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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

What is NIED?

A

Negligent Infliction of Emotional Distress

Plaintiff can recover if in zone of danger and threat of physical impact caused emotional distress.

  • Must be manifested by physical symptoms
  • Pure economic loss = no recovery.

Bystander outside zone of danger can recover if

  • closely related
  • was present at scene AND
  • personally observed injury

Special Relationship

  • Mishandling a corpse
  • Common carrier mistakenly reporting death of relative.
  • No physical symptoms needed.
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2
Q

What is comparative fault?

A

Pure Comparative Fault
- Proportioned equally

Modified/Partial Comparative Fault

  • P 50% at fault = 50% recovery
  • P 49% at fault = 51% recovery
  • P 51% at fault = No recovery.
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3
Q

What is the test for actual cause?

A

But for

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4
Q

What is the test for actual cause when there are multiple or indeterminate causes?

A

Substantial factor

Note: concert of action: common plan or scheme = all liable joint and severally.

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5
Q

What is proximate cause?

A

Majority: reasonably foreseeable consequences, type of harm must be foreseeable but extent of harm does not need to be.

Minority: direct cause or all consequences.

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6
Q

What is a land possessor’s duty in regard to landlord-tenant issues?

A

Landlord is liable for injuries in

  • Common areas
  • Hidden dangers landlord fails to warn about
  • Areas leased for public use
  • Result of landlord’s negligent repair
  • Hazard landlord agreed to repair.
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7
Q

What is joint and several liability?

A

When 2+ defendants are liable, can sue either of them for entire harm.

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8
Q

What is several liability?

A

Each defendant is liable for his proportionate share of harm.

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9
Q

What is contribution?

A

One defendant can collect money from other when plaintiff sues first defendant for entire harm.

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10
Q

What are the two trends for determining whether there has been a breach of the duty of care?

A

Traditional: reasonably prudent person

Modern: cost-benefit analysis

  • foreseeable likelihood that defendant’s conduct would cause harm.
  • Foreseeable severity of harm; and
  • The defendant’s burden in avoiding harm.
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11
Q

What is res ipsa loquitor?

A

Trier of fact may infer negligence when there is only circumstantial evidence.

Traditional Elements

  • Accident was of the kind that ordinarily does not occur in absence of negligence
  • Caused by agent/instrument in defendant’s exclusive control; and
  • was not due to any action plaintiff

Modern Trends

  • Medical malpractice - breach unless can exonerate
  • Products liability: ignore exclusivity
  • Comparative fault: loosely apply 3rd element.
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12
Q

What are the four elements of negligence?

A
  1. Duty
  2. Breach
  3. Causation
  4. Damages
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13
Q

Can a plaintiff who suffers only pure economic loss without any personal or property injury recover in negligence?

A

No.

Note: Can recover if also physical injury.

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14
Q

What is the general duty of care for negligence?

A

Owed to all foreseeable plaintiffs.

Majority: Cardozo - within the zone of foreseeable harm

Minority: - Andrews: anyone harmed.

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15
Q

What are the specific classes of foreseeable plaintiffs?

A

Rescuers: danger invites rescue.

Fetuses

Anticipated victim of a crime
- Psychotherapist/patient - credible threats.

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16
Q

Is there generally an affirmative duty to act?

A

No.

Unless

  • Voluntary aids: must act with reasonable care.
  • Places another in peril
  • Contract
  • Authority/Control
  • Special Relationship
  • By statute that imposes obligation for protection of another.
17
Q

What is contributory negligence?

A

Traditionally: complete bar

Last Clear Chance

  • Defendant liable to helpless plaintiff if he knew or should have known they are helpless.
  • Inattention: if plaintiff is inattentive and could escape if paying attention, then defendant is not liable unless had knowledge.
18
Q

What is an intervening and superseding act?

A

Foreseeable Intervening Cause: will not cut off liability.
- Examples: medical malpractice, negligent rescue.

Unforeseeable Intervening Cause: Superseding cause

  • Breaks chain
  • Example: criminal acts of 3rd parties. Unless duty that is breached is one to fail to use reasonable care to protect plaintiff.

Damages need not be foreseeable. Egg-Shell Plaintiff Rule.

19
Q

What are the standards of care for land possessors?

A

Traditional Approach
- Invitees (public/business): inspect/discover/protect.
Note: an invitee who exceeds scope is a trespasser.
Note: Non-delegable duty.

  • Licensees (special guests/police): duty to correct or warn of concealed dangers that are known/should be obvious. No duty to inspect.
  • Trespassers: refrain from intentional/willful misconduct, no spring traps. If discovered, owe duty to protect from concealed, dangerous artificial condition.
    Note: anticipated trespass.

Modern Trend (also 3rd Restatement)

  • Duty of reasonable care to everyone but trespassers.
  • Artificial conditions or conduct on land: generally no duty to remove or protect against natural conditions (exception for rotting trees in densely populated areas).
  • Known/Obvious: warnings are insufficient
  • Trespassers: flagrant: only not to act willful or wanton
20
Q

When is an employer vicariously liable for employee’s torts?

A

Respondent Superior

  • Within scope of employment
  • Intentional Torts: Force is inherent and employer authorized to act on behalf.

Detour (minor): liable
Frolic (major): not liable.

Can also be liable for negligence in hiring, training, supervising.

21
Q

When is one vicariously liable for the torts of an independent contractor?

A

Generally, not liable unless;
- Non-Delegable Duties; (1) inherently dangerous; inherently risky or affect public (construction on road; (3) duty of shopkeeper to keep land safe; (4) (minority) comply with safety statutes.

Apparent Agency
- Reasonable belief they are employees

Negligent hiring or supervision.

22
Q

For vicarious liability, when is one liable for;

  1. Business partners?
  2. Automobile owners?
  3. Children?
  4. Alcohol Consumption?
A
  1. Partners in a partnership are joint and severely liable.
    • Negligent entrustment - if known or should have known negligent propensities.
    • Family Purpose Doctrine: liable for any family member which has owner’s permission.
    • Owner liability statutes: liable for anyone driving.
  3. Generally no liability for parents; unless
    - acts as parent’s agent
    - Statute permits for vandalism or school violence.
    - Statute permits when parent agrees when signs for child’s driver’s license
  4. Dram-Shop: must limit to minors.
    Social Hosts
23
Q

What are the different immunities from tort liability?

A

FTCA: government waives immunity except for certain enumerated torts, discretionary functions, traditional government actives.

State governments: varies.

Municipalities: liable for proprietary functions.
- Public duty rule: no one citizen can claim liability for duty owed to public unless special relationship, promises action, knowledge that failure will lead to harm, direct contact, and reliance.

Government Officials: applies if discretionary functions without malice.

Intra-Family: liable.
-Generally not for core parenting functions. Liable for serious abuse, car accidents, dual capacity

24
Q

What is the attractive nuisance doctrine?

A

Land possessor may be liable for injuries to children trespassers if;
- An artificial condition exists in a place where land possessor knows or has reason to know children likely to trespass;
- Possessor knows/has reason to know condition poses unreasonable risk of death or serious injury;
- Children cannot appreciate danger;
Utility and burden of eliminating danger are slight compared to risk.
- Land possessor fails to exercise reasonable care to protect children from har.

25
Q

What is negligence per se?

A

Elements (Establishes duty and breach)

  • A criminal/regulatory statute imposes a specific duty;
  • The defendant violates it;
  • The plaintiff is in lass of persons statute designed to protect; and
  • The type of harm is the same the statute is designed to protect against

Compliance with statue does not prove absence of negligence.

Defenses:

  • Greater risk of harm by compliance
  • Defendant is physically disabled/child
  • Reasonable care in complying
  • Vagueness
  • Reasonable ignorance
26
Q

When does custom affect the duty of care and breach?

A

Within Industry: Admissible but not conclusive.

Professionals: Higher standard: same knowledge, skill and care as ordinary practitioner in same community.

Physicians

  • Majority uses a national standard.
  • Informed consent to risks of treatment. Majority: governed by custom. Minority: material risks.
  • No duty to disclose when; (1) risk is commonly known; (2) unconscious; (3) patient waives or refuses information; (4) incompetent - reasonable attempt to reach guardian; (5) disclosure is detrimental (heart attack causing)
27
Q

What is a wrongful-death action?

A

A descendants spouse, kin, etc. may bring suit do recover losses suffered as a result of decedent’s death.
- Loss of support/companionship, but not pain and suffering.

28
Q

What is a survival action?

A

Personal representative can bring any claims the decedent himself would have had at the time of he’s death.

29
Q

What is a wrongful life claim?

A

Most states do not permit. Some do only for special damages attributable to disability. Failure to use contraceptives.

30
Q

What is a wrongful birth claim?

A

Most states allow. Failure to diagnose deflect/preform.

31
Q

When can family members recover?

A

Spouses - loss of consortium

Parent - loses of services of a child (if dies).

32
Q

What is the assumption of risk?

A

Express
- Contracts. But no enforcement if disclaims reckless/wanton misconduct or gross negligent. Disparity in bargaining power. Fraud/Duress. Public Policy.

Implied: athleticL but not if exceeds scope.

Implied: Voluntary proceeding in face of known specific risk. Must be unreasonable.

33
Q

What are the different types of negligence damages?

A

Actual

  • Emotional - allowed if physical injury
  • If emotional only, no. Unless physical manifestation, then NIED.
  • No attorneys fees.

Compensatory

Mitigation - Duty

Personal Injury

  • Past and Future
  • Pain and suffering
  • Lost income

Property Damage
- Difference between FMV before injury and FMV after injury

Punitive

Collateral Source

  • Traditionally not credited,
  • Modern- Eliminate rule
34
Q

What is the general standard of care when looking at duty of care?

A

Act as a reasonably prudent person under the circumstances.

  • Mentally disabled, held to standard of ordinary person.
  • Physical: held to standard of similarly disabled.
  • Intoxication: Held to standard of ordinary person, unless involuntary.
  • Children: reasonable child, unless high risk adult activity.
35
Q

What are the classes that have a unique standard of care?

A

Common Carriers/In-keepers

  • Majority: higher standard
  • Minority: only ordinary negligent.

Automobile Drivers

  • Most jurisdictions - ordinary care to guests and passengers.
  • Minority: guest statute - only a duty to refrain from wanton or willful misconduct.

Bailors and Bailees

  • Bailors duty: when gratuitous, inform of any known or dangerous defects. If compensated, known or should have known.
  • Bailee: if sole benefit, duty to not be ordinarily negligent.

Torts (7 decks)

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