Negligence

Question 1

What is Negligence?

Answer 1

A duty to conform to a standard of conduct that is breached by the defendant and the breach is the actual and proximate cause of plaintiff’s damages.

Question 2

What is the general rule as it pertains to a Duty to Act?

Answer 2

The general rule is that there is no duty to act

Question 3

What are the two “contractual” exceptions to the general “no duty to act” rule?

Answer 3

1) Nonfeasance (the failure to act where action is required), and 2) Misfeasance (willful inappropriate action)

Question 4

Under nonfeasance, there is no liability beyond:

Answer 4

Those in privity (contact or mutual interest between parties)

Question 5

Under misfeasance, there is liability for:

Answer 5

Lack of due care

Question 6

Under exceptions to the general “no duty to act” rule, what is “Assumption of the Duty to Act by Acting”?

Answer 6

One who gratuitously acts for another is under a duty to 1) act like an ordinary prudent person, and 2) continue the assistance

Question 7

Under “Assumption of the Duty to Act by Acting”, if one assumes any duty it could be that others (who might have aided) didn’t go because:

Answer 7

Of the person assuming the duty

Question 8

Under exceptions to the general “no duty to act’ rule, what is the “Good Samaritan” statute?

Answer 8

A statute that exempts healthcare professionals who (voluntarily) help another in an emergency from liability for (ordinary) negligence.

Question 9

Does the “Good Samaritan Statute” impose an affirmative duty to act?

Answer 9

No

Question 10

Under exceptions to the general “no duty to act” rule, what is “Creation of Peril”?

Answer 10

One who negligently places another in a position of peril is under a duty to use reasonable care to assist.

Question 11

What are the three categories of Special Relationships that create a Specific Duty to Act?

Answer 11

1) Parent/child and spouse 2) Common Carrier/innkeeper 3) School/student

Question 12

Under Special Relationships - Parent/Child and Spouse, a duty to protect against injury arises when what two conditions are present?

Answer 12

1) Knowledge of the need to act, and 2) reasonable likelihood of success

Question 13

What duty does a Common Carrier/Innkeeper owe to guests and passengers?

Answer 13

To use reasonable care to protect them

Question 14

What duty do schools owe to students?

Answer 14

To protect students within the boundaries of the school

Question 15

Are only foreseeable plaintiff’s owed a duty of care?

Answer 15

Yes

Question 16

Are plaintiff’s (generally) clearly foreseeable?

Answer 16

Yes

Question 17

When do third parties becomes plaintiff’s?

Answer 17

When they have been injured by a breach of duty to another party

Question 18

Must third parties (to be foreseeable plaintiff’s) be in the Zone of Danger when injured?

Answer 18

Yes

Note: Cardozo’s Zone of Danger only applies to third parties.

Question 19

Are rescuers always foreseeable plaintiff’s? Why?

Answer 19

Yes. “Danger invites rescue”

Question 20

Do rescuers ever “assume the risk”?

Answer 20

No

Question 21

What are the two Standards of Care? What is the General Standard of Care?

Answer 21

General and Specific. General standard is that of a reasonable prudent person.

Question 22

Under the General Standard of Care, are physical characteristics taken into account?

Answer 22

Yes

Question 23

Under the General Standard of Care, are mental characteristics taken into account?

Answer 23

No

Question 24

Under Specific Standards of Care, may Custom and Usage be used to establish a standard of care?

Answer 24

Yes

Question 25

Can Custom and Usage control whether certain conduct amounted to negligence?

Answer 25

No

Question 26

In Emergency Situations, under Specific Standards of Care, what duty does a person have?

Answer 26

To act as a reasonable person would under the same or similar circumstances

Question 27

Will an Emergency Situation be considered if it is of defendant’s own making?

Answer 27

No

Question 28

What Specific Standard of Care are Children held to?

Answer 28

A child of like age, education, intelligence and experience.

Question 29

If engaged in adult actives, is a child required to exercise an adult standard of care?

Answer 29

Yes

Question 30

Until what age is the Child Standard of Care applicable?

Answer 30

17

Question 31

What Specific Standard of Care are Professionals held to?

Answer 31

They are required to possess the knowledge and skill of a member of the profession in good standing in the same (or similar) locales.

Question 32

For Professionals, does a National Board certification set the standard of care to a national standard?

Answer 32

Yes

Question 33

For Professionals, will Specialists be held to a higher Specific Standard of Care for Professionals?

Answer 33

Yes

Question 34

For Professionals, with regard to a doctor, what is informed consent?

Answer 34

A doctor has a duty to disclose risks of treatment to allow a patient to make an informed consent.

Question 35

What are the two types of Automobile Guest Statutes?

Answer 35

1) Passenger does not pay for a ride 2) Passenger pays for a ride

Question 36

When a passenger does not pay for a ride, what duty is owed?

Answer 36

Driver must warn of known, non-obvious defects

Question 37

When a passenger pays for a ride, what duty is owed?

Answer 37

Driver must warn of known, non-obvious defects (and) make reasonable inspections for dangerous conditions

Question 38

What is the standard in automobile “guest statute states”?

Answer 38

To non-paying passengers, a driver is only liable for reckless tortious conduct.

Question 39

What affirmative duty do Common Carriers and Innkeepers have with regard to passengers and guests?

Answer 39

Affirmative duty to use reasonable care to 1) aid or assist passengers and guests 2) to prevent injury to them from third parties

Question 40

What level of care must be exercised by Common Carriers and Innkeepers?

Answer 40

“Great” care. Common carriers and innkeepers are held liable for the slightest negligence.

Question 41

Can Common Carriers and Innkeepers be held liable for even the slightest negligence?

Answer 41

Yes

Question 42

What is a Bailment?

Answer 42

When one person (bailor) delivers personal property to another person (bailee).

Question 43

What are the two types of bailment performed by Bailor’s?

Answer 43

Bailor’s perform 1) Gratuitous bailment 2) Bailment for hire

Question 44

What is the duty under gratuitous bailment?

Answer 44

Bailor has a duty to inform bailee of dangerous defects to chattel that the he knows

Question 45

What is the duty under bailment for hire?

Answer 45

Bailor has a duty to inform bailee of dangerous defects to chattel that the he knows (or) should know

Question 46

What are the three Standards of Care of a Bailee?

Answer 46

Sole benefit of bailor (bailee need only exercise slight care) 2) Sole benefit of bailee (bailee must exercise great care) 3) Mutual benefit (bailee need only exercise reasonable care)

Question 47

Under the Specific Standard of Care - Control of Third Persons - are parents vicariously liable for the torts of their minor children?

Answer 47

No, unless a statute provides otherwise

Question 48

Under Control of Third Person’s - What are the three AAA’s that create an affirmative duty to control a third person?

Answer 48

1) Ability to control 2) Authority to control 3) Awareness that the person needs to be controlled

Question 49

Under the Specific Standard of Care - Owners and Occupiers of Land, what duty is owed by the landowner for “natural conditions on land”? What is the exception?

Answer 49

Generally, a landowner owes no duty to protect one outside his premises from natural conditions. Exception - a landowner has a duty to take reasonable precautions for known defective trees.

Question 50

Under the Specific Standard of Care - Owners and Occupiers of Land, what duty is owed by the landowner for “artificial conditions on land”? What are the two exceptions?

Answer 50

Generally, there is no duty owed for artificial conditions. Exceptions: 1) Damages caused by unreasonably dangerous artificial conditions, and 2) to protect persons passing by the property

Question 51

Under the Specific Standard of Care - Owners and Occupiers of Land, what are the two duties owed for “activities on land”?

Answer 51

Owner or occupier of land has a duty to 1) exercise reasonable care with respect to his own activities on the land, and 2) control the conduct of others on his property so as to avoid unreasonable risk of harm to those outside property.

Question 52

Under the Specific Standard of Care - Owners and Occupiers of Land, what is a trespasser?

Answer 52

One who has no right to be on the land and comes onto the land with no permission or privilege.

Question 53

Under the Specific Standard of Care - Owners and Occupiers of Land, for “on premise injuries”, what duty is owed to an Unknown Trespasser?

Answer 53

No duty is owed to an unknown, undiscovered trespasser.

Question 54

Under the Specific Standard of Care - Owners and Occupiers of Land, for “on premise injuries”, what duty is owed to a Discovered (or Anticipated) Trespasser? What is the exception?

Answer 54

A duty to warn of (or make safe) non-obvious (hidden), dangerous, artificial conditions. Exception: No duty for natural conditions.

Question 55

With regard to a Known or Anticipated Trespasser, what is the difference between a natural and artificial condition?

Answer 55

A natural condition is a rock formation or a lake. Artificial is junk, swimming pool, gravel pit, embers in a fire pit, trench.

Question 56

Under the Specific Standard of Care - Owners and Occupiers of Land, what is an Easement?

Answer 56

Where the landowner has granted a right to allow someone to use and/or enter onto their property (often the power company, water company).

Question 57

Under the Specific Standard of Care - Owners and Occupiers of Land, what care must a holder of an Easement use toward a trespasser?

Answer 57

Reasonable care not to harm a trespasser.

Question 58

Under the Specific Standard of Care - Owners and Occupiers of Land, with regard to Children Trespassers, what is the Attractive Nuisance Doctrine?

Answer 58

The landowner has a duty to exercise reasonable care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property.

Question 59

Under the Attractive Nuisance Doctrine, what are the four elements the plaintiff must show?

Answer 59

1) The owner knows (or should know) that there is a dangerous condition present on the land that is likely to cause serious injury 2) the owner knows (or should know) that children are likely to trespass 3) the child was unable to appreciate the risk 4) the burden on the owner to remedy was slight compared to the magnitude of the risk to the child (or) the remedy would have had minimal impact on owners normal operations.

Question 60

Under the Specific Standard of Care - Owners and Occupiers of Land, what is a Licensee?

Answer 60

A social guest. One who enters on the land with the landowners’ permission, express or implied, for her own purpose or business.

Question 61

Under the Specific Standard of Care - Owners and Occupiers of Land, what duty is owed to a Licensee?

Answer 61

Duty to warn (or make safe) dangerous conditions that the owner knows.

Question 62

Under the Specific Standard of Care - Owners and Occupiers of Land, with regard to the duty owed to a Licensee, is there a duty to inspect or repair?

Answer 62

No, owner need not inspect for defects or repair known defects.

Question 63

Under the Specific Standard of Care - Owners and Occupiers of Land, what is an Invitee?

Answer 63

A business guest. One who enters on the land with the landowner’s permission (express or implied) for the landowner’s benefit.

Question 64

Under the Specific Standard of Care - Owners and Occupiers of Land, what are the two types of Invitee?

Answer 64

1) Business Invitee 2) Public Invitee

Question 65

Under the Specific Standard of Care - Owners and Occupiers of Land, what is a Business Invitee?

Answer 65

Purpose is connected with business or other interest of landowner.

Question 66

Under the Specific Standard of Care - Owners and Occupiers of Land, what is a Public Invitee?

Answer 66

A customer. Those who enter as members of the public for purpose which is held open to the public.

Question 67

Under the Specific Standard of Care - Owners and Occupiers of Land, what duty is owed to an Invitee?

Answer 67

To warn of (or make safe) dangerous conditions that the owner knows (or) should know.

Question 68

Under the Specific Standard of Care - Owners and Occupiers of Land, with regard to the duty owed to an Invitee, is there a duty to inspect? To repair?

Answer 68

There is a duty to inspect, but not to repair. It is enough that the landowner warn the invitee of dangerous defects found during inspection. He need not repair them.

Note: “Should know” only places a duty upon the owner to make reasonable inspections to discover dangerous conditions, but not necessarily to repair them.

Question 69

Under the Specific Standard of Care - Owners and Occupiers of Land, what are the two “special Invitee situations”?

Answer 69

An invitee may also be one who 1) serves some purpose of the possessor, or 2) comes under normal circumstances during business hours

Question 70

Under the Specific Standard of Care - Owners and Occupiers of Land, what is the Firefighter’s rule?

Answer 70

Police and Firefighter’s are considered Licensees, not Invitee’s, because of public policy, assumption of risk with regard to the nature of their profession, and worker’s compensations provisions.

Question 71

Under the Specific Standard of Care - Owners and Occupiers of Land, when may a person lose their status as an Invitee?

Answer 71

If they exceed the scope of the invitation and enter a portion of land where the invitation is not extended. In this case, they are either a Licensee or a Trespasser.

Question 72

Under the Specific Standard of Care - Owners and Occupiers of Land, what standard of care is owed by a Lessee of land?

Answer 72

A general duty to maintain the premises

Question 73

Under the Specific Standard of Care - Owners and Occupiers of Land, what standard of care is owed by a Lessor of land?

Answer 73

A duty to warn of existing defects of which he is aware (or has reason to know), and which the lessee is not likely to discover.

Question 74

Under the Specific Standard of Care - Owners and Occupiers of Land, what standard of care is owed by a Vendor of Realty?

Answer 74

To disclose to vendee concealed, unreasonable dangerous conditions of which the vendor knows (or has reason to know), and which the vendee is not likely to discover.

Question 75

There are two Standards of Care - General and Specific. The General Standard is that of a Reasonable Prudent Person. There are nine Specific Standards of Care. What are they?

Answer 75

1) Custom and Usage 2) Emergency Situations 3) Children 4) Professionals 5) Automobile Guest Statutes 6) Common Carriers and Innkeepers 7) Bailments 8) Control of Third Persons 9) Owners and Occupiers of Land

Question 76

Concisely, please list the ascending duty owed to a Trespasser, Licensee, and Invitee:

Answer 76

Unknown Trespasser - No duty. Known or Anticipated Trespasser- Duty to warn (or make safe) dangerous, non-obvious (hidden), artificial conditions. Licensee - Duty to warn (or make safe) only dangerous conditions landowner knows. Invitee (Business or Public) - Duty to warn (or make safe) dangerous conditions landowner knows (or) should have known - creates a duty to inspect.

Question 77

What is Negligence Per Se?

Answer 77

A statute specific duty that replaces the more general common law duty of due care.

Question 78

What are the four elements of Negligence Per Se?

Answer 78

1) The statute provides for a criminal penalty 2) clearly defines a standard of conduct 3) was designed to prevent the type of harm suffered by plaintiff, and 4) the plaintiff is within the class of persons meant to protected by the statute

Question 79

In Negligence Per Se, what does the violation of a criminal statute that clearly defines a standard of conduct establish?

Answer 79

Duty and Breach. The criminal statute establishes a statute specific Duty. The violation of the criminal statute establishes Breach.

Question 80

In Negligence Per Se, is compliance with a statute enough to establish reasonable care per se?

Answer 80

No, but it may be evidence of due care.

Question 81

What are the two “rebutting presumptions” of Negligence Per Se?

Answer 81

1) Adequate Excuse 2) Sudden Emergency

Note: Negligence per se is the presumption of negligence. A “rebutting presumption” is one where the defendant can rebut the presumption of negligence in order to escape liability.

Question 82

Within Negligence Per Se, what is “Adequate Excuse”?

Answer 82

Where 1) compliance with the statute would have caused more danger than did violating the statute, or 2) compliance was beyond the control of the defendant

Question 83

What are the three elements of Negligent Infliction of Emotional Distress (NIED)?

Answer 83

1) The defendant must have acted negligently 2) the plaintiff was within the “target zone” or “zone of danger”, and 3) the plaintiff has (must have) suffered some physical manifestation of the emotional distress (there needs to be some physical manifestation of emotional distress).

Question 84

If plaintiff was a bystander, what are the three exceptions to the “target zone” requirement?

Answer 84

1) Plaintiff and injured person are closely related 2) plaintiff was present at scene of injury 3) plaintiff observed or “perceived” the event.

Question 85

What are the five elements of Bystander NIED?

Answer 85

1) The defendant must have acted negligently 2) the bystander and injured person are closely related 3) the bystander was present at the scene of the injury 4) has observed or “perceived” the event, and 5) the bystander has suffered some physical manifestation of emotional distress.

Question 86

Within NIED, what are the two exceptions to the requirement of “physical injury”?

Answer 86

1) erroneous reporting of a relatives death 2) mishandling of a relaitive’s corpse

Question 87

What is Breach?

Answer 87

When the defendant’s conduct falls short of the required standard of care.

Question 88

Does injury alone (to the plaintiff) prove Breach?

Answer 88

No, there must be a fact discussion

Question 89

With regard to Breach, what are the two things a “fact discussion” should include:

Answer 89

1) Whether the defendant did something that a reasonable person would not have done (or) 2) did not do something a reasonable person would have done.

Question 90

What does Res Ipsa Loquitur mean?

Answer 90

“The thing speaks for itself”

Note: Perhaps helpfully interpreted as “The thing speaks for itself, and that is to say, the thing speaks for itself in that it wouldn’t have happened unless someone was negligent. I don’t know who exactly was negligent, and I don’t need to, but I can assure you that someone almost certainly was.”

Question 91

What is Res Ipsa Loquitur?

Answer 91

A type of accident that would not normally occur unless someone was negligent

Question 92

What are the three elements of Res Ipsa Loquitur?

Answer 92

1) The accident was the type that would not normally occur unless someone was negligent 2) the instrumentality causing the injury was in the defendants sole control 3) the plaintiff did not contribute to (or otherwise cause) their injury.

Question 93

What is Actual Cause?

Answer 93

“But-for” cause. Cause in fact.

Question 94

Within Actual Cause, when there is more than one cause of an injury, or where there are multiple parties that may have caused the injury, to what are these causes referred?

Answer 94

1) Multiple Insufficient Causes 2) Multiple Sufficient Causes 3) Multiple Parties - Only One Caused the Harm

Question 95

Within Actual Cause, will the “But-for” test work for Multiple Insufficient causes?

Answer 95

Yes

Question 96

Within Actual Cause, will the “But-for” test work for Multiple Sufficient causes?

Answer 96

No

Question 97

Within Actual Cause, what test is applied to Multiple Sufficient causes instead of the “But-for” test?

Answer 97

Substantial Factor test

Question 98

Within Actual Cause, what if the harm was caused by Multiple Parties where only one of the parties caused the harm but nobody knows which one?

Answer 98

Alternative Causation is applied

Question 99

Within Actual Cause - Multiple Parties, what is Alternative Causation?

Answer 99

The burden of proof shifts to the defendants. Any defendant is fully liable (or is liable for proportional amount equal to market share) unless he can prove he was not the cause.

Question 100

What is Proximate Cause?

Answer 100

Foreseeability. Scope of Liability. Legal cause.

Question 101

What are the two types of Proximate Cause?

Answer 101

1) Direct 2) Indirect

Question 102

Within Proximate Cause, what is a Direct Cause?

Answer 102

When there is no intervening act by a third-party (or act of God) between the defendant’s act and the plaintiff’s injury.

Question 103

Within Proximate Cause, are all Direct Causes automatically Proximate Causes?

Answer 103

Yes, all direct causes are proximate causes

Question 104

Within Proximate Cause - Direct Cause, what is required for liability?

Answer 104

The harm was foreseeable

Question 105

Within Proximate Cause, what is a Indirect Cause?

Answer 105

When there is an intervening act by a third-party (or act of God) between the defendant’s act and the plaintiff’s injury

Question 106

Within Proximate Cause - Indirect Cause, what is required for liability?

Answer 106

The intervening act was foreseeable

Question 107

Within Proximate Cause - Indirect Cause, what are the two types of intervening acts?

Answer 107

1) Dependent 2) Independent

Question 108

Within Proximate Cause - Indirect Cause, what is a Dependent Intervening Act?

Answer 108

Natural and normal reactions created by the defendant’s negligent act

Expanded: An act whose very occurrence was dependent upon, and flowed from, the negligent act. Medical malpractice is a dependent intervening act, in that the opportunity for the malpractice would not have arisen without the negligent act and harming someone, naturally, would put them in a position to require medical care and expose them to the risk of negligent medical care.

However, an intentional tort by a third person, or a crime, is not an dependent intervening act because the intent to harm by a third party could not be foreseen and will break the causal chain.

In the scenario above, instead of negligent medical care, suppose the defendant was intentionally injected with poison by a nurse. It was not, and simply could not, be foreseeable that this act would occur. It is simply to remote a possibility and is therefore not considered dependent, but rather “independent” of the original negligent act. This scenario is, therefore, considered an independent intervening act. Independent, in this context, meaning “not reasonable foreseeable”.

Question 109

Within Proximate Cause - Indirect Cause, is a Dependent Intervening Act foreseeable?

Answer 109

Yes, the reactions created (dependent upon) the defendant’s negligent act are almost always foreseeable

Question 110

Within Proximate Cause - Indirect Cause - Dependent Intervening Act, what are the six foreseeable reactions created by (dependent upon) defendant’s negligent act?

Answer 110

1) Medical malpractice 2) Subsequent accident 3) Subsequent disease 4) Negligence of Rescuers 5) Escape forces 6) Effort toProtect Person or Property

Question 111

Within Proximate Cause - Indirect Cause, what is an Independent Intervening Act?

Answer 111

Forces that operate on defendant’s negligent act but are not natural responses or reactions (are independent from) the defendant’s negligent act.

Question 112

Within Proximate Cause - Indirect Cause, are Independent Intervening Acts generally unforeseeable?

Answer 112

They are generally unforeseeable, but not always

Question 113

Within Proximate Cause - Indirect Cause, what two Independent Intervening Acts would be foreseeable?

Answer 113

1) Negligent acts of 3rd parties 2) predictable weather conditions (storms, floods).

Question 114

Within Proximate Cause - Indirect Cause, what three Independent Intervening Acts would be unforeseeable

Answer 114

1) Intentional torts of third persons 2) Criminal acts of third persons 3) non-predictable weather (earthquakes - maybe lightening).

Question 115

Within Damages - Principles of Compensation, what is the purpose of compensation?

Answer 115

To restore plaintiff to pre-injury status as far as possible

Question 116

Within Damages - Principles of Compensation, what is the only remedy at the juries’ disposal to make the plaintiff whole?

Answer 116

Money

Question 117

Within Damages - Principles of Compensation, must all past, present and future damages be included in one lump sum award, based on one verdict, in one lawsuit?

Answer 117

Yes

Question 118

Within Damages - Principles of Compensation, is judicial review of jury verdict amounts relatively limited?

Answer 118

Yes

Question 119

Within Damages based on Negligence, where the injury is only economic, can the plaintiff recover?

Answer 119

No, in Negligence there must be an actual, physical injury to person or property

Question 120

Within Damages based on Personal Injury, what are the two types of Damages?

Answer 120

1) Special 2) General

Question 121

Within Damages based on Personal Injury, what are the two types of Special Damages?

Answer 121

1) Medical Expenses 2) Economic losses

Question 122

Within Damages based on Personal Injury, what are the three types of Economic Losses?

Answer 122

1) Lost earnings 2) Impaired future earnings 3) Permanent disability (or disfigurement)

Question 123

Within Damages based on Personal Injury, what are General Damages?

Answer 123

Pain and Suffering - non economic losses

Question 124

Within Damages based on Personal Injury, what are “Avoidable Consequences”?

Answer 124

The plaintiff has a duty to mitigate damages (and) defendant will not be liable for damage that could have been avoided

Question 125

Within Damages based on Physical Harm to Property, what is the liability for “Damage” and “Destruction”?

Answer 125

Damage - Cost of repair

Destruction - fair market value at time of destruction

Question 126

Within Damages - Punitive and Exemplary Damages, what type of conduct is necessary for most jurisdictions to allow Punitive and Exemplary damages?

Answer 126

Conduct that is willful and wanton, reckless or malicious

Question 127

Within Damages, what two economic losses are non-recoverable?

Answer 127

1) Interest from date of damage in personal injury action 2) Attorneys fees.

Question 128

Within Damages, what is the Collateral Source Rule?

Answer 128

Damages will not be reduced because plaintiff received benefits from other sources

Question 129

Within Damages, what are the two types of Judicial Control?

Answer 129

1) Remittitur 2) Additur

Question 130

Within Damages - Judicial Control, what is Remittitur?

Answer 130

Award is so excessive as to “shock the conscience”

Question 131

Within Damages - Judicial Control - Remittitur, what options may be given to the defendant when the award is excessive?

Answer 131

Given choice of lesser award or new trial

Question 132

Within Damages - Judicial Control, what is Additur?

Answer 132

The opposite of Remittitur. When an award is so grossly inadequate it represents a miscarriage of justice.

Question 133

Within Damages - Judicial Control -Additur, what options may be given to the defendant when the award is inadequate?

Answer 133

Given choice of greater award or new trial

Question 134

Within Damages, what are the two types of legislative control?

Answer 134

1) Tort reform 2) Caps on liability

Question 135

Within Defenses, what is Contributory Negligence?

Answer 135

When plaintiff is a contributing cause to his injuries, it will be a complete bar to recovery.

Question 136

Within Defenses, to what level of certainty must the defendant prove that the plaintiff was contributorily negligent?

Answer 136

Must prove by a preponderance of the evidence (more likely than not).

Question 137

Within Defenses - Contributory Negligence, if the plaintiff was negligent, will the defendant be liable and may the plaintiff recover?

Answer 137

No and No

Question 138

Within Defenses, what are the standards for Contributory Negligence?

Answer 138

Same as for ordinary negligence

Question 139

Within Defenses - Contributory Negligence, is Contributory Negligence per se allowed?

Answer 139

Yes, however, may not be used against those in a “protected class” if class is based on incapacity.

Question 140

Within Defenses - Contributory Negligence, an exception is the Last Clear Chance Doctrine. What is it?

Answer 140

Plaintiff’s contributory negligence will not be a bar to recovery (and defendant will be liable) if plaintiff can say that the defendant had the “Last Clear Chance” to avoid the injury and did not.

Question 141

Within Defenses - Contributory Negligence, what are the two elements of the Last Clear Chance Doctrine?

Answer 141

1) Defendant’s negligent act occurs after plaintiff’s contributory act, and 2) defendant could have avoided the accident with due care

Question 142

Is the “Last Clear Chance” doctrine applicable in comparative negligence jurisdictions?

Answer 142

No

Question 143

What is Comparative Negligence?

Answer 143

When plaintiff is a contributing cause to his injuries, plaintiff’s recovery will be reduced in proportion to plaintiff’s fault.

Question 144

What is occurring in Comparative Negligence?

Answer 144

We are comparing different degrees of fault to determine the plaintiff’s degree of fault, then reducing the plaintiff’s recovery.

Question 145

Is Comparative Negligence now used in virtually all states?

Answer 145

Yes, because it allows the plaintiff to still recover.

Question 146

What are the two types of Comparative Negligence?

Answer 146

1) Pure 2) Partial

Question 147

What is Pure Comparative Negligence?

Answer 147

Plaintiff will recover no matter what his percentage of fault is, even if plaintiff’s negligence exceeds that of defendant’s. Used in 1/3 of states, including CA.

Question 148

What is Partial Comparative Negligence?

Answer 148

Plaintiff cannot recover if their degree of fault exceeds a certain threshold. Different threshold tests are used in different jurisdictions:

1. Less Serious
2. No More Serious
3. Multiple Defendants - Combined Comparison

Question 149

What is “Less Serious” Partial Comparative Negligence?

Answer 149

Less than defendant’s fault. If the plaintiff’s degree of fault is 49% or less, the plaintiff can recover.

Question 150

What is “No More Serious” Partial Comparative Negligence?

Answer 150

Equal to or less than defendant’s fault. We look to see if the plaintiff’s degree of fault is no more serious than the defendant. If the plaintiff’s degree of fault is greater than 50%, the plaintiff cannot recover.

Question 151

What is the Multiple Defendant’s Approach to Partial Comparative Negligence?

Answer 151

If plaintiff’s degree of fault is “less serious” (less than) or “no more serious” (equal to or less than) the combined fault of (all) defendant’s, the plaintiff will recover

Question 152

Will Comparative Negligence reduce punitive damages?

Answer 152

No

Question 153

Within Defenses, what are the three elements of Assumption of Risk?

Answer 153

1) Plaintiff must have known of the magnitude of the risk (subjective test) 2) voluntarily assumed the risk, and 3) alternatives were available

Question 154

Within Defenses - Assumption of Risk, what is the result of Assumption of Risk?

Answer 154

Total bar to recovery

Question 155

Within Defenses - Assumption of Risk, do rescuers ever voluntarily “assume the risk”?

Answer 155

No

Question 156

Within Defenses - Assumption of Risk, can a plaintiff assume the risk either expressly or impliedly?

Answer 156

Yes, either or both

Expanded:

Assumption of risk provides an even stronger potential defense to a negligence claim. A plaintiff is barred from relief if he assumed the risk of harm arising from the defendant’s actions.[26] There are two categories of this defense: implied and expressed assumption of risk.

Implied: An implied assumption of risk arises when a plaintiff’s actions or inactions imply consent to be subject to known dangers. This is commonly used to defend negligence claims involving sporting events or activities, where the plaintiff’s attendance or participation implies an assumption of the involved dangers. For example, a person who sits at a baseball game assumes the risk of being hit by a foul ball

Express: An expressed assumption of risk arises when a plaintiff implicitly relieves the defendant of any duty to protect the plaintiff from harm. A liability waiver may be viewed as an expressed assumption of risk. In City of Santa Barbara v.Superior Court, the family of a girl who died while swimming at a summer camp sued, while the defendant produced a waiver signed by the parents. The court held that even when a recreational facility obtains valid, signed liability waivers from customers, they can still be held liable for injuries if there is evidence of gross negligence or an extreme failure to exercise an ordinary standard of care. Therefore, even an expressed assumption of risk may not provide an adequate defense for gross negligence.[29]

Question 157

Within Defenses - Assumption of Risk, what are the limits of the exculpatory clause/disclaimer forms?

Answer 157

Certain disclaimer forms will not be upheld by courts due to public policy

What is an exculpatory clause: A key tool of risk management is the exculpatory agreement - a generic term which can refer to a provision in a contract, the back of a receipt or invoice, or simply a statement posted in a prominent location, in which one of two things is stipulated:

(1) One party is relieved of any blame or liability arising from negligence or wrongdoing regarding a particular activity, and/or (2) One party (usually the one that drafted the agreement) is freed of all liability arising out of performance of that contract.

Question 158

Within Defenses, under the traditional view of Intrafamily Immunity, one family member could not sue another in tort for:

Answer 158

Personal Injury

Expanded: The point of intrafamily immunity under the common law was to prevent situations where members of an immediate family would end up on opposite sides of a court case. Intrafamily immunity covers immunity between spouses and between parents and children.

Question 159

Within Defenses - Immunity, have nearly all states abolished both husband-wife and parent-child immunity?

Answer 159

Yes

Question 160

Within Defenses - Immunity, for the few states that embrace intrafamily Immunity, what are the five limitations?

Answer 160

No Immunity for 1) property damage 2) intentional torts 3) negligence not occurring within “ambit” of family relationship 4) Immunity only applies to husband-wife/parent-child 5) tort immunity is waived to the extent there is insurance coverage

Question 161

Within Defense - Immunity, have the majority of states eliminated charitable immunities?

Answer 161

Yes

Expanded: The root of the charitable immunity lies in the common law as well. The rationale was that the budgets of charitable organizations were made up of donations and that, if charitable organizations had to pay tort claims, the money that people donated would not be put toward the purpose they had intended it for.

Today, most jurisdictions have eliminated the charitable immunity, reasoning that the need to compensate victims of torts committed by charities outweighed the need to protect the intent of charitable donors.

Question 162

Within Defenses - Immunity, for federal government immunity will still attach to what torts?

Answer 162

Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, liable and slander, misrepresentation and deceit, and interference with contractual rights.

Question 163

Within Defenses - Immunity, most states and local governments have waived:

Answer 163

Their immunity to the same extent as the federal government

Question 164

Within Defenses, Immunity - Public Officers carrying out official duties are immune from tort liability for discretionary acts done without:

Answer 164

Malice or improper purpose

Question 165

What are the four defenses to Negligence?

Answer 165

1) Contributory Negligence 2) Comparative Negligence 3) Assumption of Risk 4) Immunity

Question 166

What is Governmental Immunity?

Answer 166

The origin of governmental immunity lies in the common law where state and federal governments had sovereign immunity that insulated them from liability. However, many jurisdictions today have done away with governmental immunity.

Question 167

The defense of Immunity has been eliminated in all but some jurisdictions. None the less, what are the three categories of immunity?

Answer 167

1) Intrafamily 2) Charitable 3) Governmental