negligence Flashcards
the child standard of care is irrelevant when
- abnormally dangerous activity 2. if it is a common risk known to most children in the neighborhood in attractive nuisance cases
attractive nuisance and luring
no longer required, old standard
custom
helpful but not determinative in negligence
breach
Court would need to weigh the cost of taking additional safety precautions against the risk and gravity of harm
slip and fall breach
P must show that D was negligent for not discovering and repairing the dangerous condition. The dangerous condition was present long enough that D should have noticed it (Ex: P slipped on rotten banana peel).
res ipsa
o This sort of accident does not normally occur absent negligence;
o D is probably the responsible party because D had control over instrumentality of the harm; and
o P did not contribute to the injury
Substantial Factor Test
Used when 2 Ds cause harm, but each D alone would have been enough to cause the entire harm. In this case, each D is a cause-in-fact if each was a substantial factor in causing the harm.
loss of chance
minority rule that if you already had loss of death you cannot recover; normally just reduce damages now
Summers v. Tice
● All Ds are tortious/negligent;
● All Ds are being sued together (can’t use if one D is left out); and
● Small number of Ds.
burden of actual cause shifts to Ds
Market Share Liability
X had 10% of the relative market; X will pay 10% of P’s damages unless X can show it could not have made the product that harmed P.
superseding cause v. intervening force
criminal acts unless foreseeable, acts of nature v. foreseeable acts
rescue efforts and foreseeability
considered foreseeable
liability in substantial factor test
joint and several, meaning one D could be sued and then can sue the rest for contribution
danger invites rescue
defendants have duties to foreseeable rescuers
jointly and severally liable damages
each defendant will be liable for the entire amount of the plaintiff’s damages
