Flashcards in Negligence Deck (48)
Elements of negligence claim
Duty of care?
Breach of duty?
Misdiagnosis of birth defect - damages?
Cost of care.
Not emotional distress.
Failed sterilization leads to pregnancy - damages?
Degree of care?
As exercised by reasonably prudent person in same circumstances.
No allowance for subjective ability.
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.
0-4: no negligence
5-18: care of reasonable child of similar age, experience and intelligence under circumstances.
EXC: Child engaged in adult activity
Exercise skill and knowledge normally possessed
by other members of profession
in good standing
in similar communities.
(empirical, not subjective)
Premises liability: undiscovered trespasser
No duty (unforeseeable victim)
Premises liability: Discovered/anticipated
"Known man-made death traps"
(1) Artificial condition
(2) highly dangerous
(4) known to D
Premises liability: Licensees (no econ benefit to D)
(2) known to D
Premises liability: Invitee (econ benefit or open to public)
"Reasonably known traps"
(2) Known or should have known
*NY* Standard on premises liability
Reasonable prudence in the circumstances - depends on type of entrant.
Premises liability: Police and firefighters
No recovery when risk is inherent to job.
*NY* No limitation, except against employer or colleague
Reasonable prudence re artificial conditions.
Increases due to "attractive nuisance doctrine".
Statutory standard of care
(Borrow criminal statute)
(1) P member of class that statute protects
(2) Accident in class of risks that statute forbids
If compliance more dangerous than violation
Affirmative duty to act?
D caused peril
Duty: Reasonable, no heroics
Liable for negligent damage!
*NY* Good Samaritan law applies for simple negligence; protects business from resuscitation by employees
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)
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...")
Res ipsa - elements
(a) Accident of type normally associated with negligence
(b) of person in D's position [had control of process]
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).
Unascertainable cause (eg. two quail hunters) - liability?
Burden of proof on defendants to show which is liable. If unsuccessful - both are liable.
Proximate cause in "direct cause case"
Not freakish/bizarre results even when immediate.
"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.
Eggshell skull principle vs foreseeability?
Initial injury must be foreseeable, then D liable for all damage even if unforeseeable.
Insurance payments deducted from damages?
Equitable remedies (injunctions) - when granted?
No adequate "remedy at law"
Enforceable (no complex supervision...)
BALANCE OF HARDSHIP in P's favor
Equitable remedies - 3 defenses
1. P's unclean hands
2. Laches (D relied on acquiescence)
3. 1st amendment (can't stop free speech)
Preliminary injunction - when?
1. Likelihood of success on merits
2. Prevent irreparable harm.