NEGLIGENCE

Question 1

LANDOWNER’S DUTY TO AN ANTICIPATED TRESPASSER

Answer 1

To be liable for negligence, the defendant must have breached a duty owed to the plaintiff.

Under the traditional approach, land possessors owe no duty to unknown or unanticipated trespassers.* But they do owe a limited duty to known or anticipated trespassers to:

warn the trespasser of hidden, artificial (i.e., man-made) conditions that are known to the land possessor but unlikely to be discovered by the trespasser and

use reasonable care while conducting activities on their land.

Answer 2

Traditionally, a plaintiff who was contributorily negligent was barred from recovering damages. But almost all jurisdictions have now adopted some form of comparative fault (i.e., comparative negligence). There are two forms of comparative fault:

Pure comparative fault (default rule on the MBE) – the party’s recovery is reduced by his/her percentage of fault

Modified comparative fault – the same as pure comparative fault, except that the party’s recovery is barred if his/her fault exceeds 50%

In a pure comparative-fault jurisdiction, when both parties are entitled to recover damages (as seen here), the plaintiff’s recovery is reduced (i.e., offset) by the defendant’s recovery—and vice versa.

Question 3

TORT CAUSATION

Answer 3

Tort causation
Actual (factual) cause

• * Single cause – but for defendant’s conduct, plaintiff would not have been harmed
• * Multiple causes – defendant’s conduct was substantial factor causing plaintiff’s harm

Proximate - (legal) cause

• * Plaintiff’s harm was reasonably foreseeable consequence of defendant’s conduct.
• • Negligence requires proof that the defendant breached a duty owed to the plaintiff and thereby caused the plaintiff harm.
• Causation requires proof of both:
  
  • Actual (factual) causation – the plaintiff’s harm would not have occurred “but for” the defendant’s actions and
  • Proximate (legal) causation – the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct, meaning that the conduct was of a type that generally increases the risk of that harm.

Question 4

SCOPE OF DEFENDANT’S DUTY OF CARE IN A NEGLIGENCE CLAIM

Answer 4

Scope of defendant’s duty of care
Cardozo view - (majority rule)
Duty owed only to persons who might be foreseeably harmed as a result of defendant’s negligence (ie, persons within zone of foreseeable harm)

Andrews view - (minority rule)

Duty owed to everyone on earth if anyone might be foreseeably harmed as a result of defendant’s negligence

To prevail on a negligence claim, a plaintiff must establish all four elements of negligence: duty, breach, causation, and damages.

The majority rule is that a defendant owes a duty of care to a plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed as a result of the defendant’s negligent conduct (sometimes called “foreseeable plaintiffs”).

Question 5

WHAT ARE THE RULES FOR RECOVERY IN A MODIFIED OR PARTIAL COMPARATIVE FAULT JURISDICTION?

Answer 5

In traditional contributory-negligence jurisdictions, a plaintiff who fails to use reasonable care for his/her own safety and thereby contributes to his/her own injury is barred from recovering damages.

But now, almost all jurisdictions have adopted some form of comparative negligence (i.e., comparative fault). There are two forms of comparative fault:

Pure comparative negligence (default rule on the MBE) – the plaintiff’s recovery is reduced by his/her percentage of fault

Modified comparative negligence (followed in this jurisdiction) – the same as pure comparative fault, except that the plaintiff’s recovery is barred if his/her fault exceeds 50%*

Question 6

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Answer 6

Negligent infliction of emotional distress (NIED) has three theories of recovery: (1) zone of danger, (2) bystander, and (3) special situation. Liability under the zone-of-danger theory arises when:

the defendant’s negligent conduct placed the plaintiff in danger of immediate bodily harm andthat danger caused the plaintiff serious emotional distress.

Question 7

WHEN A PARTY HAS AN AFFIRMATIVE DUTY TO ACT

Answer 7

To be liable for negligence, the defendant must have breached a duty owed to the plaintiff.

A defendant generally has no affirmative duty to act. But such a duty arises when, for example:

• the defendant’s conduct creates a foreseeable risk of harm to the plaintiff—here, the driver created a foreseeable risk of harm when she sped down a wet, winding road—or
• the defendant assumes such a duty by voluntarily aiding or rescuing the plaintiff—here, the driver attempted to aid the passenger after the accident by placing her arm in a makeshift sling.

When this occurs, the defendant has a duty to use reasonable care to prevent further harm to the plaintiff

Question 8

WHAT IS THE STANDARD OF CARE FOR A DRIVER IN A JURISDICTION THAT HAS ENACTED A GUEST STATUTE?

Answer 8

In negligence actions, the standard most often applied to determine if the defendant breached a duty to the plaintiff is ordinary care—i.e., the care that a reasonably prudent person would use under the circumstances.

In most jurisdictions, automobile drivers owe a duty of ordinary care to their passengers (persons who pay money for the ride) as well as their guests (persons who ride for free).

However, a minority of jurisdictions—including the one at issue here—have enacted “guest statutes.” Under these statutes, the only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct.

As a result, a plaintiff-guest can recover damages from a defendant-driver under a guest statute if the driver’s reckless behavior caused the guest’s injuries.

Question 9

ATTRACTIVE NUISANCE

Answer 9

Under the attractive-nuisance doctrine, land possessors have a duty to exercise reasonable care to protect child trespassers from artificial (i.e., man-made) conditions on their land when:the condition exists where the land possessor knows or should know that children are likely to trespass

• * the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children
• children of the trespasser’s age cannot reasonably discover or appreciate the risk and
• the risk outweighs the condition’s utility and the burden of eliminating the risk.
• A land possessor that breaches this duty and causes the child trespasser physical harm is liable for negligence.

Question 10

ELEMENTS OF NEGLIGENCE PER SE

Answer 10

Elements of negligence per se

• * Defendant violated statute or ordinance
• * Plaintiff suffered type of harm statute or ordinance was intended to prevent
• * Plaintiff is in class of persons statute or ordinance was intended to protect.
• • A negligence claim requires proof that the defendant breached a duty owed to the plaintiff and thereby caused the plaintiff harm. In most jurisdictions, duty and breach can be presumed* under the doctrine of negligence per se if the plaintiff proves that:
• the defendant violated a statute or ordinancethat statute or ordinance was intended to prevent the type of harm suffered by the plaintiff and
• the plaintiff was in the class of persons that the statute or ordinance was intended to protect.

Question 11

AS OPPOSED TO THE RULE OF NEGLIGENCE PER SE, HOW DO THE MINORITY OF JURISDICTIONS HOLD THE VIOLATION OF A STATUTE IN DETERMINING WHETHER THERE IS LIABILITY FOR NEGLIGENCE?

Answer 11

To prevail on a negligence claim, the plaintiff must prove the following elements: duty, breach, causation, and damages. Under the doctrine of negligence per se, the majority approach is that duty and breach can be conclusively presumed if:

• the defendant violated a statute or ordinance that statute or ordinance was intended to prevent the type of harm suffered by the plaintiff anf
• the plaintiff is within a class of persons that the statute or ordinance was intended to protect.
• • However, under the minority approach, the violation of a statute or ordinance is merely evidence of negligence that creates a rebuttable presumption that the defendant breached a duty of care.

Question 12

Land possessor’s duty to land entrants - Modern approach
Main rule - (land entrants)

• * Reasonable care owed to all land entrants regardless of status on land (eg, invitee)
  
  • Exception - (flagrant trespassers)
    
    • Reasonable care not owed to flagrant trespassers BUT land possessor must not act in intentional, willful, or wanton (ie, tortious) manner that causes physical harm and
    • exercise reasonable care to flagrant trespassers in peril

Answer 12

To be liable for negligence, the defendant must owe a duty of care to the plaintiff.

Traditionally, the duty owed to land entrants depended on their status on the land (e.g., trespasser). But under the modern approach, land possessors owe all land entrants—except flagrant trespassers—a duty of reasonable care to protect them from foreseeable risk of harm.

A flagrant trespasser is one who enters another’s land without permission and whose entry is particularly egregious—e.g., entry that results in commission of a crime.

Question 13

STANDARDS OF CARE FOR NEGLIGENCE - INTOXICATION

Answer 13

The standard of care typically imposed in negligence cases is that of a reasonably prudent person under the circumstances.

A defendant’s voluntary intoxication is not considered in determining whether his/her conduct was negligent. This means that voluntarily intoxicated defendants will be held to the same reasonable-person standard as sober persons in negligence actions.

However, a defendant’s involuntary intoxication (as seen here) will be considered in determining whether his/her conduct was negligent.

This means that the conduct of a defendant who is involuntarily intoxicated will be measured by the standard of a reasonably careful person with the same level of intoxication.

Answer 14

A court should grant a defendant’s motion for a directed verdict if the plaintiff fails to present legally sufficient evidence to support every element of the claim—i.e., no reasonable jury could find in the plaintiff’s favor (Choice B).

For a negligence claim, the plaintiff must prove all of the following:

• The defendant owed the plaintiff a duty.
• The defendant breached that duty.
• The defendant’s breach caused the plaintiff’s harm.
• The plaintiff is entitled to damages.
• • Traditionally, the duty owed to land entrants depended on their status on the land. But under the modern approach—adopted in this jurisdiction and about half the others—land possessors owe all land entrants (except flagrant trespassers) a duty of reasonable care.

Question 15

CONTRIBUTORY NEGLIGENCE - TRADITIONAL APPROACH

Answer 15

Contributory negligence occurs when a plaintiff fails to exercise reasonable care for his/her own safety and thereby contributes to his/her own injury.

In traditional common-law jurisdictions (as seen here), the plaintiff’s contributory negligence is a complete defense to negligence and bars the plaintiff’s recovery of damages—regardless of the percentage that the plaintiff’s own negligence contributed to the harm.

Question 16

INFORMED CONSENT DOCTRINE

Answer 16

Physicians have a duty to disclose the risks of a medical procedure or treatment to a patient in advance so that the patient can give informed consent to the procedure or treatment. In most jurisdictions, the required level of disclosure is governed by custom among physicians.*

Failure to make the required disclosure breaches the standard of care owed by a physician to his/her patient and subjects the physician to negligence liability if:

• the failure to disclose caused the patient to consent to the treatment or procedure (i.e., the patient would not have done so had the risk been disclosed) and
• the undisclosed risk materialized and caused the patient physical harm.**

Question 17

A successful negligence claim requires proof that the plaintiff suffered physical harm (i.e., personal injury or property damage) as a result of the defendant’s negligent conduct.

Assuming all other elements are proved, the fact finder (e.g., a jury) considers the following factors to determine the amount of compensatory damages the plaintiff can recover in a negligence action:

• the initial physical harm caused by the defendant’s negligent act and any subsequent harm (physical, economic, or emotional) that is traceable to that initial harm and
• any steps taken by the plaintiff to mitigate that initial harm.
• But the fact finder will not consider the player’s failure to seek medical attention for several days after his knee was injured during the football game.
  
  • That is because the plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining the amount of compensatory damages a plaintiff can recover.

Answer 17

In a negligence action, a plaintiff can recover compensatory damages based on: (1) the plaintiff’s initial physical harm, (2) any subsequent harm traceable to that initial harm, and (3) steps taken to mitigate the initial harm.
* But the plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining damages.

Question 18

NEGLIGENCE
ELEMENTS OF A NEGLIGENCE CLAIM

Answer 18

• * DUTY - THE OBLIGATION TO PROTECT ANOTHER AGAINST UNREASONABLE RISK OF INJURY
• * STANDARD OF CARE: STANDARD OF CARE OWED TO THE OTHER PARTY
• FORESEEABLE PL
• * BREACH - FAILURE TO MEET THAT DUTYFORESEEABLE PL IN FLORIDA:
• • IF THE D’S CONDUCT CREATES A FORESEEABLE ZONE OF RISK. THE D OWES A DUTY OF CARE TO THOSE WITHIN THAT ZONE. IT IS NOT NECESSARY FOR THE D TO BE ABLE TO FORESEE THE ACTUAL INJURY THAT OCCURS. - Fl rule
• * CAUSATION - CLOSE CAUSAL CONNECTION BETWEEN THE ACTION AND THE INJURY
• * DAMAGES - THE LOSS SUFFERED.

Question 19

NEGLIGENCE: SPECIFIC CLASSES OF FORESEEABLE PLS

WHAT ARE THE RULES ON THE DUTY AND STANDARD OF CARE OWED TO A RESCUER AND VICE VERSA?

Answer 19

A person who comes to the aid of another is a foreseeable PL. If the D negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries.

To the extent that a rescuer’s efforts are unreasonable, comparative responsibility may reduce the rescuer’s recovery. but does not automatically bar it.

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job. (“firefigher’s rule”).

Question 20

NEGLIGENCE: SPECIFIC CLASSES OF FORESEEABLE PLAINTIFFS

INTENDED BENEFICIARIES

Answer 20

A D is liable to a third-party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently, and the D could foresee the harm of completing the transaction.

Question 21

NEGLIGENCE: SPECIFIC CLASSES OF FORESEEABLE PLS

FETUSES

Answer 21

Fetuses are owed a duty of care if they are viable at the time that the injury occurred.

Question 22

NEGLIGENCE: SPECIFIC CLASSES OF FORESEEABLE PLS

ANTICIPATED VICTIM OF A CRIME

Answer 22

The special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party.

Generally, a psychotherapist owes a duty only to her patient. However, when a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim.

The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance.

Question 23

NEGLIGENCE: AFFIRMATIVE DUTY TO ACT

In general, there is no affirmative duty to act. However, a duty is imposed in the following situations:

Answer 23

• Assumption of duty
• Placing another in peril
• By contract
• By authority
• By relationship
• By statute that imposes an obligation to act for the protection of another

Question 24

NEGLIGENCE: AFFIRMATIVE DUTY TO ACT –ASSUMPTION OF DUTY

When a person voluntarily aids or rescues another what duty does he owe to the person he has decided to rescue?

Answer 24

Assumption of duty:

A person who voluntarily aids or rescues has a duty to act with reasonable ordinary care in the performance of that aid or rescue.

FL has a Good Samaritan Statute that applies here.

Any person, including a licensed physician, who gratuitously and in good faith renders emergency care or treatment without objection by the injured party will not be held liable for damages resulting from such care, treatment, act, or failure to act in providing or arranging further medical treatment, as long as the person acts as an ordinary reasaonably prudent person would have acted under the same or similar circumstances.

Health care providers providing emergency services will not be liable for damages unless they acted with a reckless disregard for the consequences so as to affect the life or health of another.

Question 25

Negligence: Affirmative Duty to act - Placing another in peril

Answer 25

A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

Question 26

Negligence: Affirmative duty to Act - By Contract

Answer 26

There is a duty to perform contractual obligations with due care.

Question 27

Negligence: Affirmative Duty to Act - By Authority

Answer 27

One with actual ability and authority to control another, such as a parent over child and employer over employee, has an affirmative duty to exercise reasonable control.

Generally, this duty is imposed upon the D when the D knows or should know that the third person is apt to commit the injuring act.

Question 28

Negligence: Affirmative Duty to Act - By relationship

Answer 28

A D with a unique relationship to a Pl, such as business proprietor-patron, common carrier-passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist Pl and to prevent reasonably foreseeable injury to him from third parties.

Question 29

Negligence: Affirmative duty to act: By statute that imposes an obligation to act for the protection of another

Answer 29

A statute that imposes an obligation to act for the protection of another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.

Question 30

Negligence: Standard of Care

What is the general standard of care required that is imposed when addressing a negligence claim?

Answer 30

In most cases, the standard of case imposed is that of a reasonably prudent person under the circumstances.

This standard is an objective one, measured by what a reasonably prudent person would do, rather than whether a particular D is acting in good faith or using his best efforts.

A D is required to exercise the care that a reasonable person under the same circumstances (i.e., in his position, with his information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.

• Mental and emotional characteristics: D is presumed to have average mental abilities and the same knowledge as an average member of the community.
  
  • D’s own mental or emotional disability is not considered in determining whether his conduct is negligent, unless the D is a child.
• IN OTHER WORDS, a mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge.
• Physical characteristics: A D’s physical characteristics (e.g. blindness) are taken into account and the reasonableness of the conduct of a D with a physical disability is determined based upon a reasonably careful person with the same disability.
• Intoxication: Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary.

Question 31

Negligence: Standard of Care - Reasonably Prudent Person - Children

Answer 31

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience. Unlike the objective standard applies to adult Ds in negligence actions, the standard applicable to minors is more subjective in nature because children are unable to appreciate the same risks as an adult.

• Child engaged in a high-risk activity that is characteristically undertaken by adults: held to the same standard as an adult.
• Children under the age of five generally held to be incapable of negligent conduct.

Question 32

Negligence: Florida STANDARD OF CARE

Answer 32

Florida follows the traditional approach and defines negligence as: the failure to use reasonable care . Reasonable care is the degree of care that a reasonably careful person would use under like circumstances.

Florida also tends to find children under the age of six incapable of negligent conduct.

Question 33

NEGLIGENCE: FORESEEABILITY

FLORIDA POINT OF LAW

Answer 33

In Florida, if the D;s conduct creates a FORESEEABLE ZONE OF RISK, the D owes a duty of care to those within that zone. It is not necessary for the D to be able to foresee the actual injury that occurs.

Question 35

NEGLIGENCE: Standards of care for Specific Classes of Ds

COMMON CARRIERS AND INNKEEPERS

Answer 35

Under the C/l, a majority of jurisdictions held both common carriers (e.g. planes, buses, trains) and innkeepers to the highest duty of care consistent with the practical operation of the business. Under this approach, common carriers and innkeepers could be held liable for “slight negligence”.

Majority of courts continue to hold common carriers to this higher standard. However, most courts today hold that an innkeeper (hotel operator) is liable only for ordinary negligence

Question 36

Negligence: Standards of care for specific classes of Defendants

Automobile drivers

Answer 36

In most jurisdictions, automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride).

Minority of jurisdictions distinguish between the two with “guest statutes”, which impose only a duty to refrain from gross or wnaton and willful misconduct with a guest in the car. Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest.

Question 37

Negligence: Standards of care for specific classes of defendants

Bailors and bailees

Answer 37

A bailment occurs when a person (the bailee) temporarily takes possession of another (the bailor’s) personal property such as when a driver leaves his care with a valet.

The duty of care that must be exercised by a bailor or bailee varies depending on the type of bailment.

• Bailor’s duty
  
  • A gratuitous bailor (e.g. the owner of a power saw who lends it without charge to a friend) has a duty to inform the bailee only of known dangerous defects in personal property, but a compensated bailor (e.g. a commercial entity that leases a power saw to a customer) must inform a bailee of defectsthat are known or should have been known by the bailor had he used reasonable diligence
• Bailee’s duty
  
  • When a bailor receives the sole benefit from the bailment, the bailee has a lesser duty of care for the property and is liable only if he has been grossly negligent.
    
    • ​In contrast, when a bailee receives the sole benefit from the bailment, he must exercise extraordinary care for the bailor’s property.
    • Slight negligence on the bailee’s part will result in liability for any injuries to the property from failure to properly care for or use it.
    • In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property.

Question 38

Negligence: Standards of care for specific classes of defendants

Emergency situations

Answer 38

Applicable standard of care in an emergency is that of a reasonable person in the same situation.

In other words, less may be expected of the reasonably prudent person who is forced to act in an emergency , but only if the D’s conduct did not cause the emergency.

Question 39

Negligence: Standards of care for specific classes of Ds

Possessors of land

FL point of law: The duty owed to land entrants varies according to the visitor’s status.

Modern trend: Courts require that a standard of reasonable re applies to all land entrants except trespassers, abolishing the distinction between invitees and licensees.

Answer 39

Possessors of land: Includes owners, tenants, those in adverse possession, and others in possession of land. Rule only applies to the land possessor.

Only the land possessors are protected by the rules limiting liability to trespassers or licenses.

Contrast: Everyone else, e.g. easement holders -utility compnay with power lines on the land, or those licensed to use the land (e.g. hunters) must exercise reasonable care to protect the trespasser or the licensee.

In general, possessors of land owe a duty only to those within the boundaries of their land. The duty to entrants on the land includes:

• Conduct by the land possessor that creates risks;
• Artificial conditions on the land;
• Natural conditions on the land; and
• Risks created when any of the affirmative duties are applicable.

Question 40

Negligence: Standard of Care for Specific Classes of Ds

Possessors of Land - Modern Trend:

The land owner must use reasonable care to prevent harm posed by artificial conditions or conduct on the land. As for natural conditions, what is the general rule? Known dangerous conditions?

Answer 40

As for natural conditions, the general rule is that there is no duty to remove or protect against the condition, although there is an exception for rotting trees in densely populated areas.

• Known dangerous conditions
  
  • A land possessor must take reasonable precautions for known or obvious dangers when the possessor should anticipate the harm despite such knowledge or obviousness.
    
    • However, when the danger is open and obvious to the entrant, a warning will not provide additional protection against harm.
      
      • Consequently, if the only purpose of a warning would be to provide notice of a danger that is open and obvious, there is no liability for failing to provide such a warning.
      • Also, even when a warning is required, an entrant who encounters an obviously dangerous condition and fails to exercise reasonable self-protective care is contributorily negligent.

Question 41

Negligence: Standards of CAre for Specific Classes of Ds

Trespassers - Florida Point of Law.

Discovered and Undiscovered Trespassers

Answer 41

In Florida, a discovered trespasser is one who enters real property without an express or implied invitation and whose actual presence was detected within 24 hours preceding the accident.

Undiscovered trespasser is one who enters real property without an express or implied invitation and whose actual presence was not detected within 24 hours preceding the accident.

A trespasser is only elevated to the level of invitee if the landholder extends an express invitation or manifests a clear intention to hold the property open to the use of others pursuing purposes similar to those pursued by the trespasser

Question 42

Negligence: Standards of care for specific classes of Ds

Trespassers - Traditional approach:

A trespasser is someone who enters or remains upon the land of another without consent or privilege to do so.

What was standard of care owed by the landowner under the traditional approach?

Answer 42

A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.

Question 45

NEGLIGENCE: STANDARD OF CARE FOR SPECIFIC CLASSES OF Ds as it pertains to TRESPASSERS

SPRING GUNS AND OTHER TRAPS

Answer 45

The use of a spring-gun or other trap set to expose a trespasser to a force likely to inflict death or grievous bodily injury will lead to liability for the land possessor.

The land possessor cannot do indirectly what he would be forbidden to do directly (e.g. shoot the trespasser)

Question 46

NEGLIGENCE: STANDARD OF CARE FOR SPECIFIC CLASSES OF DEFENDANTS -

POSSESSORS OF LAND AND DUTY TO TRESPASSERS: - DISCOVERED TRESPASSERS

Answer 46

Land possessors owe a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, artificial conditions. There is no duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm.

Land possessors also have a duty to use reasonable care while conducting activities on the land, as well as to control the activities of third parties on their property.

When a land possessor should reasonably know that trespassers are consistently entering his land (e.g. frequent trespassers using a footpath to cut across the corner of the property), the possessor owes a duty to the anticipated trespasser, regardless of the land possessor’s actual knowledge of the trespasser’s presence.

Question 47

NEGLIGENCE: FLORIDA DISTINCTION - IMMUNITY FROM LIABILITY FOR INJURY TO TRESPASSERS

When does this Florida distinction apply?

Answer 47

• An owner of real property will not be liable for damages to a trespasser, if the trespasser was under the influence of controlled substances, chemicals, or alcoholic beverages with a blood-alcohol level of 0.08 or higher or
  
  • If the trespasser was affected by these substances to the extent that his normal faculties were impaired at the time of the event.
    
    • Owner will not be immune from liability if:
      
      • the owner’s gross negligence or intentional misconduct was a proximate cause of the death or injury to the trespasser
• Additionally, the owner is not liable for damages to any discovered or undiscovered trespasser regardless of whether the trespasser was intoxicated or impaired except:
  
  • i) To avoid liability to undiscovered trespassers, the owner must refrain from intentional misconduct that proximately causes injury to an undiscovered trespasser , but the owner has no duty to warn of any know dangerous conditions.
  • ii) To avoid liability to discovered trespassers, the owner must refrain from gross negligence or intentional misconduct that proximately causes injury to the discovered trespasser and the owner must warn of any known dangerous conditions.
• Finally, an owner will not be liable for negligence that results in death or injury to a person committing or attempting to commit a felony on the property.
• Immunity provided by this section does not alter the attractive nuisance doctrine.

Question 48

NEGLIGENCE: STANDARDS OF CARE FOR SPECIFIC CLASSES OF DEFENDANTS

STATE THE ELEMENTS OF THE ATTRACTIVE NUISANCE DOCTRINE

Answer 48

Under the “attractive nuisance doctrine” a land possessor may be liable for injuries to children trespassing on the land if:

• i) An artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass;
• ii) The land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children;
• iii) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
• iv) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and
• v) The land possessor fails to exercise reasonable care to protect children from the harm.

FLORIDA DISTINCTION: ATTRACTIVE NUISANCE DOCTRINE

• Although most states have rejected the CL requirement that the child must be lured or enticed onto the property by the condition that ends up injuring him, FL does still impose this requirement.

Question 49

NEGLIGENCE: STANDARD OF CARE FOR SPECIFIC CLASSES OF Ds

POSSESSORS OF LAND - DUTY OWED TO INVITEES - TRADITIONAL APPROACH

Answer 49

An invitee is either :

• A public invitee: someone invited to enter or remain on the land for the purposes for which the land is held open to the public; or
• a business visitor - someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor.

Land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions and protect the invitee from them .

• However, the duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond the scope.
• Non-delegable duty
  • The land possessor’s duty to invitees is a non-delegable duty.
    
    • Example: Even if a store owner hires an independent contract to maintain the escalator in her store, she will remain liable if the contractor negligently fails to properly maintain the escalator.
  • Recreational use: In some jurisdictions, a land possessor who opens his land to the public for recreational purposes is not liable for injuries sustained by recreational land users so long as he does not charge a fee for the use of his land, unless the landowner acts willfully and maliciously or, in some jurisdictions, with gross negligence.
    *

Question 50

Negligence: Standards of Care - Possessors of Land

Licensees - Traditional approach

Note: FL has a distinction for both Licensees and Invitees.

Who is a licensee? What is the duty of the land possessor to the licensee?

Answer 50

Traditional approach:

A licensee is someone who enters the land of another with the express or implied permission of the land possessor or with a privilege.

Examples of licensees are:

• Social guests: they may be “invited”, but they are still licensees, not invitees;
• Those whose presence is tolerated by the land possessor such as children who routinely cut across the land on their way home from school; and
• Emergency personnel such as police, firefighters, and emergency medical technicians.

Land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to him. The land possessor does not have a duty to inspect for dangers. In addition, the land possessor must exercise reasonable care in conducting activities on the land.

Question 51

NEGLIGENCE: FL DISTINCTION AS TO LAND POSSESSORS AND

LICENSEES AND INVITEES

EXPLAIN THE LAW IN FLORIDA AS TO LICENSEES AND INVITEES AND THE LAND POSSESSOR’S STANDARD OF CARE HERE.

Answer 51

In Florida , a public invitee is a licensee on the premises by the express or implied invitation of the owner or possessor of the property. A public invitee is owed the same duty as a business invitee.

Licensees : FL classifies licensees as invited or uninvited

Uninvited Licensee: is one who chooses to come onto the property for his own convenience without invitation. The duty owed is to refrain from inflicting willful or wanton injury. There is no duty to protect against third-party crimes.

Invited Licensee: Is on the premises by invitation of the property owner, either by express or reasonably implied invitation (e.g. social guest). FL eliminated a distinction between commercial visitors (business invitee) and social guests (invited licensee) and holds them to the same standard of reasonable care. There is a duty to invitees and invited licensees to protect against foreseeable third-party crimes.

• A business owner as a duty of reasonable care to maintain the premises in a reasonably safe condition for business invitees including reasonable efforts to keep the premises free from transitory objects or substances that might foreseeably give rise to loss, injury or damage and warn the invitee of any such object or substance.

The burden of proof rests with the claimant to show that the business had actual or constructive notice of the object alleged to have caused the injury.

Firefighters and law enforcement officers engaged in the lawful performance of their employment who enter another’s premises are treated as invitees.

Question 52

NEGLIGENCE: STANDARD OF CARE - POSSESSORS OF LAND

LIABILITY OF LANDLORDS AND TENANTS

Answer 52

Because the obligations associated with property are owed by the possessor of the land, a lessee assumes any duty owed by the lessor once the lessee takes possession.

• i) LANDLORD’S LIABILITY
  
  • The landlord remains liable for injuries to the tenant and others occurring:
    
    1. In common areas such as parking lots, stairwells, lobbies and hallways;
    2. As a result of hidden dangers about which the landlord fails to warn the tenant;
    3. On premises leased for public use;
    4. As a result of a hazard caused by the landlord’s negligent repair; or
    5. Involving a hazard that the landlord has agreed to repair.
• ii) TENANT’S LIABILITY
  
  • As an occupier of land, the tenant continues to be liable for injuries to third parties arising from dangerous conditions within the tenant’s control, regardless of whether the land owner has liability.

Question 53

NEGLIGENCE: POSSESSORS OF LAND AND STANDARD OF CARE

OFF-PREMISES VICTIMS

What duty, if any, does the land owner owe to off-premises victims?

Answer 53

A landowner generally does not owe a duty to a person not on the premises (e.g. passerby, owner of adjacent land), who is harmed by a natural condition on the landowner’s premises.

Exception exists with respect to trees in urban areas.

Artificial conditions: The landowner generally owes a duty to prevent unreasonable risk of harm to persons who are not on the premises. With respect to an activity conducted on the premises by the owner or by someone subject to the owner’s control, the landowner generally owes a duty of reasonable care to persons who are not on the premises.

Question 54

NEGLIGENCE: DUTY OWED BY SELLERS OF REAL PROPERTY

Answer 54

Sellers of real property owe a duty to disclose to buyers those concealed and unreasonably dangerous conditions known to the seller.

• These are condition that the buyer is unlikely to discover upon reasonable inspection.
• The seller’s liability to third parties continues until the buyer has a reasonable opportunity, through maintenance and inspection, to discover and remedy the defect.

Question 55

NEGLIGENCE: BREACH OF DUTY

When does a breach of duty occur? How is negligent conduct determined in a negligence claim?

Answer 55

A breach of duty occurs when the d departs from the required standard of care, such as failure to act as a reasonable person, an unexcused violation of a statute, or, if there is no direct evidence, through res ispa loquitur.

Two approaches for determining negligent conduct (breach of the general standard of care)

• Traditional approach
  
  • Most courts determine breach of the standard of care by comparing the D’s conduct with what a reasonably prudent person under the circumstances would or would not have done (applying an objective standard).
• Cost-benefit analysis
  
  • Modern trend and Third Restatement approach set out the primary factors to consider in determining whether the D has acted in accordance with the standard of care as follows:
    
    • i) The foreseeable likelihood that the D’s conduct would cause harm;
    • ii) The foreseeable severity of any resulting harm; and
    • iii) The D’s burden (costs or other disadvantages) in avoiding the harm.
  • This is how the Third Restatement defines negligence using terms rather than the reasonably prudent person standard.

Question 56

NEGLIGENCE: BREACH OF DUTY

CUSTOM WITHIN A COMMUNITY OR INDUSTRY

SAFETY CODES

What part does custom in the community or an industry play in determining if there was a breach of the standard of care required?

Answer 56

Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive. The entire community or industry may be negligent.

Safety codes that are promulgated by industries, and government bodies for the guidance of operations within their respective fields of interest are admissible to prove custom.

Question 57

NEGLIGENCE: BREACH OF DUTY

PROFESSIONALS

How is the negligence (breach of duty) of a professional established?

Answer 57

A professional person (e.g. doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.

A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.levaatatttt

Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the D’s deviation from the standard.

• However, when the D’s negligence is so apparent that a layperson can identify it, expert testimony will not be required. –Std of care was regarded as within the common knowledge of a layman when the surgeon amputated the wrong leg, —no expert testimony was required to establish the standard of care.
  
  • With regard to professionals, deviation from the relevant custom is dispositive evidence of a breach. Similarly, compliance with the relevant custom is dispositive evidence that the professional did not breach a duty of care.
    *

Question 58

Negligence: Breach of duty

Physicians

What is required to establish a breach of duty by a physician?

What is the FL distinction for physicians?

Answer 58

Local vs. national standard

Traditionally, physicians were held to the “same or similar locale: rule of custom. Some jurisdictions have retained the traditional rule, but the majority of jurisdictions now apply a national standard to physicians, including physicians that are specialists.

FL Distinction: FL holds generalist to a local standard, and specialists to a national standard.

Question 59

NEGLIGENCE: BREACH OF DUTY

PHYSICIANS

INFORMED CONSENT

FLORIDA POINT OF LAW ON INFORMED CONSENT: EXPLAIN

Answer 59

A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. Hoe

Question 59

NEGLIGENCE: BREACH OF DUTY

PHYSICIANS

INFORMED CONSENT

FLORIDA POINT OF LAW ON INFORMED CONSENT: EXPLAIN

Answer 59

A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. Hoe

Question 59

NEGLIGENCE: BREACH OF DUTY

PHYSICIANS

INFORMED CONSENT

FLORIDA POINT OF LAW ON INFORMED CONSENT: EXPLAIN

Answer 59

Informed consent: Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure to comply with this “informed consent” doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice (medical negligence).

A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. However, a significant minority holds that the physician must disclose any “material risk” – any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment.

Doctors are not under an obligation to disclose when:

• The risk is a commonly known risk;
• The patient is unconscious or otherwise incapable of giving consent (e.g. emergency treatment);
• The patient waives or refuses the information;
• The patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian; or
• The disclosure would be detrimental to the patient (e.g. would upset the patient enough to cause extreme illness, such as a heart attack.)

FL POINT OF LAW: INFORMED CONSENT

The informed consent rule in FL applies to physicians, chiropractors, podiatrists, dentists, advance registered nurse practitioners, and physician assistants. No recovery is allowed in an action brought for treating, examining, or operating on a patient without informed consent when:

• i) The obtaining of consent was in accordance with the accepted standard of medical practice among medical professionals with similar training and experience and a reasonable individual would have a general understanding of the procedure, acceptable alternatives, and risks inherent in the treatment based upon the information provided by the medical professional; or
• ii) Based upon the surrounding circumstances, the patient would reasonably have undergone such procedure or treatment had he been so advised.

If such consent meets the foregoing requirements and is in writing, signed by the patient or other authorized person, a rebuttable presumption of valid consent is raised.

Question 60

NEGLIGENCE: NEGLIGENCE PER SE

The standard of care can sometimes be determined by statute. In most jurisdictions, the violation of such a statute establishes negligence as a matter of law (a conclusive presumption as to duty and breach). A minority of jurisdictions hold that a violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach).

What elements need to be proven to establish negligence per se?

What is covered under negligence per se in FL?

Answer 60

• i) A criminal or regulatory statute (or administrative regulation or municipal ordinance) imposes a specific duty for the protection of others;
• ii) The D violates the statute by failing to perform that duty;
• iii) The Pl is in the class of people intended to be protected by the statute; and
• iv) The harm is of the type the statute was intended to protect against.

Once negligence per se is established, in order for the D to be liable, the Pl must prove that his injuries were proximately cause by the D’s violation of the statute.

Effect of a D’s compliance:

Generally, compliance with a statute, a regulation or an ordinance does not prove the absence of negligence. However, sometimes, if the D’s conduct complies with certain types of federal regulatory statutes, such as those establishing comprehensive regulatory schemes, compliance with the federal requirements may preempt common law tort actions.

FL DISTINCTION - VIOLATION OF A STATUTE

In FL, a violation of a penal statute or ordinance is generally treated as negligence per se. Violation of other statutes, ordinances or regulations (including traffic regulations, even those with a penal aspect, and building code violations) is merely evidence of negligence, not negligence per se.

Question 61

NEGLIGENCE: DEFENSES TO NEGLIGENCE PER SE

WHAT ABOUT A VIOLATION OF A STATUTE OR ORDINANCE BY THE PL?

Answer 61

An excused violation of an applicable statute can be a defense to negligence per se under the following circumstances:

• i) Greater risk of harm
  
  • The D may be able to avoid liability by proving that the compliance would have involved a greater risk of physical harm to the D or others than noncompliance would have (e.g. it was an emergency).
• ii) Incapacity
  
  • The violation of a statute may not be negligence if the violation is reasonable in light of the D’s physical disability or incapacitation, or if the D is a child.
• iii) Reasonable care
  
  • It is a defense that the D exercised reasonable care in attempting to comply with the statute.
• iv) Vagueness
  
  • If the requirements of the statute at issue were presented to the public in a confusing manner (e.g. extremely vague or ambiguous), then the D’s violation is excused.
• v) Reasonable ignorance
  
  • If the statute imposes an obligation only under certain factual circumstances that are not usually present, and the D is not aware that these circumstances are present and further proves that his ignorance was reasonable, then the D;s violation of the statute is excused for the purposes of negligence per se.

Violation by PL: The violation of a statute, regulation or ordinance by a PL may constitute contributory negligence per se. The same requirements apply.

Question 62

NEGLIGENCE: BREACH OF DUTY

DOCTRINE OF RES IPSA LOQUITUR

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the D’s negligent conduct in the absence of direct evidence of such negligence.

Res ipsa is circumstantial evidence of negligence that does not change the standard of care.

What must PL prove under the traditional standard for res ipsa loquitur?

Answer 62

Under the traditional standard for res ipsa loquitur, still used in many jurisdictions, the PL must prove that:

• i) The accident was of a kind that ordinarily does not occur in the absence of negligence;
• ii) It was caused by an agent or instrumentality within the exclusive control of the D; and
• iii) It was not due to any action on the part of the Pl.

In establishing that the accident was of a kind that ordinarily does not occur in the absence of negligence, PL does not need to conclusively exclude all other possible explanations. It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation.

Question 63

NEGLIGENCE: BREACH OF DUTY

RES IPSA LOQUITUR - MODERN TRENDS

Answer 63

Even under the traditional requirements, courts often generously interpret the “exclusive control” requirement.

• Medical malpractice: In medical malpractice cases when several physicians, nurses, and other medical personnel have access to the Pl during surgery, a small number of jurisdictions apply res ipsa loquitur, finding that each D has breached a duty of care unless he can exonerate himself.
  
  • In the absence of such exonerating evidence, the courts hold all the Ds jointly and severally liable.
• Products liability: In negligence cases involving products, even if the product passes through many hands, those of the manufacturer, the distributor, the retail store, and the consumer/user –if the manufacturer wrapped the package or it is clear that any negligence took place during the production process, many courts ignore the exclusivity requirement.
• Comparative fault jurisdictions: Courts in the vast majority of jurisdictions that have adopted comparative fault are also inclined to loosely apply the third requirement of the res ipsa loquitur doctrine–that the harm must not be due to any action on the part of Pl (whether such action constitutes contributory negligence or not)–because such a requirement would otherwise be in tension with the law holding that the Pl’s contributory negligence is no long a total bar to recovery.

PROCEDURAL EFFECT OF RES IPSA LOQUITUR

If the Pl establishes a prima facie case of res ipsa, then the trial court should deny the D’s motion for a directed verdict, and the issue of negligence must be decided by the trier of fact.

In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the D’s part. It simply establishes an inference of negligence sufficient to avoid dismissal of the Pl’s action.

Question 64

NEGLIGENCE: CAUSATION

The PL must prove that the D’s actions were both

• the actual cause (“factual cause” or “cause in fact”) and
• the proximate cause (“legal cause” or under the Restatement, the “scope of liability) of the Pl’s injury.

Explain actual causation (Cause in fact)- How is that proven?

Answer 64

Actual Cause (Cause in fact):

• “But for” test
  
  • If the Pl’s injury would not have occurred but for the D’s tortious act or omission, then the D’s conduct is a factual cause of the harm
  • If the injury would have occurred despite the D’s conduct, then there is no factual cause.
• Multiple and/or indeterminate causes
  
  • The but-for test for causation will not work if:
    
    • i) There are multiple tortfeasors and it cannot be said that the D’s tortious conduct necessarily was required to produce the harm;
    • ii) There are multipe possible causes of the Pl’s harm, but the Pl cannot prove which D caused the harm; or
    • iii) The D’s negligent medical misdiagnosis increased the probability of the Pl’s death, but the Pl probably would have died even with a proper diagnosis.
      
      • 1) Substantial factor
        
        • When but-for causation does not work, most courts substitute in the substantial factor test.
        • In cases in which the conduct of a D together with some other cause (e.g. another D or an independently occurring event) may have contributed to a Pl’s indivisible injury, each of which alone would have been a factual cause of that injury, the test is whether the D’s tortious conduct was a substantial factor in causing the Pl’s harm.
      • 2) Alternative causation
        
        • If the Pl’s harm was caused by
          
          • (i) one of a small number of Ds–usually two and almost never more than four or five;
          • (ii) each of whose conduct was tortious; and
          • (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual D to prove that his conduct was not the cause in fact of the Pl’s harm.
      • 3) Concert of action
        
        • If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the Pl’s harm, then all Ds are jointly and severally liable.
• Loss of chance of recovery
  
  • Usually applied in a medical malpractice case (e.g. failure to diagnose) when a PL cannot meet the preponderance standard (i.e. more likely than not) for causation because the chance of recovery was already less than 50% before the D’s negligent conduct.
  • • Under this doctrine, courts allow the PL to recover reduced damages, often measured by an amount equal to the total damages recoverable as a result of the decedent’s death multiplied by the difference in the percentage chance of recovery before the negligent misdiagnosis and after the misdiagnosis.

Question 66

NEGLIGENCE: CAUSATION

Loss of change of recovery -

FL POINT OF LAW:

What is the FL rule for loss of chance of recovery as compared to other jurisdictions?

Answer 66

FL POINT OF LAW: Loss of chance of recovery

To recover damages in FL, the Pl must produce evidence that he had a greater than even chance of survival before the negligence.

Question 67

NEGLIGENCE : ACTUAL CAUSATION - CAUSAL LINKAGE

Most often, when the Pl proves that the D’s tortious conduct was a but-for cause of his injury, he also implicitly proves what?

Answer 67

That the D’s conduct increased the probability that the Pl would be harmed.

However, a D is not the proximate cause (legal cause( of harm when the tirtious aspect of the D’s conduct was of a type that does not increase the risk of that harm.

In such cases, it is purely coincidental that the D’s tortious conduct was the but-for cause of the Pl’s injury.

Question 68

NEGLIGENCE: CAUSATION

PROXIMATE CAUSE (LEGAL CAUSE)

In order to prove the causation part of a negligence claim, in addition to proving actual causation, the Pl must prove proximate case. Explain.

Answer 68

Pl must prove that the D’s tirtious conduct was a proximate cause of his harm.

• Proximate cause is a legal limitation on actual cause, focusing on foreseeability.
• Some courts and the Third Restatement prefer the phrase –“scope of liability”.
• Majority rule for proximate cause requires that the Pl suffer a foreseeable harm that is nott too remote and is within the risk created by the D’s conduct.

NOTE THE FL POINT OF LAW: In FL, if the D’s conduct creates a FORESEEABLE ZONE OF RISK, the D owes a duty of care within the zone.

• Important: It is not necessary for the D to be able to foresee the actual injury that occurs. >–contrary to the proximate cause stated above.
• However, case in question was about the following facts.
• Court was looking at D’s duty to Pl when a third party injured the Pl when 3rd party pulled a hatchet out of the D’s truck and severely injured the Pl. Ct said that PL was in the foreseeable zone of risk that he might be injured when PL was in the parking lot near D’s unlocked truck and D blocked his exit. Thus D owed a duty of care to the Pl.-because D ‘s conduct created a foreseeable zone of risk.
  
  • ​It is not whether it was foreseeable that Pl would sustain the actual injury that occurred. It is whether D’s negligent conduct, not permitting PL to leave - blocking his exit coupled with leaving his truck unlocked knowing there was a hatchet inside–. created a zone of risk—which would result in a duty owed to PL for the third party acts causing his injury.

In FL, proximate cause looks at whether and to what extent the D’s actions foreseeably and substantially cause the injury. The injury must be foreseeable – a prudent human must be able to expect that similar harm is likely to be substantially caused by the act or omission at issue.

Question 69

NEGLIGENCE: PROXIMATE CAUSE

Indirect cause issue

Superseding cause issue

What is the issue here?

Answer 69

The second proximate cause issue is whether the injury resulted without any unforeseeable or extraordinary events that will serve to break the chain of the D’s liability.

• 1) Direct cause
  
  • A Pl can recover when the D’s tortious acts are the direct cause of the Pl’s harm without the intervention of independent contributing acts.
• 2) Indirect cause
  
  • An indirect cause results from an act or event occurring after the D’s tortious act and before the Pl’s injury (i.e. intervening event).
  • A superseding cause is any intervening event that breaks the chain of proximate causation between the D’s tortious act and the Pl’s harm.
    
    • Whether an intervening cause will be superseding depends upon its foreseeability. The fact that an intervening cause occurred at all is considered foreseeable.
    • A D is liable if the type of harm is foreseeable, even if it occurred in an unforeseeable manner.

Question 70

NEGLIGENCE: PROXIMATE CAUSATION

FORESEEABLE vs UNFORESEEABLE INTERVENING CAUSES

Explain.

FL also has a Point of law on superseding causes.

Answer 70

Foreseeable intervening causes

• A foreseeable intervening cause will not cut off a D’s liability.
• • Examples of foreseeable intervening forces: subsequent medical malpractice; disease; negligence of rescuers; normal forces of nature; efforts to protect a person or property.
    
    • • As a general guideline, negligent intervening acts are usually regarded as foreseeable and do not prevent the original D from being held liable to the Pl.

Unforeseeable intervening causes

• Most courts hold that an unforseeable intervening cause is a superseding cause that therefore breaks the chain of causation between the D and the Pl. Examples: extraordinary acts of nature (‘acts of God”) and criminal acts and/or intentional torts of third parties.
• • Criminal acts of third parties are generally regarded as unforeseeable superseding causes and therefore break the chain of causation between the original D’s negligence and the Pl’s harm.
    
    • • However, if the duty breached by the D is one of failing to use reasonable care to protect the Pl and Pl is harmed by a criminal act, then the original D remains liable.
• Effectof non-superseding intervening causes
• • Original D and the actor responsible for the intervening negligent act can both be held jointly and severally liable to the Pl.
• • *
• FL Point of Law: Superseding Causes
  
  • To be superseding, an intervening cause must not be foreseeable, and must not be set in motion by the D’s negligence.

Question 71

NEGLIGENCE: PROXIMATE CAUSATION

EXTENT OF DAMAGES

“EGGSHELL-SKULL” RULE - What is the rule?

Answer 71

Under the eggshell-skull rule, the extent of the damages need never be foreseeable. The D is liable for the full extent of the Pl’s injuries that may be increased because of the Pl’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Question 72

Negligence: Proximate causation

Presumption: FL DISTINCTION: REAR-END COLLISION REBUTTABLE PRESUMPTION

What needs to be established here?

Answer 72

FL DISTINCTION: Rear-end collision rebuttable presumption

There is a rebuttable presumption that the negligence of the rear driver in a rear-end collision was the sole proximate cause of the accident.

• The rear driver may rebut the presumption by showing that:
  
  • i) The lead driver stopped or changed lanes abruptly or arbitrarily in a place that a reasonable person would not expect;
  • ii) The lead driver stopped illegally; or
  • iii) The rear driver’s car suffered from a mechanical failure that is not the rear driver’s fault.

Question 73

NEGLIGENCE: BREACH - DAMAGES

What can a PL recover for damages in a successful negligence claim?

Answer 73

• ACTUAL DAMAGES: Must prove actual harm to complete the requirements of liability for negligence. Nominal damages not recoverable. Remember the “thin -skull” rule applies. D is not required to foresee the extent of damages in order to be held liable for all damages.
• • EMOTIONAL DISTRESS DAMAGES: Pl wo is the victim of a tort that causes physical injury may also add on emtional distress as an element of damages - parasitic damages.
    
    • • ATTORNEY FEES: Not recoverable
        *
• COMPENSATORY DAMAGES: Compensation that would make the victim whole, as if he had never suffered the injury.
• • MITIGATION OF DAMAGES AND AVOIDABLE CONSEQUENCES: Pl must take reasonable steps to mitigate damages. Not a duty of the Pl’s but it is a limiation on the PL’s recovery due to the failure to avoid harm that couldd have been avoided by the use of reasonable effort after the tort was committed.
• • PERSONAL INJURY: CATEGORIES OF DAMAGES: Typical categories recoverable in a personal injury action include:
    
    • Medical and rehabilitative expenses, both past and future;
    • Past and future pain and suffering (e.g. emotional distress); and
    • Lost income and any reduction in future earnings capacity.
• • PROPERTY DAMAGE: General rule: When the Pl’s personal property is injured or destroyed by the D’s tortious conduct, the general rule is that the Pl may recover the difference between the FMV of the property immediately before the injury and immediately after the injury.
    
    • Cost of repairs: Most courts allow the cost of repairs as an alternative measure of damages, provided that the cost of repairs does not exceed the value of the property.
    • Household items: such as clothing and appliances - Courts often hold the replacement value is the measure of damages.
      *

Question 74

NEGLIGENCE: DAMAGES - COLLATERAL SOURCE RULE

** Note- Florida has modified the rule by statute.

Explain this rule and how FL is different if applicable.

Answer 74

Collateral source rule - Traditional rule: Benefits or payments provided to the Pl from outside sources (such as Pl’s medical insurance) are not credited against the liability of any tortfeasor, nor is evidence of such payments admissible at trial. However, under this traditional rule, payments made to the Pl by the D’s insurer are not considered payments from a collateral source, and such payments are credited against the D’s liability.

Modern trend in majority of states: either eliminating the collateral-source rule entirely or modifying its application (e.g. not applicable in medical malpractice).

Question 75

NEGLIGENCE: DAMAGES - FL COLLATERAL SOURCE RULE

Explain FL’s distinction from the CL rule

Answer 75

Modified by statute

Damages are reduced by the total of all amounts paid for the benefit of the claimant, or that are otherwise available. However, damages are not reduced if a subrogation or reimbursement right exists for the benefit.

The reduction is offset by any amount paid, contributed, or forefeited by the claimant, or on his behalf, to secure a right to a collateral-source benefit

Collateral sources include: social security, disability, insurance (except life insurance), contract benefits and wage contribution plans.

Question 76

NEGLIGENCE: DAMAGES - PUNITIVE DAMAGES

In a negligence claim, is the Pl entitled to punitive damages? Or any tort claim?

Note: There is a FL distinction

Answer 76

Pl may be entitled to punitive damages if he can establish by clear and convincing evidence that the D acted willfully and wantonly, recklessly, or with malice. Torts that inherently involve a malicious state of mind.

Note that in many states, the availability of punitive damages as a remdy is determined by statute . There are also constitutional limitations on the amount of a punitive damages award. S. Ct has decline to impose a bright-line ration which a punitive damage award cannot exceed, but has observed that very few awards exceeding a single-digit ration between punitive and compensatory damages will satisfy due process.

Question 77

NEGLIGENCE - DAMAGES: PUNITIVE DAMAGES

FLORIDA DISTINCTION

Answer 77

Punitive damages must be pled and may be awarded if it established by clear and convincing evidence that the D was personally guilty of intentional misconduct or gross negligence.

• Gross negligence: Means the D’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or right of persons exposed to such conduct.

Additionally, for punitive damages to be imposed against an employer for acts of an employee or agent, the employee or agent must be guilty of intentional misconduct or gross negligence and the employer must:

• i) Actively and knowingly participate in the conduct;
• ii) Ratify, condone or consent to the conduct; or
• iii) Engage in conduct constituting gross negligence that contributes to the injury.

Punitive damages in excess of three times the claimant’s compensatory damages or $500,000 whichever is greater are presumed to be unreasonable

• Court must order a remittitur unless it determines by clear and convincing evidence that the amount is not excessive.

Question 78

MBE TORTS: STRICT LIABILITY FOR CERTAIN ACTIVITIES

LEVEL OF CARE: AS IT PERTAINS TO AN INNKEEPER, WHAT IS THE STANDARD OF CARE OWED TO ITS PATRONS/GUESTS BY THE INNKEEPER?

Answer 78

In most jurisdictions, an innkeeper owes a duty to use ordinary care to protect its guests while they are on the premises. Evidence that the innkeeper complied with (or deviated from) community or industry custom is relevant to—but not conclusive on—the issue of negligence.

Question 79

MBE TORTS: SPECIAL RELATIONSHIPS REQUIRING HEIGHTENED DUTY OF CARE

What are the special relationships that impose a duty to protect others when it comes to a negligence claim?

Answer 79

Special relationships

imposing duty to protect others

• Parent/child
• Hospital/patient
• Employer/employees
• Shopkeeper/business invitees
• Common carrier/passengers
• Custodian/person in custody
• Innkeeper/guests: Many courts have changed the duty to ordinary reasonable care.

A negligence action requires proof of four elements: duty, breach, causation, and damages. Under the common-law approach (majority rule), common carriers can be liable for even slight negligence because they owe the highest duty of care to their passengers that is consistent with practical business operations. But under the modern approach (minority rule), common carriers are negligent only if they fail to use reasonable care to protect passengers from harm that arises within the scope of that relationship.

Question 80

MBE TORTS: NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE AS IT PERTAINS TO NEGLIGENCE PER SE.

How does negligence per se work? What are the limitations?

Answer 80

In traditional contributory negligence jurisdictions (as seen here), a plaintiff’s failure to use reasonable care for his/her own safety is a complete defense to negligence. One way the defendant can establish the plaintiff’s failure to use reasonable care is through the doctrine of negligence per se. Under this doctrine, the plaintiff’s negligence is presumed if:

• the plaintiff violated a statute
• the statute was intended to prevent the type of harm suffered by the plaintiff and
• the plaintiff is within a class of persons that the statute was intended to protect.

However, even when negligence per se is established, the defendant still must prove that the plaintiff’s violation of the statute caused the plaintiff’s harm.

Question 81

MBE TORTS AND NEGLIGENCE:

Explain what is necessary for a successful claim to be brought based on Res Ipsa Loquitor.

Answer 81

A plaintiff harmed by a defective product can prevail on a negligence claim against a commercial or noncommercial seller even when there is no direct evidence of the seller’s failure to use reasonable care. That is because the seller’s negligence can be inferred from circumstantial evidence under the doctrine of res ipsa loquitur. Under the traditional standard, negligence is inferred when:

the plaintiff’s harm would not normally occur unless someone was negligent

the defendant had exclusive control, or was responsible for all others who had control, over the thing that caused the harm* and

the plaintiff did nothing to cause the harm.

When res ipsa loquitur applies, the plaintiff’s burden to produce evidence of negligence is satisfied and the court will generally deny the defendant’s efforts to dismiss the case (e.g., through a motion for a directed verdict).

Question 82

MBE TORTS: NEGLIGENCE

WHAT HAPPENS WHEN THE PL HAS TWO DEFENDANTS THAT COULD HAVE BEEN NEGLIGENT?

Answer 82

A negligence action requires proof that the defendant’s conduct was the actual cause (i.e., cause in fact) of the plaintiff’s damages. This is often established under the but-for test, which is satisfied if the plaintiff’s harm would not have occurred without the defendant’s conduct. However, this test does not apply when multiple forces combined to cause the plaintiff’s harm and any one alone would have been sufficient to cause the harm. Instead, the test is whether the defendant’s conduct was a substantial factor in causing the harm.

Question 83

MBE TORTS: NEGLIGENCE AND SEVERAL LIABILITY

WHAT CAN A PL RECOVER IN A NEGLIGENCE CLAIM THAT IS FILED IN A SEVERAL LIABILITY JURISDICTION, WHERE THERE ARE MULTIPLE CULPABLE PARTIES?

Answer 83

Pure comparative negligence (default rule on MBE) – when the plaintiff’s own negligence contributes to his/her harm, the plaintiff’s recovery is reduced by his/her proportionate share of fault

Several liability – when multiple defendants cause the plaintiff indivisible harm, the plaintiff can only recover from each defendant the portion of damages that corresponds to that defendant’s proportionate share of fault (e.g., 15% of the damages for 15% of the fault)

Any defendant who pays damages that exceed his/her proportionate share of the fault may sue the other defendants for contribution to collect the amount of excess damages paid. However, the need for contribution rarely arises in jurisdictions that adopt several liability because the damages paid by each defendant are limited to that defendant’s share of the fault.

Question 84

MBE TORTS: NEGLIGENCE AND MODIFIED OR PARTIAL COMPARATIVE NEGLIGENCE AND SEVERAL LIABILITY

Answer 84

Under modified (or partial) comparative negligence, recovery is reduced by the plaintiff’s percentage of fault and barred if it exceeds 50%.

If multiple defendants cause the plaintiff indivisible harm, then several liability limits the plaintiff to recovering the portion of damages that corresponds to each defendant’s share of fault.

Question 85

MBE TORTS - NEGLIGENCE - RES IPSA LOQUITUR

EXPLAIN RES IPSA LOQUITUR

Answer 85

Land possessors (the amusement park) generally have a duty to keep their premises safe for invitees (the plaintiff here). A land possessor who breaches this duty and causes the plaintiff physical harm is liable for negligence. If there is no direct evidence of negligence, then the doctrine of res ipsa loquitur permits an inference of negligence when:

the plaintiff suffered a type of harm that is usually caused by negligence of someone in the defendant’s position and

the evidence tends to eliminate other potential causes of that harm (e.g., the instrumentality that inflicted the harm was under the defendant’s exclusive control).

Question 86

TORTS - NEGLIGENCE AND GUEST STATUTES

WHAT IS THE DUTY OF CARE THAT A DRIVER OWES TO ITS PASSENGERS RIDING IN THE CAR?

DOES THAT DUTY CHANGE IF THE PL BRINGS A CLAIM IN A JURISDICTION THAT HAS ENACTED A GUEST STATUTE?

Answer 86

In negligence actions, the standard most often applied to determine if the defendant breached a duty to the plaintiff is ordinary care—i.e., the care that a reasonably prudent person would use under the circumstances. In most jurisdictions, automobile drivers owe a duty of ordinary care to their passengers (persons who pay money for the ride) as well as their guests (persons who ride for free).

However, a minority of jurisdictions—including the one at issue here—have enacted “guest statutes.” Under these statutes, the only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct. As a result, a plaintiff-guest can recover damages from a defendant-driver under a guest statute if the driver’s reckless behavior caused the guest’s injuries.

Question 87

TORTS - ATTRACTIVE NUISANCE DOCTRINE

WHAT ARE THE PARAMETERS OF THE ATTRACTIVE NUISANCE DOCTRINE?

Answer 87

Under the attractive-nuisance doctrine, land possessors have a duty to exercise reasonable care to protect child trespassers from artificial (i.e., man-made) conditions on their land when:

the condition exists where the land possessor knows or should know that children are likely to trespass

the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children

children of the trespasser’s age cannot reasonably discover or appreciate the risk and

the risk outweighs the condition’s utility and the burden of eliminating the risk.

A land possessor that breaches this duty and causes the child trespasser physical harm is liable for negligence.

Question 88

TORTS - NEGLIGENCE AND TRADITIONAL COMMON LAW LIABILITY JURISDICTIONS

UNDER THE OLD COMMON LAW, IF THE PL BRINGS A CLAIM FOR NEGLIGENCE AND IT IS FOUND HE IS IN ANY WAY NEGLIGENT (CONTRIBUTORY NEGLIGENCE), WHAT IS HIS RECOVERY?

Answer 88

Contributory negligence occurs when a plaintiff fails to exercise reasonable care for his/her own safety and thereby contributes to his/her own injury. In traditional common-law jurisdictions (as seen here), the plaintiff’s contributory negligence is a complete defense to negligence and bars the plaintiff’s recovery of damages—regardless of the percentage that the plaintiff’s own negligence contributed to the harm

Question 89

TORTS - NEGLIGENCE - COMPESANTORY DAMAGES AND RECOVERY

WHAT DOES THE FACT FINDER CONSIDER TO DETERMINE THE AMOUNT OF COMPENSATORY DAMAGES THAT THE PL CAN RECOVER IN A NEGLIGENCE ACTION?

Answer 89

A successful negligence claim requires proof that the plaintiff suffered physical harm (i.e., personal injury or property damage) as a result of the defendant’s negligent conduct. Assuming all other elements are proved, the fact finder (e.g., a jury) considers the following factors to determine the amount of compensatory damages the plaintiff can recover in a negligence action:

• the initial physical harm caused by the defendant’s negligent act
• any subsequent harm (physical, economic, or emotional) that is traceable to that initial harm and
• any steps taken by the plaintiff to mitigate that initial harm.

But the fact finder will not consider the player’s failure to seek medical attention for several days after his knee was injured during the football game. That is because the plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining the amount of compensatory damages a plaintiff can recover.

Question 90

MBE TORTS - NEGLIGENCE

WHAT DOES THE PL NEED TO PROVE IN A NEGLIGENCE CLAIM THAT INVOLVES TWO DEFENDANTS–AND HE DOESN’T KNOW WHICH ONE DID WHAT?

Answer 90

Liability of multiple tortfeasors for indivisible harm

Joint & several liability*

• Any tortfeasor can be held liable for plaintiff’s total amount of damages
• Tortfeasors can sue each other for contribution

Several liability

• Each tortfeasor is liable for portion of damages corresponding to his/her proportionate fault (eg, 15% of damages for 15% fault)

*Default rule on MBE.

Joint and several liability arises when two or more defendants were negligent and any one of them could have caused the plaintiff’s indivisible harm. This allows the plaintiff to recover the full amount of damages from any of the negligent defendants, even if it is impossible to prove which one actually caused the harm.* However, the plaintiff must first prove that each defendant was negligent.

Question 91

MBE TORTS - NEGLIGENCE/VICARIOUS LIABILITY AND INDEMNIFICATION

IS THE EMPLOYER AND EMPLOYEE REQUIRED TO CONTRACTUALLY AGREE TO INDEMNIFICATION TO GET AN EMPLOYEE OR EMPLOYER TO REIMBURSE FOR NEGLIGENCE AWARD?

Answer 91

Under the doctrine of respondeat superior, an employer is vicariously liable for any tort committed by its employee while acting within the scope of the employment relationship (as seen here). But when the employee’s liability has been discharged by the employer—e.g., payment of a judgment for damages—the employer can seek indemnity (i.e., full compensation) from the employee for its loss.

Parties may, by agreement, agree to indemnify one another for the damages caused by the other party’s tortious conduct. But such an agreement is not required in order for a party who was found vicariously liable for the negligence of another (as seen here) to bring an indemnification suit against that party.

Question 92

MBE TORTS - NEGLIGENCE AND INVITEES WHO EXCEED WHAT THEY ARE PERMITTED TO DO

WHAT IS THE DUTY OWED BY LANDOWNERS OR BUSINESSES TO AN INVITEE WHO EXCEEDS THE SCOPE OF THE INVITATION AND IS SUBSEQUENTLY INJURED?

Answer 92

Under the traditional common-law approach,* land possessors owe a duty of reasonable care to foreseeable land entrants, including invitees who enter the land for a business purpose (e.g., to play miniature golf). An invitee becomes a trespasser if that person intentionally enters an area without permission. And if that person is a known or anticipated trespasser, then the land possessor owes a limited duty to:

warn the trespasser about, or protect the trespasser from, hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by the trespasser and

use reasonable care in active operations conducted on the land.

A land possessor who breaches this duty and causes the trespasser physical harm is liable for negligence.

Question 93

MBE TORTS - RESCUE DOCTRINE AND POLICE/FIREFIGHTERS

EXPLAIN THE PARAMENTERS OF THE RESCUE DOCTRINE. CAN A POLICE OFFICER EVER RECOVER FOR HIS INJURIES WHEN HE IS WORKING?

Answer 93

Rescue doctrine

General rule

Rescuers can recover for injuries sustained while attempting to rescue another if that person’s peril was caused by defendant’s negligence

Exception

(firefighter’s rule)

Professional rescuers cannot recover for injuries attributable to special dangers of their job—eg:

• firefighter entering burning building
• police officer arresting suspect
• paramedic/lifeguard attempting risky rescue

The firefighter’s rule bars emergency professionals from recovering for harm that resulted from a risk inherent to their jobs—e.g., a firefighter injured while extinguishing a fire caused by another’s negligence cannot recover. However, an emergency professional may recover for harm caused by another’s negligence if that harm did not result from a risk inherent to the professional’s job. This is true even if the harm occurred while the professional was on duty.

Question 94

MBE TORTS DUTIES OWED TO UNINVITED PEOPLE AT AN INN

What duties. if any, are owed to an unanticipated trespasser on O’s property?

Answer 94

A land possessor owes a duty of reasonable care to foreseeable plaintiffs who enter the land. But a land possessor owes no duty to trespassers—i.e., persons who intentionally enter another’s land without permission—unless the land possessor discovers or has reason to anticipate their presence.*

Question 95

MBE TORTS - DUTY OF CARE –COMMON CARRIERS

WHAT IS THE STANDARD OF CARE OWED BY COMMON CARRIERS IN A NEGLIGENCE ACTION?

Answer 95

Special relationships

imposing duty to protect others

• Parent/child
• Hospital/patient
• Employer/employees
• Shopkeeper/business invitees
• Common carrier/passengers
• Custodian/person in custody
• Innkeeper/guests

Mnemonic: Please Help Eliminate Safety Concerns Causing Injuries

To prevail in a negligence action, a plaintiff must prove duty, breach, causation, and damages. A common carrier owes a heightened duty of care to its passengers due to its special relationship with those passengers. At common law, that duty was described as one requiring the highest level of care consistent with the practical operations of the business. This approach is still used in a majority of jurisdictions.*

A common carrier that breaches its duty of care to a passenger is liable for the harm caused by that breach. Causation requires a showing that the harm would not have occurred but for the carrier’s conduct (actual cause) and was a foreseeable consequence of that conduct (proximate cause).

Answer 96

To succeed on a negligence claim, a plaintiff must establish that the defendant breached a duty of care owed to the plaintiff. For example, a driver owes a duty of care to others to maintain his/her automobile to such an extent that it is safe to drive on public roads. If the plaintiff fails to prove that the defendant breached that duty, then the plaintiff cannot prevail.

Answer 97

Under products liability law, a commercial supplier (e.g., the drug manufacturer) generally is strictly liable for harm caused by its defective product. A product is defective due to inadequate warnings or instructions when:

• foreseeable risk of harm that is not obvious to an ordinary user and
• reasonable instructions or warnings by the commercial supplier could have reduced that risk.

However, under the learned-intermediary rule, a prescription drug or medical device is not defective due to inadequate warnings or instructions when its manufacturer warned the prescribing physician about the risk of harm associated with that product. When this occurs, the manufacturer will not be held strictly liable for any harm caused by the product because the physician is expected to convey the manufacturer’s warning to the product’s user.

Question 98

MBE TORTS -NEGLIGENCE AND RESPONSIBILITY FOR THIRD PARTY CONTRACTOR NEGLIGENCE

WHILE A LANDOWNER CAN USE OUTSIDE CONTRACTORS TO DO WORK,WOULD THE OWNER BE LIABLE OF THE OUTSIDE CONTRACTOR CAUSED INJURY TO SOMEONE WALKING BY?

Answer 98

Vicarious liability

(liability for tortious acts of another)

Respondeat superior

Employee’s conduct occurred within scope of employment—ie, under employer’s control or while performing assigned work

Nondelegable duty

Independent contractor’s work involved abnormally or inherently dangerous activity, condition on land open to general public, or activity regulated by law

Parent

Child committed tort while acting as parent’s agent

Business partner

Business partner’s conduct occurred within scope of business

Automobile owner

Family member drove car with permission (family-car doctrine) or any person drove car with permission under owner-liability statute

Dram shop* & social host

Alcohol sold (dram shop) or served at noncommercial setting (social liability) to visibly intoxicated person or minor

*Only applies when question provides dram-shop statute.

A person who hires an independent contractor is generally not vicariously liable for torts committed by the independent contractor. However, vicarious liability can be imposed if the independent contractor’s work involved a nondelegable duty, including the performance of inherently dangerous activities. An activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the type common to the community.

Question 99

TORTS MBE: NEGLIGENCE AND PHYSICIAN’S DUTY/BREACH

EXPLAIN THE DUTY THAT A PHYSICIAN OWES A PATIENT WHEN HE IS PROVIDING CARE.

Answer 99

Negligence is the commission of an act (or the failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm.

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure to comply with this “informed consent” doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice (medical negligence). By failing to discuss the patient’s allergies, and the risk of death from the eggs in the vaccine, the doctor breached his duty to the patient to obtain informed consent.

Question 100

TORTS MBES: ATTRACTIVE NUISANCE DOCTRINE

CAN A BEEKEEPER AND THE BEEHIVES HE HAS ON HIS PROPERTY FORM THE BASIS FOR LIABILITY UNDER THE ATTRACTIVE NUISANCE DOCTRINE? ARE BEEHIVES AN ARTIFICIAL CONDITION ON THE PROPERTY?

Answer 100

Under the “attractive nuisance” doctrine, a land possessor may be liable for injuries to children trespassing on the land if (i) an artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass,

(ii) the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children,
(iii) the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition,
(iv) the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children, and (v) the land possessor fails to exercise reasonable care to protect children from the harm.

Question 101

TORTS MBES: NEGLIGENCE OF A HOME OWNER

WHEN CAN A SELLER OF A HOME BE LIABLE UNDER A NEGLIGENCE THEORY?

Answer 101

A land seller must disclose unreasonably dangerous conditions if (1) the condition exists at the time of the sale, (2) the seller knows or has reason to know of the condition and its risk, (3) the buyer does not know or have reason to know of the condition or risk, and (4) the seller has reason to believe that the buyer would not discover or realize it.

Question 102

TORTS MBES: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

EXPLAIN HOW A PL CAN RECOVER FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS? ARE THERE MULTIPLE THEORIES?

Answer 102

A plaintiff can recover for negligent infliction of emotional distress (NIED) under three theories: (1) zone of danger, (2) bystander, or (3) special situations. Liability under the special-situations theory arises when the plaintiff suffers serious emotional distress because the defendant negligently:

• delivered an erroneous announcement of death or illness
• mishandled the corpse or bodily remains of a loved one or
• contaminated food with a repulsive foreign object.

An NIED plaintiff who alleges that the defendant mishandled the corpse or bodily remains of a loved one need not have witnessed the mishandling to prevail

Question 103

TORTS MBE - RES IPS LOQUITUR

WHAT DOES THE DOCTRINE OF RES IPSA LOQUITUR PERMIT?

Answer 103

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant’s negligent conduct in the absence of direct evidence of such negligence. To permit this inference, the plaintiff must prove that the accident (i) was of the kind that ordinarily does not occur in the absence of negligence, (ii) was caused by an agent or instrumentality within the exclusive
control of the defendant, and (iii) was not due to any action on the part of the plaintiff.

Note that res ispa loquitur does not create a rebuttal presumption of negligence; rather, it simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff’s action.

Question 104

TORTS MBE - STRICT PRODUCTS LIABILITY

WHEN CAN A COMMERCIAL SUPPLIER OF A COMPONENT PART BE SUBJECT TO LIABILITY IN A STRICT PRODUCTS LIABILITY CAUSE OF ACTION?

Answer 104

The commercial supplier of a component, such as sand used in manufacturing cement, is subject to liability if the component itself is defective, but not when the component is incorporated into a product that is defective for another reason. However, the commercial supplier of a component may be liable if that supplier substantially participates in the process of integrating the component into the design of the assembled product and that product is defective due to the integration.