MBE - No NC Distinctions Flashcards

Question

Statutory Standards of Care and Negligence Per Se

Answer 1

An existing statute may establish a duty of care in which case the specific duty imposed by the statute will replace the general common law duty of care * _Negligence per se_ - violation of the statute means P must only prove causation, not breach of duty * Under majority rule, violation operates as a conclusive presumption of duty and breach of that duty * Compliance does not automatically clear D of liability **Requirements:** 1. The statute provides a criminal penalty 2. Standard of conduct is clearly defined in the statute 3. P is within the class of people the statute was designed to protect 4. The statute was designed to protect against the type of harm P suffered **Statutory standard of care does not apply if:** a) Compliance is more dangerous than non-compliance, or b) Compliance is impossible under the circumstances

Answer 2

Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers * Same standard of care applies for owners and occupiers **Unknown or undiscovered trespassers** - no duty owed **Anticipated trespassers** - where owner has reason to believe of trespassers on her land * _Activities_ - owner has duty of reasonable care in carrying out activities on her property * _Dangerous conditions_ - owner has a duty to make safe or warn of any known, concealed, man-made hazards * _Note_ - this is rare; look for spring guns, traps, etc. **Attractive nuisance doctrine for child trespassers** * Owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if: 1. She is aware or should be aware of a dangerous condition (natural or artificial) on her property; 2. She knows or should know children are in the vicinity; 3. The condition is likely to cause injury if encountered; and 4. The magnitude of the risk outweighs its utility or the expense of remedying it

Answer 3

**Licensee** - one who enters land with owner's permission for his own purpose or business (i.e., not for landowner's benefit) * E.g., relatives, friends, social guests **Invitee** - one who enters land held open to the public or who enters with owner's permission to confer a commercial benefit * E.g., store patron, concert goer **Duty of care owed:** * **Activies carried out on property** - reasonable care * **Known dangerous conditions** - duty to warn or make safe * **Duty to inspect** - n/a for licensees * _Invitees_ - owners have duty to conduct a reasonable inspection for non-obvious dangers and make them safe * _Note_ - this is the only significant difference between duties for licensees and invitees **Scope of duty** - limited by scope of the invitation/license * Owner's duty extends only to those areas where one is an invitee or licensee (e.g., store owner does not owe duty of care in employees-only area) _Note_ - police and firefighters are considered licensees, but cannot recover for injuries suffered in the line of duty if the injury results from a risk inherent in the job

Answer 4

D breaches his duty when his conduct falls short of the standard of care owed under the circumstances **To demonstrate a breach, P can argue:** a) **D breached the applicable standard of care - includes:** * RPP standard * Negligence per se - violation of a relevant statute * Specialized standard of care * Custom usage in an industry - not an automatic breach, but may be relevant b) ***Res ipsa loquitur* - the very occurrence of the accident causing P's injuries suggests negligent conduct** * Arises if facts cannot establish breach of duty because circumstances surrounding the event are unknown to P * **Requirements** - P must show: 1. Inference of negligence - the harm would not normally occur absent negligence 2. Attributable to D - this type of harm normally results from negligence by one in D's position * Often satisfied by showing that the injuring-causing instrument was in D's exclusive control 3. Injury was not attributable to P

Answer 5

Establishes a causal connection between the alleged breach of duty and the resulting injury **"But-for" test** - but for D's alleged breach of duty, P's injury would not have occurred **Substantial factor test** - for multiple causes of P's injury * D's breach is the actual cause if it was a substantial factor in bringing about P's injury * Used if multiple causes bring about P's injury and any one of them alone would have caused the injury * E.g., fires start on D1's land and D2's land, each of which spreads to P's land and destroys P's house **Burden-shifting test** - for several possible causes of P's injury * Used if multiple Ds act (often simultaneously), only one causes P's injury, but it's unclear which D caused the injury * E.g., P is hit by a stray bullet at a busy firing range and it's unknown which shooter hit P * Burden of proving actual cause shifts to Ds * If no D can prove another D was responsible, all Ds are jointly and severly liable _Note_ - MBE may refer to actual cause as "cause-in-fact"

Answer 6

Establishes that it is fair under the law to hold D responsible for P's injuries **Foreseeability** - measuring stick for proximate cause * D is liable for the foreseeable outcome of his conduct **Direct causes** - if P's injury is the direct consequence of D's negligent conduct, D is liable unless the outcome is unusually bizarre or unpredictable **Indirect/intervening causes** - where contributing acts occur after D's conduct and combine with that conduct to cause P's injuries * D is usually liable if injury could have possibly resulted even without the intervening forces * _Approach_ - Consider the type of harm being protected against by holding D negligent for his conduct * If P's resulting injury is the type of harm being protected against, D's conduct is the foreseeable, legal cause of P's injury **"Eggshell Plaintiff Rule"** - D takes P as he finds him and is liable for the full extent of P's injuries, regardless of whether they are foreseeable

Answer 7

P must prove damages, which are not presumed in negligence cases; nominal damages are not available **Types of damages:** * _Personal injury_ - D must compensate P for all damages * Includes past, present, and prospective damages * Economic and non-economic damages are recoverable * _Property damage_ - P can recover reasonable cost of repair * If property is irreparable, damages = full market value at the time the accident occurred * _Punative damages_ - only recoverable if D's conduct is wanton and willful, reckless, or malicious **Non-recoverable damages** - P can never recover for: * Interest from the date of damage in personal injury cases * Attorneys' fees **Duty to mitigate** - P has a duty to take reasonable steps to mitigate damages

Answer 8

**Comparative negligence** - D can establish that P's injuries are at least partially the result of P's own negligence * Court apportions fault between P and D and reduces P's recoverable damages accordingly * _Partial/modified comparative negligence_ - P can only recover damages if he was less than 50% at fault * _Pure comparative negligence_ - P can recover damages even if he was more than 50% at fault **Contributory negligence** - P is barred from recovery if D establishes that P's negligence contributed to her injuries * _Last clear chance defense_ - P can rebut D's contributory negligence claim by alleging D had the last clear chance to avoid the injury-causing accident **Assumption of risk** - D can deny P's recovery by establishing that P assumed the risk of damage casued by D's act * **Requirements** - D must show: 1. P knew or should have known the risk (objective standard); and 2. P voluntarily proceeded in the face of that risk _Note_ - defenses vary by state; MBE questions usually note what defense applies; otherwise assume pure comparative negligence

Answer 9

P may recover for emotional distress resulting from D's negligence, but only if P's emotional distress gives rise to some physical manifestation **Elements:** 1. **D's negligence results in a close risk of bodily harm to P** * P must be in the "zone of danger" to recover * I.e., D's act must have nearly caused physical harm to P 2. **D's negligence results in P's severe emotional distress** 3. **P exhibits some physical manifestation attributable to her emotional distress** * E.g., heart atttack, miscarriage * Non-physical symptoms like depression and nightmares are insufficient * Symptoms of the physical manifestation can be instantaneous or appear days later **Bystander claims** - P-bystanders outside the zone of danger may recover for emotional distress resulting from D's negligence if: 1. P and the injured person are closely related; 2. P was present at the scene of the injury; and 3. P personally observed or perceived the event

Answer 10

Under strict liability, D has an absolute duty to make activities safe * Allows P to establish D's liability for P's injuries without proving D acted negligently **Strict liability is limited to cases involving:** * Ultrahazardous and/or abnormally dangerous conditions (see card) * Animal conduct (see card) * Products liability **Prima facie case:** 1. Nature of D's activity imposes absolute duty to make safe 2. Causation - actual and proximate cause * Dangerous aspect of D's activity caused P's injury 3. Damages to P's person or property _Note_ - no amount of due care will relieve D of liability under strict liability **Defenses** - assumption of risk, comparative negligence

Answer 11

Abnormally dangerous or ultrahazardous activities or conditions give rise to strict liability for any resulting injuries **Requirements for proving abnormally dangerous activity:** 1. The condition or activity imposes a severe risk of harm to persons or property 2. It cannot be made reasonably safe * Cannot be performed without serious risk of harm 3. The condition or activity is uncommon in the community * _Note_ - often arises on the MBE with explosives, toxic and/or biohazardous materials **Injury must result from the abnormally dangerous activity** * Watch for fact patterns where abnormally dangerous conditions exist, but do not cause P's injury * E.g., truck carrying toxic waste in sealed containers, which fall and crash into P;s car but do not spill * No strict liability because the abnormally dangerous nature of the containers did not cause P's injury

Answer 12

**Property damage from trespassing animals** * Animal owners are strictly liable for reasonably foreseeable damage resulting from their animal's trespass on another's property * Does not apply to household pets **Personal injuries** * **Wild animals** - owners are strictly liable to licensees and invitees for unprovoked injuries caused by their wild animals * **Domestic animals** - no strict liability unless owners know of their animal's unusually dangerous propensities * E.g., if a dog has previously bitten people, its owner is strictly liable; but the negligence standard applies if this is the first time this dog has bitten anyone * **Trespassers cannot recover** - trespassers are generally not entitled to recover under strict liability

Answer 13

**Elements:** 1. **D is a commercial supplier** * Suppliers have a strict duty to supply safe goods * _Commercial supplier_ = one who routinely deals in the product sold, including any merchant in the stream of commerce * E.g., manufacturer, distributor, supplier * Casual sellers, service providers are not suppliers 2. **Product is defective** * Defect must make the product unreasonably dangerous * See card on types of defects 3. **Defective product was actual and proximate cause of P's injury** * Product must not be substantially altered between leaving commercial supplier and reaching consumer 4. **P used the product in a foreseeable manner** * P's misuse of the product can be foreseeable **Who can sue** - foreseeable users or bystanders * E.g., buyers as well as their guests, employees, family, etc **Damages** - P can recover for physical injury or property damage, but not solely for economic loss

Answer 14

**Manufacturing defect** - product departs from its intended design, causing it to be more dangerous than designed * P must show that the product failed to perform as safely as an ordinary consumer would expect **Design defect** - product creates an unreasonable risk of danger due to its faulty design * P must show that a hypothetical alternative design exists that is safer but has as comparable cost and purpose **Inadequate warning** - manufacturer fails to adequately warn of a non-obvious risk associated with a product's use * Manufacturer also has a duty to warn of foreseeable dangers from misuse of the product * **P must show that the product has risks that:** 1. Cannot be eliminated by redesign, and 2. Consumers would not ordinarily notice * **Unavoidably unsafe products** - if product cannot be made safe for its ordinary use (e.g., chain saw, firearms), a manufacturer must give: 1. Proper instructions for use; and 2. Adequate warnings of known dangers * D is not liable for risks that were unforeseeable at the time the product was marketed

Answer 15

P may establish liability for a product defect under standard negligence theory * _Note_ - a product defect is almost always easier to establish under a strict liability theory **Elements:** 1. **Duty of care** - each commercial supplier in the stream of commerce owes a duty to all foreseeable product users and bystanders 2. **Breach of duty** - D's negligence leads to the supplying of a defective product * Retailers and wholesalers satisfy due care by a cursory inspection of the product (this makes it difficult to hold them negligent for product defects) 3. **Causation** - P must show actual and proximate cause * _Note_ - an intermediary's negligent failure to discover a defect does not absolve the upstream commercial supplier of liability 4. **Damages** - P must show physical injury or property damage * Economic loss alone is not recoverable **Defenses** - all standard negligence defenses are available **Products liability as battery** - if a commercial supplier places a product into the stream of commerce knowing that it may harm someone, this gives rise to a tort of battery

Answer 16

Implied in every sale of goods is a warranty of merchantability and warranty of fitness for a particular purpose (if applicable) **Implied warranties** * **Merchantability** - seller warrants that goods are of average acceptable quality (i.e., without defects) and generally fit for their ordinary purpose * **Fitness for particular purpose** - if seller a) knows or has reason to know the particular purpose for which buyer is purchasing, and b) buyer relies on seller's skills or judgment, seller implies that goods are fit for that purpose * E.g., a shoe store salesperson helping a buyer find ideal running shoes for running on trails **Who can sue** - implied warranty protection extends to a buyer's family, household, and guests who suffer personal injury **Elements:** 1. **Warranty** - existence of an implied warranty 2. **Breach** - product fails to live up to applicable warranty 3. **Causation** - actual and proximate 4. **Damages** - personal, property, and economic are all recoverable **Defenses** - assumption of risk, contributory and comparative negligence

Answer 17

D may be liable if a product falls short or an affirmative representation made to buyer **Express warranty** - a statement of fact or promise regarding goods sold that becomes part of the basis of the bargain * Any consumer or bystander can sue for breach * Bystanders need not have relied on the express warranty, as long as the original purchaser did * **Elements** - same as for implied warranties: 1. _Express warranty_ - relied upon by purchaser 2. _Breach_ - product fails to live up to the warranty 3. _Causation_ - actual and proximate 4. _Damages_ - personal, property, and economic loss * **Defenses** - assumption of risk, contributory and comparative negligence **Misrepresentation of fact** - seller will be liable for any misrepresentation made in the course of a sale if: 1. Seller madea misrepresentation regarding a material fact concerning the quality or use of the goods; 2. Seller intended to induce reliance by buyer; and 3. The misrepresentation induced justifiable reliance * **Defenses** - no assumption of risk; contributory negligence available if misrepresentation was negligent, not intentional

Answer 18

Tortious invasion of either public or private property rights * _Note_ - nuisance is a harm caused by tort, not a tort itself **Private nuisance** - a substantial, unreasonable interference with another individual's use or enjoyment of her property * _Substantial interference_ - must be offensive, annoying, or inconvenient to the average person in the community * Interference is not substantial if P is hypersensitive or using property for a specialized, abnormal purpose * _Unreasonable interference_ - severity of P's injury must outweigh the utility of D's conduct **Public nuisance** - unreasonable interference with health, safety, or property rights of the community at large * Recovery is only available to a private party if she suffered unique damage not suffered by the public at large * Govt. usually brings public nuisance suits **Potential remedies** - money damages, injunctive relief **Defenses** * P cannot recover if he "came to the nuisance" (e.g., bought property next door) for the sole purpose of bringing suit * Contributory negligence is available if P asserts a negligence theory and acted negligently in creating the nuisance

Answer 19

Arises when D commits a tort against P and a third person is held liable due to his relationship with D **Doctrine of *respondeat superior*** - employers are liable for torts committed by employees within the scope of their employment * Intentional torts are usually outside the scope, unless: 1. The job requires use of force (e.g., bouncer), 2. The job entails creating friction (e.g., bailbondsman), or 3. The intentional tort is done to further the employer's goals (e.g., physically breaking up a fight in a store) **Independent contractors** - employers are generally not liable for torts committed by independent contractors, except for acts that are inherently dangerous or duties that are non-delegable **Partnership** - each partner is vicariously liable for any other partner's torts committed within the scope of the partnership **Parent-child** - parents are not liable for their children's torts * But parents may be separately negligent if they had reason to know of a child's propensity to injure or they facilitated the tort **Tavernkeepers** - businesses serving alcohol may be held liable to a P injured by an intoxicated partron if the business was negligent in serving the patron

Answer 20

**Joint and several liability** - arises if the acts of two or more Ds combine to produce a single indivisible injury * Each D is jointly and severally liable for the entire harm if his actions were a factor in bringing about P's injury * _Satisfaction_ - if P recovers fully from one D, she may not recover more from a jointly liable D **Contribution** - D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid * Not applicable to intentional tort liability * Contribution is usually imposed in proportion to relative fault **Indemnity** - involves shifting the entire loss between or amongst Ds * Available by contract, in vicarious liability situations, or under strict products liability

MBE - No NC Distinctions Flashcards

(46 cards)