Negligence Flashcards
(37 cards)
what are the prima facie elements of Negligence?
- The defendant owes a duty of care to conform to a specific standard of conduct to foreseeable victims.
- The defendant breached that duty
- The breach of duty was the actual and proximate cause of the plaintiff’s injury
- The plaintiff suffered damages to person or property
what is the general standard of care?
The general standard of care is a reasonable person (Objective standard) (average mental ability but the same physical characteristics as the defendant)
what are the exceptions to the general standard of care?
- Children under 5 - 0 duty of care
- Professionals must exercise the knowledge and skill of an average member of the profession in good standing -
- Children must conform to the standard of care of a child of like age, education, intelligence, and experience (except the adult standard applies if the child is engaged in an adult activity then reasonable person (objective standard) e.g operating a motorized vehicle ⭐
- A landowner’s standard of care under traditional rules usually depends on the status of the person injured on the property
who are unknown trespassers and what duty of care are they owed?
didn’t know they are there. Unforeseeable victim. 0% duty of care
who are known trespassers and what duty of care are they owed?
Anticipated trespasser (have frequently been on the land before). Those you should expect to trespass even if you don't know they are there at that moment - must protect hazards on the land that meet the 4 part test
- Condition in question must be artificial - constructed by human beings. Natural conditions such as ice, snow etc is 0
- Condition must be highly dangerous - capable of conflicting bodily harm/death
- Condition must be concealed from the trespasser.
- Owner of the property must have prior knowledge that the condition exists.
who are licensees and what duty of care are they owed?
enter land with express or implied permission. They do not confer any economic benefit. E.g social guests, people selling or convincing you to buy something.
Duty is a 2 past test
- Condition must be concealed by them and
- Known to the property owner beforehand.
The owner or occupier has no duty to a licensee to inspect for defects nor to repair known defects.
who are Invitees and what duty of care are they owed?
enter with permission and enter to confer economic benefit on the posesser. E.g business customer. Persons who enter the premises for a purpose connected with the landowner’s business are invitees and are owed a higher duty.
Similarly, a member of the public visiting a free museum is an invitee. Invitees include those who enter the premises for a purpose for which the land is held open to the public.
Duty is a 2 past test
1. Condition must be concealed by them and 2. Known to the property owner beforehand or could be discovered through a reasonable inspection (inspection by the reasonable person).
When does a person lose their status as an invitee?
A person loses his status as an invitee if he exceeds the scope of the invitation-if he goes into a portion of the premises where his invitation cannot reasonably be said to extend.
What is the firefighters rule when it comes to premises liability?
Firefighters can not recover from any injury that is an inherent risk of the job e.g getting burned, smoke inhalation, getting hit by falling debris. The same for police officers. But be aware that not every injury might be an inherent risk.
is the owner or occupier of an open land liable to injuries suffered by a recreational user?
if an owner or occupier of open land permits the public to use the land for recreational purposes without charging a fee, the landowner is not liable for injuries suffered by a recreational user unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
What is the attractive nuisance doctrine?
if there is something on the land that pulls children in then you should take reasonable care to protect children from the danger on your land.
To satisfy this doctrine, there must be:
- Artificial dangerous condition
- Landowner should know it would attract children to trespass
- The child themselves (subjective standard) because of age or immaturity fails to realize the risk or appreciate danger involved
- Balancing test - ultility of maintaining the condition is slight compared to the risks involved
how can landowners satisfy a duty in premises liability?
- To repair or make safe
2. Provide a warning e.g oral warning or sign because it makes a hidden danger into an obvious one
when can a statue serve to establish a specific standard of care in place of the general standard of ordinary care?
if the plaintiff is within the class that the statute was intended to protect and the statute was designed to prevent the type of harm suffered
what is the exception to the statutory standard of care?
Violation of an applicable statute may be excused if:
(i) compliance with statute would cause more danger than violation
(ii) compliance with the statue would be beyond the defendant’s control
explain negligence per se?
Violation of an applicable statute is “negligence per se” this means that the plaintiff will have established a conclusive presumption of duty and breach of duty by showing a violation of the statue
is there a duty to act affirmately?
No duty to undertake a course of conduct (rescue) but if you choose to then you have to act as a reasonably prudent person
what are the exceptions to the no duty to act/rescue?
- If there is a pre existing relation between plaintiff and defendant then that triggers a duty - normally a legal relationship e.g innkeeper and guest, employer and employee, land owner and guest
- If the plaintiff put the defendant in peril - the defendant put the person in danger
what is the basis of liability when it comes to negligent infliction of emotional distress?
The defendant breaches a duty to the plaintiff by creating a risk of physical injury and the plaintiff suffers emotional distress as a result. The plaintiff must be within the “zone of danger”.
what does it mean for a plaintiff to be within the zone of danger?
The plaintiff must be present at the scene and observed what happened. Can not just be heard or fear
what is a near miss case and what must be shown?
negligent defendant who did not hurt the plaintiff but almost did
Must show you suffered subsequent physical manifestation. Something that can be objectively measured to make sure that someone is not lying. E.g fear
what is a bystander case?
Negligent defendant can cause serious injury or death to a non party in the lawsuit e.g sadness, grief, mourning
(i) is closely related to the injured person, (ii) was present at the scene of the injury, and (iii) personally observed or perceived the event in real time
what is a business relationship case?
Plaintiff and defendant who are in a pre-existing business relationship where careless performance is highly likely to cause emotional distress. E.g medical patient is told she has cancer whereas she doesn’t. E.g funeral home cremated a family member that was meant to have a viewing.
what is “breach of duty”
Part of the case where the plaintiff must demonstrate what the defendant did wrong and must give a reason why it’s wrong. Fact + Reason
what are the different ways to show a breach?
Res Ipsa loquitur
Violation of statute
Custom or usage
