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Flashcards in Negligence Deck (64)
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Elements of negligence

  1. Duty of care; 
  2. Breach;
  3. Actual cause; 
  4. Proximate cause; and 
  5. Damages


What general duty of care is owed? 

D owes a duty of reasonable care (i.e. should act like a reasonably prudent person) to all foreseeable plaintiffs in the zone of harm


Who are foreseeable plaintiffs?

Persons who are in the zone of danger (area where the person is reasonably at risk of suffering physical harm from D's conduct)


What are the different standards of care?

  1. Reasonable Prudent Person standard (RPP);
  2. Standards imposed on children
  3. Standard defined by statute;
  4. Standard for professionals
  5. Standards for landowners;
  6. Standard for common carriers & innkeepers; and
  7. Standard defined by industry custom



What is the reasonably prudent person standard of care?

D must act as a reasonably prudent person would under the same circumstances with the same knowledge and capacity as an average person 

⭐️ Objective standard



What is the standard care for children?

Child must act as a child of similar age, experience, and intelligence would.

⭐️ More subjective than RPP standard.

⚠️ However, if the child is engaged in a high-risk activity that is usually undertaken by adults, they will be held to the same standard of care as an adult


When are children held to the adult standard of care (RPP)?

When engaging in inherently dangerous adult activities (e.g. driving a car or motorcycle)


What is the standard of care for professionals?

Must act the same as a professional with the same expertise & experience who is in good standing in a similar community 


What is the standard of care for doctors?

Must act the same as an average doctor in good standing would. 

Some jurisdictions: compared to an average doctor in same geographic area

Some jurisdictions: compared to an average doctor nationally


What is the standard of care for specialists?

National standard of care for that speciality


Do doctors have a duty to explain medical risks?

Yes, unless: 

  1. Commonly known risk; 
  2. Patient refuses
  3. Patient is incapacitated or incompetent; or 
  4. Disclosure would harm/injure patient


Is there an affirmative duty to intervene, rescue, or aid another?

No, unless: 

  1. D has a special relationship with P; 
  2. D creates a need for rescue; or
  3. D undertakes the rescue and P relies on the rescue attempt




Good Samaritan Rule

D who rescues another will not be liable for negligent harm, only for reckless or intentional harm.


What is the duty of care for common carriers?

Highest duty of care; liable for even the slightest negligence 


What is the duty of care for innkeepers?

utmost standard of care (same as the common carrier standard)




  1. A business customer: someone invited on the land to confer an economic benefit on the land possessor; or  
  2. A public invitee: someone invited on land that is open to the public 


What duty is owed to invitees?

Property owner must: 

  1. Inspect area where invitees have access;
  2. For non-obvious, unknown dangers; 
  3. Warn the invitee of the dangers; and
  4. Protect them from the dangers

⚠️ Note: Duty is non-delegable 


What is non-delegable duty?

Duty that does not absolve D of liability when contracted out to a third party (i.e. D is still ultimately liable)



Person who enters onto D's land with D's express or implied permission (e.g. friends, social guests, emergency personnel)


What duty is owed to licensees?

Property owner must: 

  1. Exercise reasonable care on the property; 
  2. Warn or correct concealed dangers; 
  3. That are known or should be known;
  4. In areas where P has access as a licensee

⚠️ Note: No duty to inspect for dangers


What duty does a landlord owe to its tenants?

  1. Reasonably inspect and keep safe all common areas; and
  2. Warn tenants of hidden dangers


Is D's duty to licensees non-delegable?



What duty is owed to foreseeable trespassers?

Property owner must correct or warn of dangerous, artifical conditions on land that could cause death or serious bodily harm

⚠️ There is no duty to warn about natural conditions


What duty is owed to unforeseeable trespassers?



What is the attractive nuisance doctrine?

D is liable for child trespassers if: 

  1.  D knows of a dangerous, artificial condition on the property; 
  2. That poses a risk of death or great bodily harm to children
  3. In a place that D knows or should know children are present
  4. Children are too young to appreciate the danger
  5. The risk of harm to children outweighs the burden of fixing the condition; and
  6. D failed to remedy the dangerous condition 


What is a defense to an attractive nuisance claim? 

D posted a very specific warning about the dangers; cannot be a general warning.


negligence per se

Negligence that arises from violating a law that was designed protect a specific class of persons from a specific harm.

P doesn't need to show that D was negligent, only that D didn't follow the statute.

(Ex. speeding)


Elements for negligence per se

  1. Statute imposed duty; 
  2. D did not perform duty
  3. P is a member of a class that the statute was designed to protect; and
  4. Injury caused by D is the type of injury that the statute was designed to protect against


What are the defenses to negligence per se?

  1. D's non-compliance was reasonable given the circumstances; or 
  2. Full compliance was impossible


When has a breach of duty occurred?

When D fails to follow the appropriate standard of care


What is res ipsa loquitur?

Arises when P does not have direct evidence of D's negligence, but her injuries suggest D was negligent 


Elements of res ipsa loquitur

  1. Injury would not occur without negligence
  2. D had exclusive control over instrumentality that caused the injury; and 
  3. P did not contribute to the injury


If D contracts out a non-delegable duty to a third party, are they still considered to be in exclusive control of the premises for the purposes of res ipsa

Yes, if the duty is non-delegable, D remains in exclusive control 


What is actual cause ("cause-in-fact") and what are the 3 tests to determine its existence? 

Factual cause of P's injuries.


  1. "But-for;" 
  2. Substantial factor; and
  3. Burden-shifting test 


What is the "but-for" test for actual cause? 

Actual cause exists when, "but for" D's negligence, P would not have been harmed


What is the substantial factor test for actual cause?

Actual cause exists when D's negligence was a substantial factor in bringing about P's injury

⭐️ Used when there are multiple causes or tortfeasers that could have caused P's injuries


What is the burden-shifting test for actual cause? (also called alternative liability)

If one or more D's simultaneously engaged in negligent conduct that could have caused P's injuries, the court will ask each D to prove their actions were not the actual cause of P's injuries.

If D cannot prove that the other D was responsible for the injury, both will be held jointly & severally liable.

See Summers v. Tice


What is proximate cause?

Legal limitation on actual cause. Asks: "Is it legally fair to impose liability on D?"

Holds that P's injuries must be foreseeable and a direct consequence of D's actions (i.e. no intervening or superceding causes)


"eggshell skull" rule

D is responsible for the full extent of harm he caused, even if extent of damages was not foreseeable. 




intervening cause

Event that happens after D's conduct that contributes to P's injuries (e.g. medical malpractice).

Can be either foreseeable or unforeseeable. If unforeseeable, D is relieved of liability



superseding cause

Unforeseeable, freakish, or bizarre intervening event that breaks the chain of causation between the initial wrongful act and the ultimate injury.

Negates proximate cause, thereby relieving D of any liability.


Examples of foreseeable & unforeseeable intevening events


Foreseeable (D still liable)

  • Medical malpractice; 
  • Rescuer negligence; 
  • General negligent acts/accidents by third parties

Unforeseeable (D not liable)

  • Acts of God; 
  • Gross or bizarre medical malpractice (much more than ordinary negligent malpractice); 
  • Intentional tortious or criminal acts by third parties 

⚠️ Note: Defendant can be liable if his conduct set the stage for an intentional criminal act (left someone’s car unlocked and it was broken into, etc.), and can also be held liable if the risk of harm from an Act of God was increased by his negligence.


What type of harm does P need to prove to recover on a negligence claim? 

Actual damage; i.e. actual harm to person or property 

Nominal damages & damages for solely for economic harm are not sufficient 


compensatory damages

Damages designed to return D to her pre-injury position; i.e. make D whole 


What types of damages can P recover? 

  1. Medical expenses (past & future);
  2. Pain and suffering (past & future);
  3. Lost income/earnings (past & future); 
  4. Property damages (reasonable value of repair or fair market value at time of injury if irreparable)


collateral source rule 

The fact that P is getting compensated from a third party source (insurance, union contract, etc.) does not alleviate D's obligation to pay, nor is such evidence admissible at trial.


Is P entitled to punitive damages for ordinary negligence?

No, only if D acted recklessly, maliciously, willfully


Is D's net worth relevant when calculating damage awards?

Only when determining punitive damages


Does P have a duty to mitigate

Yes, P must take reasonable steps to mitigate damages.

Contributory negligence jurisdiction: failure to mitigate bars recovery for harm caused by aggravation of injury

Comparative negligence jurisdiction: May reduce recovery but does not bar it 


What are the defenses to negligence?

  1. Contributory Negligence; 
  2. Comparative Fault; and
  3. Assumption of Risk

 ⚠️ Note: Assume comparative negligence applies unless otherwise stated by MBE


contributory negligence

P's conduct fell below the relevant standard of care and contributed to P's injury

⭐️ Complete bar to recovery 


What is the "last clear chance" rule? 

P can defend contributory negligence claim by alleging that D had last clear chance to avoid injuring P, but failed to do so 

⚠️ Note: Not allowed in comparative fault jurisdictions


comparative fault

Apportions fault between P and D and reduces P's damages proportionally.

Two types:

  1. Pure comparative negligence
  2. Modified comparative negligence 


pure comparative fault jurisdiction

Reduces P's recovery in proportion to P's fault 

E.g. If P is 40% at fault, recovery will be reduced by 40%


modified comparative fault jurisdiction

P cannot be more than 50% at fault for the resulting injury or else recovery will be barred.

If P is less than 50% at fault, recovery is reduced by percentage P was at fault (same as pure comparative negligence) 


What is the default jurisdiction on the MBE, contributory negligence or comparative fault?

Pure comparative fault in which joint and several liability applies 


What must D show to prevail on an assumption of risk defense? 

  1. P knew or should have known the risk of the activity; and 
  2. P voluntarily participated in the activity anyways 

Can be express (written waivers) or implied.


Is assumption of risk a defense in a comparative negligence jurisdiction? 

No. Assumption of risk can reduce the amount P would recover, but will not be a complete bar to recovery (unlike in contributory-negligence jurisdictions)


If a state has traditional joint and several liability rules, allows contribution, and uses a pure comparative negligence system, how do you calculate damages?

Joint and several liability: you can try to get 100% from each of the D's, however, comparative negligence means you have to reduce amount by whatever percentage each D was at fault. 

Ex. For example, if there are 2 defendants with a judgment of 10,000 against them, the plaintiff could try to get 10,000 from each of them. However, if defendant 1 has 25% responsbility and defendant 2 has 75%, you can only collect $2,500 from D1 and $7,500 from D2.


Elements for negligent infliction of emotional distress (NIED)

  1. D's negligence created foreseeable risk of harm to P; 
  2. P was in the zone of danger; and
  3. P suffered emotional distress as a result 


What type of symptoms are necessary to prove emotional distress (but not always)?

Physical symptoms (e.g. heart attack) (not required in some jurisdictions)



Elements for bystander negligent infliction of emotional distress (NIED)

  1. P is closely related to V; 
  2. P was present at the scene of the injury; 
  3. P witnessed or perceived the injury causing event; and
  4. P suffered severe emotional distress as a result


Elements for emotional distress claim for the mishandling a dead body 

  1. There has been mishandling of a dead body
  2. Person affected had a special relationship to the deceased, and
  3. Emotional distress was severe


negligent entrustment

D is liable for negligent entrustment if:

  1.  P has a reputation or record that shows propensity to be dangerous when in possession of such instrumentality; 
  2. D knew or should have known P had this dangerous propensity; 
  3. D provided P with the dangerous instrumentality, and
  4. P injures third party with dangerous instrumentality