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Flashcards in Page 16 Deck (43)
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1
Q

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

A

Intangible things like loss of freedom

2
Q

What does it mean to look beyond the Learned Hand test?

A

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

3
Q

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

A

Driving is dangerous, but socially useful

4
Q

What is the extension to the Learned Hand formula?

A

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
Q

In the extension to the Learned Hand formula, D’s failure to take the precaution would be unreasonable if what?

A

The risk prevented by it outweighs the burden of preventing it

6
Q

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?

A

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

7
Q

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

A

Jury, unless a motion for 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
Q

Can insanity or stupidity be defenses to negligence?

A

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

9
Q

What is negligence per se?

A

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

10
Q

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

A

A general one

11
Q

Who decides if negligence per se applies?

A

The judge by looking at:

  • the type of harm
  • if the plaintiff was in a protected class
  • if his violation was excused
12
Q

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

A

It will proceed under the reasonably prudent person standard of care

13
Q

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

A
  • type of harm
  • protected plaintiffs or class
  • plaintiff’s violation was not excused
14
Q

What does type of harm mean for negligence per se?

A

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

15
Q

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?

A

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

16
Q

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

A

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

17
Q

Do violations of licensing statutes establish negligence per se?

A

Not usually

18
Q

What is involved in the “protected plaintiffs or class” for negligence per se?

A

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
Q

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

A

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
Q

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

A

Something like having your headlights suddenly go out

21
Q

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

A

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

22
Q

What are the four exceptions to negligence per se?

A
  • if it is more dangerous to comply with the law than to violate it, you are excused
  • if compliance is impossible
  • emergency situations
  • children
23
Q

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

A

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
Q

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

A

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

25
Q

How can the child standard be an exception to negligence per se?

A

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

26
Q

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

A

The other elements of negligence

27
Q

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

A

Conclusive because sometimes even the customer is negligent

28
Q

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

A
  • that the custom was developed to avoid that type of harm
  • the custom was widespread and well-defined
  • D was a member of the community so should’ve had knowledge of the custom
29
Q

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

A

Common carrier/innkeepers and public utilities

30
Q

What is a common carrier?

A

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

31
Q

What is the standard of care for common carriers?

A

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
Q

Why is it important for common carriers to foresee and guard against danger?

A

Public-policy wants the public to be transported safely

33
Q

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

A

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

34
Q

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

A

Yes, but not for the acts of other passengers

35
Q

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

A

Expose passengers to harm

36
Q

Common carriers have an affirmative duty to what?

A

Aid passengers when they become sick or are attacked by robbers

37
Q

What are Guest Statutes?

A

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
Q

What is meant by a guest in a car?

A

A nonpaying passenger

39
Q

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

A passenger and can recover for ordinary negligence

40
Q

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

A

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

41
Q

When does the common carrier duty end?

A

Once the common carrier has finished providing service

42
Q

What is the duty of care for public utilities?

A

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
Q

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

A

Burden that a reasonable person is expected to accept