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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

Prima facia case of negligence

A
  1. Duty
  2. Breach
  3. Causation
  4. Harm
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2
Q

three considerations for duty

A
  1. public policy
  2. foreseeability
  3. section 7 restatement
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3
Q

duty consideration: public policy

A

does society have an interest in protecting people from this kind of harm?

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4
Q

duty consideration: foreseeability

A

whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act

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5
Q

considerations that would lower or remove duty

A
  1. emergency
  2. physical disability
  3. incapacitation
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6
Q

considerations that do not change the level of duty

A
  1. mental disability or impairment
  2. special training
  3. age
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7
Q

Negligence per se definition

A

negligence because of breach of statute

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8
Q

what statutes does negligence per se apply to?

A

statutes that do not explicitly provide a private right of action

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9
Q

Negligence per se test (restatement)

A
  1. statute or regulation must clearly define required standard of conduct
  2. statute or regulation must be intended to prevent type of harm that the defendant’s act or omission caused
  3. plaintiff must be a member of the class of persons the statute or regulation was designed to protect
  4. violation must have been a proximate cause of the injury
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10
Q

excuses for negligence per se

A
  1. emergency, unforeseeable circumstances
  2. violation is reasonable in light of disability or incapacitation
  3. actor neither knows or should know of the factual circumstances that render the statute applicable
  4. actor exercises reasonable care in attempting to comply with the statute
  5. violation is due to the confusing way in which the requirements of the statute were presented to the public
  6. actor’s compliance with statute would involve greater risk of harm than noncompliance
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11
Q

nonexcuses for negligence per se

A
  1. disagreement with the law
  2. ignorance of the law
  3. other people violating statute
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12
Q

factors in determining breach

A
  1. foreseeable likelihood the actions will result in harm
  2. severity of harm
  3. burden of precaution to reduce or eliminate harm
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13
Q

definition of foreseeable for breach

A

sufficiently foreseeable for the reasonable person to take action to prevent it

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14
Q

definition of unforeseeable for breach

A

reasonable not to act on possibility

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15
Q

Learned Hand Factors

A

B>PL no breach

B

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16
Q

Structured weighing of breach

A
  1. Learned Hand factors

2. utility of actions vs risk of actions

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17
Q

Circumstantial evidence

A

evidence that permits an inference of another fact

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18
Q

slip and fall analysis

A
  1. probability - where was the area of liquid
  2. loss - what was the liquid
  3. burden - how long was the liquid on the ground
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19
Q

theories of liability in slip and fall

A
  1. defendant created the hazard and failed to take reasonable actions to abate the hazard
  2. the defendant did not directly create the condition, but discovered it or should have discovered a condition created by others and failed to take reasonable steps to prevent the injury from that condition
  3. defendant’s mode or method of business operations made it foreseeable that others would create a dangerous condition and defendant failed to take reasonable measures to discover or remove it
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20
Q

slip and fall - questions for the jury

A
  1. whether the hazard has been present long enough for a reasonable person to notice and remedy
  2. reasonableness of business’s maintenance
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21
Q

can the defendant’s own standard be used as ordinary care?

A

no, but can be used as evidence of foreseeability

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22
Q

what does common custom prove?

A
  1. harm was foreseeable
  2. D knew or should have known risk
  3. risk was unreasonable
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23
Q

Res Ipsa Loquitor requirements

A
  1. event does not normally occur in the absence of negligence based on common experience or expert testimony
  2. indicated negligence is within the scope of the defendant’s duty to plaintiff
  3. instrument of accident under control of D at the time of the accident
  4. other possible causes, including conduct of plaintiff and third persons are eliminated
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24
Q

but-for cause analysis

A
  1. identify injury for which redress is sought
  2. identify d’s wrongful conduct
  3. use info to make counterfactual
  4. determine whether injury would have occurred in counterfactual
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25
Q

proximate cause: risk rule

A

was the harm that happened of the same type as the harm the risk of which made the conduct a breach in the first place

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26
Q

thin skull rule

A

extent of harm does not need to be foreseeable if the harm was foreseeable

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27
Q

for proximate cause: plaintiff must prove that

A
  1. the type of injury they suffered was foreseeably risked by D’s negligence
  2. they are the class of persons foreseeably put at risk by d’s actions
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28
Q

proximate cause: Foreseeability analysis

A
  1. identify risks that called for more care

2. was the harm within scope of risk

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29
Q

Rescue doctrine

A

rescuer is within scope of liability bc foreseeable that rescuer will go to the scene of an accident and try to help

30
Q

superceding intervening acts

A

would limit the original actor’s liability

31
Q

contributory negligence

A

affirmative defense
D must show negligence elements for P
recovery is barred

32
Q

comparative negligence

A
  • doesn’t bar recovery, but damages reduced by amount P was negligent
  • D must show elements of negligence against P
33
Q

51% bar for comparative negligence

A

p has to have lower negligence than D to recover

34
Q

Pure comparative fault

A

P’s recovery is reduced by the amount P was negligent, no bar

35
Q

50% bar for comparative negligence

A

bars recovery if P’s negligence is as great as D’s negligence

36
Q

Considerations for fault allocation

A
  1. whether conduct was inadvertent or involved an awareness or danger
  2. how great a risk was created by the conduct
  3. actor’s capacities
  4. extenuating factors that might require an actor to proceed with haste
  5. community’s sense of justice
  6. burdens of D & P
37
Q

exceptions to contributory negligence bar

A
  1. rescue doctrine, unless rescuer acted recklessly
  2. last clear chance of discovered peril - D discovered or should have discovered P in peril
  3. d’s reckless or intentional misconduct
  4. plaintiff’s illegal activity - depends on seriousness of illegal activity
38
Q

Allocating full responsibility to D - public policy or justice

A
  1. D has duty to take care of P
  2. nonreciprocal risk - D imposes risk on P, but P doesn’t impose risk on D
  3. known disability
  4. P has no duty to protect themselves
39
Q

Known disability (bexiga) factors

A
  1. D knows of P’s disability

2. P endangers himself but not others

40
Q

Express assumption of risk

A
  • usually a waiver

- counter argument against duty element

41
Q

waiver not valid factors

A
  1. business suitable for public regulation
  2. performing a service of great importance to the public, which is often a practical necessity
  3. wiling to perform for any member of the public who seeks it
  4. superior bargaining power
42
Q

Primary implied assumption of the risk

A
  • argument against duty element
  • D owes no duty to P to guard against a particular risk of harm
  • about class of plaintiff being owed a duty
43
Q

secondary implied assumption of risk

A
  • affirmative defense

- D owes a duty to P, but P has knowingly encountered a risk of injury caused by D’s breach

44
Q

baseball rule

A

stadium must have screened seats for as many spectators as may reasonably expect to need them

45
Q

allowed risk in sports games

A

risk must not be an inherent risk of the sport, or eliminating risk would fundamentally change sport

46
Q

expansion of duty

A

common carrier - duty to foresee and guard against danger

47
Q

limitation of duty

A

landowners - licensee and trespassers - refrain from wanton and willful conduct

48
Q

invitee def and standard of care

A

anyone who enters the premises for owner’s pecuniary benefit (business invitee) or premises is open to the general public
- duty of reasonable care

49
Q

licensee def and standard of care

A

on land with permission, but limited lincense

-duty to refrain from wanton and willful conduct

50
Q

trespassers def and standard of care

A

on land without permission

refrain from willful or wanton behavior, gross negligence

51
Q

exception to trespasser standard of care

A
  • landowner discovers entrant in danger
  • have not discovered trespasser but know there are frequent trespassers
  • child trespassers (attractive nuisance)
52
Q

attractive nuisance requirements

A
  1. possessor knows or has reason to know that children are likely to trespass
  2. possessor realizes or should realize that condition will involve unreasonable risk of death or serious bodily injury to children
  3. children do not discover condition or realize risk involved
  4. burden of eliminating danger is low compared to risk
  5. possessor fails to exercise reasonable care to eliminate danger
53
Q

firefighters rule

A

public safety employees are barred from suing for the negligence that brought them to the scene

54
Q

purpose of firefighter’s rule

A
  1. encouraging people to call for help
  2. firefighter is a licensee
  3. assumption of risk
55
Q

general rule for nonfeasance

A
  • restatement 37

- actor whose conduct has not created a risk has no duty unless court says there’s an affirmative duty

56
Q

misfeasance def

A
  • negligence in voluntary undertaking

- duty begins once D has started trying to help

57
Q

exceptions to no-duty rule

A
  1. if person knows or has reason to know his conduct has caused harm
  2. if a person has created a continuing risk of harm, duty to minimize or eliminate risk
  3. statutes that require affirmative action
  4. special relationship
58
Q

special relationships that are exceptions to the no-duty rule

A
  1. common carrier/passenger
  2. innkeeper/guest
  3. possessor of land/lawful entrant
  4. employer/employee
  5. school/students
  6. landlord/tenant
  7. custodian/those in custody
59
Q

Duty to protect from third persons

A

generally no duty to protect or warn

60
Q

exception to duty to protect from third persons

A
  1. special relationship & harm arises from scope of relationship
  2. foreseeable risk of unreasonable harm
61
Q

duty to protect against a third person: foreseeability tests

A
  1. specific harm - no duty unless aware of specific imminent act
  2. prior similar incidents
  3. totality of circumstances
  4. balancing test - foreseeability of harm vs burden of imposing duty to protect
62
Q

requirements for scope of employment

A
  1. conduct is same general kind that is authorized and expected
  2. employee is operating within time and space limits
  3. motive to serve employer
63
Q

coming and going rule

A

respondeat superior generally doesn’t apply to normal commutes

64
Q

exceptions to coming and going rule

A
  1. employee is paid for commute and employer receives a benefit
  2. on call employee
  3. personal vehicle used for work-related tasks
  4. doing job-related task during commute
65
Q

Restatement Second 402(a) - Design Defect

A
  1. Defect - consumer expectation test
  2. defect was cause of harm or exacerbated harm
  3. defect existed at the time the product left the manufacturer
    OR
    when consumer knows of risks, utility v risk analysis
66
Q

elements of manufacturing defect

A
  1. product is defective
  2. defect is factual and proximate cause of harm
  3. product was defective when it left the manufacturer
67
Q

defect vs. negligence

A

negligence focuses on conduct, defect focuses on product

68
Q

design defect - third restatement 402(a)

A
  1. RAD
    1a. foreseeable risk could have been reduced or avoided by adoption of RAD
    1b. Omission of RAD renders product not reasonably safe
  2. causation
  3. injury
69
Q

Defenses to design defect (third restatement)

A
  1. benefits of product outweigh risks
  2. secondary assumption of the risk
  3. open and obvious danger is not a defense
70
Q

Restatement Third 402(a)(6) - prescription drugs analysis

A
  1. Risk vs. benefit
  2. Reasonable healthcare provider would not prescribe for any reason - could be found not defective if it could be prescribed for something
71
Q

Restatement Second - prescription drugs

A

blanket immunity for unsafe drugs or can be interpreted as case by case determination

Torts (2 decks)

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