Ch. 8 Negligence & Strict Liability

Question 0

Duty of Care

Answer 0

A legal duty required the defendant to conform to the standard of conduct established for the protection of others.

Question 1

What 5 elements must be proven by the plaintiff to be an action for negligence?

Answer 1

1. ) Duty of Care
2. ) Breach of Duty
3. ) Factual Cause
4. ) Harm
5. ) Scope of Liability

Question 2

Breach of Duty

Answer 2

The defendant failed to exercise reasonable care.

Question 3

Factual Cause

Answer 3

The defendant’s failure to exercise reasonable care in fact caused the harm the plaintiff sustained.

Question 4

Scope of Liability

Answer 4

The harm sustained is within the “scope of liability,” which historically has been referred to as “proximate cause.”

Question 5

What 3 factors are considered in determining whether a given risk of harm was unreasonable?

Answer 5

1. ) The foreseeable probability that the person’s conduct will result in harm
2. ) The foreseeable gravity or severity of any harm that may follow
3. ) The burden of taking precautions to eliminate or reduce the risk of harm

Question 6

Reasonable Person

Answer 6

A fictitious individual who is always careful and prudent and never negligent

• External & Objective

Question 7

Emergency

Answer 7

A sudden & unexpected event that calls for immediate action and permits no time for deliberation

Question 8

What are 2 special relationships in which one person has some degree of control over another person?

Answer 8

1. ) A parent with dependent children

2. ) An employer with employees when the employment facilitates the employee’s causing harm to third parties

Question 9

Licensee

Answer 9

A person who is privileged to enter remain on land only by virtue of the lawful possessor’s consent

Question 10

The possessor must warn the licensee of dangerous activities and conditions:

Answer 10

1. ) Of which the possessor has knowledge or reason to know

2. ) The licensee does not and is not likely to discover

Question 11

Third Restatement

Answer 11

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:

1. ) Conduct by the land possessor that creates risks to entrants on the land
2. ) Artificial conditions on the land that pose risks to entrants on the land
3. ) Natural conditions on the land that pose risks to entrants on the land

Question 12

Trespasser

Answer 12

A person who enters or remains on the land of another without the possessor’s consent or legal privilege to do so

Question 13

How should a land possessor treat “flagrant trespassers” according to The Third Restatement?

Answer 13

The land possessor must:

1. ) Refrain from intentional, willful, or wanton conduct that harms a flagrant trespasser
2. ) Exercise reasonable care on behalf of flagrant trespassers who are imperiled & helpless

Question 14

Res Ipsa Loquitur

Answer 14

• 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

Question 15

But-For Test

Answer 15

A person’s conduct is a cause of an event if the event would not have occurred but for the person’s negligent conduct.

Question 16

Intervening Cause

Answer 16

An event or act that occurs after the defendant’s negligent conduct and with that negligence causes the plaintiff’s harm

Question 17

What must the plaintiff prove that the defendant’s negligent conduct proximately caused?

Answer 17

Harm to a legally protected interest

Question 18

Contributory Negligence

Answer 18

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

Question 19

Lasts Clear Chance

Answer 19

Final opportunity to avoid injury to the plaintiff

Question 20

Comparative Negligence

Answer 20

Negligence is measured in terms of percentage

Question 21

Pure Comparative Negligence

Answer 21

Damages are divided between the parties in proportion to the degree of fault or negligence found against them.

Question 22

Modified Comparative Negligence

Answer 22

The plaintiff recovers as in pure comparative negligence unless her contributory negligence was equal to or greater than that of the defendant.

Question 23

Express Assumption of the Risk

Answer 23

The plaintiff expressly agrees to assume the risk of harm from the defendant’s conduct.

Question 24

Implied Assumption of the Risk

Answer 24

The plaintiff voluntarily proceeds to encounter a known danger.

Question 25

Strict Liability

Answer 25

A person is held liable for injuries he has caused even though he has not acted intentionally or negligently.

Question 26

What are 2 activities that give rise to strict liability?

Answer 26

1. ) Performing abnormally dangerous activities

2. ) Keeping animals

Question 27

The Third Restatement provides that an activity is abnormally dangerous if:

Answer 27

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.

Question 28

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?

Answer 28

1. ) When an owner’s animals stray upon the land immediately adjacent to a highway on which they are being lawfully driven
2. ) In some western states, owners are not strictly liable for harm caused by their trespassing animals that are allowed to graze freely.

Question 29

Wild Animals

Answer 29

Animals that are known to be likely to inflict serious damage and that can’t be considered safe, no matter how domesticated they are

Question 30

Superseding Cause

Answer 30

An intervening cause that relieves the defendant of liability for the plaintiff’s harm

Question 31

Domestic Animals

Answer 31

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.