Negligence

Question 1

Negligence Elements

Answer 1

1. Duty
2. Breach
3. Causation
4. Damages

Question 2

Duty Owed to:

Answer 2

ONLY to foreseeable plaintiffs

Question 3

Standard of Care

Answer 3

Reasonably prudent person.
Objective standard.

Question 4

UNKNOWN Trespasser - Duty of Care?

Answer 4

NO DUTY of Care

Question 5

KNOWN Trespasser - Duty of Care?

Answer 5

Warn of KNOWN dangers

Question 6

Licensee

(1) Who?
(2) Duty of Care?

Answer 6

(1) Social Guest
(2) Warn of KNOWN Dangers

Question 7

Invitee

(1) Who?
(2) Duty of Care

Answer 7

(1) Business (Office, Store, Grocery Store)
(2) WARN, INSPECT, AND MAKE IT SAFE

Question 8

Parent - Duty to Supervise/Control Child

Answer 8

Parent has a duty if they:

Knew/Should have Known that child was likely to cause harm

Question 9

Duty to Rescue

Answer 9

NO general duty to rescue, unless:

1) Assumption of duty (now rx care)
2) Special Relationship

Question 10

Duty via Special Relationship

Answer 10

Common Carrier (Plane, train, bus)
Innkeeper/Guest (Hotel)
Teacher/Student
Employer/Employee

Question 11

Duty - Child

Answer 11

Other children of same age, experience & maturity,

UNLESS

Performing an adult activity (driving)

Question 12

BREACH of Duty = _________

Answer 12

Failure to comply with Duty of Care

Question 13

Proximate Causation =

Answer 13

Foreseeability

Question 14

Causation =

Answer 14

BOTH actual AND proximate

Question 15

Duty of a Professional (lawyer, doctor, etc.)

Answer 15

That of similar professionals with the same education, training and custom in the community (Miami doctor act like other Miami doctors)

Question 16

Damages

Answer 16

PHYSICAL Injury – they must TELL YOU

Question 17

Intervening Cause

Answer 17

FORESEEABLE (YOU WILL PAY)

Almost everything IS foreseeable on the MBE

Question 18

Superseding Cause

Answer 18

UNFORESEEABLE (YOU WILL NOT PAY)

Something is superseding if it is:

1) Act of God
2) Intentional Tort
3) Criminal Act
4) Anything fact pattern tells you is unforeseeable

Question 19

NEGLIGENCE PER SE

Answer 19

(1) Violation of Ordinance or Statute
+
(2) Injured Party is of class statute trying to PROTECT
(3) Injury is of the TYPE statute was trying to prevent

**Never “YES BECAUSE HE BREACHED DUTY OF CARE” NEVER CHOOSE THE NEGLIGENCE ANSWERS, ONLY NEGLIGENCE PER SE ANSWERS

*Lady who gets hurt by the ricochet of the kid falling cannot recover for negligence per se

Question 20

RES IPSA LOCQUITOR

Answer 20

ABOUT AN INFERENCE of negligence; R.I.L. if:

(1) whatever happened wouldn’t normally occur unless negligence

(2) Defendant had EXCLUSIVE CONTROL

JURY COULD INFER NOTHING ABOUT LIABILITY OR DAMAGES

**MULTIPLE PEOPLE COULD HAVE DONE IT? NO*

IF “MOTION” “MOTION FOR SUMMJ/DIRECTED VERDICT/MTD” –> ITS A NEGLIGENCE PER SE QUESTION

Question 21

Attractive Nuisance

Answer 21

Artificial condition on the land causing children to trespass (trampoline, treehouse)

1) Owner knows/should know kids will trespass
2) Condition poses unrx risk of harm
3) Children, bc of age or maturity, do not realize risk
4) Cheaper to fix than the danger to children
5) Owner knows this but fails to make safe

Question 22

DEFENSES to Negligence

Answer 22

Pure Comparative Negligence
Modified Comparative Negligence
Contributory Negligence

Question 23

Pure Comparative Negligence

Answer 23

P recovers even if 99% negligent (D’s harm - P’s harm) = P’s recovery

Question 24

Modified (Modern) Comparative Negligence

Answer 24

P can’t recover ANYTHING if 50.1% negligent

Question 25

Contributory Negligence

Answer 25

P can’t recover ANYTHING if 0.1% negligent,

Except if D had last clear chance (only applies if THAT IS WHAT FACTS ARE TALKING ABOUT)

Question 26

Assumption of Risk

Answer 26

Knowledge + Appreciation of Danger and you proceed anyway

(THEY HAVE TO TELL YOU THEY KNEW AND APPRECIATE IT)

Question 27

Joint & Several Liability

Answer 27

2 or more people cause single accident
All defendants jointly and severally liable (one can get sued and have to pay whole thing)

Question 28

Contribution

Answer 28

Co-defendants can sue to recoup money

Question 29

Vicarious Liability

Answer 29

Liable for negligent employees if acting within scope of employment

No liability for INTENTIONAL employee acts

Not liable for lunch breaks or drives home (unless school bus driver)

Question 30

Independent Contractors

Answer 30

Employer Generally NOT liable, unless:

1) Abnormally dangerous activity

2) “Non-delegable duty” (work that involves safety or benefit of people at large – chopping off ice on sidewalk, clean windows, polish the floors of an office building); NOT fixing my bathroom

Question 31

Indemnification (Vicarious Liability)

Answer 31

May seek indemnification from whoever actually caused the damage

Party who is liable did nothing wrong