Negligence

Question 1

Duty of care

Answer 1

Duty on part of D to conform to specific standard of conduct for protection of P against unreasonable risk of injury

Question 2

Attractive nuisance

Answer 2

(1) Dangerous condition on land that owner is or should be aware of
(2) Owner knows or should know children frequent the vicinity of the condition
(3) Condition is likely to cause injury (dangerous b/c child’s inability to appreciate the risk)
(4) Expense of remedying situation is slight compared with magnitude of risk

Child does not have to be attracted onto the land by the dangerous condition; attraction alone not enough for liability

Question 3

Negligent infliction of emotional distress: fright

Answer 3

(1) P in the zone of danger (distress caused by threat of physical impact)
(2) P suffered physical symptoms from distress

Question 4

Negligent infliction of emotional distress: bystander (not in zone of danger, seeing injury to another)

Answer 4

(1) P and injured person closely related
(2) P present at scene of injury
(3) P personally observed or perceived event
(4) physical symptoms of distress

Question 5

Negligent infliction of emotional distress: direct (special relationship b/w and D)

Answer 5

(1) Duty arises from relationship b/w P and D, such that D’s negligence has great potential to cause emotional distress
(2) Severe emotional distress that leads to physical symptoms

e.g. doc’s misdiagnosis that patient has terminal illness

Question 6

Breach: res ipsa loquitur

Answer 6

(1) accident causing injury is a type that would not normally occur unless someone was negligent
(2) negligence is attributable to D (this type of accident ordinarily happens b/c of negligence of someone in D’s position; can be shown by evidence that instrumentality causing injury was in D’s exclusive control)

P must show freedom from fault

Question 7

Breach: res ipsa loquitur - effect

Answer 7

No directed verdict for D

No directed verdict for P

Question 8

Defenses: express assumption of risk (in comparative negligence states)

Answer 8

Complete defense

Question 9

Proximate cause: When will an independent intervening force be foreseeable?

Answer 9

An independent intervening force (not a natural response or reaction to the situation created by D’s conduct) may be foreseeable if the defendant’s negligence increased the risk of harm from these forces

Question 10

Damage to…

Answer 10

plaintiff’s person or property

Question 11

A duty is owed to anyone to whom a reasonable person would…

Answer 11

have foreseen a risk of harm under the circumstances

Question 12

An act will be considered the proximate cause of an injury if…

Answer 12

the injury was a foreseeable consequence of the act

Question 13

Contributing factors that are already in operation when the D acts are…

Answer 13

not intervening

Question 14

Suicide (proximate cause)

Answer 14

independent, superseding cause that cuts off the D’s liability

Question 15

Compensation

Answer 15

economic and noneconomic (past, present future), including:

• med expenses
• lost earnings
• pain and suffering
• impaired future earning capacity
• property damages