Negligence Flashcards
Can a P recover for purely economic damages arising from negligent conduct?
no
is assumption of risk a defense?
not in comparative negligence regimes
can an exculpatory provision serve as a bar to recovery?
yes
what is the traditional approach for standard of care for landowners/possessors?
□ Invitee: Someone who enters land open to public with potential to confer economic benefit
® uduty to inspect + make safe
® dangerous conditions within scope of invitation
□ Licensee: Someone who enters land not open to public not to confer economic benefit (guest)
® Duty to warn of or make safe
® known concealed dangers
□ Trespasser: Someone who enters land without express/implied consent; will, wanton, reckless, intentional misconduct prohibited
® Anticipated/known trespasser:
® Duty to warn of or make safe
® known, concealed ,artificial, highly dangerous conditions.
® Undiscovered trespassers:
® no duty
what is the attractive nuisance doctrine?
® Δ has duty to exercise ordinary care and avoid foreseeable risk of harm (warn and make safe) to children caused by artificial conditions on property if:
® 1) dangerous condition owner is/should be aware of,
® 2) owner knows/should know children frequent the vicinity,
® 3) condition likely to cause injury (b/c Π child’s inability to appreciate the risk—doctrine does not apply to a “bright” child),
4) expense of remedying danger is outweighed by risk
what is the modern appraoch for landowners and possessor?
reasonable care to all entrancts except trespassers
towards flagrant trespassers, only abstrainn from willful. wanton or reckless or intentional misconduct
what are the elements of res ispa?
□ 1) type of accident is typically the result of negligence,
□ 2) accident is attributable to Δ (Δ had sole control of the instrumentality causing injury), and 4
3) Π did not contribute to the injury. Δ may rebut with evidence
if a plaintiff is partially at fault under a contributory negligence regime, is there any the plaintiff can recover?
if D has last clear chance and did not take it
what are the exceptions to per se?
- would be more dangerous to follow
2. P was not able to comply (incapacity)
what are specical cases of but for causatino?
substantial factor - if D’ conduct alone would have been sufficient, ask whether it was a substantial factor
alternative cause - where there are b/t 2-5 tf, each engaged in a tort act, shift burden to Ds to show not his fault
what are specical cases of prox cause?
superceding cause (remember foreseeable intervening cause)
eggshell skull
what are the P’s duties wrt damages?
mitigate
