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Torts > Negligence > Flashcards

Negligence Flashcards

(55 cards)

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1
Q

Negligence: Elements

A

Duty, Breach, Causation (But For + Proximate), Damages

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2
Q

Duty: Steps

A

Step 1: Is there a duty?

Step 2: What is the standard of care?

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3
Q

Duty: General standard

A

-Generally, a duty is owed to all people who may reasonably be injured

  • There is no liability to unforeseeable P’s
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4
Q

Duty: Affirmative Duty to Act

A
  • If you assume the duty you have to use a duty of reasonable care
  • If you place another in danger, you have a reasonable duty
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5
Q

Duty: Authority to Control

A

If you have authority to control, you have a duty to reasonably control

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6
Q

Duty: Special Relationship

A
  • Common carriers: Upmost Care
  • Innkeepers: Reasonable Care
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7
Q

Duty: General Standard of Care

A

Generally, the standard of a reasonably prudent person under the circumstances

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8
Q

Duty: Standard of Care if Physical Disability

A

If someone has a physical disability (not mental) they will be measured against others with the same disability to determine the standard of care

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9
Q

Duty: Standard of Care for Drunk People

A

No different than if they were sober, unless they can show that they did not become drunk voluntarily

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10
Q

Duty: Standard of care for Kids

A

modified standard, unless the kid was engaged in a specifically dangerous adult activity (like Ricky bobby driving the car)

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11
Q

Duty: Standard of Care for Cardrivers

A

Reasonable Standard

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12
Q

Duty: Bailor Standard of Care

A

weird: they must warn of known dangers and if they are the only one receiving the benefit then the standard is lower?

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13
Q

Duty: Standard of Care During Emergencies

A

Standard of care as specific to the emergency

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14
Q

Duty: Standard of Care to People Coming onto Land: Traditional View

A

Uses the tripartite scheme

  • Invitees (people coming on for economic reasons) - you must inspect, discover, and protect
  • licensees (friends) - you must warn of known dangers, but you do not have a duty to inspect
  • Trespassers - you have no duty, unless you know of the trespassers, then you have a duty to warn of hidden dangers
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15
Q

Duty: Standard of Care to People Coming onto Land: Modern View

A

You have a reasonable standard of care to anyone coming onto your land, except to flagrant trespassers (i.e. robbers, people coming to commit a crime). for them, no duty

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16
Q

Breach: Definition for Breach

A

Generally a violation of the standard of relevant care

this is either going to be the reasonableness standard or the hand formula usually

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17
Q

Breach: Custom Generally

A

can be admissible, but not dispositive

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18
Q

Breach: Custom for Special Class

A

For Lawyers, Doctors, Accountants: Custom is admissible and dispositive

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19
Q

Breach: Physicians

A

Held to a national standard

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20
Q

Breach: Effect of Statutes

A

Statutes supercede the general standard for breach. If a law imposes a duty, the D violates it, the P is a class protected by the law, harm relates to the law, and the harm violated the statute, then you are guilty

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21
Q

Breach: Excuse of Statutory Breach

A

You can get out of breach of a statute if you claim that compliance with the statute would have been more dangerous, impossible compared to compliance

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22
Q

Breach: Res Ipsa Loquitur

A
  • Creates an inference of negligence in the case and the case is given to the jury
  • means “ the thing that would not have happened unless there was a breach”
  • must have been in exclusive control of the D, and P must not have had control
  • Med Mal/Products Liability waive the exclusivity requirement; all D’s are jointly liable
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23
Q

But For Causation: Definition

Study These Flashcards
A

“But For” the negligence, the injury would not have occurred

24
Q

But For Causation: Exceptions

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A
  • Concert of Action: If there are multiple tortfeasors, they are all jointly liable even if “but for” one of their actions there would have been injury

-Multiple Causes: If two negligent acts cause injury, use substantial fact test and ask was the party at issue a substantial factor to the injury

  • Alternative Course: If there were two negligent people but only one caused injury and we dont know who, burden shifts to the D’s to prove that they were not negligent.
  • Lost Chance: Lost chance of life due to negligence = (percentage of life lost * damages)
25
Proximate Causation: Definition
The Risk is why the conduct is negligent
26
Damages: Personal Injury
- Medical Expenses, Pain and Suffering - Lost income/reduced earning potential
27
Damages: Property
-Difference in market value after breach -cost to repair (sometimes)
28
Damages: Duty to Mitigate
You have a duty to mitigate damages. If you do not it will be subtracted from your overall damage pool
29
Damages: Collateral Source Rule
- States that if a third party gives you a payout due to injury (e.g. insurance), the D still has to pay for total breach - many jurisdictions have rolled back this provision
30
Damages: Punitive Damages
- Only allowed if a statute allows for them or the D acted with malice - Must be within 10% of the compensatory damages
31
Special Cases: NIED Types
-Zone of Danger - Bystander Recovery -Special Relationship
32
Special Cases: NIED Zone of Danger
-P was in the "zone of danger" of physical injury -P was not hurt, but the threat of impact caused P Emotional Distress
33
Special Cases: NIED Bystander Recovery
- P is closely related to the injured victim -P was present when the injury occurred - P saw it happen
34
Special Cases: NIED Special Relationship
- Mismanaging a loved ones corpse -providing negligent medical information
35
Special Cases: Pure Economic Loss
You cannot recover for pure economic loss. You must show either PI or Property damages generally.
36
Special Cases: Loss of Consortium
Family member can recover for loss due to injury to a loved one (usually has to be a spouse)
37
Special Cases: Wrongful Death
Decedents spouse brings claim to recover losses suffered by them or the representative due to the death
38
Special Cases: Survival Action
Decedents estate brings claims that the decedent had at the time of death
39
Special Cases: Wrongful Life
-Kid bring a claim against a physician for bad conception procedure or bad birth procedure -Damages limited to injury sustained as a result of the bad procedure
40
Special Cases: Wrongful Birth
Parent brings a claim against a physician for bad conception procedure or bad birth procedure
41
42
Vicarious Liability: Respondent Superior
- Employer held liable for the negligent act of employee if done in the scope of the employees work. - Not for Torts, just negligence - Frolic: Major deviation, Employer not liable -Detour: Minor deviation, employer liable
43
Vicarious Liability: Independent Contractor
- Generally, Employer not liable for IC negligence unless (1) the act was inherently dangerous (2) they had duties to the public (3) shopkeeper duty to keep premise safe?
44
Various Liability: If multiple D's, how much do they each owe?
They are each liable for up to the whole amount
45
Vicarious Liability: How to Tell Between an Employee and IC
- Employee is Someone to whom the employer has the right of control over - But Note, the Apparent Agency Doctrine: If a person is injured accepts help from an IC who looks, seems to be an employee, and they are injured after reasonably believing the IC is an employee, and the injury occurred within the scope of the IC's duties, then they will be treated as an employee
46
Vicarious Liability: Business Partners
Business partners are held liable for torts committed by other business partners in the scope of the business's purpose.
47
Vicarious Liability: Cars
- Negligent Entrustment: Owner is liable for lending a car to someone who cannot exercise reasonable care -Family Purpose Doctrine: Owner of a car liable for the torts committed by a family member driving it Owner Liability Statute: Owner of a car may be liable for anyone with permission to drive it
48
Vicarious Liability: Dram Shops
Owner of a bar is liable for serving alcohol to someone if they then injure another if the person is (1) a minor or (2) visibly drunk
49
Immunity: FTCA/Federal Gov
- Government only has immunity for discretionary functions, traditional government functions - Government employees are not liable for discretionary work, but they are for ministerial work
50
Immunity: State Gov
- Government Function (i.e. Courts, Police) - Immunity - Proprietary Functions (i.e. utilities) - No immunity
51
Defenses: Contributory Negligence
- If P is at all negligent, they cannot recover - Last Chance Doctrine: Limits Contributory Negligence. Says that if the D had the last chance to not injure a negligent P, and still does, the P can recover, despite being negligent.
52
Defenses: Comparative Fault
-Two Types: Pure and Modified -Pure: Subtract % of fault from total damages - Modified: If P is more liable than not (or 50/50 in some places) they cannot recover.
53
Defenses: Application
- Defenses only apply to negligence. See tort defenses for defenses that apply to intentional torts
54
Defenses: Express Assumption of Risk
- Waives liability unless - (1) the waiver is for reckless conduct , (2) there is a a gross disparity in bargaining power, (3) the Waiving party is of great importance to the public, (4) there was fraud/duress, or (5) public Policy
55
Defenses: Implied Assumption of Risk
- Waives liability if - (1) fan at a sporting event, (2) P unreasonably proceeds in the face of a known risk *note that this is a full bar in contributory states, and only a partial bar in comparative states

Torts (5 decks)

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