Ch. 8: Negligence and Strict Liability

Question 1

Negligence

Answer 1

conduct that falls below the standard established by law for the protection of
others against unreasonable risk of harm.

Question 2

Duty Of care

Answer 2

A person is under a duty to all others at all times to exercise reasonable care for the safety of the others’ person and property; however, except in special circumstances, no one is under a general duty to (1) avoid the unintentional infliction of economic loss or (2) aid another in peril.

Question 3

Reasonable person standard

Answer 3

Degree of care that a reasonable person would exercise under all the circumstances.

Question 4

Reasonable person standard: Children

Answer 4

Must conform to conduct of a reasonable person of the same age, intelligence, and experience under all the circumstances.

Question 5

Reasonable person standard: Physical disability

Answer 5

A disabled person’s conduct must conform to that of a reasonable person under the same disability.

Question 6

Reasonable person standard: Mental disability

Answer 6

A mentally disabled person is held to the reasonable person standard of a reasonable person who is not mentally deficient.

Question 7

Reasonable person standard: Superior skill or knowledge

Answer 7

If a person has skills or knowledge beyond those possessed by most others, these skills or knowledge or circumstances to be taken into account in determining whether the person has acted with reasonable care.

Question 8

Reasonable person standard: Standard for emergencies

Answer 8

The reasonable person standard applies, but an unexpected emergency is considered part of the circumstances.

Question 9

Reasonable person standard: Violation of statute

Answer 9

If the statute applies, the violation is negligence per se in most states.

Question 10

second reinstatement

Answer 10

a land possessor owes the following duties: (1) not to injure trespassers
intentionally, (2) to warn licensees of known dangerous conditions licensees are unlikely to discover
for themselves, and (3) to exercise reasonable care to protect invitees against dangerous conditions land
possessor should know of but invitees are unlikely to discover.

Question 11

third reinstatement

Answer 11

adopts a unitary duty of reasonable care to all entrants on the land except for
flagrant trespassers: a land possessor must use reasonable care to investigate and discover dangerous conditions and must use reasonable care to eliminate or improve those dangerous conditions that are known or should have been discovered by the exercise of reasonable care.

Question 12

Res Ipsa Loquitur

Answer 12

“the thing speaks for itself”

Permits the jury to infer both negligent conduct and causation.

Question 13

but-for test

Answer 13

The defendant’s conduct is a factual cause of the harm when the harm would not have occurred absent the conduct.

Question 14

Scope of liability (Proximate Cause)

Answer 14

Liability is limited to those harms that result from the risks that made the defendant’s conduct tortious.

Question 15

Foreseeability

Answer 15

Excludes liability for harms that were sufficiently unforeseeable at the time of the defendant’s tortious conduct that they were not among the risks that made the defendant negligent.

Question 16

Superseding cause

Answer 16

An intervening act that relieves the defendant of liability.

Question 17

Burden of proof

Answer 17

Plaintiff must prove that defendant’s negligent conduct caused harm to a legally protected interest.

Question 18

Harm to legally protected interest

Answer 18

Courts determine which interests are protected from negligent interference.

Question 19

Contributory negligence

Answer 19

Acting below the reasonable person standard.

Failure of a plaintiff to exercise reasonable care for his own protection, which in a few states prevents the plaintiff from recovering anything.

Question 20

Comparative negligence

Answer 20

Damages are divided between the parties in proportion to their degree of negligence; applies in almost all states.

Question 21

Assumption of risk

Answer 21

Plaintiff’s express consent to encounter a known danger; some states still apply implied assumption of the risk.

Question 22

Strict liability

Answer 22

Liability for non-intentional and non-negligent conduct.

Question 23

Abnormally dangerous activity

Answer 23

Strict liability is imposed for any activity that (1) creates a foreseeable and highly significant risk of harm and (1) is not one of common usage.

Question 24

Activities giving rise to strict liability: Keeping of animals

Answer 24

Strict liability is imposed for wild animals and usually for trespassing domestic animals.

Question 25

Defenses to strict liability: Contributory negligence

Answer 25

Is not a defense to strict liability.

Question 26

Defenses to strict liability: Comparative negligence

Answer 26

Some states apply this doctrine to some strict liability cases.

Question 27

Defenses to strict liability: Assumption of risk

Answer 27

Express assumption of risk is a defense to an action based upon strict liability; some states applied implied assumption of risk to strict liability cases.

Question 28

Emergency

Answer 28

Sudden, unexpected event calling for immediate action.

Question 29

Negligence per se

Answer 29

Conclusive on the issue of negligence (duty of care and breach)

Question 30

Duty to act

Answer 30

A person is under a duty to all others at all times to exercise reasonable care for the safety of the others’ person and property; however, except in special circumstances, no one is required to aid another in peril.

Question 31

Trespasser

Answer 31

Person who enters or remains on the land of another without permission or privilege to do so.

Question 32

Licensee

Answer 32

Person privileged to enter or remain on the land by virtue of the consent of the lawful possessor.

Question 33

Invitee

Answer 33

Person invited upon land as a member of the public or for a business purpose.

Question 34

Factual cause

Answer 34

Liability for the negligent conduct of a defendant requires that his conduct in fact caused harm to the plaintiff.

Question 35

Last clear chance

Answer 35

-Final opportunity to avoid an injury.

In certain jurisdictions, despite contributory negligence of the plaintiff if the defendant had a last clear chance to avoid injury but did not avail himself of such chance, the contributory negligence of the plaintiff does not bar his recovery of damages.