Ch. 8 Negligence & Strict Liability Flashcards
Duty of Care
A legal duty required the defendant to conform to the standard of conduct established for the protection of others.
What 5 elements must be proven by the plaintiff to be an action for negligence?
- ) Duty of Care
- ) Breach of Duty
- ) Factual Cause
- ) Harm
- ) Scope of Liability
Breach of Duty
The defendant failed to exercise reasonable care.
Factual Cause
The defendant’s failure to exercise reasonable care in fact caused the harm the plaintiff sustained.
Scope of Liability
The harm sustained is within the “scope of liability,” which historically has been referred to as “proximate cause.”
What 3 factors are considered in determining whether a given risk of harm was unreasonable?
- ) The foreseeable probability that the person’s conduct will result in harm
- ) The foreseeable gravity or severity of any harm that may follow
- ) The burden of taking precautions to eliminate or reduce the risk of harm
Reasonable Person
A fictitious individual who is always careful and prudent and never negligent
• External & Objective
Emergency
A sudden & unexpected event that calls for immediate action and permits no time for deliberation
What are 2 special relationships in which one person has some degree of control over another person?
- ) A parent with dependent children
2. ) An employer with employees when the employment facilitates the employee’s causing harm to third parties
Licensee
A person who is privileged to enter remain on land only by virtue of the lawful possessor’s consent
The possessor must warn the licensee of dangerous activities and conditions:
- ) Of which the possessor has knowledge or reason to know
2. ) The licensee does not and is not likely to discover
Third Restatement
Adopts a unitary duty of reasonable care to entrants on the land
A land possessor owes a duty of reasonable care to entrants on the land with regard to:
- ) Conduct by the land possessor that creates risks to entrants on the land
- ) Artificial conditions on the land that pose risks to entrants on the land
- ) Natural conditions on the land that pose risks to entrants on the land
Trespasser
A person who enters or remains on the land of another without the possessor’s consent or legal privilege to do so
How should a land possessor treat “flagrant trespassers” according to The Third Restatement?
The land possessor must:
- ) Refrain from intentional, willful, or wanton conduct that harms a flagrant trespasser
- ) Exercise reasonable care on behalf of flagrant trespassers who are imperiled & helpless
Res Ipsa Loquitur
- Means “the thing speaks for itself”
- Rule that applies when the accident causing the plaintiffs physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors in which the defendant is the relevant member
But-For Test
A person’s conduct is a cause of an event if the event would not have occurred but for the person’s negligent conduct.
Intervening Cause
An event or act that occurs after the defendant’s negligent conduct and with that negligence causes the plaintiff’s harm
What must the plaintiff prove that the defendant’s negligent conduct proximately caused?
Harm to a legally protected interest
Contributory Negligence
Conduct on the part of the plaintiff that falls below the standard to which he should conform for his own protection and that is a legal cause of the plaintiff’s harm
Lasts Clear Chance
Final opportunity to avoid injury to the plaintiff
Comparative Negligence
Negligence is measured in terms of percentage
Pure Comparative Negligence
Damages are divided between the parties in proportion to the degree of fault or negligence found against them.
Modified Comparative Negligence
The plaintiff recovers as in pure comparative negligence unless her contributory negligence was equal to or greater than that of the defendant.
Express Assumption of the Risk
The plaintiff expressly agrees to assume the risk of harm from the defendant’s conduct.
Implied Assumption of the Risk
The plaintiff voluntarily proceeds to encounter a known danger.
Strict Liability
A person is held liable for injuries he has caused even though he has not acted intentionally or negligently.
What are 2 activities that give rise to strict liability?
- ) Performing abnormally dangerous activities
2. ) Keeping animals
The Third Restatement provides that an activity is abnormally dangerous if:
1.) The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors.
AND
2.) The activity is not one of common usage.
What are the 2 exceptions to the rule that owners of animals are subject to Strict Liability for any physical harm their animals cause by trespassing on the property of another?
- ) When an owner’s animals stray upon the land immediately adjacent to a highway on which they are being lawfully driven
- ) In some western states, owners are not strictly liable for harm caused by their trespassing animals that are allowed to graze freely.
Wild Animals
Animals that are known to be likely to inflict serious damage and that can’t be considered safe, no matter how domesticated they are
Superseding Cause
An intervening cause that relieves the defendant of liability for the plaintiff’s harm
Domestic Animals
Animals that are traditionally devoted to the service of humankind and as a class are considered safe
• Owners of domestic animals are subject to strict liability if they know about their pet’s dangerous tendencies abnormal for the animal’s category.
—The animal’s dangerous propensity must be the cause of harm.
