Kaplan Pgs 623-655 Negligence

Question 1

If you are making a direct claim for negligent infliction of emotional distress, what two things have to apply?

Answer 1

• you must have been in the zone of danger: the area in which you are at risk of being physically injured, and
  – you must have suffered some accompanying physical manifestation of the emotional distress

Question 2

Is required for a bystander to recover under negligent infliction of emotional distress?

Answer 2

That the bystander must have been located near the scene of the accident
– he must’ve suffered a severe emotional distress that resulted from sensory and contemporaneous observance of the accident, and
– he must’ve had a close relationship with the victim

Question 3

If an owner of land put something like horses, livestock, or pets on the land, what are they considered to be?

Answer 3

Artificial conditions, because the owner placed them where they were and they are not naturally located on the landscape

Question 4

If the owner of land knows that a six-year-old girl frequently trespasses on his land, what would he have to do if there is a dangerous dumpsite, an abandoned car, or a pond on his land?

Answer 4

• dumpsite: must make it safe
  – abandoned car that is rusty and dangerous: should remove it or cover it
  – pond: doesn’t have to build a fence because this is a natural body of water so it’s not included in the rule

Question 5

We are examples of people that are privileged to enter your property by law?

Answer 5

– Police officers or firefighters responding to an emergency
– census takers
– private people exercising a privilege

Question 6

How are privileged entrants classified when they come onto your land?

Answer 6

As either a licensee or an invitee, depending on the purpose

Question 7

When police officers and firefighters respond to an emergency and come onto your land, how are they classified?

Answer 7

As licensees

Question 8

What is the duty that is owed to the following people:
– undiscovered trespasser
– known trespasser
– licensee
– invitee

Answer 8

• undiscovered trespasser: no duty
  – known trespasser: ordinary care to warn about dangerous conditions the landowner knows about, but no duty to warn about obvious natural conditions
  – invitee: ordinary care to inspect the land and make it safe for others to enter
  – licensee: ordinary care to warn of dangerous conditions the possessor knows about

Question 9

When you are considering the standard of care of a reasonably prudent person under the same or similar circumstances, what is the only extra consideration that can be included?

Answer 9

Physical characteristics of the defendant. Mental things are not included

Question 10

If a guy has an IQ of 75 and he puts rocks in the back of his truck but doesn’t secure them, then he drives on the highway and the rocks fall out and cause a pile up accident behind him, is his low intelligence considered as part of the reasonable person standard for him for negligence?

Answer 10

No, the only alterations are for physical issues. Because this is mental, he is held to be a reasonably prudent person under the same or similar circumstances and he’s compared with people of average intelligence

Question 11

When does the reasonably prudent person standard not include how a reasonably prudent person would have reacted in an emergency?

Answer 11

If the emergency was created by the defendant

Question 12

What is the added consideration that you should always put onto the Learned Hand formula?

Answer 12

B < P*L + social utility = breach

Question 13

What are examples of when children are held to be engaging in adult activities?

Answer 13

Operating:

• automobiles
• boats
• airplanes

Question 14

If a nine-year-old takes his dad‘s boat for a drive on the lake and ends up hitting a swimmer who drowns, what standard will the boy be held to for negligence?

Answer 14

An adult standard of care because he was engaging in an adult activity

Question 15

If you can prove Res Ipsa Loquitur, does that mean for sure someone was negligent?

Answer 15

No, all it means is that you have proved there was a breach of duty. You still have to prove all the other elements of negligence

Question 16

What is the theory called when there are two negligent parties that independently cause injury to the plaintiff but the plaintiff cannot determine which person caused the injury?

Answer 16

Alternative liability theory

Question 17

What kind of situations does market share liability apply in?

Answer 17

Only for generic products like asbestos

Question 18

What is the duty that is owed to a rescuer because of the defendant’s negligent conduct toward the victim?

Answer 18

Defendants owe an independent duty of care to rescuers even if their efforts are negligent

Question 19

What is the minority approach that gives an exception for the duty that a defendant owes to a rescuer if the rescuer is a professional, which is called the firefighters rule?

Answer 19

This applies to any emergency personnel and says that professional rescuers will not be able to recover from the defendant for any harm that comes from the defendant’s negligence. The idea is that emergency personnel have assumed the risk of this harm

Question 20

If a defendant negligently left his stove on and it caused a fire, and in fighting the fire one firefighter was injured by flames and another was injured from smoke inhalation, can they recover from the defendant?

Answer 20

Usually a rescuer would be able to recover, but under the minority view that calls for the firefighters rule, they would not be able to recover because they have assumed the risk of this kind of harm by being a professional rescuer

Question 21

Are punitive damages available in negligence cases?

Answer 21

Generally no because these are given for willful, wanton, or malicious conduct

Question 22

Are plaintiffs entitled to punitive damage awards?

Answer 22

No, but a jury can award them at the journeys discretion

Question 23

When proving contributory negligence, what is the standard that must be met?

Answer 23

Must show that by a preponderance of the evidence the plaintiff fell below the relevant standard of care

Question 24

In what situation does last clear chance apply?

Answer 24

When you’re already considering contributory negligence because the plaintiff engaged in some behaviour that was contributorily negligent, but then this can save recovery for the plaintiff because the DEFENDANT had the LAST CLEAR CHANCE to avoid the harm

Question 25

How many states use comparative negligence?

Answer 25

Virtually every state

Question 26

If there are two or more defendants that are not jointly liable, what are the two different systems of comparative negligence that apply?

Answer 26

– the aggregate system

– the individual equality system

Question 27

What is involved in the aggregate system for comparative negligence if there are two or more defendants that are not jointly liable?

Answer 27

The plaintiff doesn’t recover anything if his responsibility exceeds the total percentage of responsibility of all the defendants combined

I.e.: iftwo defendants each contributed 24% of the damages, which totals 48%, and the plaintiff contributed 52%, he would not recover

Question 28

What is involved in the “individual equality system“ for comparative negligence when there are two or more defendants that are not jointly liable?

Answer 28

Plaintiff cannot recover anything if his responsibility exceeds that of any single defendant.

If two different each contribute 33% of the damages, and the plaintiff contributed 34%, the plaintive is barred from recovery

Question 29

On the MBE, what should we assume applies with regard to comparative negligence?

Answer 29

Pure comparative negligence unless the question says otherwise

Question 30

Assumption of the risk basically means that the plaintiff has done what?

Answer 30

Consented to the conduct

Question 31

What are some examples of express and implied consent for assumption of the risk?

Answer 31

• express: exculpatory clause in a contract that says one party will hold the other harmless if injuries results
  – implied: if the plaintiff continues in the face of a known danger