negligence

Question 1

negligence elements

Answer 1

1) Duty: D has a duty to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury

2) D breaches duty

3) actual and proximate cause

4) damages

Question 2

a duty of care is owed only to

Answer 2

foreseeable plaintiffs

Question 3

rescuers and firefighter rule

Answer 3

rescuer is foreseeable P when the D negligently put themselves or a third person in peril

Firefighters and police officers are barred by the “firefighter’s rule” from recovering for injuries caused by the inherent risks of their jobs.

Question 4

basic standard of care

Answer 4

All persons owe a duty to behave with the same care as a reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims.

Question 5

basic standard of care - if D is stupid?

Answer 5

Objective standard. A defendant’s mental deficiencies and inexperience are not taken into account

Question 6

basic standard of care - if D is super smart/strong?

Answer 6

defendant who has knowledge or experience superior to that of an average person is required to exercise that experience

Question 7

basic standard of care - if D has unique physical characteristic

Answer 7

The “reasonably prudent person” is considered to have the same physical characteristics as the defendant if those physical characteristics are relevant to the claim

Question 8

duty of children

Answer 8

held to the standard of a child of like age, intelligence, and experience.

Subjective. Under five is usually without the capacity to be negligent.

Children engaged in potentially dangerous adult activities may be required to conform to an “adult” standard of care (ONLY activity agreed to be adult = operating motorized vehicle)

Question 9

duty of professionals

Answer 9

required to possess the knowledge and skill of an AVERAGE member of the profession or occupation in good standing. (doctors: use national standard of care)

Duty to disclose risk of treatment: duty to disclose risks of treatment to enable a patient to give an informed consent. Breach if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk

Question 10

duty of possessors of land to unknown trespasser

Answer 10

No duty is owed to an undiscovered trespasser

Question 11

duty of possessors of land to known trespasser

Answer 11

must warn of or make safe any conditions that are:

• artificial
• highly dangerous
• concealed
• known to the possessor

Question 12

duty of land possessors to licensees

Answer 12

licensees have permission to enter for their own benefit (social guests are licensees)

must warn of or make safe any conditions that are:
- concealed
- known to possessor

*no duty to inspect or repair

Question 13

duty of land possessors to invitees

Answer 13

invitees enter for a financial benefit of land/posessor or members of public for a purpose which land is open to the public.

must warn of or make safe any conditions that are:
- concealed

• known to possessor OR
• could have been discovered by reasonable inspection

Question 14

duty of land possessors to trespassing children (attractive nuisance doctrine)

Answer 14

Most courts: duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm.

P must show:
1) dangerous condition that owner knows/should know of

2) owner knows/should know children might trespass on the land (does not actually have to be attracted)

3) condition likely to cause injury (dangerous because child’s inability to appreciate risk)

4) expense of remedying is slight compared with the magnitude of risk

Question 15

duty of landowner to users of recreational land

Answer 15

landowner who permits general public to use for recreational purposes (without charging a fee) is NOT liable for injuries suffered by a recreational user

UNLESS the landowner willfully + maliciously failed to guard against or warn of a dangerous condition or activity

Question 16

land possessor duty to those off premises

Answer 16

no duty to protect someone off the premises from natural conditions on the premises

• however, there IS duty for unreasonably dangerous artificial conditions or structures abutting adjacent land
• Also, must carry on activities on the premises to avoid unreasonable risk of harm to others off the premises

Question 17

duty of lessor and lessee of realty

Answer 17

lessee: duty to maintain

lessor: duty to warn of (1) existing defects they know/have reason to know of and (2) they know lessee is unlikely to discover on a reasonable inspection

Question 18

liability if lessor covenants to repair

Answer 18

liable for unreasonably dangerous conditions

Question 19

liability if lessor volunteers repair

Answer 19

liable if repair is done negligently

Question 20

liability if lessee’s guest is injured

Answer 20

both lessor and lessee may be liable as owner/occupier

Question 21

statutory standard of care replaces common law duty if:

Answer 21

P within protected class

AND statute was designated to prevent type of harm suffered by P

Question 22

excuse for violation of statutory standard of care

Answer 22

may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control

Question 23

effect of violation or compliance of statutory duty

Answer 23

unexcused statutory violation is negligence per se (establishes duty and breach)

compliance with the statute will not necessarily establish due care.

Question 24

when is there a special relationship that creates an affirmative duty

Answer 24

special relationship between the parties (ex. parent-child) may create a duty to act.

Common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons.

places of public accommodation have a duty to prevent injury to guests by third persons.

Question 25

affirmative duty for peril due to own conduct

Answer 25

One has a duty to assist someone they have negligently or innocently placed in peril.

Question 26

assumption of duty by acting

Answer 26

may assume a duty to act by acting *Exception: Many states have enacted Good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.

Question 27

duty to prevent harm from third persons

Answer 27

Generally, NO duty to prevent a third person from injuring another. BUT affirmative duty may be imposed if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control.

Question 28

standards for common carriers/inkeepers

Answer 28

liable for slight negligence/ P MUST be a passenger/guest

Question 29

standard of care - automobile driver to guest

Answer 29

guest in an automobile is owed a duty of ordinary care. *In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.

Question 30

what is a bailment relationship

Answer 30

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title (for example, bailor loans their car to bailee).

Question 31

bailment relationship - duties owed by bailee

Answer 31

bailee’s standard depends on who benefits from the bailment: (1) sole benefit of the bailor - low standard of care (2) f sole benefit of the bailee - high standard of care; (3) mutual benefit bailment (typically a bailment for hire), - ordinary care. MODERN trend - apply duty of ordinary care under the circumstances and type of bailment is just one factor taken into account.

Question 32

bailment relationship - duties owed by bailor

Answer 32

sole benefit of bailee - bailor must inform the bailee of known, dangerous defects in the chattel. bailment for hire - bailor must inform the bailee of chattel defects of which they are or should be aware.

Question 33

emergency situations

Answer 33

A defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if it is of the defendant’s own making.

Question 34

negligent infliction of emotional distress - near miss cases

Answer 34

duty to avoid negligent IED may be breached when D creates a foreseeable risk of physical injury to P. P usually must satisfy two requirements to prevail: 1) P within the “zone of danger” - subject to high risk of physical impact * P suffers physical symptoms from distress (minority have dropped this req)

Question 35

negligent infliction of emotional distress - bystander cases

Answer 35

bystander outside “zone of danger” who sees D negligently injuring another can recover damages for their own distress as long as: 1) P and the person injured by the defendant are closely related 2) P was present at the scene of the injury and personally observed/perceived the event Most states drop the requirement of physical symptoms in this situation.

Question 36

negligent infliction of emotional distress - special relationship between P and D

Answer 36

D may be liable for directly causing P severe emotional distress when a duty arises from the relationship (typically commercial in nature) such that the D's negligence has great potential to cause emotional distress Most states drop the requirement of physical symptoms examples - doctor’s misdiagnosis terminal illness; mortuary’s negligent cremation of deceased contrary to family’s instructions.

Question 37

theories available to P to show proof of breach

Answer 37

custom/usage violation of statute res ipsa loquitur

Question 38

proving breach - custom or usage

Answer 38

When the standard of care is “reasonable prudence": evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstance. NOT conclusive to whether certain conduct = negligence. although certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.

Question 39

proving breach - violating of statute

Answer 39

When duty of care set by a statute - proof of violation of the statute is CONCLUSIVE evidence of breach. AKA “negligence per se.” Causation and damages must still be established by the plaintiff.

Question 40

proving breach - res ipsa loquitor

Answer 40

requires P to show: 1) accident causing the injury is a type that is normally associated with negligence 2) this type of accident ordinarily happens because of the negligence of someone in the Ds position *This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.

Question 41

effect of res ipsa loquitor

Answer 41

P has made a prima facie case and no directed verdict may be given for the defendant. The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.

Question 42

factual causation - but for test

Answer 42

injury would not have occurred “but for” the act or omission

Question 43

factual causation - substantial factor test

Answer 43

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury

Question 44

factual causation - unascertainable causes

Answer 44

burden of proof shifts to defendants, and each must show that his negligence is not the actual cause

Question 45

proximate cause - general rule

Answer 45

liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts

Question 46

common foreseeable intervening forces

Answer 46

* Medical malpractice * Negligence of rescuers * Protection or reaction forces to the defendant’s conduct, including efforts to protect person or property * Disease or accident substantially caused by the original injury

Question 47

when intervening forces that are natural responses foreseeable

Answer 47

may be foreseeable if the defendant’s negligence increased the risk of harm from these forces. includes: (1) negligent acts of third persons, (2) crimes and intentional torts of third persons, and (3) acts of God

Question 48

superseding forces

Answer 48

intervening forces that produce unforeseeable results (results not within the increased risk created by the defendant’s negligence) are generally deemed unforeseeable and superseding.

Question 49

personal injury recovery

Answer 49

ALL damages - past/present/prospective and economic/noneconomic

Question 50

property damage recovery

Answer 50

reasonable cost of repair or, if nearly destroyed, fair market value at the time of the accident. emotional distress damages generally not recoverable

Question 51

punitive damages

Answer 51

ONLY IF D's conduct is "wanton and willful,” reckless, or malicious.

Question 52

nonrecoverable items

Answer 52

(1) interest from the date of damage in a personal injury action (sometimes called “pre-judgment interest”) (2) attorneys’ fees.

Question 53

duty to mitigate

Answer 53

P has duty to take reasonable steps to mitigate damages

Question 54

collateral source rule

Answer 54

Damages are not reduced just because the plaintiff received benefits from other sources (ex. insurance)

Question 55

contributory negligence as defense to D's violation of statute

Answer 55

IS a defense UNLESS the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment (for example, a child injured after darting into street in school zone and getting hit by speeding car of the defendant).

Question 56

effect of contributory negligence

Answer 56

common law - barred from recovery majority - comparative system

Question 57

last clear chance

Answer 57

P's rebuttal to the defense of contributory - the person with the last clear chance to avoid an accident who fails to do so is liable

Question 58

last clear chance - helpless peril

Answer 58

many states, if the plaintiff is in “helpless peril,” the defendant will be liable if they knew or should have known of the plaintiff’s predicament.

Question 59

last clear chance - inattentive peril

Question 60

last clear chance - prior negligence cases

Answer 60

where the plaintiff could have extricated themselves if attentive, the defendant must actually have known of the plaintiff’s predicament.

Question 61

imputed contributory negligence

Answer 61

contributory negligence of 3p imputed to only when: relationship between 3P and P is such that a court could find P vicariously liable (employer-employee, partner, and joint venturer relationships) NOT imputed between spouses, parent and child, and automobile owner and driver.

Question 62

assumption of the risk

Answer 62

P may be denied recovery if P: 1) knew of risk 2) voluntarily proceeded in the face of the risk

Question 63

pure comparative negligence

Answer 63

minority - D pays for the % at fault

Question 64

partial comparative negligence

Answer 64

majority - bars the recovery if P's % > or = D's %. If more than one D has contributed, P's % compared with the total negligence of all the Ds combined.

Question 65

can last clear chance and comparative both be used?

Answer 65

No. Last clear chance is not used in comparative negligence jurisdictions.