Negligence Flashcards
(145 cards)
1
Q
What are the elements of negligence?
A
- Duty: Does the law impose a legal obligation between the plaintiff and the defendant?
- Standard of Care: What is the duty owed?
- Breach of Duty: The failure to meet the standard of care
- Cause in Fact: Connects the defendant’s breach to the plaintiff’s injury
- Proximate Cause: Are there still policy reasons to cut off liability even with the other elements established?
- Damages: The plaintiff must prove damages to recover for negligence
- No Defenses apply
2
Q
What is the general rule for the duty element of negligence?
A
When a defendant is engaged in affirmative, risk-creating conduct causing personal injury or property damage, then a duty is owed to any foreseeable person who may be injured.
3
Q
When is the element of duty a significant issue?
A
Where there is:
- Unforeseeable plaintiff
- Nonfeasance or failure to act
- Harm other than personal injury or property damage
- Defendant is a land possessor, landlord, utility or governmental entity
4
Q
What is the duty of the defendant to unforeseeable plaintiffs?
A
None, a duty is only owed to foreseeable plaintiffs.
5
Q
Who are foreseeable plaintiffs?
A
Persons who could reasonably be injured based upon the nature of the defendant’s negligent acts
More Info: Foreseeable Plaintiffs
6
Q
What is the duty owed to non-professional rescuers? What about when the rescuers are not foreseeable?
A
All rescuers are per se foreseeable plaintiffs and are owed a duty of care.
7
Q
What is nonfeasance?
A
The failure to intervene or protect someone when there is a duty to do so.
8
Q
What is misfeasance?
A
- Affirmative risk-creating conduct
Or
- A negligent omission (failing to stop at a stopsign)
9
Q
What is the obligation to intervene, rescue, or aid another?
A
There is no duty to rescue, aid, control, or protect
10
Q
When does the duty to rescue or aid occur?
A
- When defendant’s tort creates a need for rescue
- Person chooses to undertake the rescue
- Defendant creates reliance on their rescue attempt
Or
- There is a special relationship of dependence or mutual dependence
11
Q
When a defendant creates a duty by undertaking a rescue act, what is the defendant liable for?
A
- In some jurisdictions, the defendant is only liable if they leave the defendant in a worse position.
- Good Samaritan Statutes: The defendant who rescues another will not be liable for a negligent rescue. The defendant is only liable if the defendant is reckless or intentional harm is caused.
* More Info:* Undertaking Rescue Act
12
Q
When does a defendant create a reliance to rescue or aid that gives rise to a duty?
A
When the plaintiff reasonably relies on the assurances of the defendant for rescue.
13
Q
When does the defendant have a special relationship to rescue or aid that gives rise to a duty?
A
- Parent - child
- Common carrier - passenger
- Innkeeper - guest.
- Captain - passenger or seaman.
- Shopkeeper - customer
14
Q
What is the default duty to control/warn third parties?
A
There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another.
15
Q
When is there a duty to control/warn third parties?
A
- When the defendant should know of the dangerousness of a third party
And
- The defendant controls the third party because a special relationship exists between the actor and the third person that imposes a duty upon the actor to control the third party’s conduct.
16
Q
What is the liability of a provider of alcohol?
A
Generally, a provider of alcohol is not responsible for the acts of a recipient.
17
Q
What is the exception to alcohol provider liability?
A
Dram Shop Acts
18
Q
What is the impact of a dram shop act?
A
Impose liability on certain defendant’s such as commercial establishments for providing alcohol to a patron they know or should know is intoxicated
19
Q
When do dram shop acts apply?
A
When a state statute specifically stipulates it applies.
20
Q
When does negligent entrustment arise?
A
A duty is owed to any foreseeable plaintiff if:
- Defendant gives something dangerous to someone
- To someone the defendant knows or should know
- Is incapable of handling the dangerous object
* More Info:* Negligent Entrustment
21
Q
What is the default duty to protect?
A
As a default, there is not a duty to protect anyone from third-party criminal conduct.
22
Q
When does the duty to protect arise?
A
- Special relationships exists: landlord/tenant, business/invitee, common carriers
And
- The third-party’s conduct is foreseeable
23
Q
When the defendant is a governmental entity, what does their duty owed depend upon?
A
Whether the government’s act is:
- Discretionary
- Proprietary
or
- Ministerial
24
Q
When is the government acting in a proprietary function? What is the duty of government?
A
The government is acting in a proprietary function when it is acting in an area traditionally occupied by private entities. The government will be treated as any other defendant for the purposes of duty.
25
When is the government acting in a **discretionary function**? What is the **duty** of government?
The courts will not find a duty if the governmental entity is using:
1. Judgment
2. Discretion
Or
3. Allocating resources
26
When is the government acting in a **ministerial function**? What is the **duty** of government?
Ministerial: there is no discretion in the act, the actions are the performance of government decisions.
Courts will find a duty once the government has started the act
*More Info:* [Ministerial Function](https://en.wikipedia.org/wiki/Ministerial_act)
27
What is the **liability** of an **emergency department** for an inadequate response?
When a government agency (e.g., police, fire department) is sued for failing to provide an adequate response, courts will find n**o duty**.
28
**When** will **liability** be **imposed** upon an **emergency department** for an **inadequate** response?
1. There is a special relationship between the plaintiff and the emergency department that creates reliance in the plaintiff
Or
2. The emergency department has increased the danger beyond what would otherwise exist.
29
When a defendant is a **utility company**, what is the **duty**?
1. Duties exist to plaintiffs in privity of contract of the utility
And
2. Plaintiffs injured on the premises where the contract applies
30
What are the **types** of **injuries** that can entitle a **plaintiff** to **tort damages**?
1. Personal Injuries
2. Property Damage
3. Emotional Distress
4. Bystander Actions
31
What is the **base** **requirement** for an **emotional distress** claim?
The emotional distress is the first injury suffered by the plaintiff
32
What are the **elements** for **direct emotional distress**?
1. Defendant engages in negligent conduct
2. Plaintiff is in the zone of danger of the conduct
3. As a result, the plaintiff suffers emotional distress
And
4. plaintiffs's emotional distress manifests physically
33
What must **emotional distress** **transform** into for a successful claim?
The stress from the event must turn into a physical ailment. The pain must move from mental to physical.
34
What is the **zone of danger**?
An area where the plaintiff was reasonably at risk of suffering physical harm from the defendant's conduct.
35
What are the **exceptions** to recovery for **direct emotional distress**?
Emotional distress can occur without being in the "zone of danger" or having to suffer an accompanying physical manifestation if:
1. Defendant negligently transmits a telegram announcing the death of a loved one
Or
2. Defendat negligently mishandled a corpse
36
What is a **bystander action**?
When physical harm occurs to a loved one (a close relative), the bystander directly observes it, and the bystander suffers emotional distress as a result.
37
What is the **majority/minority** distinction in **bystander actions**?
Majority: Plaintiff must be in the zone of danger
Minority: Plaintiff only needs to be near the accident
38
The **duty of care** owed by a **land possessor** for liability depends upon what?
The status of the visitor:
1. Invitees
2. Licensees
3. Trespassers
* More Info:* [Land Possessor](http://www.bpslawyers.com/Articles/Duty-of-Care-Owed-by-Possessor-of-Land.shtml)
39
Who is an **invitee**?
1. Customers: Anyone who could potentially confer an economic benefit on the land possessor
2. Any Person in a Public Space: Places held open to the public at large
40
When someone comes onto a land and is **injured** by a **condition** on the **land**, their **recovery depends** upon what?
Whether they are an invitee, licensee, or a trespasser
41
What is the **duty owed** by land possessors to an **invitee**?
The duty to exercise reasonable care to prevent injuries to invitees caused by conditions on his land.
*More Info:* [Invitee](http://premisesliability.uslegal.com/duty-owed-invitees/)
42
Who is a **licensee**?
A licensee is a person who enters onto defendant's land with defendant's express or implied permission. Friends and social guests of the landowner are licensees.
43
What **status** are **social guests** of a land possessor?
Licensees
44
What is the **duty** owed by land possessors to a **licensee**?
Land possessors must warn licensees of known concealed dangers on the property.
To incur liability, the condition must be:
1. Known
And
2. Non-obvious
* More Info:* [Licensee](http://premisesliability.uslegal.com/duty-owed-licensees/)
45
Who is a **trespasser**?
Any person or animal that enters a land without the express or implied consent of the land possessor. It does not matter how the person got onto the land; a mistake does not change their status.
46
What is the **duty** owed by land possessors to a **trespasser**?
Must avoid the infliction of willful or wanton harm. Cannot intentionally hurt trespassers.
*More Info:* [Trespasser](http://premisesliability.uslegal.com/duty-owed-trespassers/)
47
What is the **key** to analyzing **land possessor liability**?
The status of the plaintiff in the specific area where the injury occurred. The status of the plaintiff can change multiple times within the same facility.
48
If a **land possessor** is **performing activities** on their **land**, what **duty** is owed?
Then a duty of reasonable care is owed to any person on the land (except for unknown trespassers)
49
**To whom** does a landowner have a **duty** to **search out dangers** on the property?
Invitees
50
If there are known or **frequent trespassers**, what **must** the **land possessor** do?
Warn of known artificial conditions on the land
51
What are the **elements** of the **child** trespasser doctrine/**attractive nuisance?**
All factors must be proven:
1. A child is too young to appreciate the danger
2. It is foreseeable to the landowner that there are children entering the property
3. The defendant know of the dangerous condition on the property
4. The condition is an artificial condition (man-made)
5. The risk is so great that it outweighs the utility and the burden that would be placed on the defendant
52
If the doctrine of **child trespasser** applies, then what **duty** is owed?
Child is treated as an invitee and owed a duty of reasonable care.
53
What is the **duty** of a **land possessor** to **a plaintiff** on **adjacent** land if an **artificial condition** exists on their land?
The land possessor owes a duty of reasonable care to the plaintiff.
54
What is the **duty** of a **land possessor** to plaintiffs on **adjacent** land if a **natural condition** exists on their land?
No duty
55
**After a duty** is found, what are the **next steps** in a tort claim?
1. Breach of duty
2. Causation of injury
56
What is the **duty** owed to **tenants** and third parties for injuries on a **leased property**?
A landowner generally has no duty to land tenants
57
**When** is a **duty** owed to **tenants** and third parties for injuries on a **leased property**?
1. The condition is in a common area (a lobby)
2. Defendant negligently repairs the property
3. The landlord knows of concealed conditions at the time of lease and does not warn
Or
4. The landlord knows that tenant is going to hold the property open to the public at large
58
What is the **standard** of care for a **reasonably prudent person** under the same or similar circumstances?
An objective standard of care that measures the defendant's conduct against a reasonable person's circumstances. The defendants must rise up to the level of the average person in the community.
*More Info:* [Reasonably Prudent Person](http://injury.findlaw.com/accident-injury-law/standards-of-care-and-the-reasonable-person.html)
59
What **factors** of **a defendant** affect the **reasonably prudent standard** of care?
1. Physical conditions (blind, deaf, missing limb)
2. Emergencies not of the defendant's making
3. Defendant is a child
60
What **factors** of a defendant do **not affect** the **reasonably** prudent standard of care?
1. Lack of experience
2. Slow reflexes
3. Insanity
4. Low IQ
61
When is evidence of **custom** **relevant**?
To bolster the reasonably prudent standard in a community.
Deviation from a well-established, relevant custom favors the plaintiff.
Compliance favors the defendant.
62
What is the **standard of care** for **children** **defendants**? What is the majority rule?
A minor defendant's conduct is assessed according to what a reasonable child of the same:
1. Age
2. Experience
And
3. Intelligence would have done
63
What is the **minority rule** for the **standard** of **care** for **child** **defendants**?
1. Ages 0-6: Incapable of negligence
2. Ages 6-13: Presumption against negligence
64
What is the **standard of care** for **child defendants** **exception**?
If a child is engaging in an inherently dangerous adult activity, then the child is held to an adult reasonable standard of care.
65
What is the **statutory** and **negligence per se** standard of care?
Where defendant's conduct violates a statute that does not talk about civil liability but violates:
1. Criminal law
Or
2. Ordinance or regulation.
The statute, regulation or ordinance becomes the standard of care.
66
Which **source** of law is **supreme** in tort liability,
statutes or common law?
Statute are supreme over common law
67
When does the statutory and **negligence per se** standard of care **apply**?
1. The plaintiff is a member of the class intended to be protected by the statute
And
2. The injury caused by the defendant is the type of injury that the statute is designed to protect against
68
If a **statute** is **violated**, but it does **not apply to plaintiff** and defendant, what is the **standard** of **care**?
Reasonable person standard of care
69
When will a **statutory standard** of care **not apply**?
1. There is an unexcused violation of the statute
Or
2. Licensing statutes (driving without a license)
70
When is there an **unexcused violation** of the **statute**?
When in an emergency not of the defendant's making, and it would be more dangerous to apply the law than break it.
71
What is the **standard of care** for **professionals**?
As long as the professional does what other professionals customarily do in good standing, then the professional is not liable.
72
What are the **different** **standards of care**?
1. Reasonable Prudent Person
2. Child
3. Statute/Negligence Per Se
4. Professionals
* More Info:* [Different Standards of Care](http://definitions.uslegal.com/s/standard-of-care/)
73
What is the **standard of care** for **doctors**?
Doctors are required to possess and use the knowledge, skill and training of other doctors in good standing in the relevant geographic community.
74
What is the **relevant geographic** community for **doctors**?
Specialists: National standard
General practitioners: Same or similar locality
75
What is the **impact** of a **professional** **complying** with the **customs** of his profession?
They have complied with the standard duty of care.
76
What is the **impact** of a **professional** **deviating** from the **customs** of his profession?
There is malpractice; unless the professional uses a respected alternative.
77
What is a doctor's **standard of care** in providing **informed** **consent**? What is the majority/minority distinction?
**Majority**: Doctors must divulge those risks that are customarily divulged.
**Minority**:
Standard of materiality: Requires physicians to divulge all material risks that a reasonable patient would want to know in deciding whether to undergo a specific procedure. The failure to divulge a material risk is malpractice provided the plaintiff can show they would have refused the procedure had they known of the risk.
78
In order to prevail in a **legal malpractice action**, what must a **plaintiff prove**?
1. Attorney deviated from custom
And
2. Had the deviation not occurred, plaintiff would have won the underlying action
79
What burden must a plaintiff **satisfy** in proving **breach of duty**?
Plaintiff has the burden to prove every element by the preponderance of the evidence
80
What is the **preponderance** of the **evidence** **standard**?
More likely than not: \> 50 % likelihood
*More Info:* [Preponderance of the Evidence](https://www.law.cornell.edu/wex/preponderance_of_the_evidence)
81
What two **types** of **evidence** can show a **breach of duty**?
1. Direct evidence: Eye-witness or a videotape of the accident
2. Circumstantial evidence: Evidence from which one can draw a reasonable inference
82
What is a **slip-and-fall** case?
Defendant was negligent for failing to discover or remedy the dangerous condition. Can only be shown by circumstantial evidence.
83
Define **r****es ipsa loquitur**
The thing speaks for itself
84
When is **res ipsa loquitur** **applicable**?
Arises when the plaintiff cannot identify exactly what the defendant did that was wrong; however, the event could only occur through the defedant's negligence.
*More Info:* [Res Ipsa Loquitur](https://www.law.cornell.edu/wex/res_ipsa_loquitur)
85
What are the **elements** of **res ipsa loquitur**?
1. The injury is typically the result of negligence
2. The defendant is probably the responsible party and has adequate control over the harm causing instrumentality
And
3. The plaintiff did not contribute to the injury
86
What is the **only area** **res** **ipsa** **loquitor** is **applicable**?
Torts, for proving breach of duty in a negligence action
87
What does the **element** of **cause-in-fact tie** together?
Ties the defendant's breach of duty to the plaintiff's injury.
88
What is the default **test** to **prove** the element of **cause-in-fact**?
But for the defendant's negligence, the plaintiff would not have been injured. There is a \> 50% chance the exclusive negligence of defendant caused the harm.
89
What are the four areas where **cause-in-fact** is **not** **evaluated** through the **but-for cause test**?
1. Multiple causes
2. Loss of chance
3. Alternative liability
and
4. Market liability
90
When there are **multiple causes** contributing to a plaitiff's injury, what **test** is used to to prove the element of **cause in fact**?
Substantial Factor Test: The defendant is liable if their negligence was a substantial factor in the plaintiff's injury
91
When do you have to use the **substantial factor** **test** to prove the element of **cause in fact**?
When there are multiple defendants and any of them could have brought about the entire harm.
92
When does **joint** and **several liability** **apply**?
Plaintiff can sue any defendant for the entire loss if:
1. Multiple defendant's negligence
2. Are substantial factors
And
3. plaintiff's injury is indivisible
* More Info:* [Joint and Several Liability](https://www.law.cornell.edu/wex/joint_and_several_liability)
93
If **joint** and **several liability** **applies**, then a plaintiff **can sue** who?
Sue one or both defendants, and collect the entire loss from either
94
When one defendant is sued for the full amount when another defendant is joint and severally liable, what can the sued defendant do?
The sued defendant can sue the other defendant for contribution
95
When **loss of chance applies**, what are a **plaintiff's damages**?
The loss of X% chance of survival if not but for defendant's negligence
96
When does **loss** **of chance apply**?
Not a default rule, it must be integrated specifically by statute
97
When does the **alternative liability theory** apply to prove cause-in-fact?
1. Every defendat must be negligent (act unreasonably)
2. All negligent defendants are being sued together
3. Not a large number of defendants
98
What happens if **alternative liability theory applies** to prove cause-in-fact against the defendants at issue?
Burden shifts to the defendant to show that they were not the cause. If a defendant cannot do so, then they will be jointly and severally liable.
99
**When** does **market share liability** apply to prove cause-in-fact?
Plaintiff can sue those who are likely responsible based upon their percent of the market if:
1. Plaintiff's injury involves a generic product
2. Plaintiff cannot show which of a large group of negligent defendants is responsible.
100
How are **damages** assessed when **market share liability** applies?
Plaintiff can sue those who are likely responsible based upon their percent of their market share (e.g. A business with 10% of market share pays 10% of injury damages)
101
What does **proximate** **cause** ask?
Is there a reason to limit the extent of liability due to:
1. Unforeseeable extent of harm
2. Unforeseeable type of harm
Or
3. Unforeseeable manner of harm
* More Info:* [Proximate Cause Question](http://nationalparalegal.edu/public_documents/courseware_asp_files/torts/negligence2/ProximateCause.asp)
102
If the **extent** of the **harm** was **unforeseeable**, what is the defendant's **liability**?
It does not matter that the plaintiff has suffered more harm than one would foresee. The plaintiff is responsible for the full extent of harm provided if it is the proper type of harm.
103
What is the **eggshell** **skull** rule?
Defendant is responsible for the full extent of harm caused by his conduct even if an average person would not be similarly affected.
*More Info:* [Eggshell Skull Rule](https://www.law.cornell.edu/wex/eggshell_skull_rule)
104
What is ∆'s liability if the **manner** of the **harm** was **unforeseeable**?
If there was a superseding cause, then there is no liability for the defendant.
105
What is a **superseding cause**?
A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. A superseding cause relieves the defendant of any liability.
*More Info:* [Superseding Cause](http://letslawyerup.com/blog/whats-the-difference-between-superseding-and-intervening)
106
When is an **intervening** **cause** superseding?
When it is highly unforeseeable, freakish, bizarre, and highly culpable.
107
When can **subsequent** **negligent** conduct be a **superseding** **cause**?
Generally will not cut off original defendant's liability; however, it will cut off the extended consequences if it is freakish, unexpected, and bizarre.
108
What must **a plaintiff** **prove** in order to **receive damages**?
An actual harm
109
What **type** of **damages** are recoverable in **negligence** actions?
Recoverable: Personal injury and property damages
Not Recoverable: Nominal damages and punitive damages
110
What **type** of **damages** are awarded in **negligence actions**?
Compensatory damages: Damages designed to return the plaintiff to plaintiff's pre-injury position.
111
In order to recover **compensatory** damages in a negligence claim, the **damages** **must** be what?
1. Reasonably foreseeable
2. Reasonably certain
And
3. Not avoidable
112
How does the fact that the **plaintiff** got **compensated** from a **third-party impact** **damage** awards?
Collateral Source Rule: The fact that the plaintiff is getting compensated from a third party source (insurance, union contract, etc.) does not alleviate the defendant's obligation to pay.
*More Info:* [Collateral Source Rule](http://www.alllaw.com/articles/nolo/personal-injury/collateral-source-rule.html)
113
When can **punitive damages** be awarded for **negligent conduct**?
Never recoverable for negligent conduct. The defendant has to be more culpable than negligent.
1. Defendant must be least reckless, thereby consciously disregarding a high probability of harm
Or
2. Malicious or willfully cause harm
114
When is the **wealth** of the defendant **relevant**?
When giving punitive damages in order to punish the defendant.
115
What is the **relationship** between **punitive** and **compensatory** damages?
Courts suggest that there should be some relationship between compensatory damages and punitive damages.
Punitive damages in excess of 10x compensatory damages are suspect.
116
What are the **defenses** to **negligence**?
1. Contributory Negligence
2. Comparative Fault
3. Assumption of Risk
4. Avoidable Consequences
117
What must be **proven** for the defense of **contributory negligence** and **comparative fault**?
Plaintiff's conduct fell below the relevant standard of care and the failure contributed to the plaintiff's injury.
118
On the MBE, which is the **default,** contributory negligence or comparative fault?
Assume a pure comparative fault jurisdiction in which joint and several liability applies.
119
What is the legal **impact** of a **plaintiff'****s negligence**in a**contributory negligence** jurisdiction?
Any fault \> 0% on the part of the plaintiff will bar recovery
120
What is the legal **impact** of the **plaintiff****'s****negligence**in a**pure comparative fault** jurisdiction?
The plaintiff's recovery is reduced based upon the percentage of the plaintiff's fault.
If the plaintiff is 40% at fault, then the plaintiff can recover 60% from the defendant. In pure comparative fault, the plaintiff is allowed to recover no matter the percentage of their fault.
121
What is the legal **impact** of a plaintiff's **negligence** in a **modified comparative fault** jurisdiction?
Plaintiff's fault ≥ 50%: then plaintiff is barred from recovery.
Plaintiff's fault ≤ 50%: the plaintiff's recovery is reduced based upon the % of the plaintiff's fault.
122
What is the legal impact of a plainfiff's **negligence** in a **comparative fault jurisdiction** when there are **multiple defendants**?
Defendant's are still joint and severally liable for the reduced percentage of fault.
123
**When** does an **express assumption** of the **risk** exist?
When the plaintiff, through written or oral words, relieves the defendant of their responsibility to act non-negligently towards the defendant.
124
When does **express** **assumption** of risk **typical** **arise**?
Written waivers in recreational activities and sports
125
What is the **consequence** of a **valid express assumption** on a tort action?
It bars recovery
126
What are the **elements** of a valid **express assumptions of risk** that will bar recovery?
1. Express assumption language is clear
2. Defendant's conduct is no more culpable than negligent (cannot be intentional)
3. Waiver is not void against public policy
* More Info:* [Express Assumptions of Risk](http://www.alllaw.com/articles/nolo/personal-injury/assumption-risk.html)
127
When has a π **impliedly assumed** the **risk**?
1. Plaintiff had knowledge of the danger
2. Plaintiff appreciated the nature of the danger
And
3. Plaintiff voluntarily chose to expose himself to that risk
128
From what **point of view** is **assumption** of the risk **evaluated,** subjective or objective?
Subjective focus on the mind of the plaintiff.
129
Where the plaintiff is a **professional rescuer** and is **injured** doing her job, what is the **liability** of the defendant for creating need for the plaintiff?
The plaintiff may not sue the defendant who creates the need for them to do their job. A fireman cannot sue a firestarter.
130
What is a plaintiff's **duty** to **avoid consequences**?
A plaintiff has an obligation to take reasonable steps after being injured not to increase the injury.
*More Info:* [Duty to Avoid Consequences](http://injury.findlaw.com/accident-injury-law/the-plaintiff-s-duty-to-mitigate-damages.html)
131
What is the impact of a plaintiff **not avoiding consequences**?
The defendant is not liable for further damages caused by plaintiff's failure to avoid consequences.
132
What is the **defendant's liability** for a **rescuer** who rescues the defendant from a situation of defendant's own negligence
Defendant has an independent duty of care towards the rescuer even if unforeseeable
133
Differentiate contribution from indemnification.
**Contribution**: Equitable apportionment, or sharing, among defendants.
**Indemnification**: Shifts the entire loss from the party who was found liable to the actual wrongdoer who was primarily responsible for the harm.
134
Whether a defendant has **breached** his **duty** to the plaintiff is a question of fact to be **determined** by **who**?
The trier of fact
135
When does **automobile vicarious liability** apply?
The owner of an automobile is liable for the negligent acts of his agents of members of his family when using the auto for family purposes.
136
When a **plaintiff** is **injured** in an accident, **the plaintiff** has an **obligation** to do what?
Mitigate his damages. This includes taking all reasonable steps to limit the adverse consequences of the accident.
137
Doctrine of **avoidable consequences** only applies to **bar recovery** from?
The defendant for damages that were avoidable to the plaintiff
138
What **duty** owed by a store owner to a **patron** who **only** wishes to use the **bathroom**?
That of invitee. Duty to:
1. inspect the premises for non-obvious, unknown dangers
And
2. Warn the invitees of the dangers that make safe
139
What **duty** is owed to **invitees**?
1. Inspect the premises for non-obvious, unknown dangers
And
2. Warn the invitees of the dangers that make safe
140
What are the **elements** of **negligence per se**?
1. There is a statute
2. The injury of the plaintiff is the type that the statute was intended to prevent
3. The plaintiff is a member of the class intended to be protected by the statute
4. Defendant's violation of the statute is not excused
* More Info:* [Negligence Per Se](http://www.nolo.com/dictionary/negligence-per-se-term.html)
141
What is the **impact** of **proximate cause**?
Creates a limitation on liability in defined circumstances; unforeseeable:
1. Type of harm
And
2. Manner of harm
142
How are defendant's **liable** to **rescuers**?
For all volunteer rescuers, defendant is liable for:
1. Injuries to rescuer
And
2. Injuries the rescuer causes during negligent rescue
* More Info:* [Volunteer Rescuers](http://www.marshalldennehey.com/defense-digest-articles/rescue-doctrine-meets-superseding-cause)
143
Can **rescuers** be **superseding causes**?
No, because they are always foreseeable.
144
What is the **hierarchy** of **elements** to knock out in a **negligence** action question?
1. Breach of Duty
2. Causation
3. Proximate cause
4. Damages
5. Defenses
145
In a **joint venture**, if one of the **partners** is **negligent**, what is the **liability** of the **other partner**?
If one is negligent, the other will be found to be as well
