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Negligence Flashcards

(61 cards)

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1
Q

Learned Hand Formula

A

B<PL

Burden of prevention
Probability of injury
L-gravity of resulting harm

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2
Q

Mental/physical disabilities

A

actor’s mental/ emotional disability not considered in determining whether conduct is negligent,

physical disabilities are taken into account

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3
Q

Child negligence

A

if conduct doesn’t conform to reasonable child with same intelligence, age, and circumstances
- not apply in dangerous activities

x not negligence
MIN -> rule of 7

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4
Q

Professional Duty of care

A

reasonableness of other professionals under circumstances

two reasonable choices?
- not liable if choose wrong one

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5
Q

Adult duty of care

A

Not taken into account

  • mental illness
  • inferior knowledge

Taken into account

  • physical disability
  • superior knowledge
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6
Q

Exceptions to no duty to aid

A
  • D creates Peril

D voluntarily undertakes act AND

  • negligence
  • P relies on Ds actions to peril
  • D keeps others from helping
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7
Q

Spousal Duty

A

Must act when

  • actual knowledge OR special reason to know
  • particular knowledge of who is being abused
  • duty of care to take reasonable steps
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8
Q

Rescue Doctrine

A

D is negligent to V if negligence caused peril or appearance of peril to victim

  • Peril is imminent
  • reasonable person conclude peril existed
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9
Q

Special relationships to 3rd party

A

acts that need to be controlled OR

to victim to protect from harm of 3rd party

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10
Q

Therapists

A

special relationship with patient

relationship to foreseeable victim of harmful conduct
- reasonable care to protect others from dangers of illness

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11
Q

Negligence per se

A

1) statute creates duty
2) statute designed to protect against particular conduct
3) V is in class of those intended to be protected

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12
Q

Res Ipsa Loquitur

A

Elements:

  • incident wouldn’t happen without negligence
  • cause of injury in Ds exclusive control
  • injury not caused by P
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13
Q

“but-for” cause

A

would incident occur “but-for” Ds acts?

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14
Q

Concurrent causes

A

2 or more independent negligent acts combine to cause individual injury

  • neither alone would’ve caused harm
  • each tortfeasor liable
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15
Q

Substantial factor/ Multiple sufficient causes

A

2 or more independent negligent acts combine

- either act would’ve caused harm

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16
Q

Alternate Liability

A

Multiple Ds

  • P proves breach
  • Burden shifts -> D must prove not cause harm
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17
Q

Market-Share Liability

A
  • liability limited to market share of each D
  • Theory -> pay roughly amount that represents contributed harm

P must prove

  • all named Ds are tortfeasors
  • products IDENTICAL
  • can’t ID which D caused harm
  • Ds represent substantial share of market
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18
Q

Reasonably foreseeable consequences

A

limited to those harms that result from risks taken

D need to only foresee general type of harm
- exact manner/ extent NO foreseeability

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19
Q

Exceptions to Reasonable foreseeable consequences

A

D creates peril/ risk

D voluntarily undertakes act AND

  • act negligent
  • P relies on Ds acts OR
  • D keeps others from helping P
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20
Q

Superseding Causes

A

intervening act

  • breaks causal b/w Ds breach and Ps injury
  • must be reasonably foreseeable consequence of Ds conduct
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21
Q

intervening causes

A

intervening negligence of 3rd party

  • intentional acts
  • criminal acts
  • acts by P
  • acts of god
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22
Q

Economic Loss Rule

A

no duty to P that suffer pure economic loss due to negligence (MAJ rule)

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23
Q

Zone of Danger (near miss)

A

1) danger of physical contact
2) reasonably fears for own safety
3) suffers severe emotional distress because of that fear

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24
Q

Bystander (Dillon Rule)

A

recover for one who:

  • closely related to victim
  • present at scene
  • observes event and injury
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25
exceptions to NIED limitations
- mishandling corpses & genetic material | - special relationships
26
NIED limitations
``` impact rule (directly contacted) Zone of danger "near miss" ```
27
Duty to Trespasser
refrain from injuring in willful or wanton manner
28
Exception for Discovered/Tolerated Trespasser
- reasonable care to avoid injury from active operations | - duty to warn of hidden/ concealed dangers
29
Duty to Child Trespasser
- o/o knows or reason to know children likely to trespass - child b/c age not able to protect self from danger - burden of eliminating danger slight compared to gravity of potential harm - reasonable care to eliminate danger or protect child
30
Duty to Invitee
- reasonable/ ordinary care - keep reasonably safe - warn of condition or activity that poses unreasonable risk of harm - possessor must have actual/ constructive knowledge of unsafe condition
31
Duty of Lessors (MAJ)
``` NO DUTY UNLESS: - common areas -> under lessors control - concealed defect known to landlord - undertakes duty and negligent or fails - premises leased for public use conditions dangerous to those outside ```
32
Duty of Lessors (MIN)
reasonable care to everyone
33
Duty to those outside premises
duty of reasonable care to persons injured off premises- - activities conducted on premises - artificial conditions created by o/o on premis
34
Exceptions to Duty to those outside premises
Roadside tree - limited duty -> urban v. rural - general duty of reasonable care for all locales
35
Duty to protect from 3rd party criminal
Generally: - nature/ frequency of prior incidents - burden of o/o - location Still needs "but-for" causation
36
Firefighters Rule
emergency responders in official duty can't claim tort action against risks that caused need to respond
37
Contributory negligence
- all or nothing | - p completely barred from recovery even if Ps negligence is far less than Ds negligence
38
last clear chance doctrine
- if P had last opportunity to avoid harm -> more negligent | - D discovered or should've P situation in sufficient time to avoid harm -> negligent
39
Pure comparative negligence
MINORITY damages proportionate to Ps negligence
40
Modified Comparative Negligence
1) 50% bar rule - P barred if 50% or over 2) 51% bar rule - P barred if 51% or over
41
Factors for liability
1) nature of person's risk-creating conduct | 2) strength of causal connection b/w person's conduct and harm
42
Expressed Assumption of Risk
P voluntarily assumes risk Agreements before entering relationship 1) D acts in reliance of Ps agreement 2) specify scope of conduct
43
Enforcement of expressed assumption of risk
enforced if: 1) doesn't adversely affect public interest 2) no legal duty to perform 3) not public utility or common carrier 4) contract not from unequal bargaining power
44
Implied assumption of Risk
P must have actual knowledge; voluntarily assume risk
45
Primary implied assumption of Risk
- P relieves LEGAL DUTY of reasonable care for known risk inherent in activity - partial bar -> no relief for wanton or reckless
46
Secondary implied assumption of risk
- p voluntarily assumes risk - CL -> complete bar - Stat. Mod -> merged into comparative faults (MAJ)
47
avoidable consequences
failure to mitigate | - P not compensated for damages P could've avoided
48
Interspousal Immunity
- mostly car accidents - no IIED/NIED for adultery - mostly abolished
49
Parental Immunity
-few states -> reasonable parent shouldn't hamper - discipline; parental discretion
50
charitable immunity
- originally immune - caps against damages - some states -> no immunity
51
Governmental Immunity
government and employee immune - unless expressly waived Retained for: - discretionary acts/ functions ground in policy decisions - public duty doctrine
52
Statutes of limitations
absolute limit on time lawsuit can be brought - regardless of when P discovers injury Vary by J -> usually 10-20 years
53
Concerted Actions
independent acts causing indivisible injury | - concurrent tortfeasors
54
One satisfaction of judgment
once P collects total judgment from one D, can't sue others to collect more $$$
55
Right of contribution
- D who pays more than fair share -> sue other Ds - must be jointly/severally liable - no right of contribution from responsible third parties
56
Right of Indemnity
Full reimbursement where Ds liability arises solely by operation of law / contract and not Ds own fault - respondeat superior - vicarious liability
57
Effect of Settlement
Depending on J -> remaining D damages reduced - by $$$ amount or - % fault by jury attributable to settling party
58
Respondeat Superior
1) is person employee? 2) acting within scope of employment? - related to employment - not wholly personal - derive benefit from employer 3) employer liable for employee's torts 4) full amount of compensatory damages
59
Employer directly liable
Negligent: - hiring - supervising - retaining employee
60
Liability for contractors
employers generally not liable for negligence | - unless controlling physical details of work
61
Non delegable duty
Employer can't delegate duty employer may seek indemnity against independent contractor

Torts (2 decks)

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