possesses land generally owes a duty of care to those who enter upon the land. Historically, the standard of care has depended upon the classification of the entrant.
47
Who is an invitee onto land?
An invitee onto land is someone who has express or implied permission to be on the land in connection with business dealings for the land possessor’s benefit or other purposes. Invitees can be business invitees or public invitees.
48
Who is a business invitee onto land?
A business invitee is someone who is on the premises:
with the possessor’s express or implied permission and
in connection with business dealings for the possessor’s benefit.
Keep in mind that, historically, the standard of care owed to entrants on land depended upon their classification into one of these categories.
49
What are the elements of a prima facie claim of negligence?
The elements of a prima facie negligence claim are: (1) duty, (2) standard of care, (3) breach, (4) actual causation, (5) proximate causation, and (6) harm.
Specifically, to establish a prima facie negligence claim, the plaintiff must prove that:
the defendant owed the plaintiff a duty to conform to a particular standard of care,
the defendant breached that duty by failing to conform to the applicable standard of care, and
the breach actually and proximately caused legally cognizable harm to the plaintiff.
The elements of duty and standard of care are foundational. If the defendant owed the plaintiff no duty to conform to any standard of care, then the defendant cannot be held liable for negligence, regardless of how the defendant behaved or how severely the plaintiff was injured.
50
Who is a public invitee onto land?
A public invitee is someone who is on the premises:
because the premises were held open to the public and
for reasons directly or indirectly related to the purpose for which the premises were held open to the public.
Therefore, if a person is on premises open to the public for reasons outside of the scope of the purpose for the public opening, the person is not a public invitee
51
Does the law recognize a general duty to rescue another?
No. The law does not impose a general duty to assist or rescue someone else. However, if a person voluntarily undertakes to assist or rescue another, whether gratuitously or for compensation, the rescuer has a duty to exercise reasonable care under the circumstances to avoid injuring the person assisted.
52
Who is a licensee?
A licensee is a person who has a land possessor’s consent to enter or remain on the land or has some legal privilege to be there. Generally, a licensee enters upon the premises for his or her own purposes, rather than for any business or public purpose of the possessor. Social guests are the archetypal licensees.
53
Who is a trespasser?
A trespasser is someone who is present on the land without either the rightful possessor’s valid consent or some legal privilege. In other words, a trespasser is someone who occupies land but is not the possessor, an invitee, or a licensee.
54
What are the traditionally recognized categories of entrants on land?
The traditionally recognized categories of entrants on land are:
invitees,
licensees, and
trespassers.
Historically, the standard of care owed to entrants on land has depended upon their classification into one of these categories. Keep in mind that the trespasser category is further subdivided, and the duty owed varies among these sub categories.
55
Who is an unknown trespasser?
An unknown trespasser is a trespasser (meaning someone on the land without the possessor’s consent or a legal privilege to be there) whose presence on the land is not known, nor should it reasonably be known, by the rightful possessor. Unknown trespassers may also be referred to as undiscovered trespassers.
56
May a possessor of land ever use deadly force to protect against trespassers?
Yes. A possessor of land may use deadly force to protect against trespassers in certain, limited circumstances. Specifically, the possessor may use deadly force against a trespasser only if the owner or another lawful occupant:
is on that land and
threatened with imminent death or serious bodily injury.
At common law, the owner’s duty of care toward trespassers was generally to refrain from willful and wanton conduct—like refraining from the use of deadly force if no physical threat to a person is present. Note that a possessor of land may not use deadly force to protect property alone.
57
Who is an anticipated trespasser?
An anticipated trespasser is a trespasser (meaning someone on the land without the possessor’s consent or a legal privilege to be there) whom the possessor must know, or have reason to know, regularly intrudes upon a specific part of the possessor’s property. The possessor need not actually see the trespasser; that the possessor sees evidence of the trespasser is sufficient to put the possessor on notice of the trespasser’s presence.
58
Who is a known trespasser?
A known trespasser is a trespasser (meaning someone on the land without the possessor’s consent or a legal privilege to be there) who occupies a possessor’s land with the possessor’s actual or constructive knowledge. If a land possessor knows, or should know, that a trespasser is on the land, the possessor owes the known trespasser a duty of care.
59
If a landlord leases property to a tenant, who is deemed the possessor of the property in a tort analysis?
If a landlord leases property to a tenant, the tenant is generally deemed the property’s possessor in a tort analysis. Therefore, the general rule is that landlords are not liable to tenants or tenants’ guests for injuries caused by defects in the premises.
There are, of course, exceptions to this rule.
60
What is emotional or mental harm in negligence?
Emotional or mental harm, in tort law, includes some damage or impairment to a person’s mind or emotional well-being. This can cover a range of detrimental or negative mental states, from mildly unpleasant to disabling. Although a negligence plaintiff may recover for the full extent of any physical harm, the plaintiff is limited in the ability to recover for emotional or mental harm.
61
May a negligence plaintiff recover for emotional harm?
Yes. A negligence plaintiff may recover for emotional harm in two situations. First, a plaintiff may recover for emotional harm that is traceable to physical harm. In that instance, the plaintiff may recover for both the emotional and physical harm. Second, if a plaintiff sustained only emotional harm, absent any physical harm, the plaintiff may recover for emotional harm only if the plaintiff can establish a claim for negligent infliction of emotional distress. Therefore, negligence claims predicated solely on emotional harm are difficult to sustain
62
What are the requirements for a negligence-based claim for NIED?
An actor breached a duty owed to the victim,
it was reasonably foreseeable that someone in the victim’s position would suffer severe emotional distress as a result of the actor’s breach, and
the actor’s breach actually and proximately caused severe emotional distress.
63
What is loss of consortium?
Loss of consortium is a type of harm suffered by someone in a close relationship with a victim after a defendant tortiously inflicts physical injury on the victim that reduces his or her ability to participate meaningfully and intimately in the relationship, causing the uninjured person distress and deprivation. The uninjured person may recover for loss of intangible benefits like affection, companionship, consolation, emotional support, and sexual intimacy. Relationships that give rise to loss-of-consortium claims are limited to legal spouses and unmarried cohabitants (depending on the nature and closeness of the relationship).
64
Although the law does not recognize a general duty to rescue, can a duty to rescue arise if an imperiled person reasonably relies on a would-be rescuer’s promise to rescue?
Yes. A duty to rescue can arise if an imperiled person reasonably relies on a would-be rescuer’s promise to rescue. If the person fails to act in accordance with that promise, this may constitute a breach of duty to the person who reasonably relied upon that promise. This is one exception to the general rule that a person has no general duty to rescue another.
65
What is vicarious liability?
Vicarious liability is liability imposed on one party for another party’s tortious conduct. Liability is imposed not because the vicariously liable party was culpable for any wrongdoing, but because of a special relationship between the vicariously liable party and the primary tortfeasor.
66
What is derivative liability?
Derivative liability is liability that is predicated on the liability of another. Derivative liability is therefore the same in its extent and terms as the primary liability. Thus, without a finding of liability of the first party, there can be no derivative liability for the subsequent party (for example, a plaintiff cannot recover against an employer on the basis of vicarious liability unless the employee is found liab
67
What is negligent hiring?
Negligent hiring is a tort that occurs when:
an employer knows, or reasonably should know, that a prospective employee is incompetent, negligent, or violent in a way that creates an unreasonable risk of harm;
after being hired, the employee injures the plaintiff because of these characteristics; and
the employer could have prevented the injury by using reasonable care in the hiring process.
68
What is negligent supervision?
Negligent supervision is a tort that occurs when:
a defendant owes the plaintiff a duty to protect the plaintiff from the tortious conduct of a third party,
the defendant fails to use reasonable care in supervising the third party, and
the third party harms the plaintiff as a result.
Keep in mind that because the defendant was negligent in supervising the third party, the defendant’s liability is based on his or her own negligence rather than on vicarious liability. Therefore, the defendant has no right of indemnification against the other party.
69
What is negligent entrustment?
Negligent entrustment is a tort that occurs when (1) the defendant entrusts a third party to participate in an activity or to operate a potentially dangerous instrumentality, even though (2) the defendant knows, or should know, that the third party is likely to act in a way that creates an unreasonable risk of harm to the third party or other, such as hiring an irresponsible person to operate a roller coaster
Keep in mind that because the defendant was negligent in entrusting the third party with a particular responsibility, the defendant’s liability is based on his own negligence rather than on vicarious liability. Therefore, the defendant has no right of indemnification against the third party.
70
What is the doctrine of respondeat superior?
The doctrine of respondeat superior (which is Latin for “let the master answer”) is a legal principle that permits employers to be held vicariously liable for their employees’ tortious conduct. Employers may be held liable for their employees’ tortious conduct if:
there was a master-servant relationship between them at the time of the tort, and
the employee committed the tort within the scope of employment.
Therefore, if these conditions are not met, employment alone is insufficient to trigger an employer’s vicarious liability for an employees tort.
71
What is the borrowed-servant doctrine?
The borrowed-servant doctrine is a legal principle that addresses employer liability in situations in which one employer directs its employee to work for another employer. This doctrine determines which employer or employers (the borrowing employer or the original employer), if any, will be vicariously liable for the employee’s tortious acts.
72
In general, under the borrowed-servant doctrine, is the borrowing employer subject to liability based on respondeat superior for the employee’s tortious conduct?
Yes. In general, under the borrowed-servant doctrine, the borrowing employer, rather than the original employer, is subject to liability based on respondeat superior for the employee’s tortious conduct. The original employer is not liable, even though the original employer directed the employee to work for the borrowing employer.
Some courts disregard this general rule and impose liability on both employers. Other courts determine liability based on which employer had actual control over the employee at the time of the tortious conduct, based on the so-called control test.
73
If an actor’s conduct renders a victim helpless to protect herself, does the actor owe the victim any duty?
Yes. If an actor’s conduct renders a victim helpless to protect herself against a reasonably foreseeable risk of future harm, and the actor knew of the peril his conduct caused, then the actor owes the victim a duty to use reasonable care to prevent further harm. This is true regardless of whether the actor’s initial conduct was negligent. In short, an actor who imperils another has a duty to prevent any further peril.
74
For purposes of vicarious liability, what is the going-and-coming rule?
For purposes of vicarious liability, the going-and-coming rule states that an employee’s commute to and from work is generally outside of the scope of employment. Thus, an employer typically will not be held vicariously liable for the employee’s tortious conduct committed during the commute to or from work.
However, this rule has several exceptions.
75
What is an employee frolic?
An employee frolic is employee conduct that is a substantial departure from the employer’s business. An employee on a frolic is no longer acting with any significant motive to serve the employer; instead, the employee is acting to serve other interests. Therefore, an employee frolic is outside the scope of employment. This means that the employer generally will not be vicariously liable for an employee’s tortious conduct committed while on a frolic
76
What is an employee’s mere detour?
An employee’s mere detour is a minor deviation from the employer’s business, or the time and place designated for work, during a course of conduct that is otherwise substantially devoted to serving the employer’s purposes. An employee’s mere detour is within the scope of employment. Therefore, an employer may be held vicariously liable for torts that an employee commits in the course of a mere detour.
77
Are employers vicariously liable for every negligent act their employees commit while on the job?
No. Employers are not vicariously liable for every negligent act their employees commit while on the job. Employees often deviate temporarily from their employer’s business to do things unrelated to the business. If an employee negligently injures someone during that kind of deviation, vicarious liability will depend on whether the deviation was a frolic, which falls outside the scope of employment, or a detour, which does not.
78
If an employer is held vicariously liable for a harm tortiously caused by an employee, does the employer have a right of indemnity against the employee?
Yes. An employer who is held vicariously liable for an employee’s work-related tort has a right of indemnity against that employee. However, this right may be limited proportionately if the employer also engaged in wrongful conduct, like negligence in hiring the employee.
79
If the relationship between an employer and a person hired to perform work is not a master-servant relationship, what is the most likely classification?
If the relationship between an employer and a person hired to perform work is not a master-servant relationship, the hired person will most likely be classified as an independent contractor. In general, an employer who hires an independent contractor is not vicariously liable for the independent contractor’s torts, subject to some important exceptions.
80
Can a contract give rise to a duty of care?
Yes. A contract may give rise to a duty of care. A party may have a duty to use due care in performing her obligations under a contract. In addition, the nature of the contract may imply a duty to act (for example, a private security guard may have an affirmative duty to protect people or property the guard contracted to protect).
81
If a statute imposes a specific duty of care on a person or entity, may the person or entity delegate that duty to an independent contractor?
No. If a statute imposes a specific duty of care on a person or entity, that person or entity may not delegate that duty to an independent contractor. This would effectively circumvent the duty of care that the statute imposes on the party.
82
What is collateral negligence?
Collateral negligence is negligence caused by an independent contractor that is inconsistent with, or not inherent in, the work the contractor was hired to perform. Therefore, collateral negligence is negligence that was not foreseeable to the party that hired the independent contractor. An independent contractor’s collateral negligence generally may not be the basis for vicarious liability.
83
May participants in a joint venture ever be held vicariously liable for torts committed by other joint-venture participants?
Yes. Participants in a joint venture, like members in a partnership, are vicariously liable for the torts of other joint-venture participants committed in the course of the venture. The hallmarks of a joint venture are (1) a shared purpose among the participants, combined with (2) shared participation in control, profits, and losses.
84
What is the family-use doctrine (sometimes called the family-purpose doctrine)?
The family-use or family-purpose doctrine is an important exception to the general rule that car owners are not vicariously liable for torts committed by another driver operating the owner’s car. If a car owner provides a car for the benefit of a household, and a household member has the owner’s consent to drive the car, then the car owner is vicariously liable for the driver’s car-related torts.
This should be distinguished from a permissive-use statute, under which the owner’s vicarious liability extends to torts committed by any person, even outside the household, who has the car owner’s permission to drive the car.
85
What is a permissive-use statute?
A permissive-use statute is a law that provides that if a motor vehicle’s owner gives express or implied permission to a person to use that vehicle, and the driver wrongfully (whether negligently or intentionally) causes harm, the owner may be held vicariously liable. Harm may include injury or death of a person or property damage. Under permissive-use statutes, vicarious liability is predicated on ownership of the vehicle and the owner’s decision to lend the vehicle to another.
86
What is contributory negligence?
Contributory negligence is a common-law doctrine that completely bars a plaintiff from collecting any damages for harm caused by another’s negligence if the plaintiff contributed to his or her own harm in any meaningful way. To establish contributory negligence, the defendant must prove:
the plaintiff was negligent by failing to use reasonable care to prevent the injury, and
the plaintiff’s negligence, in conjunction with the defendant’s negligence, actually and proximately caused the injury.
87
What is the last-clear-chance doctrine?
The last-clear-chance doctrine negates a contributory-negligence defense if, despite the plaintiff’s negligence, the defendant had the last clear chance to avoid the harm by exercising reasonable care. If the doctrine applies, the plaintiff’s recover is not barred by contributory negligence. Many courts apply the doctrine only if, at the time the defendant was negligent, the defendant knew or should have known the defendant could avoid the plaintiff’s harm.
Judicial treatment varies based on whether the plaintiff was in helpless peril or could have reasonably escaped. In cases of helpless peril, some courts require that the defendant actually knew the plaintiff was unable to help himself. If the plaintiff had a reasonable means of escape, even if the plaintiff did not know it, most jurisdictions require that the defendant actually knew of the peril before they apply the doctrine.
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For purposes of negligence, what is pure comparative fault?
For purposes of negligence, pure comparative fault is a doctrine that reduces a plaintiff’s recovery by the percentage that the plaintiff’s own negligence contributed to his or her harm. In pure comparative fault, the plaintiff’s recovery is not barred even if the plaintiff’s fault exceeds the defendant’s fault (for example, a plaintiff who was 99 percent at fault could still recover for the 1 percent of harm the defendant caused).
Most jurisdictions have replaced the doctrine of contributory negligence with a system based on either pure comparative fault or modified comparative fault.
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For purposes of negligence, what is modified comparative fault?
For purposes of negligence, modified comparative fault is a doctrine that reduces a plaintiff’s recovery by the percentage that the plaintiff’s own negligence contributed to his or her harm, but in contrast to pure comparative fault, this doctrine entirely bars recovery if the plaintiff’s fault exceeds a specified percentage. Some jurisdictions bar recovery if the plaintiff is at least 50 percent at fault. Other jurisdictions bar recovery if the plaintiff is more than 50 percent at fault.
Most jurisdictions have replaced the doctrine of contributory negligence with a system based on either pure comparative fault or modified comparative fault.
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For purposes of negligence, what is assumption of the risk?
For purposes of negligence, assumption of the risk is a complete defense to negligence liability that applies if a plaintiff:
actually knew of the existence and nature of a risk and
voluntarily chose to proceed in the face of that risk.
Assumption of the risk is a complete defense to negligence liability, meaning that if it applies, the plaintiff is completely barred from recovery.
With some exceptions, assumption of the risk is also a defense to liability for reckless conduct. Assumption of the risk is not a defense to intentional torts, unless the plaintiff’s conduct amounts to valid consent.
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Is assumption of the risk a valid defense to a plaintiff’s negligence claim if the plaintiff did not actually know, but should have known, of the risk?
No. Assumption of the risk is not a valid defense to a plaintiff’s negligence claim if the plaintiff did not have actual knowledge of the risk. This is true even if the plaintiff should have known about the risk.
If the plaintiff did not have actual knowledge of the risk, but should have, the available defenses are contributory negligence or comparative fault.
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What is express assumption of the risk?
Express assumption of the risk is a complete defense to a negligence claim that applies if a plaintiff expressly agreed to proceed in the face of a known risk. Express assumptions of the risk are often manifested verbally or in writing.
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What is contractual assumption of the risk?
Contractual assumption of the risk is an express assumption of the risk in which a plaintiff agrees, by contract, to assume particular risks. If the contractual assumption of the risk is valid, it is a complete defense to a negligence claim. Courts construe these contractual assumptions of risk very strictly and assume that plaintiffs do not assume any risks other than those that are clearly within the scope of the contract.
Moreover, if contractual assumptions of the risk involve essential services, like medical care, courts are reluctant to enforce them as a matter of public policy.
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What is implied assumption of the risk?
Implied assumption of the risk occurs if a plaintiff, without expressly assuming a known risk, chose to proceed in the face of that risk under circumstances that manifested the plaintiff’s willingness to assume the risk. Implied assumption of the risk is inferred from the plaintiff’s conduct.
Assumption of the risk is a complete defense to a negligence claim.
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What is primary implied assumption of the risk?
Primary implied assumption of the risk is a complete defense to a negligence claim that arises if a plaintiff knowingly and voluntarily participated in activities that carry inherent risks. Courts will infer that the plaintiff has agreed to assume any risks that the plaintiff could reasonably understand as being inherent aspects of the activity. Primary assumption of the risk usually involves situations in which the plaintiff either:
undertook a dangerous occupation or
participated in a risky sport or recreational activity.
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What is secondary implied assumption of the risk?
Secondary implied assumption of the risk is a defense to a negligence claim that usually arises if:
a defendant’s negligence created a risk, and
the plaintiff appreciated the existence and nature of the risk but consciously chose to proceed nonetheless.
Most comparative-fault jurisdictions no longer recognize secondary implied assumption of the risk as a valid defense. Instead, the plaintiff’s choice to proceed in the face of a known risk and the reasonableness of that choice are factors for the jury to consider in apportioning fault among the parties. Keep in mind that if the plaintiff’s choice was unforeseeable, that choice might be deemed a superseding intervening cause that absolves the defendant of liability.
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What is the majority rule for defining the scope of a defendant’s general duty to foreseeable victims?
The predominant American rule for defining the scope of a defendant’s general duty to foreseeable victims is that a defendant generally owes a duty of care only to foreseeable plaintiffs for foreseeable harms. This is known as the Cardozo view.
