Negligence

Question 1

Negligence

Answer 1

If it can be determined that the defendant owed a duty of care to the plaintiff, that defendant breached that duty, and that the plaintiff suffered damages which were actually and proximately caused by defendant’s breach.

Question 2

Duty of Due Care

Answer 2

A duty is created when defendant does an act which creates a reasonable foreseeable risk of harm.

If there is a foreseeable risk of harm, did the defendant act reasonably under the circumstances?

Question 3

General duty

Answer 3

Standard of care based on the reasonable person test under the same or similar circumstances.

To whom is the duty owed: Plasgraf
Cardoza: Foreseeable zone of danger
Andrews: General duty owed to everyone

Question 4

Special Duties

Answer 4

Violation of Statue, Guest Statue, Omission to Act, Landowner Occupier, and Duties owed by lessors of Land

Question 5

Violation of Statue

Answer 5

1. Intent of legislature (statue)
2. Class of persons to be protected
3. Type of injury suffered
4. Evidentiary effect

D: Contributory negligence (If violated)

Question 6

Guest Statue

Answer 6

P must show gross negligence (Recklessness)

Question 7

Omission to Act

Answer 7

No duty to aid another in an ER situation.
Exceptions: Injured by instrumentality under D’s control
2. Special relationship between parties
3. Statutory duty to act

Question 8

Landowner-occupier rules 1

Answer 8

Duties owed to persons outside land: 
1. No duty as to natural conditions
2. No duty owed to artificial conditions
Exceptions:
1. Urban area
2. Minority: reasonable care required
3. Duty to inspect and maintain (artificial condition adjacent to land)

Question 9

Landowner-occupier rules 2

Answer 9

Duties owed to persons coming on the land:

1. Trespasser: undiscovered (no duty), discovered (duty)
2. Infant (duty to warn or make safe)
3. Licensee (permission)
4. Invitee (permission)

Question 10

Duties owed by lessors of land

Answer 10

Common law landlord owes no duty to the person coming onto land with the consent of the lessee.

Question 11

Breach of Duty

Answer 11

1. Direct: Eye witness
2. Circumstantial: Inferred
3. Res Ipsa Loquitor: The thing speaks for itself/Infers breach

Question 12

BOD: Direct/Circumstantial

Answer 12

Did defendant breach a duty throught an act/omission exposing others to an unreasonable risk of harm?

1. must have proof of what actually happened
2. Did the defendant act unreasonably?

Question 13

BOD: Res Ipsa Loquitor

Answer 13

Plaintiff does not know what happened/how the injury or damages happened

1. Accident does not normally happen
2. The source of the accident/damages falls within the scope of what is owed by the defendant
3. Plaintiff did not contribute to their own negligence

Question 14

Actual Causation

Answer 14

Sine qua non test: But for

1. Concurrent: separate negligence
2. Joint tortfeasors: several defendants jointly engaged in negligent conduct (each defendant is liable even if only one inflicted the injury)

Question 15

Proximate Causation (direct)

Answer 15

1. Direct causation: The acts of the defendant have caused the damage to the plaintiff without an intervening cause (Foreseeability). Thin skulled palintiff rule: (unforeseeable) If the plaintif has an inherent frailty (D is still liable).

Question 16

Proximate Causation (Indirect)

Answer 16

Indirect causation: Caused by an intervening act of a third person, animal, or act of God.
1. Force coming into operation after D’s neg.

Question 17

Damages (1)

Answer 17

1. General damages: Past, present, future pain and suffering
2. Special damages: Past, present, future economic losses, medical bills, loss of wages/profits
3. Punitive: No recovery in negligence action

Question 18

Multiple defendant issues

Answer 18

Joint and several liability

Question 19

Joint Tortfeasor

Answer 19

Two or more persons who owe to another person the same duty and whose negligence results in injury to such other persons, rendering them both joint and several liable for the injury.

Question 20

Joint and several liability

Answer 20

Where two or more negligent persons combine to inflict an indivisible injury on P
( even if they act independently of one another and the act combines causing one single injury)

Question 21

Contributions

Answer 21

Equal sharing of a common burden. The legal right by one required to compensate a victim for an injury to demand reimbursement from another person jointly responsible for that injury, equal sharing of a common burden.

Question 22

Indemnity

Answer 22

The obligation or duty resting on one person to make good any loss or damage another has incurred or may incur by acting at his request or for his benefit.

One secondarily liable is entitled to indemnification against defendant primarily reasonable.
(mutually exclusive: cannot be both contributory and indemnity)

Question 23

Satisfaction

Answer 23

Recovery of full payment (by settlement or judgement).

When payment by judgement is paid in full by defendant, Plaintiff is barred from further action against another who is liable for the same damages.

Question 24

Release

Answer 24

Common law held that a release against one joint tortfeasor was a release against all.

Question 25

Negligent Infliction of Emotional Distress (NIED)

Answer 25

Duty owed not to subject others to a foreseeable risk of physical injury (impact/threat) that might foreseeably result in emotional distress (physical reaction)

Question 26

Bystander Recovery (NIED)

Answer 26

Majority rule: A person in the zone of danger is not a bystander and can recover for emotional distress at seeing another person in the zone of danger

Minority rule (CA): Permits a bystander to recover for seeing another person injured if the plaintiff meets the “proximity test” of Thing v La Chusa

Question 27

Bystander -NIED Family member involved (CA)

Answer 27

1. Close relationship between parties
2. Sensory and observance
3. Physical proximity
   (Dillon v Legg)
   Evaluate these factors with foresee-ability to determine duty./Zone of danger (thing v La Chusa)