MBE: Negligence

Question 1

Duty

Answer 1

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

Question 2

Standard of care children

Answer 2

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.

Question 3

Standard of care professionals

Answer 3

owe the care of an average member of that profession participating in a similar community. Specialists compared with other specialists nationwide.

Question 4

Common carriers and innkeepers

Answer 4

Held to high degree of care and liable for even slight neg. if P is a passenger or guest.

Question 5

Auto driver to guest

Answer 5

owed duty of ordinary care, although for nonpaying passengers may only be liable for reckless tortuous conduct.

Question 6

Possessors of land

Answer 6

If activity, then RPP under similar circumstances.

Question 7

Undiscovered trespassers

Answer 7

No duty of care, no traps

Question 8

Discovered trespassers

Answer 8

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.

Question 9

Attractive nuisance

Answer 9

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.

Question 10

Licensees

Answer 10

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.

Question 11

Invitee

Answer 11

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.

Question 12

Lessor

Answer 12

General duty to warn of existing defects if aware that lessee will not discover upon reasonable inspection.

Question 13

Lessee

Answer 13

General duty to maintain

Question 14

Vendor of realty

Answer 14

Disclose concealed, unreasonably dangerous conditions not discovererable by reasonable inspection.

Question 15

Statutory standards of care

Answer 15

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.

Question 16

Duty to rescue

Answer 16

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.

Question 17

Breach

Answer 17

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.

Question 18

Causation

Answer 18

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.

Question 19

Proximate cause

Answer 19

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.

Question 20

Damages

Answer 20

Eggshell P: take P as you find him

Question 21

Contributory negligence

Answer 21

Minority: Negligent P is barred from recovery.

Last clear chance applies.

Question 22

Assumption of the risk

Answer 22

P knew of risk and voluntarily proceeded

Question 23

Comparative negligence

Answer 23

P failed to take proper degree of care for own safety. Jury assigns % of fault.

Question 24

Pure comparative

Answer 24

Strictly % by numbers

Question 25

Modified comparative ng.

Answer 25

P recovers % only if fault is

Question 26

NIED

Answer 26

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)