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torts > negligence > Flashcards

negligence Flashcards

1
Q

what are the negligence elements

A
  1. defendant owed the plaintiff a legal duty
  2. defendant breached that duty
  3. plaintiff suffered actual damage
  4. defendants negligence was a factual cause of this damage
  5. defendants negligence was a proximate cause of this damage or the damage is within the scope of liability of the defendant
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2
Q

what is emergency standard doctrine?

A

you do not devite from the reasonable standard but you aware of the fact of the emergency

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3
Q

elements of negligence per se

A
  1. statute must clearly define required standard of conduct
  2. statute must have intended to prevent type of harm the defendants act caused
  3. plaintiff must be a member of the class of persons the statute is designed to protect
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4
Q

what does B<PL mean

A

burden has to less than probability times injury

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5
Q

insolvent tortfeasors

A

other tortfeasor has to pick up and pay the insolvent tortfeasors share

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6
Q

three common theories of liability

A
  1. defendant created and failed to take reasonable actions to abate the hazard
  2. defendant did not directly create the condition but discovered or should discovered a condition created by others and failed to take reasonable steps to prevent injury
  3. defendants mode or method of business operations made it foreseeable that others would create a dangerous condition and defendant failed to take reasonable measures to discover and remove
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7
Q

res ipsa three elements

A
  1. accident was one which ordinarly does not happen in the absence of negligence
  2. instrumentality or agent which caused accident was under exclusive control of defendant
  3. circumstnaces indicated that the untoward event was not caused or contributed to by any neglect on the part of injured party
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8
Q

causal apportionment

A

tort persons causing separate or divisible injuries

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9
Q

fault apportionment

A

two persons causing a single indivisible injury

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10
Q

but for test

A

but for the defendants negligence, the plaintiff would not have been harmeds

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11
Q

substantial factor test

A

requires plaintiff prove that defendants alleged act or omission was a substantial factor in causing plaintiffs injury

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12
Q

Proximate causation two components

A

cause in fact
legal cause

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13
Q

two elements of proximate cause

A

foreseeability and scope of risk

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14
Q

foreseeability elements for proximate cause

A
  1. could this class of harm be foreseen?
  2. does the plaintiff fit in the class of people?
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15
Q

what is the rescue doctrine

A

one who sees a person in imminent danger cannot be charged with contributory negligence unless the rescuer acted recklessly

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16
Q

what is the think skull rule

A

defendant has to take plaintiff as he finds them and is liable to whatever extra damages plaintiff might have

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17
Q

traditional contributory negligence

A

if the plaintiff was contributorly ngeligent at all, that bars the whole claim

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18
Q

pure comparative

A

plaintiff damages are reduced to account for her negligence

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19
Q

modified comparative

A

P negligence cannot be greater or equal to the defendants

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20
Q

last clear chance

A

courts allow negligent plaintiff full recovery when plaintiff was left in a helpless position and defendant had last clear chance to avoid injury but negligent inflicted it anyway

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21
Q

assumption of risk bars recovery when which two conditions are met

A

employee knew and understood risk being incurred and the choice to incur the risk was entirely free and voluntary

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22
Q

primary assumption of risk

A

complete bar to recovery and applies when defendant owes no duty to guard against a particular risk of harm

23
Q

secondary assumption of risk

A

applies when defendant does owe a duty to the plaintiff but P has knowingly encountered a risk of injury caused by the defendant

24
Q

baseball rule

A

stadium owners and operators must provide screened seats for as many spectators as reasonable

25
Q

when can spectators in sports games recover

A

if the defendant has increased the inherent risks of watching the sport

26
Q

open and obvious doctrine

A

land possessors cannot be held liable to invitees who are injured by open and obvious dangers

27
Q

firefighter rule

A

common law doctrine that precludes a firefighter from recovering against a defendant whose negligence caused the firefighters on the job injury

28
Q

what are the three categories of people

A

trespass, invitee, licensee

29
Q

what is an invitee

A

any person on the premises for pecuniary benefit of the landowner

30
Q

what is a licensee

A

someone on land with permission but with a limited license to be there

31
Q

child trespassers

A

landowners owe duty of reasonable care to trespassing child if they know or foresee that
1. there is dangerous condition on the land
2. children are likely to trespass on the land
3. children will face an unreasonable risk of serious injury

32
Q

good samartian statutes

A

allows good folks to be immune from liability where there is no gross negligence

33
Q

three categories of good samaritan statute

A
  1. expressly exclude hospital care
  2. expressly include hospital care
  3. contain no explicit provision one way or the other
34
Q

what is misfeasance

A

negligence in doing something active

35
Q

what is nonfeasance

A

doing nothing

36
Q

factors to determine whether defendant owes a duty to plaintiff

A
  1. whether defendants tortious conduct consists of an affirmative act or merely an omission
  2. legal relationship of the parties
  3. foreseeability or likelihood of injury
  4. public policy as to which party can best bear the loss occasioned by the injury
37
Q

exceptions to the no duty to act rule

A
  1. if a person knows or has reason to know his conduct has caused harm then he has duty to render assistance
  2. if person has created continuing risk of harm then duty arises to employ reasonable care to prevent or minimize that risk
  3. if statute or ordinance requires person to act affirmatively for protection of another
38
Q

what are the seven formal relationships that place defendant under duty of reasonable care

A
  1. common carrier with passengers
  2. innkeeper with guests
  3. business or land possessor that holds land open to public
  4. employer to employee
  5. school to students
  6. landlord to tenants
  7. custodian with those in custody
39
Q

what are the four basic approaches to resolving the foreseeability issue for duty to protect from third persons

A
  1. specific harm
  2. prior similar incidents test
  3. totality of the circumstnaces test
  4. balancing test
40
Q

balancing test factors

A
  1. foreseeability of harm
  2. degree of certainty that P suffered injury
  3. closeness of connection between defendant conduct and injury
  4. moral blame
  5. policy of preventing future harm
  6. extent of burden to defendant
  7. consequences to community of imposing duty to exercise care
41
Q

parents duty to control children

A

parents are not vicariously liable for childs torts merely on basis of parental relationship but are only liable for failing to control some specific dangerous habit that they know about

42
Q

duty to control employees

A
  1. employers generally vicariously liable for the torts of their employees committed within the scope of employment
43
Q

dram shop statutes

A

some states have immunized alcohol providers for negligence

44
Q

negligent entrustment

A

person in control of chattel owes responsibility not to entrust that chattel to a person who they know will use it dangerously

45
Q

what does plaintiff have to prove for negligent entrustment

A
  1. defendant entrusted chattel to an incompetent entrustee
    2, with knowledge or reason to know of entrusted incompetence
    3, entrusted incompetence while use chattel causes injury
46
Q

IIED elements

A
  1. extreme and outrageous conduct
  2. intent to cause or disregard of a substantial probability of causing severe emotional distress
  3. causal connection between conduct and injury
  4. severe emotional distress
47
Q

what would plaintiff argue for IIED

A

defendant conduct goes beyond the community standard and argue emotional distress

48
Q

what would defendant argue for IIED

A

conduct doesn’t rise to IIED

49
Q

NIED rule

A

actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other, if the conduct places the other in danger of immediate bodily harm and the emotional harm results from the danger

50
Q

when there is no impact or physical injury to the plaintiff for NEID - what do they need to show?

A
  1. foreseeably bystander victim based upon intimate familial relationship OR
  2. whether P was located near scene
  3. whether shock resulted from direct emotional impact
51
Q

zone of danger test

A
  1. P immediately threatened with physical injury
  2. some courts require proof of fear
52
Q

bystander cases factors

A
  1. location relative to accident
  2. sensory and contemporaneous observance of accident
  3. close relationship with victim
53
Q

loss of consortium claim

A

recognized for kids whose parents are killed

54
Q

what must P show for fear of future harm for toxic exposures

A
  1. actual exposure due to defendant conduct which lead him to objectively and reasonably fear he would contract a disease
  2. result of that fear - manifested some physical injury

torts (2 decks)

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