Negligence

Question 1

Who is owed a duty?

Answer 1

• All foreseeable plaintiffs
• Majority view (Cardozo): plaintiffs within the zone of foreseeable harm
• Minority view (Andrews): anyone who is harmed

Question 2

Affirmative duty to act

Answer 2

• Generally, there is no affirmative duty to aid or rescue someone

Question 3

Assumption of duty

Answer 3

if someone starts to aid or rescue, must act with reasonable ordinary care to not increase the risk of harm

Question 4

Psychotherapists’ duty to warn

Answer 4

if a patient makes credible threats of physical violence, under a duty to warn the intended victim

Question 5

Standard of care

Answer 5

To act as a reasonably prudent person under the circumstances

Question 6

Special Standards of Care

Possessors of Land

(Modern Rule)

Answer 6

must exercise reasonable care under the circumstances to all land entrants, except trespassers

Question 7

Special Standards of Care

Trespasser

Answer 7

Duty: to refrain from willful, wanton, reckless, or intentional misconduct

Question 8

Special Standards of Care

Invitee

Answer 8

Duty: to inspect and discover unreasonably dangerous conditions and protect the invitee from them

Question 9

Special Standards of Care

Licensee

Answer 9

Duty: to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities

Question 10

Attractive Nuisance

Answer 10

Liable to trespassing children if:
1. An artificial condition exists in a place where the owner knows or should know that children are likely to trespass,
2. The condition imposes an unreasonable risk of serious bodily injury,
3. The children cannot appreciate the danger due to their youth,
4. The burden of eliminating the danger is slight compared with the risk of harm, and
5. The land possessor failed to exercise reasonable care to protect children

Question 11

Landlord duty to tenants

Answer 11

Protect from foreseeable attacks by third parties

Question 12

Duties of children

Answer 12

• Duty to act as a reasonable child of the same age
• If engaged in adult activity, duty to act as a reasonably prudent adult

Question 13

Duty of professionals

Answer 13

Duty to perform at the same level as another practitioner in the same community

Question 14

Duty of doctors

Answer 14

Duty to perform as an average doctor based on a national standard

Question 15

Breach

Cost-benefit analysis

Answer 15

1. The foreseeability of harm,
2. The severity of harm, and
3. The burden on the defendant to prevent the harm

Question 16

Res Ipsa Loquitur

Answer 16

1. The type of accident would not normally occur absent negligence,
2. The injury was caused by an agent or instrumentality within the exclusive control of the defendant, and
3. The injury was not due to the plaintiff’s own actions.

Question 17

Negligence Per Se

Answer 17

1. A statute imposes a specific duty
2. Plaintiff within the class of persons the statute is meant to protect
3. Plaitiff suffered the harm the statute is meant to protect
4. Defendant’s violation is the proximate cause

Question 18

Actual Cause

Answer 18

But-for defendants actions plaintiff would not have been injured

Question 19

Actual Cause

Substantial Factor Rule

Answer 19

• Arises when there are multiple causes of the harm and each alone would have been a factual cause of injury
• The conduct of each defendant is a cause in fact if it was a substantial cause of the injury

Question 20

Actual Cause

Alternative Causation

Answer 20

• Arises when the plaintiff’s harm is caused by multiple defendants and each defendant’s conduct was individually tortious
• The burden of proof can shift to the defendants to prove that each was not the cause in fact

Question 21

Proximate Cause

Answer 21

Plaintiff must show that the injury was a foreseeable result of the defendant’s conduct

Question 22

Damages

Answer 22

Must prove actual injury, not just economic loss

Question 23

Negligent Infliction of Emotional Distress

Zone of Danger

Answer 23

• Plaintiff must have been in the zone of danger of the threatened physical impact
• Must have some physical manifestation of the emotional distress

Question 24

Negligent Infliction of Emotional Distress

Bystanders

Answer 24

A bystander outside the zone of danger may recover if:
* Is closely related to a person harmed by the defendant’s negligence,
* Was present at the scene of the injury, and
* Personally observed the injury