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Torts BAR > Negligence > Flashcards

Negligence Flashcards

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1
Q

Negligence

A
  1. Duty
  2. Breach
  3. Actual Cause
  4. Proximate Cause
  5. Damages
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2
Q

Rescuers Duty

A

owe independent duty to per se F P’s. Only liable if they leave the victim worse off than when they found them.

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3
Q

No duty to rescue or aid except when:

A
  • D’s tortious conduct created need to rescue
  • At CL, if person opts to rescue they must act Rly
  • Good Samaritan statute protects rescuer unless they’re reckless or engage in intentional wrongdoing
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4
Q

May a special relationship create a duty?

A

Yes, carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies

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5
Q

Duty to control TP

A

No duty UNLESS when a special r between the D and TP gives the TP a right of protection or imposes a duty on D to control the TP’s conduct.

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6
Q

Providers of alcohol duty

A

Traditional: not responsible for DUI injuries.
Dram Shop: impose liabilit on establishments if they know or should a patron is drunk and that person drives and harms another

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7
Q

Duty when governmental entity?

A
  1. Proprietary function: acting in private area, treated as any other D for duty
    2 Discretionary activity: using judgment and allocating resources, no duty.
  2. Ministerial function: duty once gov has undertaken to act.
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8
Q

Public Duty Doctrine

A

Courts finds no duty when professional rescuers (police/firefighters) fail to prove adequate responses, except:

  • special relationship, or
  • agency increased danger
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9
Q

Negligent Infliction of Emotional Distress

A
  1. D engages in N conduct and P suffers emotional distress as a result w/ some sort of physical manifestation
  2. Exception: mishandling of corpse, D Nly shares info about the death of a loved one
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10
Q

Bystander actions

A
  1. P located near scene or incident,
  2. P suffered severe emotional distress; and
  3. P had close r w/ victim (immediate family member)
    CL - zone of danger
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11
Q

Wrongful conception

A

Birth of a healthy child after P took steps to avoid conception
Dmgs - cost of N procedure

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12
Q

Wrongful Birth

A

Birth of child w/ abnormalities, disease, or disability when physician failed to diagnose issues during pregnancy. Mother must testify that she would have had an abortion if the knew.

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13
Q

Wrongful Life

A

Childs claim for having been born w/ anomalies, disease, or disability b/c physician failed to diagnose. Most states don’t allow

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14
Q

Duties landowner owes

A
  1. invitees
  2. licensees
  3. trespassers
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15
Q

Invitees

A

Enter onto Ds land at D’s express or implied invite for a purpose relating to D’s interest or activities.

  • public purpose
  • D has duty to exercise RC t prevent injuries caused by activities conducted on D’s land.
  • duty to Rly search out dangers on property
  • RC
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16
Q

Licensees

A

Enters D’s land w/ D’s express or implied permission and are not there for a purpose of benefitting D or D’s activities. Social guests

  • D must warn of known concealed dangers
  • RC
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17
Q

Trespassers

A

Enter D’s land w/o exp or implied consent of land possessor. Duty to avoid infliction of willful or wanton harm
- if known, duty to warn of known and concealed dangerous artificial condtion. RC if known

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18
Q

Attractive Nuisance Doctrine

A

Child treated as invitee if:

  1. too young to appreciate the danger
  2. D knows or has reason to of the trespass
  3. D knows of the dangerous condition,
  4. condition is artificial, and
  5. risk of danger of the artificial condition outweighs its utility and burden to fix it.
19
Q

If P is not on the land but adjacent to it

A

Artificial condition - duty of RC

Natural condition - no duty except tress in urban areas

20
Q

When is a LL liable?

A
  1. Common areas over which LL retains control
  2. N repairs
  3. At time of lease, LL knows of a concealed dangerous condition; or
  4. LL knows that t is going to hold property open to public
21
Q

Standard of Care?

A

R prudent person of ordinary sensibilities. May take into account (physicial conditions and emergencies not of D’s own making)

22
Q

Children std of care

A

Minor d’s conduct is assessed according to what a R child of the same age, experience, education, and intelligence as D would have done.
Exception: engaging in adult activities.

23
Q

Statutory N

A

Statutes that provide civil liability supersede CL of torts.

24
Q

N per se

A

Criminal Statute: right person and right harm.

- expired drivers license doesn’t count

25
Q

Medical Malpractice S of C

A
  1. Relv geographical community
  2. liable for battery if lacking informed consent
  3. physician must divulge risks
  4. material risks
26
Q

Specialists S of C

A

National Std

27
Q

General Practicioners S of C

A

locality std

28
Q

Lawyers, architects, accountants

A

So long as the professional complies w/ custom, professional can’t be found to have breached their duty.

29
Q

Breach of Duty

A

May show direct or circumstantial evidence to prove

30
Q

Slip and Fall Cases Breach

A

Dangerous condition was present long enough D should have noticed it.

31
Q

Res ipsa loquitur

A

Allows jury to infer D’s breach based on nature of the accident.
P must show:
1. sort of accident doesn’t normally occur absent N
2. D is probably the responsible party b/cD had control over instrumentality of the harm; and
3. P did not contribute to the injury.

32
Q

Actual Cause

A

P shows that, it is more likely than not, that but for D’s Negligent, P would not have been injured.
but for test or substantial factor test

33
Q

Substantial Factor Test

A

When more than one D causes harm, but each along would have been enough to cause the entire harm. Assume joint and several liability so that D’s may seek to indemnify themselves.

34
Q

Loss of Chance

A

P must show that but for the med mal, P would not have lost chance/died. Minority rule

35
Q

Alternative Liability Theory

A

When to apply: all d’s are tortious/N, all D’s are being sued together, and small number of D’s.

36
Q

Market Share Liability

A

Generic product: P can’t show which of a large group of N D’s was responsible for manufacturing the product that caused her harm. P can sue those who might have caused her harm and each D is responsible based on its share of the market.

37
Q

Proximate Cause

A

F plaintiff, F injury (even if extent of harm is unF)

38
Q

Eggshell P Rule

A

Take your victim as you find them.

39
Q

Superseding Cause

A

Unf, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. Typically criminal conduct.

40
Q

Damages

A

P must prove dmgs, meaning there must be a cognizable injury. Nominal dmgs are not avaiable.

41
Q

Avoidable Consequences Rule

A

P must take R steps after injury to not increase/exacerbate injury.

42
Q

Special Dmgs

A

Pecuniary medical costs, lost wages, and cost of repair. Easy to put a dollar amount to.

43
Q

Collateral Source Rule

A

Fact that P has insurane to cover some or all dmgs does not mean that the D does not have to pay.

44
Q

General Dmgs

A

Pain and suffering and punitive dmgs (ratio)

Torts BAR (6 decks)

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