Negligence

Question 1

Who is duty owed?

Answer 1

1. Foreseeable victims

2. Foreseeable victims as a matter of law

Question 2

Foreseeable victims as a matter of law

Answer 2

1. Rescuers

2. Viable fetuses

Question 3

How much care much someone exercise?

Answer 3

That taken by a

1. Reasonably prudent person
2. Under the circumstances

Question 4

Physical disabilities (duty)

Answer 4

Assign them to reasonably person (ex. blind, deaf)

Question 5

Superior skill (duty)

Answer 5

Expected to use for benefit of plaintiff

Question 6

Duty to children

Answer 6

1. Majority rule – child must use same care of like experience, age, intelligence under the circumstances
2. Minority (Traditional) Rule of 7s

Exception – Adult activities

Question 7

Rule of 7s

Answer 7

Under 7: Not liable for N

7-13: Rebuttable presumption kid is INCAPABLE of N

14+ Rebuttable presumption kid IS CAPABLE of N

Question 8

Professional Standard of Duty

Answer 8

Possess and exercise knowledge and skill of

1. Ordinary member of that profession
2. In good standing

Question 9

4 Types of Land Occupiers

Answer 9

1. Undiscovered trespasser
2. Discovered trespasser
3. Licensee
4. Invitee

Question 10

Land use – Possible sources of injury?

Answer 10

1. Conduct or activity

2. Static condition

Question 11

Duty owed – Undiscovered Trespasser?

Answer 11

1. Activity: None

2. Condition: None

Question 12

Duty owed – Discovered Trespasser?

Answer 12

1. Activity: Reasonable Care

2. Condition: Protect against man-made death traps

Question 13

Duty owed – Licensee

Answer 13

1. Activity: Reasonable Care

2. Condition: Protect against KNOWN concealed conditions

Question 14

Duty owed – Invitee

Answer 14

1. Activity: Reasonable care
2. Condition: Protect against concealed KNOWN or COULD HAVE KNOWN by reasonable inspection

** Reasonable = cost effective

Question 15

Who is a licensee?

Answer 15

Social guest or friend

**Licensee = Like

Question 16

Who is an invitee?

Answer 16

Comes onto land open to the public at large

Usually business guest (even window shoppers)

Question 17

How can landowner satisfy legal obligations w/r/t static condition?

Answer 17

Either

1. Making it safe
2. Giving a warning

Question 18

Child trespassers?

Answer 18

Use attractive nuisance standard

Question 19

Open and obvious condition

Answer 19

Entrant will lose

Question 20

Statutory Standard of Care / Negligence Per Se

Answer 20

Test:

1. Class of Person
2. Class of Risk

Question 21

Exceptions to Negligence Per Se

Answer 21

1. Compliance with statute is more dangerous than violating (D crosses yellow line to avoid child)
2. Compliance is impossible under circumstances (D runs red light bc of heart attack)

Question 22

Duty to Rescue

Answer 22

Doesn’t exist.

EXCEPTIONS:

1. Defendant put plaintiff in peril
2. Relationships (lose family / common carrier / innkeeper / invitee)
3. Duty to Control 3rd Persons – Defendant has actual ability and authority to control (parent stopping young kid from hitting shopper)

Question 23

Negligent Infliction of Emotional Distress

Answer 23

Generally no duty.

EXCEPTIONS:

1. Zone of danger – NEAR MISS.
2. Bystander recovery – (1) at scene of accident and (2) had close relp with victim

**Ohio requires SEVERE distress, but not physical

Question 24

Breach of Duty

Answer 24

Plaintiff must point to SPECIFIC CONDUCT

Question 25

Proving Specific Conduct (Breach)

Answer 25

1. Evidence of custom
2. Res Ipsa Loquitur – (1) event doesn’t normally happen without negligence (2) negligence is attributable to defendant

3.

Question 26

Result of Res Ipsa

Answer 26

Paintiff survives a DIRECTED VERDICT but jury can reject res ipsa inference

Question 27

Causation

Answer 27

Need to show BOTH

1. Cause in fact – “But for”
2. Proximate cause