final af

Question 1

common law neg (identify conduct)

Answer 1

1. duty
   *owed?
   *reasonable variation
2. Breach
   *foreseeable risk
   *feasible alternative
3. cause in fact
   *but-for
4. proximate caise
   *person
   *manner
   *typer
   all within the risk

Question 2

reasonable variations

Answer 2

1. reasonable person under the same circumstance
2. person with same physical impairment
3. professional
4. child with like characteristics (unless doing an adult activity)

Question 3

neg per se (identify conduct)

Answer 3

1. applicable statute
   *clear standard
   *plain meaning or legislative intent
   *type of harm, class or persons
2. Compliance?
3. Excuse?
4. Cause in fact
5. Proximate cause
   *person, manner, type

Question 4

Excuses for neg per se

Answer 4

1. child, actors incapacity
2. no reason to know
3. impossible to comply
4. emergency that you did not create
5. compliance would create a greater harm

Question 5

Res Ispa Loquitur

Answer 5

1. Duty
   *owed?, reasonable variation
2. does not occur absent negligence
3. cause in fact by eliminate other causes (control of the instrumentality)
4. assumption of negligence

Question 6

contributory neg

Answer 6

*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

Question 7

last clear chance

Answer 7

*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

Question 8

modern view contri. neg

Answer 8

jury assigns percentages which are comparative neg

Question 9

exceptions for contrib neg.

Answer 9

1. defendants duty involves protective against known risks (like a manufactuer or employer)
2. Rescuer
3. Strict liability
4. Children, unless doing an adult activity

Question 10

rescuers (6 points)

Answer 10

1. no duty to rescue
2. if rescuing, cannot leave worse off
3. if a professional outside of their job, there is a duty
4. no duty unless special relationship (like parent)
5. cannot willfully injure
6. whoever created the risk is responsi for rescuers injury

Question 11

intervening cause

Answer 11

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

Question 12

supervening/superseeding case

Answer 12

*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

Question 13

assumption of the risk (4 points)

Answer 13

1. can be expressed or implied
2. voluntarily assuming a known risk
3. disregard and act
4. primary (inherent of the activity) or secondary (enhanced by negligence)

Question 14

limits to assumption of risk

Answer 14

*comparative fault
*cant assume the defendants negligence

Question 15

zone of danger

Answer 15

1. negligent act
2. no injury
3. plaintiff was within the zone of danger (immediate risk of injury)
   (some jurisdictions require a physical manifestation)

Question 16

Bystander

Answer 16

1. negligent act
2. no injury
3. “immediate family”
4. close enough for contemperaneous observance
5. actually observe it or instantaneous observation after
   (some jurisdictions require a physical manifestation)

Question 17

landowner duty (overall)

Answer 17

a duty can be owed, owed but limited, or not owed
entrants can be- (status can change)
1. invitee
2. licensee
3. trespasser

Question 18

invitee

Answer 18

for business purposes
-owed a duty of reasonable care
-inspect and repair

Question 19

licensee

Answer 19

your friends, on your prop for fun
-limited duty
-warn them of discovered hidden danger

Question 20

trespasser

Answer 20

limited duty
- warn them of discovered hidden dangers
-must have reason to know that people will trespass
-cannot intentionally hurt them

Question 21

vicarious liability

Answer 21

-an employer can be responsible for employees negligence if during the scope of employment
- worker can be an employee or independent contractor (factors determine)

Question 22

scope of employment

Answer 22

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)

Question 23

employee test

Answer 23

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

Question 24

independent contractor liability exception

Answer 24

no vicarious liability unless
1. excessive control
2. incompetent contractor
3. abnormally dangerous act

Question 25

Strict liability

Answer 25

WAM’N
1. Wild animals
2. Nuisance
3. Abnormally dangerous
4. Manufacturing defective products

Question 26

Nuisance

Answer 26

Substantial (diminish value)
Unreasonable (inappropriate to the locale)

Question 27

what is an independent contractor

Answer 27

person who hired them does not have control of the manner in which the work is done.

Question 28

indemnification

Answer 28

whenever someone is found to be vicariously liable they are entitled to receive 100% reimbursement from the party who committed the tort

Question 29

attractive nuisance

Answer 29

1. owner knows that there are kids around
2. owner knows it is risky
3. kids will not appreciate the risk
4. maintaining is a slight thing to do compared to the risk
5. artificial condition

Question 30

duty rule statement

Answer 30

*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.

Question 31

Breach rule statement

Answer 31

Risk: how risky was it. Foreseeable unreasonable risk
Alt: feasible, custom, alternative conduct, must be less risky than what the defendant actually did

Question 32

landowner DO NOT have a duty to

Answer 32

unforeseaable trespassers

Question 33

child trick question

Answer 33

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.

Question 34

cause in fact rule statement

Answer 34

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.

Question 35

proximate cause rule statement

Answer 35

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)

Question 36

A series of negligent acts that are the concurrent cause,

Answer 36

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.