Negligence Flashcards Preview

NY Bar 2014 > Negligence > Flashcards

Flashcards in Negligence Deck (48):
1

Elements of negligence claim

Duty of care?
Breach of duty?
Causation (factual/legal)?
Damage?

2

Misdiagnosis of birth defect - damages?

Cost of care.
Not emotional distress.

3

Failed sterilization leads to pregnancy - damages?

None.

4

Degree of care?

As exercised by reasonably prudent person in same circumstances.
Objective test.
No allowance for subjective ability.

5

Degree of care: Exceptions to reasonable person test

Superior skill / knowledge - reasonable person with that skill
Physical characteristics - when relevant + expected to take reasonable precautions.

6

Children's liability

0-4: no negligence
5-18: care of reasonable child of similar age, experience and intelligence under circumstances.
EXC: Child engaged in adult activity

7

Professional liability

Exercise skill and knowledge normally possessed
by other members of profession
in good standing
in similar communities.
(empirical, not subjective)
Conform!

8

Premises liability: undiscovered trespasser

No duty (unforeseeable victim)

9

Premises liability: Discovered/anticipated

"Known man-made death traps"
(1) Artificial condition
(2) highly dangerous
(3) concealed
(4) known to D

10

Premises liability: Licensees (no econ benefit to D)

"Known traps"
(1) Concealed
(2) known to D

11

Premises liability: Invitee (econ benefit or open to public)

"Reasonably known traps"
(1) Concealed
(2) Known or should have known

12

*NY* Standard on premises liability

Reasonable prudence in the circumstances - depends on type of entrant.

13

Premises liability: Police and firefighters

No recovery when risk is inherent to job.
*NY* No limitation, except against employer or colleague

14

Child trespasser

Reasonable prudence re artificial conditions.
Increases due to "attractive nuisance doctrine".

15

Statutory standard of care

(Borrow criminal statute)
Conditions:
(1) P member of class that statute protects
(2) Accident in class of risks that statute forbids
NOT APPLICABLE:
If compliance more dangerous than violation
or impossible

16

Affirmative duty to act?

No.
EXC:
Pre-existing relationship
D caused peril
Duty: Reasonable, no heroics

17

Gratuitous rescuer

Liable for negligent damage!
*NY* Good Samaritan law applies for simple negligence; protects business from resuscitation by employees

18

Negligent infliction of emotional distress - 3 cases

(1) Near miss: D put P in danger zone + fear + physical manifestation of distress
(2) Bystander to death or serious injury + close family member
*NY* in zone of danger
(3) Relationship - transactional (false positive HIV)

19

Breach - elements

(1) factual act/omission
(ESSAY: "P will allege that breach was...")

(2) theory why below standard
("P will argue that act was unreasonable b/c...")

20

Res ipsa - elements

(a) Accident of type normally associated with negligence
(b) of person in D's position [had control of process]
(c) causation

21

Multiple defendants, merged causes - causation test?

"Substantial factor" (rather than "but for").
Each could have caused harm independently (but in reality merged and caused damage together).

22

Unascertainable cause (eg. two quail hunters) - liability?

Burden of proof on defendants to show which is liable. If unsuccessful - both are liable.

23

Proximate cause in "direct cause case"

Foreseeability.
Not freakish/bizarre results even when immediate.

24

"Indirect cause cases" - 4 examples of liability

1. Intervening: medical malpractice
2. Intervening: negligent rescue
3. Intervening: protection/reaction forces (eg. stampede)
4. Subsequent disease/accident

Look for: connection btwn breach and damage.

25

Eggshell skull principle vs foreseeability?

Initial injury must be foreseeable, then D liable for all damage even if unforeseeable.

26

Insurance payments deducted from damages?

MBE: No.
*NY* Yes!

27

Equitable remedies (injunctions) - when granted?

No adequate "remedy at law"
and
Protectable right
and
Enforceable (no complex supervision...)
and
BALANCE OF HARDSHIP in P's favor

28

Equitable remedies - 3 defenses

1. P's unclean hands
2. Laches (D relied on acquiescence)
3. 1st amendment (can't stop free speech)

29

Preliminary injunction - when?
(freeze situation)

1. Likelihood of success on merits
and
2. Prevent irreparable harm.

30

Affirmative defenses for negligence - two types

1. "Classic contributory" - P making proximate contribution completely barred from recovery [ABOLISHED, RARELY USED]

2. "Comparative negligence" - damages deducted acc to relative contribution.

31

"Comparative negligence" - two types

1. Pure: mathematical, doesn't matter how high P's portion is. (*NY*) [ASSUME ON MBE]

2. "Modified/partial" - if P's contribution >50% no recovery [ONLY WHEN P GUILTY OF CRIME]

32

Assumption of risk in sporting activities

*NY*
Duty for recklessness, not reasonable care.

33

Implied assumption of risk

Reduces recovery.
Conditions: D knew of risk, voluntary consented by conduct to bear risk

34

Strict liability - injury caused by animal?

Domesticated - no, unless known to be vicious
Wild - always

35

Strict liability - abnormally dangerous activity - conditions

Foreseeable risk of serious harm, even when care exercised
and
Not in common usage in community

36

Strict liability - product liability - conditions

D is merchant dealing in goods of same type (incl. manufacturer, wholesaler, lessor)
and
Defective product
and
Not altered by P
and
D making foreseeable use (even if unintended)

37

Defective product - 3 types

1. Manufacturing defect: differs from other products on assembly line

2. Design defect: could be built (a) safer, (b) cost-effectively, and (c) practically.

3. Information defect: inadequate warning for inherent risk.

38

Defective product - conformity to regs

Failure to conform - proves defective design.
Conforms - non-conclusive evidence only

39

Defense in strict liability claim

Assumption of risk
Comparative fault (percentages...)

40

Strict liability prima facie case

1. D's activity imposes absolute duty to make safe
2. Dangerous aspect is cause of injury
3. Damage

41

Nuisance - element

Ability to use property disturbed to unreasonable degree.

42

Car owner liability for user?

MBE: No, except if running errand for owner.

*NY* Vicarious liability when driving with permission (and no-fault insurance applies)

43

Parent liability for child's actions?

MBE: No
*NY* up to $2500

44

Spouse claim for damages?

"Loss of consortium": services, society, marital relations.

45

Workers comp: Liability? Damages?

Employer strictly liable.
No pain & suffering
Employee cannot sue in court

46

Workers comp: Secondary claims

Only employer can sue another on-site contractor or machine manufacturer.

47

Workers comp: Independent contractor?

No, only employee.

48

Workers comp: What is not covered?

Due to own intoxication;
Self-inflicted;
Voluntary off-duty athletic activity
(Illegal acts on the job are covered!)