MBE: Negligence Flashcards
Duty
Duty of care owed to foreseeable Ps in the zone of danger is the amount of care a reasonably prudent person would exercise acting under similar circumstances, taking into account the person’s superior skill, knowledge, and physical characteristics
Standard of care children
Under 4: no liability
4-18 care of child of similar age, intelligence and experience under similar circumstances, unless child is engaged in adult activity.
Standard of care professionals
owe the care of an average member of that profession participating in a similar community. Specialists compared with other specialists nationwide.
Common carriers and innkeepers
Held to high degree of care and liable for even slight neg. if P is a passenger or guest.
Auto driver to guest
owed duty of ordinary care, although for nonpaying passengers may only be liable for reckless tortuous conduct.
Possessors of land
If activity, then RPP under similar circumstances.
Undiscovered trespassers
No duty of care, no traps
Discovered trespassers
Including anticipated trespassers: if dangerous condition then duty to warn of concealed unsafe condition that may cause death or serious bodily harm.
P must show artificial condition
Highly dangerous
Concealed and
Prior knowledge. No duty to inspect or repair.
Attractive nuisance
Child trespassers injured by artificial condition are entitled to care of RPP under the circ., if P shows
Dangerous condition present on land that owner is or should be aware of, owner knows of or should know that kids frequent vicinity, condition is likely to cause injury, expense of remedy slight v. risk.
Licensees
Entrants w/own purpose but w/ permission, e.g. social guest. If dangerous condition, possessor has duty to warn licensee of all known dangerous conditions. P must show 1) concealed condition and 2) possessor had prior knowledge.
No duty to inspect or repair.
Invitee
Possessor holds open land for commercial benefit or to public if land is generally open. If dangerous condition, possessor has duty to protect invitees from all reasonably knowable dangerous conditions. P must show 1) concealed condition, and 2) possessor had prior knowledge or would have discovered by reasonable inspection.
Exception: if owner of recreational land w/o fee, no liability for injuries unless willfully and maliciously failed to guard against or warn.
Lessor
General duty to warn of existing defects if aware that lessee will not discover upon reasonable inspection.
Lessee
General duty to maintain
Vendor of realty
Disclose concealed, unreasonably dangerous conditions not discovererable by reasonable inspection.
Statutory standards of care
Statutory duty may replace CL, thus creating neg. per se if:
Statute provides for a criminal penalty
Statute clearly defines the standard of conduct
P is w/in protected class and
Statute was designed to protect against harm suffered by P.
Duty to rescue
G/R none unless:
Family member, common carrier and innkeeper to guest, land possessor to invitees. But, if attempt to rescue, liable for any neg during rescue.
Breach
Custom or usage; violations of statute; res ipsa loquitor: P lacks info of what D did wrong, but as a matter of logic the accident that occurred is normally, typically or routinely associated w/ neg.
Causation
Actual causation: single D: “but for” test
Multiple D: merged or mingled causes, then substantial factor test, unascertainable cause, shift burden of proof to D.
Proximate cause
Key is foreseeability. If D is direct cause of result foreseeable unless freakish and bazaar. If indirect cause: D always liable for intervening medical neg; neg rescue; protection or reaction forces; and subsequent disease or accident. No liability if intervening force is crime or intentional tort.
Damages
Eggshell P: take P as you find him
Contributory negligence
Minority: Negligent P is barred from recovery.
Last clear chance applies.
Assumption of the risk
P knew of risk and voluntarily proceeded
Comparative negligence
P failed to take proper degree of care for own safety. Jury assigns % of fault.
Pure comparative
Strictly % by numbers
Modified comparative ng.
P recovers % only if fault is
NIED
P must show:
D was neg.
P was w/in zone of physical danger as a result of D’s neg. and
Physical manifestation of stress (exception: physical manifestation assumed if mishandling corpse)
