final af Flashcards
common law neg (identify conduct)
- duty
*owed?
*reasonable variation - Breach
*foreseeable risk
*feasible alternative - cause in fact
*but-for - proximate caise
*person
*manner
*typer
all within the risk
reasonable variations
- reasonable person under the same circumstance
- person with same physical impairment
- professional
- child with like characteristics (unless doing an adult activity)
neg per se (identify conduct)
- applicable statute
*clear standard
*plain meaning or legislative intent
*type of harm, class or persons - Compliance?
- Excuse?
- Cause in fact
- Proximate cause
*person, manner, type
Excuses for neg per se
- child, actors incapacity
- no reason to know
- impossible to comply
- emergency that you did not create
- compliance would create a greater harm
Res Ispa Loquitur
- Duty
*owed?, reasonable variation - does not occur absent negligence
- cause in fact by eliminate other causes (control of the instrumentality)
- assumption of negligence
contributory neg
*plaintiffs can be contri neg to their own injury
*measured by duty, breach, cause in fact, proximate cause
*only for common law & neg per se
last clear chance
*under common law
*if a plaintiff was contributory neg they were barred
unless 1. the defendant saw they had 2. the last clear chance to avoid the injury of the 3. helpless plaintiff
*then the plaintiff recovered everything
modern view contri. neg
jury assigns percentages which are comparative neg
exceptions for contrib neg.
- defendants duty involves protective against known risks (like a manufactuer or employer)
- Rescuer
- Strict liability
- Children, unless doing an adult activity
rescuers (6 points)
- no duty to rescue
- if rescuing, cannot leave worse off
- if a professional outside of their job, there is a duty
- no duty unless special relationship (like parent)
- cannot willfully injure
- whoever created the risk is responsi for rescuers injury
intervening cause
when there is a first act of negligence and then a second person acts (could be neg or not)
*second act is foreseeable and does not take away liability from the first actor
supervening/superseeding case
*when the act is unforeseeable, then the first actor is relieved of liability
* creates an injury that is not a result within the first actors risk
assumption of the risk (4 points)
- can be expressed or implied
- voluntarily assuming a known risk
- disregard and act
- primary (inherent of the activity) or secondary (enhanced by negligence)
limits to assumption of risk
*comparative fault
*cant assume the defendants negligence
zone of danger
- negligent act
- no injury
- plaintiff was within the zone of danger (immediate risk of injury)
(some jurisdictions require a physical manifestation)
Bystander
- negligent act
- no injury
- “immediate family”
- close enough for contemperaneous observance
- actually observe it or instantaneous observation after
(some jurisdictions require a physical manifestation)
landowner duty (overall)
a duty can be owed, owed but limited, or not owed
entrants can be- (status can change)
1. invitee
2. licensee
3. trespasser
invitee
for business purposes
-owed a duty of reasonable care
-inspect and repair
licensee
your friends, on your prop for fun
-limited duty
-warn them of discovered hidden danger
trespasser
limited duty
- warn them of discovered hidden dangers
-must have reason to know that people will trespass
-cannot intentionally hurt them
vicarious liability
-an employer can be responsible for employees negligence if during the scope of employment
- worker can be an employee or independent contractor (factors determine)
scope of employment
whether it was SOE, -depends on motive, time, place
-in light of in furtherance
1. commuting (no)
2. major/frolic (no)
3. minor/break/horseplay(yes)
employee test
to determine if someone is an employee or IC the courts consider a number of factors including:
PEDS PLRM (factors)
Provided supplies
Extent of control
Distinct business
Skill
Party relationship
Length of work
Regular type of work for employer
Method of payment
independent contractor liability exception
no vicarious liability unless
1. excessive control
2. incompetent contractor
3. abnormally dangerous act
Strict liability
WAM’N
1. Wild animals
2. Nuisance
3. Abnormally dangerous
4. Manufacturing defective products
Nuisance
Substantial (diminish value)
Unreasonable (inappropriate to the locale)
what is an independent contractor
person who hired them does not have control of the manner in which the work is done.
indemnification
whenever someone is found to be vicariously liable they are entitled to receive 100% reimbursement from the party who committed the tort
attractive nuisance
- owner knows that there are kids around
- owner knows it is risky
- kids will not appreciate the risk
- maintaining is a slight thing to do compared to the risk
- artificial condition
duty rule statement
*When determining duty, the courts consider whether a duty was owed to the plaintiff. And if owed, what the standard is.
*Defendant owes a duty to anyone that whose conduct they could foreseeably injure.
Breach rule statement
Risk: how risky was it. Foreseeable unreasonable risk
Alt: feasible, custom, alternative conduct, must be less risky than what the defendant actually did
landowner DO NOT have a duty to
unforeseaable trespassers
child trick question
Just because it is a child does not automatically make it attractive nuisance.. Lookout that if the condition could injure an adult (like a concealed animal trap) because then just use regular trespasser duty.
cause in fact rule statement
Defendants conduct caused the injury, the factual cause, but-for
But for the tort would this injury has happened
Concurrent cause: More than one party can be the cause in fact. Muti-party negligence.
proximate cause rule statement
Result within the risk
The ultimate result was related to the risk and alternative (person was foreseeable, type of injury was foreseeable, manner that they were injured was foreseeable)
A series of negligent acts that are the concurrent cause,
is the defendant who acted first relieved of liability if the subsequent act was not foreseeable because then it is superseeding. But most acts are intervening because they are foreseeable. Usually initial defendants are not relieved of liability.
