Negligence Flashcards Preview

NY Bar 2014 > Negligence > Flashcards

Flashcards in Negligence Deck (48)
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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.