Negligence

Question 1

Assumption of Risk (generally)

Answer 1

A person assumes a risk (either expressly or implied) when they voluntarily consented to a risk of harm.

Question 2

Primary Implied Assumption of Risk

Answer 2

(1) A complete bar to recovery
(2) D owes P no duty to guard against a particular risk of harm (counterargument to duty in prima facie case)

Ex - Unfair to charge an Alzheimer’s patient with a duty of care to prevent injury to his nurse when this is the very condition/hazard D has contracted with P to remedy or confront.

Question 3

Secondary Implied Assumption of Risk

Answer 3

(1) Comparative fault - Reduces P’s damages

(2) D owes a duty, but P knowingly encountered a risk of injury caused by D’s breach

Question 4

Express Assumption of Risk

Answer 4

A contractual limitation on liability creates an absolute bar to P’s recovery from the other party to the contract.

Rationale: Common law respects the liberty of an individual to run her own life and release D from ordinary care

Question 5

Exceptions to Absolute Bar in Express Assumption of Risk

Answer 5

• Contract void as a matter of public policy (Factors: D’s service is of great importance to the public; D claims they perform the service generally for the public; Unequal bargaining power in favor of D)
• The harm P claims is outside the scope of the contract (ATV case)
• Contract releases D from recklessness
• Parental waivers of child claims

Question 6

When P does not owe a duty to herself

Answer 6

Full responsibility allocated to D in interests of public policy if:

(1) D knows of P’s disability/vulnerability which prevents or inhibits P’s care for herself, AND
(2) P’s risky conduct endangers herself but not others

Example: Teacher raped student

Question 7

Contributory Negligence

Answer 7

Absolute bar to plaintiff if they are even slightly negligent (only 5 states still use contrib)

Example: Butterfield (P riding horse v fast ran into obstruction in road)

Question 8

Exceptions to Contrib Negligence Bar

Answer 8

1) The rescue doctrine (P can recover if she was harmed while negligently attempting to rescue negligent D)
2) Last clear chance or discovered peril (a negligent P can recover if he shows D had the last opportunity to avoid the accident.)
3) D’s reckless or intentional misconduct
4) P’s illegal activity bars claim (circuit split on whether this bars a P’s claim in comp fault jurisdictions)

Question 9

Pure Comparative Fault

Answer 9

P’s negligence to himself will not bar his recovery, but will diminish his damages. Even a P who is the main cause of his own injury can collect from D

Question 10

Modified Comparative Fault 51% Bar

Answer 10

If P’s negligence is greater than D’s negligence, then P is barred from recovery.

Question 11

Modified Comparative Fault 50% Bar

Answer 11

If P’s negligence is as great as D’s (all Ds combined) negligence, then P is barred from recovery.

Question 12

Nonfeasance

Answer 12

An actor who has not created a risk of harm to another has no duty of care to them

Question 13

Exceptions to Nonfeasance

Answer 13

Exceptions that impose a duty to act with reasonable care:

• D knows their conduct has already caused some harm to P
• D does an act which they realize creates unreasonable risk of harm to P
• Statute imposes a duty (Good Samaritan)
• D takes charge of assisting or caring for P (undertaking rule)
• D + P are in a special relationship (see special relationship card)

Question 14

D + P Special Relationships

Answer 14

1 A common carrier and its passengers
2 An innkeeper and its guests
3 A business or possessor of land that holds its land open to the public with those lawfully on the land
4 An employer with its employees, who while at work are either in imminent danger or are injured or ill and thereby rendered helpless
5 A school with its students
6 A landlord with its tenants
7 A custodian with those in custody, IF the custodian has superior ability to protect the plaintiff.

Question 15

When D owes a duty to protect P from third persons

Answer 15

1. Special relationship between D + P (See D+P Special relationships card)
2. An unreasonable foreseeable risk arising within the scope of the relationship (circuit split on what counts as a foreseeable risk)

Question 16

When D owes a duty to protect P from third persons

Answer 16

1. Special relationship between D + P (See D+P Special relationships card)
2. An unreasonable foreseeable risk arising within the scope of the relationship (circuit split on what counts as a foreseeable risk)

Question 17

Firefighter Rule

Answer 17

Precludes a firefighter and other public employees from recovering against a D whose negligence caused the on-the-job injury.

Question 18

Rationale for Firefighter Rule

Answer 18

For:

• Firefighter is licensee, so property owner only owes a duty to refrain from willful injurious acts.
• Assumption of risk
• Public policy: Their injuries are compensable through worker’s comp, liability properly borne through public instead of individual property owners. - They enter at unpredictable times, not reasonable to require level of care for invitees
• Negligent taxpayer incurs multiple penalties in exchange for protection

Against:

Question 19

What is the general standard of care?

Answer 19

Reasonable care - The standard is to act as a reasonable and prudent person would in the same or similar circumstances to avoid or minimize risks of harm to others.

The level of care must be proportionate to the danger involved.

Question 20

Definition of Duty

Answer 20

An obligation to conform to a particular standard of conduct toward another.

Question for the judge!

Question 21

Sudden Emergency

Answer 21

D not guilty of negligence if he exercises RPP standard while confronted with a sudden emergency that leaves him insufficient time to form a judgement in the most judicious manner

Question 22

Standard of Care for Physical Impairments

Answer 22

Their conduct must rise to the reasonable blind/physically disabled person. We do not ask them to act as though they are not blind.

Question 23

Standard of Care for Mental Impairments

Answer 23

Reasonable person standard UNLESS relationship between patient and caregiver

Question 24

Standard of Care Minors

Answer 24

Children are held to the standard care of a reasonably careful child of the same age, intelligence, and experience.
EXCEPTION: Children are held to an adult standard when doing an adult activities

Question 25

Negligence Per Se

Answer 25

The standard of care is set by a statute. An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect

Elements:

1. Statute that declares conduct unlawful but is silent as to civil liability
2. A standard of conduct is clearly defined in the statute
3. Violation of statute
4. The statute was designed to protect against the same harm that D’s conduct caused (Prox. Cause!), AND
5. P falls within the class of people that statute was designed to protect (Prox. Cause!)

Question 26

Excuses to Neg Per se

Answer 26

1. The violation is reasonable in the light of the actor’s childhood, physical disability, or physical incapacitation
2. The actor exercises reasonable care in attempting to comply with the statute
3. The actor neither knows nor should know of the factual circumstances that render the statute applicable
4. The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; OR
5. The actor’s compliance with the statute would involve a greater risk of physical harm than noncompliance

Question 27

Modified Traditional Duty to Entrants

Answer 27

Duty of reasonable care is owed to every entrant OR duty of reasonable care is owed to every entrant EXCEPT flagrant trespassers.

Question 28

Duty to Trespassers (traditional)

Answer 28

• Undiscovered: Reduced SOC. Only duty to refrain from willful or reckless
• Discovered/frequent: Reasonable
• Children: Reduced. Reasonable if there was an attractive nuisance

Question 29

Attractive Nuisance

Answer 29

1. Landowner KOHRTK children are likely to trespass
2. Landowner KOHRTK it could involve an unreasonable risk of death or harm to children
3. Children do not realize the risk involved because of their youth
4. Burden of maintaining or eliminating the danger is slight
5. Landowner fails to exercise reasonable care to eliminate the danger or protect children

Question 30

Duty to Licensee

Answer 30

Reduced standard of care. Only duty to refrain from willful, wanton, or reckless conduct

Question 31

Duty to Invitees

Answer 31

Reasonable standard of care

Question 32

Trespasser

Answer 32

Any person with no legal right to be on another’s land and enters the land without the owner’s permission

Question 33

Invitee

Answer 33

Any person on the premises (1) for the pecuniary benefit of the landowner (business invitee) or (2) who is on premises held open to the general public (public invitee)

Question 34

Breach of duty

Answer 34

When the actor creates an unreasonable risk of harm by failing to conform to the required standard of care

Question 35

Major factors in analyzing whether a conduct breached a duty of care

Answer 35

• Foreseeable likelihood that conduct will result in harm
• Foreseeable severity of any harm that may ensue
• Burden of precautions to eliminate or reduce the risk of harm

B

Question 36

Circumstantial Evidence

Answer 36

Evidence of one fact that permits an inference of another fact (skid marks on road before accident)

Question 37

Theories of Liability for S&F

Answer 37

1. D created and failed to take reasonable actions to take care of a hazard (waiter spills sauce on floor)
2. D did not create the condition but discovered or should have discovered a condition created by others and failed to correct it (Constructive Notice)
3. D’s method of business operations made it foreseeable that others would create a dangerous condition and D failed to discover and remedy it (customers help themselves at a drink station)

Question 38

Res Ipsa Loquitur

Answer 38

The fact that a particular injury occurred may establish a breach of duty (used when P cannot point to D’s specific conduct)

Elements:

1. Harm caused ordinarily does not occur in absence of someone’s breach (barrel falling out of window)
2. Injury-causing instrument in D’s exclusive control
3. Injury not due to P’s own negligence

Question 39

Steps for analyzing cause in fact

Answer 39

1. Identify injury that requires redress
2. Identify D’s wrongful conduct
3. Counterfactual (only wrongful conduct should be changed)
4. Whether injuries would have occurred if D did not breach

Question 40

But for test

Answer 40

P’s injury would not have occurred but for D’s breach of duty

Question 41

Factual Cause

Answer 41

D’s conduct must directly contribute to P’s injury/ be a necessary antecedent of P’s injury

Question 42

Substantial Factor Test

Answer 42

In circumstances where the conduct of each of two or more tortfeasors is sufficient to cause the entire harm, the plaintiff may instead show that the defendant’s breach was a substantial factor in causing plaintiff’s harm.

Question 43

The Risk Rule

Answer 43

The risk of P’s injury must be within the scope of risks created by D’s risk. An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.

Question 44

Proximate Cause Elements

Answer 44

Proximate cause establishes that P’s injury is closely enough related to D’s conduct that liability should attach.

D is liable only:

1. For types of injuries foreseeably risked by D’s negligence AND
2. To classes of persons foreseeably risked by his negligence

Question 45

Intervening/Superseding Causes

Answer 45

Breaks the causal chain (termination of risk) between P’s injury and D’s conduct. Factors:

• Not foreseeable in normal course of events
• Independent of or far removed from D’s conduct

Example: Obvious dangers and parents regaining control of children

Question 46

Risk Utility Test

Answer 46

i. A risk is unreasonable when the foreseeable probability and gravity of the harm outweigh D’s burden of alternative conduct which would have prevented the harm.
1. US v. Carroll Towing
ii. If the cost of accident avoidance (burden of precaution), is less than the expected cost of the accident without the precaution (magnitude of the risk), then a reasonable person chooses to take the precautions to prevent the injury.