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Flashcards in Negligence Deck (42):
1

Landoccupier

3/2, 3 3

0 0 0

0 2 3

2 2 3

3 3 3

ROLAND Duty to all

2

Landoccupier No Duty When: UDPCR, NR

  1. Undisclosed dangerous conditions to landlord ( Lessor does not disclose  or Lessor actively concealed condition)  
  2. Conditions premises are dangerous to person outside premise.
  3. Premises leased for admission of public –stores- lessors has to know the indented use of the property.
  4. Parts lessor retains controls of, that lessee uses 
  5. Lessor contract to repair conditions or statute requires repairs 
  6. Lessor negligent in making the repairs and lessee is ignorant that the repairs were not made or were made negligently.
  7. Notes: 1. 1 (a) – 1 (c) condition existed at the time of transfer. 2. 1 (d) – 1 (f) condition can exist anytime.

3

ACHDTC

  1.  Defendant knew or had reason to know that children were likely to trespass on the place where the condition is 
  2. Defendant knew or had reason to know that the artificial condition was highly dangerous to trespassing children
  3. Children, due to their age, do not appreciate the gravity of the danger
  4. The utility of maintain the condition and the burden to eliminate the risk are slight as compared to the risk
  5. DON'T FORGET ROWLAND

4

Intervening Force Independant/dependant (N, Accident, Act of God)

  1. (Independant) Is the force so unforeseeable that it should break the causal chain and be a superseding cause
  2. (Dependent) Is the force so abnormal highly extraordinary in hindsight should break the causal chain being a superseding cause?

5

Negligence Per Se

  1. Plaintiff is in the class the statute was designed to protect
  2. Is the harm that occurred, the harm the statute is designed to protect? 
  3. Causal connection between the violation of the statute and the injury.
  4. Does the statute set a measurable standard?

Breach: Is there an excuse?

6

Rescuer Doctrine (P as a rescuer)

Rescuers are foreseeble plaintiffs.

  1. The defendant was negligent to the person rescued and such negligence cause the peril or appearance of peril to the person rescued. (To find negligence you need to find Duty, Breach, Causation, and Damages.)
  2. The peril or appearance of peril was imminent.
  3.  A reasonably prudent person would have concluded such peril or appearance of peril existed.
  4. The rescuer acted with reasonable care in effectuating the rescue.
  5.  How to prove reasonable care and not reckless (PG v. BU)

7

Contemporaneous perception

At the same time and is aware

8

NEID

  1. (Direct Victim) ( Majority) Physical Manifestation   (Minority) Physical Manifestation not Needed
  2. Bystander  (Majority) a. Physical Manifestation, Zone of Danger, Close Relationship  (Parent/Sibling)    (Minority). Physical Manifestation not needed, Contemporaneous Perception (At the same time and is aware), . Close relation

9

Bystander (Omission to Act)

  1.  General no duty to act (Present but not taking place)
  2. Exceptions- Induce P to reliance (verbal or act), increase risk through N or intentional act, or special relationship.

10

Bystander

Special Relationship Duty to Care

A duty to take care of plaintiff even if the defendant did not cause the injury because defendant is in a superior position to protect.

  1.  Landoccupier or entrant ( Business Invitee, Social Invitee, Known/Unknown Trespasser)
  2.  Employer/Employee- employee unable to care for himself in scope of employment.
  3. To person rendered helpless by your instrumentally.
  4. Carrier/passenger; public utility/customer, innkeeper/guest
  5. Temporary legal custodian; jailer/prisoner
  6. Parent/Child
  7. Spouses i. Must have actual knowledge or a special reason to know of likelihood of his or her spouse engaging im sexually abusive behavior against a particular person or persons. ii. The duty is to take reasonable steps to prevent or warn of the harm.

11

Bystander

Special Relationship Duty to Warn

  1. Tarasoff warning: particularized foreseeable” person and harm. 
  2. Psychotherapist-once predict or should have posed serious threat of violence to identifiable 3rd person
  3. Duty to exercise reasonable care to warn a foreseeable victim.

12

Bystander Special Relationship Duty to Control

Special relationship to plaintiff to protect against 3rd person i. Ex. Common carrier or

Defendant has special relationship to 3rd person because they have control over their actions i. Ex. Parent/child ii. Ex. Employer/Employee

13

Damages

Wrongful Death/Death/Life/Pregnancy

By doctor

  1. Failure to inform = informed consent a. whether or not a reasonably prudent patient, fully advised of the material known risks, would have consented to the suggested treatment b. plaintiff must prove that they would have done something different had they had that certain type of information 
  2. Malpractice a. Mistakes in diagnoses, surgery, office treatment, prescriptions, testing, surgical procedures, etc.

14

Damages: Wrongful death of unborn children

1. Majority a. Parents sue for emotional distress/ MAYBE Medical expenses for death

2. Minority a. No damages allowed

15

Damages: Wrongful life of the child

  1. Majority: (P) Emotional distress   (C) Medical bills (life v. no life)
  2. Minority: No damages for P or C

16

Damages: Wrongful birth

  1. Majority: (P) Emotional Distress (C) Cost of Care -Pleasure of having a child
  2. Minority: No damages

17

Damages: Wrongful conception/pregnancy

  1. Majority: (P) Emotional Distress and Medical    (C) Cost of rearing-Pleasure of having a child
  2. Minority: (P) No damages    (C) Rearing of Child if poor

18

Contributory Negligence

Barred from damages unless Last Clear Chance

19

Comparative Negligence

Pure: a.Example P is liable 10% do D is liable 90%. No cutoff. 49% Rule (P must be at 49% or below in % of liability to recover) 50/50 Rule: (P must be 50% or below of liability to recover)

20

Express Assumption of Risk

  1. Must be unambiguous and the plaintiff aware of the terms 
  2. Was the injury within the scope of the release
  3. Is enforcement of the release/disclaimer contrary to public policy

21

Knowing Misuse

Implied Assumption of Risk

  1.  Actual knowledge of the particular risk
  2. Appreciation of its magnitude
  3. Voluntary encountering of the risk

22

Damages Chart

In a Contributory Negligence Jurisdiction Pl N ----- Barred unless LAST CLEAR CHANCE rule Pl EAOR ----- Barred Pl IAOR --- Barred In a CMN Jurisdiction PL N ---- Apportion PL EAOR --- Pl Bar Pl IAOR --- Apportion In a Comparative Fault Pl N ---- Apportion Pl EAOR --- Apportion? Pl IAOR --- Apportion?

23

Statute of Limitations

  1. Discovery Doctrine: When P discovers the damage or should have discovered.
  2. Accrual: SOL starts from the date of inquiry.
  3. Continuing Tort: SOL does not begin until treatment is complete.
  4. Statute of Repose: Limits the COA can be brought to a reasonable amount of time after SOL has run.

24

Immunities

  1. Parent/child relationship
  2. Employer/Employee
  3. State/Local Governments
  4. Husband/Wife

25

Vicarious Liability Respondent Superior

(Employee) Employer is liable if employee is:

  1. negligent: is within scope of work and not coming and going from work or
  2. employee commits an Intentional act that is within the scope of employment and Reasonablly connected to employment.

26

Vicarious Liability Independent Contractor

Non Delegable Duties:

  1. Abnormally dangerous activities
  2. Peculiar risk in way done. 
  3. Repair of Chattel/real property used on or for the business.
  4. Repair on the property by remaining on or returning to property.
  5. Contract of illegal activities. 
  6. Repair of instrumentalities, used in highly dangerous activities.
  7. General Contractor for subcontractors.

27

Vicarious Liability Bailments

Delivered for a time in trust for a specific purpose.

28


Negligence defintion

To prove a successful cause of action for negligence the plaintiff will have to prove that the defendant owed a duty to use the applicable standard of care and a breach of that duty is the actual and legal cause of the plaintiff's damages.

29


Duty definition

To use the applicable standard of care of a reasonable person of ordinary prudence in the circumstances (reasonable care) to protect a reasonably foreseeble plaintiff against harm.

30


Intellectual Professional (General)

to act in such a manner that of an ordinary member in the same field, education, skills, and training.

31


Doctor Duty of Care

To act in such a manner that another ordinary member in the same field, intelligence, knowledge, education, skills, training, in good standing, and similar location would act under similar circumstances.

32


Lawyer Duty

To act in such a manner that another ordinary member in the same field, intelligence, knowlege, education, skills, training, in good standing would act under similar situations.

33


Standard of Care Wrongful Birth, life, death, pregnancy

By doctor:

1. failure to inform = informed consent

Reasonably prudent patient soc

2. or was it malpractice

34


Patient SOC Informed Consent

Whether or not a reasonably prudent patient, fully advised of the material known risks, would have consented to the suggested treatment AND plaintiff must that they would have done somethine different had they had that certain type of information.

35


SOC PG v BU Wrongful life, death, birth, pregnancy

  1. P of injury (as p increases so does duty)
  2. G of injury
  3. B same to not cause the injury)
  4. U (money does not outweigh life)

 

36


Res Ispa Loquitar

Is it more likely than not that there was neglience?

Is it more likely than not the defendant's negligence.

37


Breach: Ybarra

Multiple defendants in concert and no one is confessing or pointing fingures. All are liable.

38


Polemis

In hindsight, is it extraordinary that the type of injury would arise out of the negligent act of . . .

39


WagonMound

Is it reasonably foreseeble that the type of injiry would arise out of the negligent act of . . .

40

IF (Intentional/Criminal)

Is the force so unforeseeble that it should break the causal chain and be a superseding cause?

41


IF: Plaintiff

Must have reckless conduct to be a superseding cause. (PG v BU)

42


IF Rescruer

Same Rescue Doctrine