A. Negligence Flashcards
How much can Plaintiff recover for personal injury/property injury/wrongful death?*
Pure comparative negligence
- P can recover the amount D is liable for
When may D assert defences?*
Contributory negligence
- D may recover X% from Co-Defendants (which D is NOT liable for)
Assumption of risk
- Implied
- Express (P voluntarily assumes known risk of injury)
When does D voluntarily assume risk in participation in sports/recreational activities?
Risks inherent in + arise out of;
- Nature of the sport generally
- Flowing from participation
What does violation of a state statute that ‘imposes specific duty’ constitute?*
Negligence per se
Violation of municipal ordinance/administrative rule/regulation
What is the Landowner’s duty towards premises?*
1) Act as reasonable person
2) Maintain premises in reasonably safe condition
3) In view of all circumstances
- Likelihood of injury to others
- Seriousness of injury
- Burden of avoiding risk
4) To ALL parties
- Invitees
- Licensees
- Trespassers
When does Landowner owe duty for recreational uses?*
Avoid wilful/malicious failure to guard/warn vs;
- Dangerous condition
- Injury suffered where permission to use property was granted for consideration
NO duty to keep premises safe for entry/use for;
- Hunting
- Fishing
- Boating
- Hiking
- Cross-country skiing
- Sledding
- Snowmobile operation
NO duty to give warning vs hazardous condition
What is the rule of liability for negligent actions by parents on behalf of children?*
Foreseeable harm resulting from Child’s use of dangerous instrument on TP
- TP can bring action vs Parent
Negligent supervision
- Children/TP tortfeasors can NOT bring action vs Parents
What is required for negligent infliction of emotional distress?*
1) P witnessed injury to P’s ‘immediate’ family member
2) P was in ‘zone-of-danger’
- Exposed to ‘unreasonable’ risk of injury due to D’s conduct
What damages can P recover from negligent infliction of emotional distress?
1) Injuries suffered in consequence of shock/fright
2) Resulting from contemporaneous observation
3) Of serious physical injury/death of P’s immediate family
When can P (Mother) recover damages for emotional distress from medical malpractice?*
Miscarriage
Stillbirth
Even in absence of independent injury to P
What is the standard of care owed by Contractors/Owners/Agents to construction workers?*
1) Must furnish/erect
- Scaffolding
- Hoists
- Stays
- Ladders
2) To give proper protection to workers in building/structure
- Erection
- Demolition
- Repairing
- Altering
- Painting
- Cleaning
- Pointing
Does Plaintiff’s comparative fault towards Contractors’ breach of duty towards construction workers reduce P’s recovery?
NO
UNLESS D is Owner of 1-2 family dwellings who contract for work (NOT direct/control work)
When may Owner/Contractor/Agent be liable towards Construction Workers?*
1) Elevation-related injury
- Falling object
- Falling worker
2) Due to absence/improper use of required safety device
D is ‘absolutely’ liable (P’s negligence can NOT be used as defence)
- Cleaning
- Pointing
- Repairing
D is liable (P’s negligence can be used as defence)
- Construction
- Demolition
- Excavation
What is required for liability of sale/assistance in unlawful sale of alcohol to others?*
1) Commercial sale of alcohol
2) Unlawful sale
- To minor
- To visibly intoxicated person
- To habitual drunkard
3) Injury to
- Person
- Property
- Means of support
What damages may be recovered from unlawful sale of alcohol?
Actual damages
Exemplary damages
Who else may liability of unlawful sale of alcohol extend to?*
Social host
1) Knowingly causes intoxication towards person under 21
2) Either;
- By furnishing (must be deliberate plan)
- Assisting in procuring alcohol to Minor
What is required for Vehicle Owner to be vicariously liable?*
1) D negligently used/operated vehicle
2) Caused P’s death/injury OR property’s injury
3) With Owner’s permission (express/implied)
- UNLESS rebutted otherwise (by substantial evidence)
What is required for liability of Parents towards child’s actions?*
1) Child is at least 10 years old
2) Child wilfully/maliciously/unlawfully
3) Damages/Destroys/Defaces property (public/private)
FYI Parent’s liability will be limited to $5,000
What damages may Personal Representative of Decedent’s estate recover in wrongful death action?*
1) Pecuniary losses suffered
- Loss of financial contribution to Family (wages/potential pension benefits)
- Loss of guidance/companionship
- NOT proceeds of wrongful death action
- NOT grief
2) By Decedent’s ‘Distributees’
- Distributed to Heirs at law
When may duty to speak with care arise?
X party would justifiably rely upon Y party for information
What is required for liability towards negligent misrepresentation in commercial transactions?
1) Special relationship between parties
2) Giving rise to exceptional duty to commercial speech
3) Justifiable reliance on commercial speech
- D holds unique/special expertise
- Special relationship of trust/confidence
- D was aware of purpose of info + D supplied info for that purpose
What is required for Accountant (D) to be liable for inaccurate financial records?
1) NO privity of contract
2) D held special/unique expertise
3) P detrimentally relied on D’s inaccurate financial reports
4) D was aware that the financial reports would be used for particular purpose
5) Known party (P) was intended to rely on reports (in furtherance of particular purpose)
6) D’s conduct linked him to P (which proves D’s understanding of P’s reliance)
