Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

1. BP Torts > Negligence > Flashcards

Negligence Flashcards

(84 cards)

Start Studying
1
Q

What is the general rule regarding the affirmative duty to act?

A

There is NO affirmative duty to act affirmatively or help others.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Under what circumstances does a duty to act affirmatively arise?

A

A duty to act affirmatively arises if the defendant:
* Places the plaintiff in danger
* Has a special relationship with the plaintiff
* Has a duty to act imposed by law
* Begins to administer aid or attempt to rescue the plaintiff

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What liability does a person face when choosing to rescue or aid another?

A

Liable for injuries caused by failure to exercise reasonable care in the performance of that aid or rescue.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the four elements a plaintiff must establish to hold a defendant liable for negligence?

A

The plaintiff must establish:
* The defendant owed a duty to the plaintiff
* The defendant breached that duty
* The breach was the actual and proximate cause of the plaintiff’s harm
* The plaintiff sustained actual damages or loss

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is the reasonable person standard of care?

A

The standard of care owed is that of a reasonably prudent person under like circumstances.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What may change the standard of care owed by a defendant?

A

The standard of care may change when:
* Certain types of defendants are involved
* A statute defines a specific standard of care as a matter of law (negligence per se)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Fill in the blank: A defendant’s breach must be the actual and _______ cause of the plaintiff’s harm.

A

proximate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

True or False: A special relationship between the defendant and plaintiff automatically creates an affirmative duty to act.

A

True

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is the standard of care owed by a child to a plaintiff?

A

A child owes a duty to exercise the care that a reasonable child of similar age, intelligence, and experience would under like circumstances.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

When will a child be held to the same standard of care as an adult?

A

When the child is engaged in a high-risk activity that is usually undertaken by adults.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What standard of care do professionals owe to their clients?

A

A professional owes a duty to exercise the same skill, knowledge, and care of a member of the profession in good standing in similar communities.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are the two duties a physician owes to a patient?

A
  • Conform their conduct to the customary practice of other physicians in like circumstances, as measured by a national standard
  • Explain the risks of a medical procedure to a patient before the patient decides to consent to treatment.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Under what circumstances is a physician NOT required to explain the risks of a medical procedure?

A
  • The risk is commonly known
  • The patient is unconscious or otherwise incapable of giving consent
  • The patient waives or refuses the information
  • The patient is incompetent
  • The explanation of risks would be detrimental to the patient.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What standard of care do common carriers and innkeepers traditionally owe to their customers?

A

The highest standard of care.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is the liability of common carriers and innkeepers under heightened standard of care?

A

They could be held liable for ‘slight negligence’ by their customers and guests.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Do most courts impose a higher standard of care on innkeepers today?

A

No, most courts apply an ‘ordinary’ negligence standard to innkeepers.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What duty does an automobile driver owe to their guests and passengers in most jurisdictions?

A

A duty to conform to a reasonable person standard of care.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

In a minority of jurisdictions, what duty does an automobile driver owe to their guests?

A

A duty to refrain from gross or wanton and willful misconduct.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is a bailment?

A

A bailment occurs when a person (the bailee) temporarily takes possession of another person’s (the bailor’s) personal property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What duty does a bailor owe to an unpaid bailee?

A

A duty to inform only of known dangerous defects in personal property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What duty does a bailor owe to a paid bailee?

A

A duty to inform of defects that are known or should have been known by the bailor had he used reasonable diligence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What duty of care does a bailee owe to avoid gross negligence if the bailor receives the sole benefit from the bailment?

A

A lower duty of care.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What duty of care does a bailee owe if they receive the sole benefit from the bailment?

A

A very high duty of care – to exercise extraordinary care for the bailor’s property.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q
A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Who does the standard of care apply to regarding land possession?
Owners, tenants, adverse possessors, and others in possession of land ## Footnote Does not include easement holders or those licensed to use land.
26
What are the three categories of entrants on a land possessor's property?
Trespasser, licensee, invitee ## Footnote Each category has different standards of care owed by the land possessor.
27
Define a trespasser.
A person who enters the land possessor’s property without valid consent or necessity.
28
What is a discovered trespasser?
A trespasser who enters the land without consent but may be expected by the land possessor.
29
What duty does a land possessor owe to discovered trespassers?
To warn of, or make safe, hidden dangers that pose a risk of death or serious bodily harm ## Footnote Only if the dangers are artificial and the possessor is aware of them.
30
What duty does a land possessor owe to undiscovered trespassers?
No duty.
31
Define a licensee.
A person who lawfully enters the land possessor’s property for her own purpose or benefit.
32
What duty does a land possessor owe to licensees?
To warn of, or make safe, hidden dangers that pose an unreasonable risk of harm, whether artificial or natural, if the possessor is aware of them.
33
Define an invitee.
A person invited on the property for the land possessor’s own benefit or mutual benefit with the invitee.
34
What duty does a land possessor owe to invitees?
To reasonably inspect the land for hidden dangers and to make them safe if discovered.
35
What is the modern approach to the standard of care owed by land possessors?
A land possessor owes a duty to all entrants to conform to the reasonable person standard of care.
36
What is the Attractive Nuisance Doctrine?
A duty owed to child trespassers regarding artificial conditions on the land.
37
What conditions must be met for the Attractive Nuisance Doctrine to apply?
1. The artificial condition exists where children are likely to trespass 2. The condition poses an unreasonable risk of death or serious bodily harm 3. Children do not appreciate the danger 4. The risk of harm outweighs the expense of making the condition safe.
38
What is negligence per se?
Negligence established as a matter of law through violation of a criminal or regulatory statute.
39
What are the four conditions that establish negligence per se?
* The defendant violates the statute without excuse * The plaintiff is in the class meant to be protected by the statute * The plaintiff suffers the type of harm the statute was designed to protect against * The defendant’s violation was the actual and proximate cause of the plaintiff’s injury
40
True or False: A minority of jurisdictions consider a violation of a statute as a conclusive finding of negligence.
False | rebuttable presumption of duty and breach (not conclusive finding)
41
In what cases is a violation of a statute excused according to Restatement (3d) on Torts § 15?
* Violation is reasonable due to childhood, physical disability, or incapacitation * Reasonable care is exercised in attempting to comply * Actor neither knows nor should know of the circumstances making the statute applicable * Violation is due to confusing presentation of the statute * Compliance would involve greater risk of harm than noncompliance
42
Fill in the blank: A violation of a statute is excused if the actor exercises _______ in attempting to comply.
[reasonable care]
43
What creates a rebuttable presumption of duty and breach in a minority of jurisdictions?
Violation of a criminal or regulatory statute
44
What is the significance of the class of people meant to be protected by a statute in negligence per se?
The plaintiff must be in this class to establish negligence.
45
What type of harm must the plaintiff suffer for negligence per se to apply?
The type of harm the statute was designed to protect against.
46
True or False: An actor's compliance with a statute can sometimes pose a greater risk than noncompliance.
True
47
If actor shows that requirements of statute are confusing?
The actor's violation is excused if the requirements of the statute are confusing.
48
What is the first condition under which an actor’s violation of a statute is excused and not considered negligence?
The violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation. ## Footnote This acknowledges that certain personal circumstances can affect one’s ability to comply with the law.
49
What must an actor demonstrate in relation to reasonable care when violating a statute?
The actor exercises reasonable care in attempting to comply with the statute. ## Footnote This means that the actor made efforts to follow the law despite the violation.
50
Under what circumstance is an actor’s violation of a statute excused if they are unaware of certain facts?
The actor neither knows nor should know of the factual circumstances that render the statute applicable. ## Footnote This implies that ignorance of the law can be a valid excuse if the actor had no reasonable way to know.
51
What can excuse an actor's violation of a statute regarding its presentation to the public?
The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public. ## Footnote This highlights the importance of clarity in legal statutes for public understanding.
52
What is the final condition that can excuse an actor's violation of a statute?
The actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance. ## Footnote This condition recognizes situations where following the law could lead to more danger.
53
What is the first step in determining if a defendant breached a duty?
Establish whether the defendant owed a duty to the plaintiff to conform to a specific standard of care
54
How do we determine if there was a breach of duty?
By comparing the defendant’s conduct to the conduct owed under the applicable standard of care
55
What happens if the defendant’s conduct meets the standard of care owed?
There is no breach
56
What indicates a breach of duty?
The defendant’s conduct falls short of the standard of care owed
57
What is Res Ipsa Loquitur?
A doctrine that allows us to infer a breach of the standard of care owed absent direct evidence of the defendant’s conduct
58
What is required to apply Res Ipsa Loquitur?
The accident must be: * Of a kind that ordinarily does NOT occur in the absence of negligence * Caused by an agent or instrumentality within the defendant’s exclusive control * NOT due to any action on the part of the plaintiff
59
Does Res Ipsa Loquitur conclusively determine liability for negligence?
No, it does NOT conclusively determine whether the defendant is liable for negligence
60
What type of evidence is Res Ipsa Loquitur considered?
Circumstantial evidence
61
What role does the trier of fact play in the context of Res Ipsa Loquitur?
The trier of fact can consider the circumstantial evidence of the breach
62
What must a plaintiff establish to hold a defendant liable for negligence?
The defendant's breach was BOTH the actual and proximate cause of her harm. ## Footnote This means that both types of causation need to be proven to establish liability.
63
What is actual cause often referred to as?
But For Cause. ## Footnote This term indicates that the injury would not have occurred without the defendant's breach.
64
What must a plaintiff show to prove actual cause?
Her injury would not have occurred but for the defendant’s breach. ## Footnote This establishes a direct link between the breach and the injury.
65
What is the substantial factor test?
A method to establish actual cause if traditional 'but for' causation cannot be shown. ## Footnote It allows for liability if the defendant’s breach was a significant factor in causing the harm.
66
What must a plaintiff show to prove proximate cause?
Her injury was a foreseeable result of the defendant’s breach. ## Footnote This means the injury must be a natural consequence of the breach.
67
What is an intervening cause?
An outside force or action that contributes to the plaintiff’s harm after the defendant’s breach. ## Footnote It can complicate the determination of liability.
68
What happens if the intervening cause is unforeseeable?
It is considered a superseding cause, cutting off the defendant’s liability. ## Footnote This means the defendant is not responsible for harm caused by the unforeseeable event.
69
What types of events are generally considered unforeseeable?
* Criminal acts * Intentional torts * Nature-induced 'acts of god' ## Footnote These events can sever the causal link in negligence cases.
70
What types of events are generally considered foreseeable?
* Further negligent acts (e.g., medical malpractice) * Danger invites rescue scenarios ## Footnote These scenarios are expected to occur as a result of the initial breach.
71
What does the 'Danger Invites Rescue' principle state?
Injuries sustained when running from danger and to a rescuer during a rescue attempt are foreseeable. ## Footnote This principle recognizes the inherent risks involved in rescue situations.
72
What is the Fireman’s Rule?
It generally bars lawsuits by police officers and firefighters for damages incurred during their duties. ## Footnote This rule limits the ability of these professionals to claim damages resulting from negligence while performing their jobs.
73
What is the Eggshell Plaintiff Rule?
The defendant is liable for all harm suffered by the plaintiff, regardless of preexisting conditions. ## Footnote This rule emphasizes that defendants must take their victims as they find them.
74
What is Negligent Infliction of Emotional Distress (NIED)?
A legal claim allowing recovery for emotional distress caused by another's negligence.
75
What are the three ways a plaintiff can recover for NIED?
1. Zone of Danger 2. Bystander Recovery 3. Special Relationship
76
What must occur for a plaintiff to recover under the Zone of Danger?
1. Defendant caused a threat of physical impact 2. Plaintiff was within the 'zone of danger' 3. Threat caused emotional distress
77
What are the requirements for Bystander Recovery in NIED?
1. Defendant negligently inflicted bodily injury to another 2. Plaintiff is closely related to the injured person 3. Plaintiff was present at the scene 4. Plaintiff personally observed the injury
78
True or False: Some jurisdictions require the plaintiff to manifest physical symptoms after witnessing an injury for Bystander Recovery.
True
79
In what circumstances can a plaintiff recover for NIED due to a Special Relationship?
1. Defendant negligently mishandles a corpse 2. Defendant negligently provides false medical information
80
Fill in the blank: The plaintiff can recover for NIED if the defendant negligently caused a _______.
[threat of physical impact]
81
Fill in the blank: A plaintiff must be _______ related to the injured person to recover for NIED as a bystander.
[closely]
82
What type of relationship is necessary for Special Relationship claims in NIED?
A pre-existing relationship (e.g., doctor/patient)
83
What is one example of negligent behavior that could lead to NIED under the Special Relationship category?
Negligently providing false medical information
84
What emotional response must a plaintiff demonstrate under the Zone of Danger criteria?
Emotional distress caused by the threat of physical impact

1. BP Torts (14 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions