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Negligence Flashcards

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1
Q

What are the elements of negligence?

A

(1) a duty to conform to a specific standard of conduct
(2) a breach of that duty
(3) the breach is the actual and proximate cause of the injury
(4) damages

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2
Q

To whom does a defendant owe a duty of care?

A

A defendant owes a duty of care to all foreseeable plaintiffs.

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3
Q

What is a foreseeable plaintiff?

A

A foreseeable plaintiff is a person in the class of persons who were foreseeably endangered by the defendant’s conduct.

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4
Q

What is a duty?

A

A duty is a legally imposed obligation to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury (i.e. take risk-reducing precautions for the benefit of others).

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5
Q

Is a rescuer a foreseeable plaintiff?

A

Yes, danger invites rescue. A rescuer is a foreseeable plaintiff is the defendant negligently himself or a third party in peril.

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6
Q

What is the firefighter’s rule?

A

Police and firefighters are barred from recovering from injuries caused by the inherent risks of their jobs.

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7
Q

Is a third party to an economic transaction a foreseeable plaintiff?

A

Yes, a third party beneficiary of a legal or business transaction may be a foreseeable plaintiff.

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8
Q

What is the general standard of care?

A

All persons owe a duty to act with the same care as a reasonably prudent person under similar circumstances.

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9
Q

Are a defendant’s mental deficiencies taken into account when determining if a duty is owed?

A

No. A defendant’s mental deficiencies are not taken into account in the reasonable, prudent person standard.

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10
Q

What duty is owed if a defendant has superior skill or knowledge?

A

A defendant with skill or knowledge superior to that of an average person is required to use that experience.

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11
Q

Are a defendant’s physical capabilities taken into account in determining if a duty is owed?

A

Yes, a defendant’s physical characteristics are taken into account if they are relevant to the claim.

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12
Q

What is the standard of care for children?

A

Children are held to a standard of a child of like age, intelligence, and experience. However, if the child is engaging in a dangerous adult activity, the reasonable, prudent person standard is used.

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13
Q

Can a child be negligent?

A

If the child is under 5 years old, the child cannot be negligent. If the child is between ages 5 and 18, a subjective test is used.

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14
Q

What is the standard of care for professionals?

A

A professional is required to possess the knowledge and skill of the average member of the profession in good standing providing similar services.

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15
Q

Does a doctor have a duty to disclose risks?

A

Yes, a doctor has a duty to disclose risks to enable a patient to give informed consent.

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16
Q

When does a doctor breach the duty to disclose risks?

A

A doctor breaches the duty to disclose risks when the undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.

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17
Q

What duty to warn of dangerous conditions on the land is owed to unknown trespassers?

A

None.

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18
Q

What duty to warn of dangerous conditions on the land is owed to known trespassers?

A

Known or anticipated trespassers must be warned of artificial, highly dangerous, concealed conditions known to the possessor (i.e. known man-made death traps).

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19
Q

What duty to warn of dangerous conditions on the land is owed to licensees?

A

Licensees must be warned of concealed conditions known to the possessor (i.e. known traps).

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20
Q

What duty to warn of dangerous conditions on the land is owed to invitees?

A

Invitees must be warned of concealed conditions known to the possessor or discoverable upon a reasonable inspection (i.e. reasonably knowable traps).

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21
Q

What is a licensee?

A

A licensee is a person who enters land with the possessor’s permission for their own purpose (e.g. social guests).

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22
Q

What is an invitee?

A

An invitee is a person who enters land in response to an invitation by the possessor for a purpose connection with the possessor’s business or a member of the public for a purpose for which the land is held open to the public.

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23
Q

What is the duty of care for trespassing children?

A

A landowner has a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions of the land.

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24
Q

What are the elements of attractive nuisance?

A

(1) there is a dangerous condition on the land that the owner is or should be aware of
(2) the owner knows or should know that children might trespass on the land
(3) the condition is likely to cause injury
(4) the expense of remedying the situation is slight compared with the magnitude of the risk.

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25
Does a child need to have been attracted to the dangerous condition for attractive nuisance to apply?
No.
26
Is there a duty to protect people off premises from conditions on the premises?
No, if the condition is a natural condition. There is a duty for unreasonably dangerous artificial conditions to the adjacent land.
27
What is the duty of a lessee to the lessor?
The lessee has a duty to maintain the premises.
28
What is the duty of a lessor to the lessee?
The lessor must warn the lessee of existing defects of which they know or have reason to know of, which the lessee is not likely to discover on reasonable inspection.
29
Is the lessee or lessor responsible for unreasonably dangerous conditions?
The lessor is responsible if the lessor covenants to repair, or if the lessor volunteers to repair and does so negligently.
30
Is a landowner liable for injuries to a recreational user of the land?
A landowner is not generally liable for injuries to a recreational user of the land if the landowner does not charge a fee, unless the landowner willfully and maliciously failed to warn of a dangerous condition or activity.
31
When does a statute replace the standard of care?
A criminal statute replaces the standard of care when (1) the statute was designed to protect against the type of harm plaintiff suffered, and (2) the plaintiff is in the class of persons designed to be protected by the statute.
32
When is a statutory violation excused in negligence per se?
A violation of a statute is excused if compliance would cause more danger than the violation or where compliance is not in the defendant's control.
33
What is the effect of establishing a violation of a statute on the plaintiff's prima facie case?
Under the majority view, breaching a statute is negligence per se. Duty and breach are conclusively presumed.
34
Does compliance with a statute establish due care?
No.
35
Is there a legal obligation to rescue another person?
Generally no, unless there is a special relationship between the parties or the defendant negligently or innocently placed the other in peril.
36
What is the standard of care if someone undertakes to rescue another?
The person undertaking the rescue must use reasonable care.
37
What is the effect of a Good Samaritan statute?
Under a Good Samaritan statute, doctors and nurses are exempts from ordinary, but not gross, negligence when undertaking to rescue another.
38
Is there a duty to prevent harm from third persons?
Generally no, unless the person has the actual ability and authority to control the third person's actions and knew or should have known for the need to do so.
39
What is the standard of conduct for innkeepers and common carriers?
Innkeepers and common carriers have a very high standard of care and are liable even for slight negligence to guests and passengers.
40
What is the effect of a guest statute state?
Under a guest statute, a driver is only liable to nonpaying passengers for reckless conduct.
41
What is bailment?
Bailment occurs when a person (the bailor) transfers possession of a chattel to another (the bailee).
42
What is the bailee's standard of care?
(1) if the bailment is for the sole benefit of the bailee, there is a high standard of care (2) if the bailment if for the sole benefit of the bailor, there is a low standard of care (3) if the bailment is for mutual benefit. there is a standard of ordinary care.
43
What is the duty of care owed by the bailor?
(1) in bailment for the sole benefit of the bailee, the bailor must inform of known, dangerous defects in the chattel (2) in bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware
44
What is the standard of care in an emergency?
In an emergency, a person must act as a reasonably prudent person would under the same emergency conditions. The emergency is disregarded if the defendant created the emergency.
45
What are the elements for a "near miss" NIED claim?
To recover for negligent of infliction of emotional distress, a plaintiff must show: (1) she was in the zone of danger of foreseeable physical injury, and (2) she suffered physical symptoms as a result of the emotional distress.
46
What is the zone of danger in NIED cases?
The zone of danger means the plaintiff is sufficiently close to the defendant such that she is subject to a high risk of physical impact.
47
What are the elements for a "bystander" NIED claim?
A plaintiff can recover for emotional distress suffered by seeing the defendant negligently injury another if she shows (1) the plaintiff and the person injured are closely related, and (2) the plaintiff was present at the scene and personally observed or perceived the event
48
Are physical manifestations of emotional distress required in bystander NIED claims?
In most states, no.
49
When does a special relationship between plaintiff and defendant give rise to an NIED claim?
A defendant may be liable to the plaintiff for causing severe emotional distress here there is a duty arising from the relationship, such that the defendant's negligence has a high potential to cause emotional distress.
50
When does a person breach a duty of care?
A person breaches a duty of care when his conduct falls short of the applicable standard of care.
51
Is failing to adhere to custom or ordinary usage a breach of duty?
Custom and usage are may be presented to show how a reasonable person may have behaved but the evidence is not conclusive.
52
What are the elements for res ipsa loquitur?
A plaintiff must show: (1) the accident causing the injury is a type that would not normally occur unless someone was negligent (2) the negligence is probably attributable to the defendant
53
What is the effect of res ipsa loquitur?
If res ipsa loquitur is established, the plaintiff has made a prima facie case and the defendant is not entitled to a directed verdict.
54
When is an act or omission a factual cause of an injury?
An act or omission is a factual cause when, but for the act or omission, the injury would not have occurred.
55
How does a defendant refute but for causation?
A defendant can refute but for causation by showing that even if the defendant was negligent, the plaintiff still would have been injured.
56
What is the substantial factor test?
When several causes merge to bring about a single injury, and any one would have been sufficient to cause the injury, the defendant's conduct is a factual cause if it was a substantial factor in causing the injury.
57
What is the unascertainable causes approach to factual cause?
The unascertainable causes approach applies when there are two acts, only one of which could have caused the injury, and it is not known which one. The burden of proof shifts to the defendant, and each must show his negligence was not a factual cause.
58
What harms is a defendant liable for?
A defendant is liable for all harmful results that are the normal incidents of the within the increased risk caused by their negligent acts (all foreseeable harms).
59
Is a defendant liable for intervening forces?
A defendant is liable when their conduct caused a foreseeable reaction or created a foreseeable risk that an intervening force would harm the plaintiff.
60
What intervening forces are always foreseeable?
(1) medical malpractice (2) negligence of rescuers (3) protection or reaction forces (4) disease or accident subsequently caused by the injury
61
What types of intervening forces may be superseding or may be intervening if the defendant's conduct increased the risk of harm from them?
(1) negligent acts of third persons (2) crimes and intentional torts of third persons (3) acts of God
62
What is a superseding force?
A superseding force is one that produces unforeseeable results not within the increased risk created by the defendant's conduct that breaks the causal chain.
63
What damages is a defendant responsible for?
A defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.
64
What damages may a plaintiff be compensated for in a personal injury case?
A plaintiff may recover past, present, and prospective economic and noneconomic damages, as well as emotional distress.
65
What is the measure for property damage?
The measure of property damage is the reasonable cost to repair or, if the property is totally or nearly destroyed, it's fair market value at the time of the accident.
66
When may a plaintiff recover punitive damages?
A plaintiff may recover punitive damages if the defendant's conduct was willful, wanton, reckless, or malicious.
67
What damages are not recoverable in tort?
(1) prejudgment interest (2) attorneys fees
68
Does a plaintiff have a duty to mitigate damages?
Yes
69
What is the collateral source rule?
Damages are not reduced just because a plaintiff recovered benefits from another source.
70
What is contributory negligence?
Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff's injuries.
71
May a plaintiff's violation of a statute be used to establish the plaintiff's negligence?
No.
72
Is contributory negligence a defense to negligence per se?
Yes, unless the statute was designed to protect this class of plaintiff's from their incapacity and lack of judgment.
73
Is contributory negligence a defense to intentional torts?
No.
74
What is the effect of contributory negligence?
A plaintiff is barred from recovery.
75
What is the last clear chance doctrine?
Last clear chance permits a plaintiff to recover despite her negligence in a contributory negligence system.
76
What is the effect of helpless peril on last clear chance?
If the plaintiff is in helpless peril, the defendant is liable if he knew or should have known of the plaintiff's predicament.
77
What is the effect of inattentive peril on last clear chance?
If the plaintiff is in peril and could have extracted herself from the predicament had she been attentive, the defendant is liable if he actually knew of the plaintiff's predicament.
78
When does last clear chance apply?
Last clear chance applies if a defendant was able, but failed, to avoid harming the plaintiff at the time of the accident.
79
What is the effect of assumption of the risk?
A plaintiff may be denied recovery if she assumed the risk if: (1) she knew of the risk, and (2) she voluntarily proceeded in the face of the risk
80
What is implied assumption of the risk?
Knowledge of the risk may be implied where an average person would clearly appreciate the risk.
81
What is express assumption of risk?
Express assumption of risk is risk assumed by agreement.
82
Is assumption of risk a defense to intentional torts?
No, but it is a defense to willful and malicious misconduct.
83
What is comparative negligence?
Under comparative negligence, a plaintiff's negligence is not a complete bar to recovery. The trier of fact reduces the plaintiff's award according to the plaintiff's negligence.
84
What is partial comparative negligence?
Partial comparative negligence bars the plaintiff's recovery if her negligence was more serious than the defendant's.
85
Does last clear chance apply under comparative negligence?
No
86
Is assumption of the risk a defense in comparative negligence states?
Express assumption of the risk is a complete defense. Implied assumption of the risk is analyzed as either a limitation on duty or, more commonly, as contributory negligence.
87
Is comparative negligence taken into account if the defendant's conduct was reckless?
A plaintiff's negligence is taken into account if the defendant's conduct was willful and wanton or reckless. It is not taken into account for intentional torts.

Torts (4 decks)

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