Negligence

Question 1

Elements of negligence

Answer 1

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

Question 2

What general duty of care is owed?

Answer 2

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

Question 3

Who are foreseeable plaintiffs?

Answer 3

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

Question 4

What are the different standards of care?

Answer 4

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

Question 5

What is the reasonably prudent person standard of care?

Answer 5

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

Question 6

What is the standard of care for children?

Answer 6

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

Question 7

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

Answer 7

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

Question 8

What is the standard of care for professionals?

Answer 8

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

Question 9

What is the standard of care for doctors?

Answer 9

Must act the same as a doctor in good standing would.

Some jurisdictions: compared to a doctor in good standing in the same geographic area

Some jurisdictions: compared to a doctor in good standing nationally

Question 10

What is the standard of care for medical specialists?

Answer 10

National standard of care for that speciality

Question 11

Do doctors have a duty to explain medical risks?

Answer 11

Yes, unless:

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

Question 12

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

Answer 12

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

Question 13

Define

Good Samaritan Rule

Answer 13

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

Question 14

What is the duty of care for common carriers?

Answer 14

Highest duty of care; liable for even the slightest negligence

Question 15

What is the duty of care for innkeepers?

Answer 15

Third restatement approach: utmost standard of care (same as the common carrier standard)

Majority approach: only responsible for ordinary negligence

Question 16

Define

invitee

Answer 16

Either:

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

Question 17

What duty is owed to invitees?

Answer 17

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

Question 18

What is non-delegable duty?

Answer 18

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

Question 19

Define

licensee

Answer 19

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

Question 20

What duty is owed to licensees?

Answer 20

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

Question 21

What duty does a landlord owe to its tenants?

Answer 21

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

Question 22

Is D’s duty to licensees non-delegable?

Answer 22

Yes

Question 23

What duty is owed to foreseeable trespassers?

Answer 23

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

Question 24

What duty is owed to unforeseeable trespassers?

Answer 24

None

Question 25

What is the **attractive nuisance doctrine**?

Answer 25

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

Question 26

What is a defense to an **attractive nuisance** claim?

Answer 26

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

Question 27

# Define **negligence per se**

Answer 27

Negligence **that arises from violating a law** that was designed protect a specific class of persons from a specific harm. ## Footnote P doesn't need to show that D was negligent, only that D didn't follow the statute. (Ex. speeding)

Question 28

Elements for **negligence per se**

Answer 28

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**

Question 29

What are the **defenses** to **negligence per se**?

Answer 29

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

Question 30

When has a **breach of duty** occurred?

Answer 30

When D **fails to follow the appropriate standard of care**

Question 31

What is ***res ipsa loquitur***?

Answer 31

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

Question 32

Elements of **res ipsa loquitur**

Answer 32

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

Question 33

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*?

Answer 33

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

Question 34

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

Answer 34

**Factual cause** of P's injuries. Tests: 1. "But-for;" 2. Substantial factor; and 3. Burden-shifting test

Question 35

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

Answer 35

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

Question 36

What is the **substantial factor test** for actual cause?

Answer 36

Actual cause exists when D's negligence was a **substantial factor** in bringing about P's injury ## Footnote ⭐️ Used when there are **multiple causes or tortfeasors** that could have caused P's injuries

Question 37

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

Answer 37

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**. ## Footnote See [*Summers v. Tice*](https://en.wikipedia.org/wiki/Summers_v._Tice)

Question 38

What is **proximate cause**?

Answer 38

**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)

Question 39

# Define "eggshell skull" rule

Answer 39

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

Question 40

# Define intervening cause

Answer 40

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**.

Question 41

# Define superseding cause

Answer 41

**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.

Question 42

Examples of **foreseeable & unforeseeable intevening events**

Answer 42

**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 ## Footnote ⚠️ 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.

Question 43

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

Answer 43

**Actual damage**; i.e. actual harm to person or property Nominal damages & damages for **solely for economic harm** are not sufficient

Question 44

# Define compensatory damages

Answer 44

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

Question 45

What **types of damages** can P recover?

Answer 45

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)

Question 46

# Define collateral source rule

Answer 46

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.

Question 47

Is P entitled to **punitive damages** for ordinary negligence?

Answer 47

No, only if D acted **recklessly, maliciously, willfully**

Question 48

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

Answer 48

Only when determining **punitive damages**

Question 49

Does P have a **duty to mitigate**?

Answer 49

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

Question 50

What are the **defenses** to **negligence**?

Answer 50

1. Contributory Negligence; 2. Comparative Fault; and 3. Assumption of Risk ## Footnote ⚠️ Note: Assume comparative negligence applies unless otherwise stated by MBE

Question 51

# Define contributory negligence

Answer 51

P's conduct fell **below the relevant standard of care** and **contributed** to P's injury ## Footnote ⭐️ **Complete bar to recovery**

Question 52

What is the "**last clear chance"** rule?

Answer 52

P can defend contributory negligence claim by alleging that **D had last clear chance** to avoid injuring P, but **failed to do so** ## Footnote **⚠️** Note: Not allowed in comparative fault jurisdictions

Question 53

# Define comparative fault

Answer 53

**Apportions fault** between P and D and reduces P's damages **proportionally.** Two types: 1. **Pure** comparative negligence 2. **Modified** comparative negligence

Question 54

# Define pure comparative fault jurisdiction

Answer 54

Reduces P's recovery **in proportion** to P's fault ## Footnote E.g. If P is 40% at fault, recovery will be reduced by 40%

Question 55

# Define modified comparative fault jurisdiction

Answer 55

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)

Question 56

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

Answer 56

**Pure comparative fault** in which **joint and several liability** applies

Question 57

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

Answer 57

1. P **knew or should have known** the risk of the activity; and 2. P voluntarily participated in the activity **anyways** ## Footnote Can be express (written waivers) or implied.

Question 58

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

Answer 58

**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)

Question 59

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

Answer 59

**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. ## Footnote 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.

Question 60

Elements for **negligent infliction of emotional distress (NIED)**

Answer 60

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

Question 61

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

Answer 61

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

Question 62

Elements for ***bystander*** **negligent infliction of emotional distress** (NIED)

Answer 62

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

Question 63

Elements for emotional distress claim for the **mishandling a dead body**

Answer 63

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**

Question 64

# Define negligent entrustment

Answer 64

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