Elements of Negligence

Question 1

Elements of Negligence

Answer 1

Duty
Breach
Causation
Damages

Question 2

General Rule for Duty

Answer 2

(a) to foreseeable plaintiffs (within zone of danger or rescuers)
(b) reasonable person standard, unless special skill, knowledge or physical attributes

Question 3

Duty of Children

Answer 3

(a) Under the age of 5 = no duty
(b) 5-18 years of age = similar age, intelligence, & experience
(c) adult activity = reasonable person standard

Question 4

Duty of Professionals

Answer 4

Average person in same job in similar community

Question 5

Duty of Medical Professional s

Answer 5

National standard of care

Question 6

Duty of Landowners:

Undiscovered trespasser

Answer 6

NO DUTY

Question 7

Duty of Landowners:

Discovered Trespassers

Answer 7

Duty to warn of known, man-made death traps

duty not to injure intentionally

Question 8

Duty of Landowners

Licesee

Answer 8

Duty to warn of known traps

Question 9

Duty of Landowners

Invitee

Answer 9

Duty to warn of knowable traps

Question 10

Negligent Infliction of Emotional Distress

Answer 10

(a) Plaintiff is zone of danger;
(b) Physical symptoms of distress;
(c) exceptions:
1. Bystander (family at scene and perceive it)
2. Special Relationship

Question 11

Affirmative Duty

Answer 11

(a) special relationship

(b) Defendant created peril

Question 12

Causation

Answer 12

1. Cause in Fact

2. Proximate Cause

Question 13

Types of Cause in Fact

Answer 13

(a) “but for”;
(b) ‘substantial factor’ (could’ve cause harm by itself);
(c) alternative causes (Defendant have burden of proving lack of fault)

Question 14

Proximate Cause

Answer 14

(a) “Foreseeability”
(b) intervening medical negligence;
(c) negligent rescue;
(d) reactionary forces;
(e) subsequent accident/injuyr

Question 15

Damages

Answer 15

1. Compensatory
2. Punitive (willful and wanton conduct)
3. Restrictions: attorney fees and interest
4. Eggshell Plaintiff: Take him as you find him

Question 16

Defenses

Answer 16

1. Contributory Negligence
2. Assumption of Risk
3. Comparative Negligence

Question 17

Contributory Negligence

Answer 17

(a) no liability if Plaintiff at fault;

(b) Last Clear Chance- last person who had chance to avoid accident is liable despite plaintiff’s negligence

Question 18

Assumption of Risk

Answer 18

(a) Plaintiff knew of risk and appreciated it

(b) Plaintiff voluntarily assumed risk

Question 19

Comparative Negligence

Answer 19

(a) Pure- Plaintiff’s negligence set off;

b) partial/modified- Plaintiff’s negligence set off, unless more 51% or more (no recovery