Negligence Flashcards
(121 cards)
1
Q
What are the 4 elements of negligence?
A
- duty of care
- breach of duty
- actual and proximate cause; AND
- damages
2
Q
How does the court determine duty of care?
A
Two step inquiry:
- court decides whether the ∆ owed a duty of care;
- if so, then court must define the scope of the duty
3
Q
What is the majority rule regarding whether a π was foreseeable?
A
States that the ∆ owes a duty of care only to those persons that a reasonable person would have foreseen a risk of harm under the circumstances
THUS - the court must determine that the reasonable person would have foreseen a risk of harm to the plaintiff or the type of person the plaintiff was, located in a foreseeable zone of danger
**PALSGRAF
4
Q
What is the “reasonable person” standard of care?
A
Each person owes a duty to act as a reasonable person would under the same or similar circumstances.
A ∆ owes a general duty of reasonable care to all foreseeable π’s
TIP: this is an objective test - the issue is NOT what the ∆ believed or intended, but how a reasonable person would have acted
5
Q
What is the standard of care for professionals?
A
A professional owes a duty to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in a similar community
6
Q
What is the standard of care for children?
A
minors are held to the standard of care that would be expected from a child of like age, education, intelligence and experience
TIP: children may be held to an adult standard when they engage in a dangerous adult activity
7
Q
What is the common carrier/inkeeper standard of care?
A
courts held common carriers to a higher standard (historically)
MODERN courts are moving toward the reasonable person standard
TIP: prior to modern times, common carriers were held to the “utmost care” standard
8
Q
What is the owner/occupier of land standard of care?
A
Land occupiers are accorded a special status that limits their liability for injuries to others arising from conditions or activities on their land
A landowner may be held to a higher duty imposed by statute depending on the status of the entrant (invitee, licensee, trespasser)
TIP: distinguish this from the standard of care for common carriers
9
Q
What duty does a landowner/occupier owe to child trespassers?
A
The “attractive nuisance doctrine” imposes a special duty of care on a land occupier w/ respect to artificial conditions on the land that involve a risk of harm to children unable to recognize the danger involved
10
Q
Does a landowner owe a heightened duty of care to child trespassers as compared to adult trespassers?
A
YES
There is a special duty of care on a landowner w/ respect to artificial conditions on the land that involve a risk of harm to children unable to recognize the danger involved
11
Q
What is a licensee?
A
A person coming onto the land, with EXPRESS OR IMPLIED PERMISSION of the land occupier, for the entrant’s own purposes, conferring no particular benefit on the land occupier, for the entrant’s own purposes, conferring no particular benefit on the land occupier or on any use to which the land occupier is putting the land
TIP: a social guest invited into your home will likely be a licensee
12
Q
What is an invitee?
A
A person who enters by the express or implied invitation of the land occupier for some purpose related to the activities or interests of the land occupier
TIP: a business visitor who comes on to land that is open to the public at large is likely an invitee
13
Q
What are the 2 ways a statute creates a tort duty?
A
- creating a statutory tort OR
- recognizing a common law tort duty
14
Q
Is there a general duty to aid others during an emergency?
A
NO.
Under the general common law rule, a ∆ owes no duty to warn, protect, or rescue a stranger from a risk of harm
TIP: HOWEVER - if the ∆ created the risk of harm, they may owe the π a duty
15
Q
What constitutes a breach of duty for purposes of tort liability?
A
conduct that exposes others to an unreasonable risk of harm (ie, conduct falling short of the duty owed) is a breach of duty
16
Q
How will a court find a breach of a duty of care?
A
A court will find a breach of duty of care by:
- a determination of the ∆’s conduct; AND
- whether the conduct was unreasonable
17
Q
What is negligence per se?
A
Negligence per se applies where a common law duty of care is already owed and a statute provides that specific conduct breaching that duty is subject to criminal penalties
A ∆ violation of the statute establishes a prima facie case for duty and breach
TIP: the π must be a member of the protect class, and the harm must be the type of harm that the statute is designed to protect against
18
Q
What is “res ipsa loquitur”?
A
the court may permit an interference or a presumption that the ∆ was at fault when the very fact that a particular harm has occurred may itself tend to establish a breach
19
Q
What are the 2 types of causation required under a negligence claim?
A
actual
proximate
20
Q
What is actual causation
A
establishes a causal connection between the alleged breach of duty and the resulting injury to the π
TIP: the substantial factor or burden-shifting tests are used to measure actual cause
21
Q
What is proximate cause?
A
establishes that it is “fair” (foreseeable) for the court to hold the ∆ responsible for the π’s injuries
TIP: remember to consider whether an indirect or intervening cause is present when analyzing proximate cause
22
Q
What is an intervening cause?
A
An event that occurs after a ∆’s initial act of negligence that causes harm to a victim
An intervening cause will relieve the ∆ of liability for the victim’s injury only if the event is deemed a superseding (unforeseeable) cause to the injuries
23
Q
What is the “eggshell plaintiff” rule?
A
The concept that the tortfeasor takes their victim as they find them - meaning all courts hold the ∆ liable for the full extent of the π’s injuries - EVEN if the π suffers and unforeseeable high level of damage due to a pre-existing vulnerability or medical condition
24
Q
May a victim recover for personal injuries in tort?
A
YES
A π may sue for past, present, and prospective damages from personal injuries tortiously inflicted on them, including economic and non-economic damages
TIP: non-economic damages are damages from pain and suffering
25
What is the requirement for damages in a negligence suit?
-once a negligent act and causation are established, the π must show damages resulting from the negligent act in order to impose liability of the ∆
-there must be a showing of actual damages to person or property
26
When may punitive damages be awarded as a remedy for negligence?
Punitive damages are generally not recoverable under negligence
TIP: however, some states do permit punitive damages when the ∆ has engaged in wanton, reckless, or malicious conduct
27
Which 2 types of damages are generally NOT recoverable in a negligence claim?
Nominal and punitive
28
What are the three defenses to negligence?
1. contributory negligence
2. comparative negligence
3. assumption of risk
29
Contributory negligence at common law
A π's contributory negligence was an ABSOLUTE and COMPLETE BAR to any recovery for the negligence of the ∆
TIP: contributory negligence is a defense to negligence
30
What is the "last clear chance" doctrine?
courts hold that a π's contributory negligence would not bar or reduce recovery if the ∆, immediately prior to the accident, had the "last clear chance" to avoid the accident and failed to do so
TIP: the doctrine of last clear chance was meant to soften the complete defense of contributory negligence at CL
31
What is "pure contributory negligence"?
In this jurisdiction, the court will apportion fault between the parties and to the extent that the π's conduct contributed to the injury, the award will be reduced by that percentage of fault
TIP: pure comparative negligence has been adopted in MOST jurisdictions
32
What are the 2 elements of an assumption of risk?
The π must:
1. recognize and understand the particular risk or danger involved; AND
2. voluntarily choose to encounter it
33
What is "vicarious liability"?
The concept of holding a ∆ liable for actions of a 3rd party
TIP: this includes liability of an employer for an employee
34
What is the doctrine of "respondeat superior"?
allows for an employer to be vicariously liable for tortious act committed by an employee w/in the scope of employment
TIP: intentional torts often are held to be outside the scope of employment unless they are committed in furtherance of the employer's business
35
Does respondeat superior apply when an employee commits an intentional tort?
usually outside
HOWEVER - employers may not avoid liability by writing rules that discourage tortious behavior such as forbidding drunk driving
36
What are the two exceptions to the general rule that employers are not liable for the torts of their independent contractors?
Vicarious liability may be imposed on an employer if the IC:
1. is an apparent or ostensible agent or is hired to perform nondelegable duties; OR
2. is performing an activity so inherently dangerous that the employer should realize it involves a peculiar risk of physical harm
37
Are automobile owners vicariously liable for the tortious actions of someone else driving their car?
Courts are split.
Some hold that a driver and rider who agree on an itinerary, to take turns driving, and split costs are engaged in a joint enterprise
Other courts hold that the mere sharing of expenses w/out a business purpose is NOT enough
38
What are Dram Shop Acts?
are statutes that create a COA against a taverkeeper in favor of 3rd parties injured by an intoxicated patron
39
What is "satisfaction" in tort law?
-the concept that a π should only recover once for a particular injury
-a satisfied judgment against one tortfeasor prevents recovery for any additional amount against others
40
What is a "survival statute"?
provide for the continuation of personal injury or property actions after a party to the lawsuit has died
TIP: however, torts based on intangible personal interests (such as defamation, malicious prosecution) generally expire upon the claimant's death
41
What is "intrafamily tort immunity"?
ABOLISHED BY MOST JURISDICTIONS
-type of immunity that prevents spouses, parents, and children from suing each other in tort
42
What is "governmental tort immunity"?
means that state and federal governments and agencies are generally immune from tort liability
43
Are state governments immune from all torts?
Generally, NO.
TIP: some legislatures reacted by reenacting limited governmental immunity
44
Is a rescuer a foreseeable π?
YES
-the theory is that "danger invites rescue"
45
When may a parent recover for "wrongful birth" or "wrongful pregnancy"?
for negligence in a contraceptive procedure or failure to diagnose a birth defect
46
What does the court ask under the "reasonable person" standard?
Would a reasonable person of ordinary prudence, in the ∆'s position, do as the ∆ did?
TIP: the reasonable person standard is viewed under an OBJECTIVE STANDARD
47
What is "informed consent" in tort law?
The duty doctors have to disclose relevant info about the benefits and risks of proposed treatments, alternatives to that treatment, and the likely outcome if the patient remains untreated
48
What is the exception to the rule that minors are held to a reasonable person standard based on their age?
-if children engage in dangerous activities normally undertaken only by adults (e.g., operating cars, airplane, motorboats) no special allowance is made for their immaturity or limited experience
-they are held to the same standard as adults, even if they are "beginners"
49
When is a bailor liable for a bailee's conduct?
When:
1. the bailee's wrongful conduct is committed in the bailor's presence; OR
2. the bailor failed to exercise reasonable care in selecting the bailee
50
In which two situations will a bailor (who has exercised reasonable care in selecting the bailee) be liable for negligent or intentional harm inflicted by the bailee outside of the bailor's presence?
1. The Family Purpose Doctrine: states that an automobile owner will be liable for a family member's consented-to but negligent operation of the vehicle; AND/OR
2. Permissive Use Statutes: state that an automobile owner will be liable for ANYONE's negligence while that person is driving their automobile w/ consent
51
What standard of care applies in emergency situations?
Reasonable person acting under same emergency conditions
-"Good Samaritan Obligation"
52
What duty does a landowner owe to ppl outside the premises of their land?
NO duty of reasonable care owed to a person outside the land who enters as a trespasser, and whose presence on the land is unknown, nor is there a duty to discover the presence of trespassers
TIP: this applies to natural and artificial conditions on the property
53
What is "attractive nuisance doctrine" and when does to apply?
APPLIES --> after a landowner discovers children are trespassing; AND
HOLDS --> that the landowner owes a duty of due care to warn or protect children from ARTIFICIAL conditions involving a risk of death or serious bodily harm
TIP: to be a child trespasser, the child must be so immature that they cannot understand the danger involved
54
How does an invitee exceed their invitation to enter?
by wandering beyond the part if the premises they were invited to enter
TIp: an invitee who exceeds an invitation to enter becomes a licensee or even a trespasser on the property
55
What duty does a landowner owe to a recreational user of the land?
In nearly every state, there is NO duty owed to a user of recreational land as long as the π had been using the land for recreational purposes, and unless the owner has engaged in willful or wanton conduct against the π
56
Does a property else owe a duty of care?
YES
A levee has a duty to maintain the property in a way that does not cause injury to their own invitees
TIP: a lessee is treated as through they were the owner of the pretty for purposes of applying the common law rules of liability
57
What are the 2 excuses for a violation of a statutory standard of care?
A violation of a statutory standard of care may be excused by:
1. legally acceptable excuse OR
2. application of the standard of care would be unreasonable
58
What are the 3 elements of negligent infliction of emotional distress?
Three elements include:
1. the ∆'s negligence presents a threat of physical harm w/in the zone of danger;
2. the ∆'s negligence results in the π's severe emotional distress; AND
3. the π has a physical manifestation of the emotional distress (ie, has a heart attack)
TIP: bystanders may recover if additional elements are met
59
What is the "zone of danger"?
to recover under a negligent IED claim, the π must show he was in a foreseeable zone of danger where a reasonable person would force risk
TIP: if a π is not in the zone of danger, the ∆ will NOT owe that π a duty of care, unless an exception applies
60
When does one have a duty to control third parties and prevent hem from injuring others?
one has a duty to control 3rd parties and prevent them from injuring others when a special relationship exists between the ∆ and the 3rd party
*a special relationship exists between therapists and clients, innkeepers and guests, etc.
61
How is causation established when multiple parties are concurrently liable?
Where there are multiple ∆'s and which tortfeasor caused the harm in question, the jury may determine causation by using:
1. the market share liability doctrine
2. the alternative liability doctrine OR
3. the joint venture/joint enterprise doctrine
62
What is an "independent interning cause"?
An act or event (by a party other than the ∆) that happens after the negligent act and injure s π
*A ∆ will remain liable for the foreseeable results of their act
63
What is the π's duty to mitigate damages?
π must take reasonable action to avoid/minimize damages
64
What is the collateral source rule in tort law?
prevents a ∆ from introducing evidence that the π received financial assistance from other sources (eg, insurance) as a way to reduce an award for damages
65
Which two situations trigger imputed contributory negligence?
In the few states retaining contributory negligence, it is imputed in 2 situations:
1. employer - employee AND
2. partners in a joint enterprise
*Contributory negligence is NOT imputed between spouses or a parent-child relationship unless one of the above two situations also applies
66
How does "partial comparative negligence" affect recovery in a multi-∆ lawsuit?
-nearly ALL states apply partial comparative negligence, which denies recover to a π in a multi-∆ suit where the π's own negligence exceeds a threshold level
-for example, a π who is more than 50% liable may be denied any recovery when suing multiple ∆'s for negligence
*COMPARE to PURE comparative negligence used in a number of states - which allows recovery REGARDLESS of the extent of the π's own negligence compared to the ∆'s
67
What is "assumption of risk"?
general rules that if π expressly or impliedly consents to the harm from a particular risk created by the ∆, the π is held to have assumed the risk and is barred from any recovery for negligence
*the π must have recognized and understood the risk and voluntarily chosen to confront it
68
HYPO:
When a π assumes a risk, what impact will comparative negligence have on their recovery?
In SOME jurisdictions, when a π is found to have unreasonable assumed the risk, they are considered contributorily negligent, and their recovery will be reduced according to the jurisdiction's comparative negligence statute
*in this scenario, these 2 doctrines effectively merge to reduce the damages award
69
What is comparative contribution?
Contribution between joint tortfeasors on a comparative fault basis means that each tortfeasor will pay for damages based on their percentage of fault for the harm
*a MAJORITY of jurisdictions have adopted a comparative contribution system BUT a small number of states require all tortfeasors to pay equal shares regardless of their portion of fault
70
Is wrongful death a COA at common law?
NO
TODAY HOWEVER - wrongful death statutes exist in EVERY jurisdiction
*A spouse or next of kin may bring this action
71
Which 3 defenses are available in a wrongful death action?
1. victim's negligence
2. victims inter vivid recovery
3. beneficiary's negligence
72
What is the "duty of care" in tort law?
One of the elements of a negligence claim, the "duty of care" is a general requirement that a person act reasonably toward others
*the level of the duty owed may change based on the situation (ie., the duty may be heightened depending on the facts) and is a question of law
73
Must a π have been "foreseeable to recover against a ∆ in a negligence action?
GENERALLY YES
If a reasonable person would not have foreseen any injury to anyone from the ∆'s actions, most courts will hold there is NO DUTY owed to a person who is unexpectedly hurt
74
What is "joint and several liability" in tort law?
Applies when more than on ∆ is the proximate cause of the π's indivisible harm, so each ∆ is allowable for the entire harm
*joint and several liability allows the π to sue and collect the entire damages award from a singe ∆ OR any combination of the ∆'s together
75
What is "contribution" in tort law?
the partial reimbursement from one ∆ to another ∆ who has paid more than their pro rata (fair) share of π's damages
*an intentional tortfeasor may NOT get contribution from fellow tortfeasors
76
What is "indemnity" in tort law?
shifts the entire responsibility and liability from one ∆ to another ∆ who is vicariously liable
*distinguish from contribution, which is PARTIAL reimbursement
77
What standard of care applies to a person w/ a disability?
what a reasonable person w/ that physical disability would have done
78
What is a parent's duty of care regarding harm caused by their minor child?
A parent has a duty of reasonable care in the supervision of their child to prevent the child from either:
1. intentionally harming other people OR
2. acting in a way that poses an unreasonable risk of harm to others
*a breach of this duty is considered DIRECT negligence by the parent, NOT vicarious liability for the actions of the child
79
May a ∆ be liable in tort solely for the FAILURE to act?
NO
At CL ∆ is not liable solely because of failure to act - b/c law distinguishes between affirmative acts and a passive failure to take action
*HOWEVER - some special relationships DO give rise to an affirmative duty to act
80
What are the three elements of negligence per se?
1. a statute is violated
2. the statute was designed to protect against the same kind of accident that the ∆'s conduct caused AND
3. the π falls w/in the class of persons the statute was intending to protect
81
What are the 4 elements of res ipsa loquitur?
1. no direct evidence exists showing how the ∆ behaved
2. the event does not ordinarily happen except through a person's (or entity's) negligence
3. the instrument that caused the harm was in the ∆'s exclusive control
4. the π's injury was not self-inflicted
82
What is the effect of a successful res ipsa loquitur showing?
creates an inference that the ∆ was negligent, even tho there was no direct or eyewitness evidence of the ∆'s negligence
The π by establishing a res ipsa claim, may establish a breach of duty owed
83
What is an "employee" in tort law?
an "employee" is a worker who is subject to the detailed control of the person who has hired them (ie, their employer)
84
What is an "independent contractor" in tort law?
-an IC is a worker who is not subject to the detailed control of the person who hired them
-an IC is hired to produce a certain result and can control how they produce that result
*respondeat superior only applies when the worker is an employee, not an IC
85
When is an employee acting "w/in the scope of their employment"?
If they were acting w/ an intent to durether their employer's business purpose in any way
86
Is the principal liable for the torts of their IC's?
GENERally, a principal is NOT liable for torts committed by their IC unless an exception applies
*the principal may however be liable for their own negligence in hiring or supervising the IC
87
What is a "nondelegable duty" in tort law?
an obligation that may not be outsourced to another party to perform
*a "delegable" duty, by contrast, is a duty that MAY be performed by another (eg, a contractual duty is transferred to another party who is obligated to perform)
88
What is "direct causation" in tort law?
means that there was no intervening force or action happening between the ∆'s negligent act and the occurrence of the harm to the π
89
What is "indirect causation" in tort law?
means that some force or agency intervened between the ∆'s negligent act and the occurrence of the π's harm, and either extended the results of the ∆'s negligence or combined w/ the ∆'s act to produce the injury
90
Which 3 acts are NOT considered "intervening acts" in tort law?
1. preexisting conditions
2. forces set in motion
3. omissions to act
91
Does the eggshell π rule apply to property?
NO
rule only applies to preexisting conditions of the π not property
92
What are the 4 exceptions to the general rules that there is NO duty to aid others in an emergency?
A ∆ may owe a duty to warn, protect, or rescue a person if they have:
1. a special relationship to the π
2. cause the π's peril
3. a statutory duty to act
4. a special relationship w/ the person who caused the harm
93
What is an "ordinary trespasser" in tort law?
Anyone who comes onto the land w/out the express or implied permission from the landowner
94
What is a landowner's duty toward known trespassers?
owes a duty of care when they know that trespassers constantly intrude upon a limited area of property where the owner either carries on a dangerous activity or has maintained an artificial condition that they have reason to know is dangerous
95
What is the landowner's duty toward unknown trespassers?
if the trespassers are undiscovered, the landowner only has a duty to refrain from willful or wanton misconduct
*effectively means that the landowner owes no duty of care to unknown trespassers
96
What is the effect of a foreseeable result caused by an unforeseeable intervening force?
even tho the intervening force was NOT foreseeable --> ∆ will still be liable as long as the result (π's injury) was foreseeable
97
What is the effect if an unforeseeable result is caused by a foreseeable intervening force?
if an intervening force was foreseeable, the courts are split on whether to hold a ∆ liable for an unforeseeable result
98
What is the effect if an unforeseeable result is caused by an unforeseeable intervening force?
rarely will a ∆ be liable for an unforeseeable result caused by an unforeseeable intervening force
*only in a few exceptional cases has a ∆ been found liable in such a situation
99
What is "partial or modified comparative negligence"?
The court will apportion fault between the parties and to the extent that the π's conduct contributed to the injury, the award will be reduced by that percentage of fault BUT if the π is more than 50% at fault their recover is completely barred
100
What is the "joint venture doctrine"?
Holds that a jury may Impute one ∆'s tortious conduct on others who are engaged in a common enterprise
-there must be an explicit or implied agreement to engage in the tortious conduct
101
Under respondeat superior, when is an employee acting w/in the scope of their employment?
When:
1. performing work assigned by the employer OR
2. engaging in conduct that is subject to the employer's control
102
HYPO:
When an employee disregards the employer's instructions, is the employee's conduct automatically outside the scope of employment?
NO
If the employee disregarded the employer's instructions but did so in an attempt to serve the employer, the employee's actions are not considered outside the scope of employment
103
When will an employer NOT be viciously liable for an employee's conduct?
Employer will NOT be vicariously liable for EE's conduct when:
-there is a "frolic" or major deviation
-unless expressly authorized by employer, passengers and trespassers are outside the scope of employment
-there are unauthorized instrumentalities
*if the employee foes on a "detour" or minor deviation - employer IS liable
104
What is the difference between an employee and an IC?
CONTROL
Employer control manner and means of employees work
IC - not controlled or is only subject to limited control of a principal
105
What factors are considered when determining whether an agent is an IC?
-characterization by the parties
-nature of the work
-skill required
-who supplies the tools, equipment, and facilities
-length of employment
-basis of compensation
**CONTROL
*principal is generally NOT liable for the torts committed by an agent functioning as an IC
106
Define negligent infliction of emotional distress
the ∆ must create a foreseeable risk of harm to π --> who must be in the zone of danger --> AND suffer physical symptoms from the emotional distress
107
When may a bystander who is outside the zone of danger recover for negligent IED?
Recovery is permissible for a 3rd party bystander outside the zone of danger when they are:
1. closely related to the person who suffered harm;
2. present at the scene AND
3. observed or perceived the event through their own senses
*most jurisdictions require a physical manifestation of symptoms, although there is a modern trend to dispense w/ this requirement
108
What is the standard of care owed to invitees?
Invitees who enter the ∆'s premises for a purpose connected to the business of ∆'s are owed a duty of reasonable care on the ∆'s premises from FORESEEABLE RISKS
-This includes making reasonable inspections of the property to find or make safe non-obvious risks
109
What are the elements of the attractive nuisance doctrine?
Where there is an attractive nuisance, courts will impose upon a landowner the duty to exercise ordinary care to avoid a reasonable foreseeable risk of harm too hildren caused by artificial conditions on the property.
This is typically applied when a minor is engaged in an activity appropriate for children. The π must show that:
1. the ∆ was aware of the dangerous condition
2. the owner knows minor frequently are near this condition
3. the condition will likely cause injury; AND
4. the expense of readying the situation is slight when compared to the magnitude of the risk
110
What is the standard of care owed to licensees?
includes social guests who are owed a duty of reasonable care and a duty to warn of known dangerous conditions that create an unreasonable risk of harm that the licensee is unlikely to discover
111
What is the actual cause "substantial factor test" and when does it apply?
Holds that a ∆'s conduct also is the actual cause of the π's injury if that conduct was a substantial fact in bringing about the injury.
This accounts for the situation where the conduct of 2 or more ∆'s, results in injury to π, and each individual ∆'s conduct, taken alone, would have been sufficient to directly cause the injury
*a mechanical application of the "but for" test would permit each ∆ to claim that the π's injury would have occurred whether they acted or not and thus "but for" causation did not exist
112
What is the "market share" liability doctrine?
permits a jury to apportion damages based on the manufacturer's market share of a defective product
Courts have held this only applies to products that are mutually interchangeable int heir capacity to cause harm
113
What is the alternative liability doctrine from the case Summers v. Tice?
permits a jury to find 2 ∆'s liable when each was negligent, and either could have cause fault
114
What is the difference between contribution and indemnification?
Contribution: is an action whereby a ∆ who pays more than their share of damages can seek to share liability w/ other tortfeasors
Indemnification: is an action where a tortfeasor seeks to shift responsibility or the entire loss to another tortfeasor
115
Define breach
failure to meet the standard of care constitutes a breach
116
Define the elements for a prima facie case of negligence
π must show:
1. ∆ owed a duty of care
2. ∆ breached that duty
3. the breach was the actual and proximate cause of π's injuries
4. π suffered damages
117
Is there an affirmative duty to act?
There is no general duty to come to aid of another unless there is:
1. pre-existing special relationship
2. ∆ was the cause of the hazardous situation
3. ∆ has begin to act as a rescuer OR
4. duty is imposed by law
118
What are the 2 exceptions to negligence per se?
1. when compliance w/ statute would be MORE dangerous OR
2. compliance with the statute is impossible
*compliance w/ the statute does not raise any presumption in ∆'s favor
119
What is the standard of care for a rescuer?
When on individual aids another, liability will not attach unless:
1. the individual fails to exercise reasonable care to secure the safety of the other; OR
2. discontinue air leaving the other in a worse position
120
What is the standard of care for a physician?
A physician owes a duty to possess and exercise the knowledge and skill of a member of the profession in good standing
*most courts will apply a national standard of care to evaluate a physician's conduct
121
When may a professional psychologist/psychotherapist have a duty to warn?
Has a duty to warn potential victims when their patients makes a credible threat to others
The patient must pose a real risk of violence to a readily ascertainable victim, and possess the intent and ability to follow through w/ the threat
*a psychotherapist may be found liable for the victim's injuries when reasonable therapist would have warned, and this therapist failed to do so
