Negligence Flashcards
(53 cards)
Prima facie case
1) Duty
2) Breach
3) Actual Cause
4) Proximate Cause
5) Damage
General Duty of Care
When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person.
To whom is duty owed.
General rule - must be forseeable plaintiff
Unforseeable problem
When breach of duty to P1 causes injury to P2 to whom forseeable injury might or might not have been contemplated. P2 can recover if located in the zone of danger.
Rescuer?
A rescuer is a forseeable plaintiff - except for firefigters, police or EMT - if D negligently puts himself in peril and P is injured trying to rescue, D is liable.
Specialty unforseeable issues
1) Prenatal injuries - duty if viable - no wrongful life, but wrongful birth or pregnancy allowed (parents can collect)
2) Beneficiary of economic interest - will, etc.
Duty analysis
1) Is there a forseeable plaintiff
2) What standard applies and what is that standard
Typical Standards of care
1) Basic reasonable person
2) Professional
3) Physical Characteristic
4) Children
NOTE: individual mental handicaps not considered
1) Reasonable person
Defendant’s conduct measured against reasonable, ordinary, prudent person - objective standard
2) Professional
A professional or one with special skills is held to that higher standard.
3) Physical
Duty to exercise care of reasonabler person with like physical characteristics - i.e. blind, etc.
4) Children
Like age, education, intelligence, and experience - subjective evaluation of these factors. EXCEPTION - if child engage in adult activity ordinary standard applies
Common carrier and innkeeper standard
They will be liable for slight negligence
Owner occupier standards
Step 1 - Make sure D is o/o or in privity with one.
Step 2 - Determine if injury occurred on or off land
Step 3 - Determine if activity or dangerous conditon - if activity status is irrelevant, this is ordinary negligence case
Step 4 - if dangerous condition, determine plaintiff status
What is privity as it relates to o/o?
Family member, employee
Types of plaintiff - need to determine for dangerous condition
1) Discovered trespasser
2) Licensee
3) Invitee
Discovered trespasser
P responsible for:
1) artificial conditions involving
2) risk of serious injury
3) that o/o knows of
Licensee
On land for his own purposes, responsible for
1) dangerous conditions - no limitation
2) o/o knows of - actual knowledge
Invitee
On land for o/o purpose, responsible for
1) dangerous conditions - no limit
2) o/o should know of - reasonable inspection of premises
If not sure licensee or invitee?
Select invitee
Bar four favorite issues
1) Discharge of Duties
2) Very obvious dangerous condition
3) Infant trespassers/attractive nuisance doctrine
4) Statutory Standards
How does a D discharge a duty?
1) Make Safe - will never see if it was safe, there would be no injury and there will be an injury
2) Warning - look for this one
Very obvious dangerous condition?
No liability - this is an inherent warning because it is very obvious
Infant Trespasser/Attractive Nuisance
1) The child must be able to show he did NOT understand the risk involved.
2) Child NO LONGER has to show attraction to the condition
