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Flashcards in Page 16 Deck (43):
1

The burden of avoidance for breach in negligence can also include what types of things?

Intangible things like loss of freedom

2

What does it mean to look beyond the learned hand test?

Can look at the social value or utility of the behavior, and if the benefit to society is very great, it's likely defendant did not breach a duty

3

What is an example of looking beyond the test for breach for negligence?

Driving is dangerous, but socially useful

4

What is the extension to the learned hand formula?

If there is no reasonable safety precaution that could completely avoid harm, and alternatives would only reduce the risk, the formula changes to PL without safety precaution - PL with safety precaution > B

5

In the Extension to the learned hand formula, D's failure to take the precaution would be unreasonable if what?

The risk prevented by it outweighs the burden of preventing it

6

If there is a 10% risk of causing $100,000 in damages without a precaution, and a 1% risk with the precaution, what must defendant do to avoid being negligent?

Since the burden of taking the precaution is less than $9000, he must take it to avoid being negligent

7

Breach issues are usually decided by who, except in what situation?

Jury, unless a motion of summary judgment occurs, and the court says no reasonable jury could find in favor of the nonmoving party, so they create a mini rule about what conduct is reasonable/unreasonable in different situations

8

Can insanity or stupidity be defenses to negligence?

No, because the mental ability Standard is that of the average person

9

What is negligence per se?

When a criminal statute is used to set the standard of care because the reasonable person is a law abiding, so someone that violates the law is per se unreasonable

10

Negligence per se allows a more specific standard to replace what?

A general one

11

Who decides if negligence per se applies?

The judge by looking at the type of harm, if the plaintiff was in a protected class, and if his violation was excused

12

If a judge decides that a statute shouldn't be adopted for negligence per se, what happens to the case?

It will proceed under the reasonably prudent person standard of care

13

What are The three elements of a negligence per se breach analysis?

- type of harm
- protected plaintiffs or class
- plaintiff's violation was not excused

14

What does type of harm mean for negligence per se?

The statute was designed to protect against the type of harm the plaintiff suffered

15

If a law says all animals on boats have to be in separate pens to avoid diseases, when a wave washes animals in the same pen overboard, is that negligence per se?

No, because the type of harm was disease, not getting washed overboard

16

What is important for the statute itself for negligence per se?

It must be clear and unambiguous about what the conduct/duty is that is required, by whom, and about what is a breach

17

Violations of licensing statutes establish negligence per se?

Not usually

18

what is the protected plaintiffs or class for negligence per se?

It has to relate to the class of persons designed to be protected by the statute, and the plaintiff must be included in that

19

What does it mean that plaintiff's violation cannot be excused for negligence per se to apply?

Sometimes plaintiffs are excused from violating a statute because something that was not their fault got in the way, if this applies, then negligence per se is not relevant

20

What are typical excuses that could make it so that negligence per se was not applicable?

Something like having your headlights suddenly go out

21

Who decides if an excuse is appropriate for negligence per se?

The judge, and if so, there's no liability

22

What Are the four exceptions to negligence per se?

1. If it is more dangerous to comply with the law then to violate it, you are excused
2. If compliance is impossible
3. Emergency situation
4. Children

23

What is example of when impossibility would apply as exception to negligence per se?

If the minimum speed is 40 km, but because of a breakdown you can't drive that fast, so compliance with the statute is excused

24

How does an emergency act as an exception to negligence per se?

Any violations are excused and reasonable person standard in that situation is applied

25

How can the children Standard be an exception to negligence per se?

It isn't invoked against children that are engaging in children's activities

26

Once a breach of the statute has been decided, for negligence per se, the plaintiff must still prove what?

The other elements of negligence

27

Custom can be evidence of the standard of care owed, but it isn't what?

Conclusive because sometimes even the customer is negligent

28

If you want to discuss that the defendant failed to comply with the custom of the community, you have to prove what?

- That the custom was developed to avoid that type of harm
- The custom was widespread in that community and well-defined
- defendant was a member of the community so should've had knowledge of the custom

29

What are the two major categories that are held to a higher or lower standard of care?

Common carrier/innkeepers and public utilities

30

What is a common carrier?

Anyone that transports the public for money and is in the general business of doing it

31

What Is the standard of care for common carriers?

They have a duty to avoid harm to passengers by exercising the highest degree of vigilance, care and precaution, or the utmost caution characteristic of very careful prudent people

32

Is important for common carriers to foresee and guard against danger because why?

Public-policy wants the public to be transported safely

33

Must you make a living off of transporting other people in order to be considered a common carrier?

No, you just have to make a profit, so carpool for money counts

34

Are common carriers liable for the acts of their employees or agents?

Yes, but not for the acts of other passengers

35

Common carriers must always choose the course of action least likely to do what?

Expose passengers to harm

36

Common carriers have an affirmative duty to what?

Aid passengers when they become sick or are attacked by robbers

37

What are Guest statutes?

A reduction in the duty of care owed by the driver of a vehicle to a guest in the car where there is no liability for injuries unless the driver's conduct was grossly negligent or reckless

38

What is meant by a guest in a car?

A nonpaying passenger

39

If some payment has been made that motivated the driver to furnish a ride, the person in the vehicle is thought of as what?

A passenger and can recover for ordinary negligence

40

If you agree to share expenses for a ride, that often makes you what status in the vehicle?

Passenger, not a guest, so guest statute doesn't apply

41

When does the common carrier duty end?

Once the common carrier has finished providing service

42

What is the duty of care for public utilities?

Because the products/services can be dangerous, a duty to take every reasonable precaution suggested by experience/Prudence in order to avoid injury to the public is necessary

43

The greater the risk of serious danger, the more onerous the what?

Burden that a reasonable person is expected to accept