Negligence Flashcards
Who does one owe a duty to?
- Only owe duty to foreseeable plaintiffs
- “foreseeable P” = in your Zone of Danger
What’s the usual standard of care?
Must act as a reasonably prudent person (towards foreseeable Ps)
Duty to Unknown Trespasser
- = NO duty of care
- E.g., don’t owe a duty of care to someone you don’t know who breaks his foot on your sprinkler
Duty to Known Trespasser
- = to warn of known dangers
- E.g., Rick cuts through our yard every day, so we have duty to warn him of any dangers we know about there
Attractive Nuisance
= an artificial condition causing children to trespass
An owner is liable for an attractive nuisance on his property if…
• 1) Owner knows / should have known that children would likely trespass;
• 2) Condition poses an unreasonable risk of serious harm;
• 3) the Children, b/c of their age/maturity, COULD NOT appreciate the risk;
• 4) Cost of fixing the condition is less than the danger posed to children; AND
• 5) Owner failed to exercise reasonable care to protect children
Pure Comparative Negligence
= P may recover his total damages MINUS the % he’s at-fault
*Pure Comparative Negligence = the default on MBE questions
(*doesn’t matter if he was more at-fault / negligent than other parties involved)
Modified Comparative Negligence
= P’s recovery is reduced by his % of fault, BUT if P’s fault is MORE than 50%, then P recovers NOTHING
Contributory Negligence
Contributory Negligence = if P is responsible for EVEN 1% of fault → P can recover NOTHING
(this was the traditional approach, but most States have adopted Pure Comparative Negligence – and that’s the MBE’s default approach)
Contribution
Co-Defendants can sue e/o to recoup money – amount each D contributes is proportional to his % at-fault
How to sense if Q is re: Negligence (regular) / Neg. Per Se / Res Ipsa?
Neg. (regular) –> “is D liable for damages?”
Neg. Per Se –> violate “statute / ordinance”
Res Ipsa –> someone “makes MOTION (summary judgment, etc.) – how will court rule?”
