Negligence

Question 1

duty def

Answer 1

obligation recognized by law
requiring D to conform to a certain standard of conduct
for the protection of others against unreas risk

Question 2

duty is owed to __

Answer 2

foreseeable Ps

Question 3

D offers to aid P with carrying a simba statue. Never actually does it. P injures self while carrying the simba statue. sues D to recover for injuries.

D liable? why?

Answer 3

No- nonfeasance rule

D who gratuitously promises to take action to aid P has no duty to actually do it

Question 4

Parents must save children from being trampled by a herd of wildabeasts. Why?

Answer 4

Duty imposed by a special relationship.
-duty to take affirmative action
-special rel 
or
-P is especially vulnerable and dependent on D

Question 5

The person Bob is with is about to get hit by a rogue tee shirt blasted by some idiot 3p at an Os game. Bob sees it and does not protect the person. is he liable:

if the person is his son?
if the person is a rando?

why?

Answer 5

wife: yes.
speical relationship that imposes a duty to protect, and a duty to keep her from hurting others

rando: no.
generally no duty to protect or control the actions of 3p

Question 6

Is the MD department of natural resources liable for constructing a defective table in its nature workshop? why?

Are they responsible for failing to allocate enough nature employees for its nature workshop?

Answer 6

yes- when acting in an area usu occupied by priv entities govt tx like any other D

no- discretionary activity (using judgment to allocate resources): no duty

Question 7

P is sitting outside when a throwing star lodges in a tree a half inch from her head. She gets so scared she hyperventilates and has to be hospitalized.

Action against D for what? why?

Answer 7

NIED
zone of danger
phys manifestation of emo distress

Question 8

P is sitting outside with her sister when a throwing star hits the sister in the eyeball. She is calm and gets the sister to the ER.

Action against D for what? why?

Answer 8

NIED
close relation
zone of danger

Question 9

land possessor liability: duty owed to invitee

Answer 9

reasonable care
discover dangerous cond
warn

Question 10

land possessor liab: licensee

Answer 10

reas care
warn of known artificial dangers P is unlikey to discover
no duty to inspect

Question 11

land possessor liab: unknown trespasser

Answer 11

no duty

Question 12

land possessor liab: known trespasser

Answer 12

reas care
warn of hidden artificial dangers
D knows about
P doesnt know about

Question 13

land possessor liab: children

Answer 13

same duty as to natural conditions
artificial:
foreseeable risk of unreas danger
fs risk that children will trepass
child unaware of danger
risk of danger outweighs utility 
-----
MD: abandoned attractractive nuisance doc
same standard of care for adults and children

Question 14

land possessor liab: Ps not on D’s land

Answer 14

reas care to protect fromu nreas dangerous artifical conds

minority: also reas care to protect from natural conds

Question 15

land possessor liab: LL/T- when is LL liable and not

Answer 15

latent defect (tenant unaware/ not reasonably apparent)

patent defects= no duty to warn or repair, or inspect

Question 16

land possessor liab: sellers of land

Answer 16

duty to disclose any hidden dangerous nat or artificial conds
S knows or reas should know
B will reas not discover

Question 17

default standard of care

Answer 17

reasonably prudent person under the same or similar circ

same phys characteristics (height weight sight etc)

don’t take into consideration mental illness or mental disability or self-induced intox

Question 18

test for breach of reas prudent pers std

Answer 18

burden of precautions vs likelihood and severity of injury. also take into consideration the social utility of the activity

if burden of precautions < prob of injury x severity , D failed

Question 19

children default standard of care

Answer 19

reas child of same age, edu, intell and experience

adult activities = adult std of care

Question 20

state has a criminal law prohibiting cars from driving on the sidewalk. D drives his car on the sidewalk to avoid traffic. Hits P who is walking on the sidewalk.

D civilly liable? why?

Answer 20

yes- negligence per se
where D’s conduct also violates a stat that does not provide for civil liab.
maj: D breached duty to P
min: rebuttable presumption

applies if:
type of inj stat seeks to prevent
mem of class stat intented to protect
violation not excused

Question 21

state has a criminal law prohibiting cars from driving on the sidewalk. D drives his car on the sidewalk to avoid hitting a bus of schoolchildren that suddenly broke down in front of him. Hits P on the sidewalk.

D liable? Why?

Answer 21

not under negligence per se

violating a stat and then causing the injury it seeks to pevent is excused when following the statute would have produced greater harm

or it would have been impossible

Question 22

The standard of care used to determine if professionals breached is

Answer 22

customary practice of professionals of the same field who are in good standing

now: deviation from custom= duty breached
compliance w custom= no breach

Question 23

neg: breach - 2 ways

Answer 23

failure to conform to applicable std of care

res ipsa loquitur

Question 24

P is unconscious in operating room with a doctor and 3 nurses. When she wakes up, she has a random scalpel slice on her cheek. She can’t prove who is responsible.

Who can be held responsible and why?

Answer 24

the doctor and the 3 nurses

RIL available where P doesn’t/ can’t determine what D’s behavior was that led to the harm

event would not occur without negligence
more likely than not that D’s neg caused the event
P is not responsible for the event

maj: showing of RIL allows the jur to infer D’s breach of duty

Question 25

neg: 3 ways to establish CIF

Answer 25

but-for substantial factor alternative liability theory

Question 26

D and F are hunting in the woods. Both think they see a turkey and fire an arrow at it at the same time. D's arrow strikes P in the eye, F's arrow strikes P in the heart. P dies. Who's negligence is the cause in fact of the death? Who is liable and how?

Answer 26

Both under substantial factor conduct of 2+ Ds results in injury each individuals conduct would have been sufficient to directly cause the injury ---- parties are jointly and severally liable

Question 27

D and F are hunting in the woods. Both think they see a turkey and fire an arrow at it at the same time. One arrow hits P in the femoral artery, and P bleeds out and dies. D and F have identical arrows. Who's negligence is the cause in fact of the death? Who is liable?

Answer 27

Both under alternative liability theory conduct of 2+ Ds only 1 can actually be responsible P can't establish which D is resp every D is treated as CIF unless D can prove he didn't cause P's inj

Question 28

neg prox cause: D owes duty to

Answer 28

foreseeable Ps who are within the zone of danger

Question 29

neg prox cause: unforeseeable extent of harm

Answer 29

doesn't matter eggshell P rule

Question 30

neg prox cause: superseding vs intervening

Answer 30

superseding: unforeseeable intervening cause that breaks the chain of causation bt the initial wrongful act and the ultimate injury ex: natural phenomena, crim acts of 3p, intentional torts of 3p, extrordinarily neg conduct --- intervening force: actively operates in producing harm to P after D has already committed his neg act or omission D is held liable. ex neg of rescuers or mds

Question 31

neg: types of damages available

Answer 31

actual punitive (USU NOT ALLOWED) NO NOMINAL

Question 32

neg dmgs: actual

Answer 32

pers injury, prop dmgs recoverable. not atty fees. P has duty to mitigate aka compensatory dmgs MD: comp for emo inj ok even if no phys manifestation --- MD:

Question 33

neg dmgs/ actual: collateral source rule

Answer 33

bene are not subtracted from P's recovery when stuff is paid for by ins policies, employment bene, gratuities etc

Question 34

neg dmgs: punitive damages

Answer 34

- aka exemplary dmgs - amount over and above the compensation needed to make P whole - P is never entitled to punitive dmgs, but jur has discretion to award them MD: must prove malice

Question 35

neg dmgs: restrictions on punitive dmgs

Answer 35

DP restrictions degree of resp of D's conduct ration bt P's compensatory dmgs and punitive (Pun shouldnt be > 10x compens) diff bt the punitive dmg award and civil or crim sanctions that could be imposed for comparable conduct

Question 36

defenses to neg

Answer 36

contrib neg comparative neg assumption of risk

Question 37

D is texting a hot dude instead of looking where she's driving and hits P, a pedestrian. P was also texting, but was only a little distracted and had a split second to jump out of the way, but didn't. Jury finds P was 5% responsible and D was 95% responsible. what happens if it's a contrib neg state? MD?

Answer 37

recovery barred under contrib: - P's conduct fell below standard to which she should have conformed for her own protection - legally contributing cause of harm recovery super-barred in MD: MD has adopted the last clear chance doctrine: where P's claim would otherwise be barred due to contrib neg, he can proceed if he can show that D had the last clear chance to prevent the injury

Question 38

D is texting a hot dude instead of looking where she's driving and hits P, a pedestrian. P was also texting, but was only a little distracted and had a split second to jump out of the way, but didn't. Jury finds P was 5% responsible and D was 95% responsible. what happens in a pure comparative negligence state? partial comparative neg state?

Answer 38

pure: apportionment of dmgs tracks apportionment of fault perfectly D will pay for 95% of damages. partial comparative neg: damages apportioned only if D's resp exceeds P's resp D will pay for 95% of damages. - aggregate sys - ind equality sys: P doesn't recover if his resp exceeds that of any one D

Question 39

P signs a waiver saying he won't sue the skydiving company if he gets injured. P's gear is messed up and it causes him to break his leg when he lands. D liable?

Answer 39

Nope: express assumption of risk expressly releived D of his obligation to act non-neg. will be upheld as long as it's not against public policy and lang is clear

Question 40

Physician failed to disclose that a possible side effect of laser eye surgery is rainbow-colored irises. P gets rainbow-colored irises and sues. Physician liable?

Answer 40

Probably. P must prove that a reas person, had he been told of all the risks, wouldnt have consented (dont need expert testimony saying that D breached the standard of care, cause it's about what a reasonable person would have done, not what other doctors do) MD: is considered med mal, not battery

Question 41

P, an ex-MLB player, is at a baseball game and sits right by the foul line. Gets hit in the head by a foul ball. D liable?

Answer 41

nope- implied assumption of the risk knowledge of danger appreciation of danger (subjective std) voluntarily subjected self to danger