2. Negligence Flashcards
Section A: Duty
What is a Defendant’s Duty of Care to Foreseeable Plaintiffs?
A defendant has a duty to foreseeable plaintiffs within the zone of the danger.
Can an unconscious person be liable for acts that he has no control over due to his medical condition?
An unconscious person isn’t liable for uncontrollable acts unless a foreseeable medical condition caused the blackout and no precautions were taken.
What is a Defendant’s Duty of Care when their conduct places the plaintiff in peril or requires aid?
A defendant must aid a plaintiff if their conduct placed the plaintiff in peril or needing assistance.
Is a defendant liable if they Assist or Encourage Others to Breach a Duty of Care?
Yes. A person is liable as a joint tortfeasor if they know another’s act breaches a duty and substantially assists or encourages the breach.
Does a Defendant have a general Duty of Care to take Affirmative Action to aid a plaintiff?
No. A defendant generally has no duty to aid a plaintiff if they didn’t create the risk, but certain situations may impose an affirmative duty.
What are four situations where a defendant has a duty of Care to take affirmative action to aid a plaintiff?
- Defendant’s Continuing Risk of Harm
- Duty Based on Undertaking
- Statutory Obligation
- Special Relationship with a plaintiff.
What is a Defendant’s Duty of Care when they create a continuing Risk of Harm to a plaintiff?
A defendant has a duty to exercise reasonable care to prevent or minimize harm if their prior conduct creates a continuing risk.
What is a Defendant’s Duty of Care Based on Undertaking services to a plaintiff?
A defendant who undertakes to render services to a plaintiff must exercise reasonable care if:
1. Failing to do so increases the risk of harm
2. The plaintiff or another relies on the defendant’s care.
What is a Defendant’s Duty of Care under a Statutory Obligation?
Where a statute imposes an obligation to protect, a court will rely on that statute to determine whether an affirmative duty exists and what the scope of that duty may be.
What is a Defendant’s Duty of Care under a Special Relationship with Plaintiff?
A person in a special relationship with another has an affirmative duty of reasonable care to the other with regard to risks arising within the scope of that relationship.
What if the defendant occupies a position of power over the plaintiff?
If the defendant occupies a position of power over the plaintiff, there is a duty to take action.
What relationships generally trigger the duty to care for the plaintiff?
- Employer-employee during and in the scope of employment
- Common carrier and innkeeper-customer
- School-pupil
- Parent-child
- Landlord-tenant (with respect to common areas under the landlord’s control)
- Business-patron
- Those in a custodial relationship.
What is a Defendant’s Duty of Care to Control Third Parties?
There is no duty to control a third person’s conduct to prevent harm unless a special relationship exists, imposing a duty to control or protect.
Does a Psychotherapist have a Duty of Care to an Intended Victim of Harm by their Patient?
Yes. A therapist must exercise reasonable care to protect and adequately warn the intended victim of a known dangerous patient.
a vague warning is insufficient.
Does a medical professional have a duty to warn others of the patient’s Harm to themselves?
No. If the medical professional only has reason to believe that the patient is dangerous to himself, then the professional has no duty to warn others.
What is a Parent’s Duty of Care to Control their Minor Child?
A parent can be liable for failing to supervise or control a minor child who commits harm if:
1. They had the ability to control/supervise the child
2. They must have known or had reason to know that the child needed to be controlled/supervised.
What is a Parent’s Duty of Care to control their Minor Child with a Dangerous Instrumentality?
A parent is liable if they negligently allow their child to access a dangerous instrumentality, knowing the child’s propensity for the specific dangerous activity.
What is a Master’s Duty of Care to Control their Servant while acting outside the scope of Employment?
A master must exercise reasonable care to control a servant acting outside their employment to prevent harm if:
1. The servant is on the master’s premises or using the master’s chattel
2. The master knows or should know they can control the servant and that control is necessary.
What is a Defendant’s Duty of Care when they permit a third person to use their personal property?
A defendant must control and exercise due care when permitting a third person to use their property.
What is the Duty of Care for a Governmental Entity acting in a Proprietary function?
A government engaged in a proprietary function, acting like a private entity, is treated as any other defendant regarding duty.
What is the Duty of Care for a Governmental Entity acting in a Discretionary function?
When the governmental entity is engaged in a discretionary activity, the court will not find a duty.
What is the Duty of Care for a Governmental Entity acting in a ministerial function?
When the governmental entity is acting in a ministerial function, courts will find a duty once the governmental entity has undertaken to act, it must do so non-negligently.
What is the Public Duty Doctrine?
Under the public duty doctrine, a government agency has no duty for an inadequate response unless:
1. There has been reliance on the agency’s response
2. A special relationship exists
3. The agency increased the danger.
What is Negligent Infliction of Emotional Distress?
To recover for negligent infliction of emotional distress, the plaintiff must:
1. Have been in the zone of danger
2. Have suffered some accompanying physical manifestation of the emotional distress.
What are Two additional Exceptions where a plaintiff can recover for negligent infliction of emotional distress?
A plaintiff can recover if:
1. The defendant negligently communicates the announcement of the death of a loved one
2. The defendant negligently mishandles a corpse.
How can plaintiff recover for under Negligent Infliction of Emotional Distress under a bystander theory?
A plaintiff may recover for negligent infliction of emotional distress under a bystander theory if:
1. He is present at the scene and witnessed the event
2. He is a close relative of the third party/victim
3. He suffered severe emotional distress as a result.
What is the Duty of Care for Landowners?
A landowner must exercise reasonable care to activities conducted on his land.
Does a Landowner owe a Duty of care to Unknown Trespassers?
No. A landowner owes no duty of care as to a trespasser whose presence is unknown to him or unanticipated.
Does a Landowner have a Duty of Care to Inspect his Land for Unknown Trespassers?
No. A landowner owes no duty to inspect his land to attempt to discover unknown trespassers.
What is a Landowner’s Duty of Care to Known Trespassers?
A landowner’s duty to known trespassers is to exercise reasonable care to:
1. Protect them from injuries deriving from ARTIFICIAL activities conducted on the land
2. Warn of hidden dangers.
Does a Landowner have a Duty of Care to Known Trespassers from injuries deriving from Natural Conditions?
No. The landowner has no duty to protect a known or frequent trespasser from injuries deriving from natural conditions on his land.
What is the attractive nuisance doctrine?
Under the attractive nuisance doctrine, a landowner is liable for harm to child trespassers from an artificial condition if:
1. They know children are likely to trespass
2. They know the condition poses a serious risk to children
3. Children cannot recognize the risk due to their immaturity
4. The burden to eliminate the risk is small compared to the danger
5. The landowner fails to exercise reasonable care to protect the children.
When does a Landowner owe no Duty of Care to Child Trespassers?
The landowner owes no heightened duty to prevent injury to a child trespasser if the child is:
1. Aware of the dangerous condition
2. Understands the risk of danger it poses
3. Able to avoid the risk.
What is a Landowner’s Duty of Care to Protect Plaintiffs Not on the Land?
A landowner must exercise reasonable care to prevent injury to off-land plaintiffs from activities on their land.
What is a Landowner’s Duty of Care to Protect a Passerby on a Public Street?
A landowner must exercise reasonable care to protect passersby on a public street from injury only deriving from dangerous artificial conditions on his land, not natural conditions.
What is a Licensee?
A licensee is someone who enters the defendant’s land with permission but not for the defendant’s benefit.
What is a Landowner’s Duty of Care of a Licensee?
A landowner’s duty to a licensee is to:
1. Exercise reasonable care to protect them from activities on the land
2. Exercise reasonable care to discover unknown licensees
3. Warn of known artificial conditions posing an unreasonable danger.
What is an Invitee?
An ‘invitee’ enters premises by express or implied invitation of the landowner. There are two types:
* Public invitees
* Business invitees.
What is a Landowner’s Duty of Care to an Invitee?
A landowner’s duty to an invitee is to:
1. Exercise reasonable care to prevent injury from activities on the land
2. Discover hidden dangerous conditions
3. Warn invitees or make dangerous conditions safe.
What is a Seller’s Duty of Care in Selling Land to a purchaser?
A seller must disclose to a buyer any hidden dangerous conditions that:
1. The seller knows or should know
2. The buyer likely won’t discover
3. Pose an unreasonable risk to the buyer’s invitees, licensees, or others off the land.
What is a Seller’s Duty of Care when they actively conceal the existence of a dangerous condition?
If a seller actively conceals a dangerous condition, they must disclose it until the buyer discovers and remedies it.
What is the general rule for Standard of Care?
In general, a defendant owes a duty of standard care to conduct himself as a reasonable person would in the same circumstances.
What is the Standard of Care for a person’s superior knowledge and skill?
A person with superior knowledge, skill, or intelligence must act consistently with it.
What are the requirements for Negligence Per Se?
Negligence per se requires:
1. A criminal or regulatory statute/ordinance/law with a penalty for breach
2. The defendant violated that law
3. The harm caused was the type intended to be protected by the law
4. The plaintiff was in the protected class of individuals
5. The violation proximately caused harm to the plaintiff.
What are common defenses against Negligence Per Se?
The defendant may rebut by demonstrating:
1. Compliance with the law would cause more harm than violating it
2. The defendant was incapacitated or could not comply with the law.
What is the Standard of Care for Children engaging in adult activities?
Children engaging in adult activities are required to conform to an adult standard of care.
What is the Standard of Care for Professionals?
Professionals are held to the standard of care of an average member of the profession or specialist in a similar community.
What is the General Rule for a Defendant’s Breach of Duty?
The plaintiff must show by a preponderance of the evidence that the defendant likely breached the standard of care.
What is Res Ispa Loquitur?
Res Ipsa Loquitur allows the jury to infer the defendant’s breach if:
(i) an inference of negligence (i.e., that the accident causing the injury is the type that would not normally occur unless someone in the defendant’s position was negligent);
(ii) negligence attributable to the defendant (i.e., evidence that this type of accident normally happens because of negligence, such as that the instrumentality that caused the injury was in the defendant’s exclusive control); and
(iii) that the plaintiff is free from negligence, meaning the injury was not attributable to him.
How can a defendant rebut Res Ipsa Loquitur?
If the defendant rebuts the res ipsa showing with evidence that he did exercise due care, it has the same effect as in all other cases.
In that scenario, the jury may either find that the defendant’s evidence overcomes the plaintiff’s res ipsa showing and decline to infer liability, or it may reject the defendant’s evidence and draw the permissible inference of negligence, finding for the plaintiff.
Even if the defendant rests without offering evidence, the jury may still elect not to infer negligence.
What is the general rule for Cause-In-Fact?
Actual cause means the cause-in-fact of the injury.
What are the three cause-in-fact tests?
The three tests are:
1. But-For Test
2. Substantial Factor Test
3. Alternative Liability Theory.
What is the But-For Test?
The defendant’s conduct is the cause-in-fact of the event if that event would not have occurred but for the existence of the conduct.
What is the Substantial Factor Test?
Multiple defendants’ actions are cause-in-fact if each could directly cause the injury and they substantially contributed to it.
What happens if there are multiple negligent parties that contributed to plaintiff’s harm?
When multiple negligent parties contribute to the plaintiff’s indivisible harm, they are jointly and severally liable.
The plaintiff can recover fully from any defendant, who can then seek contribution from others.
Joint and several liability applies when defendants’ combined acts cause a single, indivisible injury.
What is the Alternative Liability Theory?
Under this doctrine, when harm was caused by one of multiple defendants, but it’s unclear who, the court can shift the burden of proof to the defendants.
What is the Defendant’s Duty of Care for purposes of Proximate Cause?
A defendant owes a duty of reasonable care only to foreseeable plaintiffs which are those individuals who are within the risk of harm created by the defendant’s unreasonable conduct.
What is the General Rule for a Defendant’s Unforeseeable Extent of Harm?
A defendant is liable if their conduct substantially causes harm, even if they couldn’t foresee the extent of the harm.
What does the Eggshell Skull Plaintiff Rule state?
A defendant is fully liable for a plaintiff’s injury, even if the harm was more severe due to the plaintiff’s unknown susceptibility.
What is a Superseding Cause?
A superseding cause is an unforeseeable event that breaks the chain of causation, relieving the original tortfeasor of liability.
What are commonly occurring examples of superseding causes?
Examples include:
1. Naturally occurring phenomena
2. Criminal acts of third persons
3. Intentional torts of third persons
4. Extraordinary forms of negligent conduct.
What is an intervening force?
An intervening force actively causes harm after the actor’s negligent act or omission.
What is a defendant’s liability for foreseeable intervening forces?
A defendant will be held liable for harm caused by foreseeable intervening forces.
What is a defendant’s liability for proximate cause to Rescuers?
Because rescuers are foreseeable, the original tortfeasors will be held liable for the ordinary negligence of the rescuer.
What is a defendant’s liability for proximate cause to a Plaintiff’s treating physician or nurse?
The original tortfeasor is usually held liable for the ordinary negligence of the plaintiff’s treating physician or nurse as they are foreseeable plaintiffs.
What is a defendant’s liability for proximate cause for diseases contracted or subsequent injuries sustained because of the impairment of plaintiff’s health?
the original tortfeasor is usually held liable for diseases contracted or subsequent injuries sustained because of the impairment of the plaintiff’s health resulting from the original injury caused by the defendant’s tortious conduct.
What is a defendant’s liability for proximate cause for negligent efforts to protect life or property interests endangered by his negligence?
A defendant will be held liable for negligent efforts on the part of persons to protect life or property interests endangered by his negligence.
What is a defendant’s liability for proximate cause when a plaintiff suffers a subsequent injury after the original injury?
In situations where the plaintiff suffers a subsequent injury after the original injury, and the original injury was a substantial factor in causing the second accident, the original tortfeasor is held liable for damages.
What is a defendant’s liability for proximate cause for Negligent Rescue Efforts?
A negligent defendant owes an independent duty of care to a rescuer.
Even where the rescue efforts are done negligently, the negligent defendant will be liable for both personal injury and property damage, whether the rescuer succeeds in injuring himself, the person rescued, or a stranger.
Firefighter’s rule
The firefighters’ rule bars only claims for injuries that result from risks that are unique or special to the plaintiff’s inherently dangerous work.
What is the general rule for damages in claiming Negligence?
A plaintiff must affirmatively prove actual damages.
What is the Collateral Source Rule?
Collateral payments or benefits to the plaintiff are not credited against the tortfeasor’s liability.
What are four collateral benefits not subtracted from the plaintiff’s recovery?
They include:
* Insurance policies
* Employment benefits
* Gratuities
* Social legislative benefits.
What is Contributory Negligence?
Contributory negligence is when the plaintiff’s actions, below the expected standard, also contribute to their harm.
How does a defendant prove Contributory Negligence?
The defendant must prove by a preponderance of the evidence that the plaintiff fell below the relevant standard of care.
Can a defendant assert Contributory Negligence when a plaintiff acts in an emergency situation?
No, actions in emergencies are often viewed as reasonable.
Can a defendant assert contributory negligence when a plaintiff acts in an emergency situation?
No. Risks or dangerous acts undertaken by a plaintiff that might otherwise be regarded as contributory negligence are often viewed as reasonable in an emergency or if the plaintiff is attempting to rescue someone.
Can a defendant ever be held liable despite the plaintiff’s contributory negligence?
Yes. A defendant is liable despite the plaintiff’s contributory negligence if they know the plaintiff is inattentive, unlikely to avoid harm, and fail to exercise reasonable care.
Can a defendant assert contributory negligence when they violate a civil or criminal statute?
No. Contributory negligence isn’t a defense if the defendant’s negligent act violates the same statute protecting the plaintiff, and the harm is the type the statute aims to avoid.
What is the Last Clear Chance Doctrine?
The last clear chance doctrine allows recovery, despite the plaintiff’s contributory negligence, if the defendant had the last opportunity to avoid harm through due care.
If the defendant is aware that his breach of duty has placed the plaintiff in danger, what is available to the plaintiff?
The last clear chance doctrine is always available to the plaintiff.
When is the Last Clear Chance Doctrine not available to the plaintiff?
If the defendant is not aware that the plaintiff is in danger and the plaintiff is in ‘inattentive peril’ rather than ‘helpless peril’, the plaintiff will be denied from using the last clear chance doctrine.
What is Inattentive Peril?
A plaintiff is in inattentive peril if their negligence places them in danger they could escape by being observant.
What is Helpless Peril?
A plaintiff in helpless peril, unable to escape due to their negligence, can use the last clear chance doctrine if the defendant knew or should have known of the danger.
What is Comparative Negligence?
In modern comparative negligence, a plaintiff’s contributory negligence allows total damages to be apportioned based on each party’s relative fault.
What is Pure Comparative Negligence?
Under Pure Comparative Negligence, a plaintiff’s damages will be reduced in proportion to his own fault.
In Pure Comparative Negligence, if a defendant is 25% responsible and a plaintiff is 75% responsible, how much can the plaintiff recover?
The plaintiff recovers from the defendant 25% of the total damages she suffered.
What is Partial Comparative Negligence?
Under Partial Comparative Negligence, damages are apportioned only if the defendant’s responsibility exceeds the plaintiff’s responsibility.
What happens if the plaintiff is responsible for 50% or more of his own damages under Partial Comparative Negligence?
The plaintiff is denied any recovery.
What is the Aggregate System of Comparative Negligence?
If there are two or more defendants who are not jointly liable, the aggregate system provides that the plaintiff does not recover anything if her responsibility exceeds the total percentage responsibility of all the defendants combined.
What is the Individual Equality System of Comparative Negligence?
If there are two or more defendants who are not jointly liable, the Individual Equality system provides that a plaintiff does not recover anything if his responsibility exceeds that of any single defendant.
What is Assumption of Risk?
A plaintiff ‘assumes the risk’ of injury from a defendant’s negligence if the plaintiff expressly or impliedly consents to undergo the risk created by the defendant’s conduct.
What is Express Assumption of Risk?
A plaintiff may expressly assume the risk of a defendant’s negligent or reckless conduct by contract or otherwise.
What are the three requirements for express assumption of risk?
- The plaintiff must be aware of and understand the terms
- The injury that occurs must be within the risks of which the plaintiff agreed to relieve the defendant
- The agreement must not be contrary to public policy.
What is Implied Assumption of Risk?
A plaintiff is barred from recovery, or recovery will be reduced, under the implied assumption of the risk doctrine if the defendant establishes that:
1. The plaintiff had knowledge of and appreciated the nature of the danger involved
2. The plaintiff appreciated the specific danger that injured him
3. The plaintiff voluntarily chose to subject himself to that danger.
What are the exceptions to enforceability of express assumption of risk?
- When the party protected by the clause either intentionally causes the harm or causes it by reckless or grossly negligent conduct
- When the bargaining power of the protected party is grossly greater than the other party
- When there is an overriding public interest that demands the court refuse to enforce the exculpatory clause.
In what scenario will a court typically enforce an exculpatory clause in a contract?
Where a good or service is offered by a relatively unregulated private company and there are a number of competitors offering the plaintiff substantially the same good or service.
