Negligence

Question 1

Negligence Elements

Answer 1

1. ∆ owed duty to π
2. ∆ breached duty
3. Actual and proximate cause
4. Damages

Question 2

Negligence Duty - General

Answer 2

One owes general duty of care to all foreseeable π’s to act as a reasonably prudent person under similar circumstances

• Forseeable π: Zone of Danger, Cardozo (vs. to all, Cardozo)
• Duty to Act: none unless (1) created peril, (2) pre-existing relationship, (3) gratuitous actor once started

Question 3

Negligence Duty - Children

Answer 3

< 5: None
5-17: One owes duty to act as a child of similar age, experience and IQ under similar circumstances
Adult Activities: general standard

Question 4

Negligence Duty - Professionals

Answer 4

• One owes duty to act as an average member of the profession providing similar services (conform to custom)
• Dr also owes duty to want of material risks

Question 5

Negligence Duty - Bailment

Answer 5

Bailor transfers possession, not title

1. Sole Benefit of Bailee: high std. care (bailor must tell of known dangerous defects)
2. Sole Benefit of Bailor: low std. care
3. Mutual Benefit: ordinary std. care (bailor must tell of known dangerous defects + should be aware)

Question 6

Negligence Duty - Negligence Per Se

Answer 6

Use violation of statutory duty as conclusive E of duty + breach

• Req’s: (1) statutory standards clearly defined, (2) π in class designed to be protected, (3) harm of type intended to be protected against
• Exceptions: compliance impossible or more dangerous than violation

Question 7

Negligence Duty - Landowner (4 Types)

Answer 7

Satisfy by making safe or warning

1. UK Tres: no duty
2. Ant. Tres: known, art., dangerous cond’s (if land open for recreation users w/ no fee, only liable if willful/malicious)
3. Lic: known dangerous conditions
4. Invitee: known dangerous conditions + those discoverable upon reasonable inspection

Question 8

Negligence Duty - Leased Premise

Answer 8

• Goes by who owns/occupies

- Lessor duty to lessee for dangerous conditions lessee unlikely to discover

Question 9

Negligence Duty - Off Landowners’ Premises

Answer 9

-Duty to take due precautions re artificial dangerous conditions abutting adjacent land

Question 10

Negligence Duty - Attractive Nuisance Doctrine

Answer 10

Duty to exercise reasonable care to prevent foreseeable harm caused by artificial conditions

π must show (1) ∆ should’ve known of artificial dangerous condition, (2) ∆ should’ve known kids frequent vicinity, (3) condition is dangerous because of kid’s inability to appreciate risk, (4) cost of remedying slight compared to magnitude of risk [don’t need to show kid attracted onto property by nuisance]

Question 11

NIED (3 Types)

Answer 11

∆ negligence + other factors

1. Near Miss: π in zone of physical danger + π physical manifestations caused by ED
2. Bystander: π a close family member + π perceived injury in real time (sight or sound)
3. Biz Relation: biz relation between π and ∆ + foreseeable that ∆’s neg. will cause ED (funeral home, lab results, etc.)

Question 12

Negligence - Breach

Answer 12

∆’s conduct fell below level required by the appropriate standard of care (event + why)

Question 13

Negligence - Res Ipsa Loquitor

Answer 13

Absent direct E, π can establish prima facie case of duty + breach

Req’s: (1) type of harm normally associated w/ neg., (2) instrumentality of neg. in ∆’s control and (3) π not cause of injury

Question 14

Negligence - Factual Causation

Answer 14

π’s injury would not have occurred by for ∆’s breach

• Joint/Merged: sub. factor liable
• Alt./Unascertainable: shift burden to ∆’s

Question 15

Negligence - Proximate Causation

Answer 15

∆ liable for harm that is normal incident of ∆’s breach (or w/in the increased risk caused by ∆’s breach) - FORESEEABLE

Superseding Cause: occurs after ∆ conduct and contributes to injury, but so unforeseeable as to cut off ∆’s liability

Not Superseding: neg. medical treatment, neg. rescue, protective/reaction forces, subsequent disease or accident

Question 16

Negligence - Damages

Answer 16

Eggshell π: ∆ liable for all π’s injury, even if extent or severity of harm unforeseeable

Collateral Source Rule: damages not reduce because π got benefit from other source

Limits: (1) π duty to mitigate; (2) No punitive, interest or attorney fees.

Question 17

Negligence Defenses - Contributory Neg.

Answer 17

π recovery barred by own failure to exercise due care unless (1) ∆ conduct more egregious or (2) ∆ last clear chance

Last Clear Chance: ∆ had last clear chance to avoid harm and failed

• -Helpless peril: ∆ should’ve known of peril
• -Inattentive peril: ∆ knew of peril

Question 18

Negligence Defenses - Comparative Neg.

Answer 18

Pure: π damages reduced by own failure to exercise due care by % of responsibility

Partial: π recovery barred if π > 50% at fault

Question 19

Negligence Defenses - Assumption of Risk

Answer 19

π knew risk + voluntarily assumed it (not just neg. or ignoring the risk)

-Innkeepers and Common Carriers cannot claim this

Question 20

Strict Liability - 3 Categories

Answer 20

Absolute duty of care for harms proximately caused to π [aka foreseeable π’s]

∆ fits category + dangerous aspect was cause of π injury + damages

Categories: (1) animals, (2) abnormally dangerous activities, (3) product liability

Question 21

Strict Liability - Animals

Answer 21

SL for wild animals and domestic animals w/ known vicious propensity

[Trespasser can’t claim SL, but still can’t use wild animal to solely defend property]

Question 22

Strict Liability - Abnormally Dangerous Activities

Answer 22

Foreseeable risk of harm even when reasonable care exercised + activity uncommon in community

Explosives, Toxic, Nuclear

Question 23

Strict Liability - Product Liability

Answer 23

(1) Commercial Supplier, (2) ∆ made/sold defective product, (3) defect caused injury and existed when left ∆’s control (rebuttable presumption for ord. stream of commerce), (4) damages to π’s person or property

Defects:

1. Manf: departs from intended design
2. Design: cost > benefit so not reasonable to market product (π shows safer, practical, economically feasible alternative)
3. Info: non-obvious risk can’t be designed away may require adequate warning

Cause:
-Info Defect: π gets presumption that warning would’ve been heeded

Defenses: (1) Ass. of Risk; (2) improper unforeseeable use