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Bar Exam > Negligence > Flashcards

Negligence Flashcards

1
Q

definition of negligence (3 parts)

A
  1. conduct (act or omission)
  2. without wrongful intent
  3. below min degree of ordinary care law imposes to protect others from unreasonable risk of harm
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2
Q

4(1/2) elements and their definitions

A

duty. obligation to protect others against unreasonable risk of injury
breach. failure to meet that obligation
causation. close causal connection between action and injury
actual or but-for cause
proximate or legal cause (foreseeability)
damages. loss suffered

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3
Q

each element of negligence must be proved by…

A

a preponderance of the evidence

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4
Q

how to analyze negligence

A

go in order. If there is no duty, then the rest don’t matter.

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5
Q

general duty of care is owed to…

A

all foreseeable persons

who may foreseeably be injured

by D’s failure to act like reasonably prudent person under the circumstances

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6
Q

does negligence impost a duty to act affirmatively to stop harm? when or when not?

A

generally no duty to act to prevent harm, even if failure to act is unreasonable

EXCEPTIONS:

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7
Q

does a foreseeable harm always impose a duty?

A

not, but foreseeability is relevant to analyzing existence of a duty

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8
Q

foreseeability of a P: majority and minority view

A

Majority: no duty to unforeseeable P. D is only liable to class of persons who might foreseeably be harmed by conduct. “within the zone of foreseeable harm”

Minority (and RST): if anyone could be foreseeably harmed by negligence, then D is liable to anyone who was actually harmed regardless of whether the harmed person was in the foreseeable category.

(whether P was foreseeable is a Q for prox cause, so have to intertwine steps here)

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9
Q

Classes of Ps deemed foreseeable (4)

A
  1. Rescuers. D is liable for their injuries. If they acted unreasonably, may lower D’s liability but does not bar it.
    EXCEPTION: Firefighter’s exclusion. :( if risk is inherent in job, cannot sue negligent person. Firefighter can’t sue homeowner even if ngeligent.

2. Intended beneficiaries of Ks. They can sue for negligence if K benefiting them was negligently handled.

3. Fetuses. If viable at time injury occurred, owed duty of care.

4. Anticipated crime victim. Therapist is liable to 3P for negligence only if fails to warn intended victim. Must be serious threat with ascertainable victim, objective std of therapist in cicrumcstance.

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10
Q

When is there an affirmative duty to act, or possibly be liable?

A

-Rescuer: Assumption of duty. voluntary rescuer must act w/ ordinary care
. note: Good Samaritan statutes protect med professionals when they voluntarily render emergency care, except from GROSS negligence

-Peril. If you put them there, have duty to render aid w/ reasonable care

-K. due care for K obligations

-Control over another: parent/child, employer.employee; must exercise reasonable control when D k/rtk that kid if apt to injure in that way (kid with sword)

-Relationship. proprietor/patron, common carrier/passenger, innkeeper, employer, parent MAY HAVE duty to protect, assist, aid to prevent THIRD PARTIES from injuring your little munchkin

-Statute which imposes obligation to protect another but does not create a private cause of action MAY create affirmative duty to act. Ex: Law required reporting child abuse, criminal offense not to (but says nothing about civil). Woman sees it at daycare but does not report it. Mom may be able to sure witnesser for negligence.
compare negligence per se: D already owes duty of reas care to P, statue is used to decide reasonableness of D’s conduct

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11
Q

What is the default standard of care, once a duty exists?

A

reasonably prudent person under the circumstances
“circumstances:” position, information and competence of THIS D

objective: not based on D’s good faith or best effort etc.

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12
Q

How does the standard of care change if individual D has special characteristics?

A

mentally disabled: not considered. same as anyone else

special skills and knowledge: higher standard

physical characteristics: reas careful person with same disability (reas blind person)

intoxication: same as sober unless involuntary

kids: reas child of similar age, intelligent and experience (<5 not capable of negligence). More subjective…. UNLESS high-risk adult activity, then adult std

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13
Q

Standards of care for special classes of Ds

A

(modern trend: just treat them all as reasonable under circa)

Common carrier**: planes, trains, buses. Liable for SLIGHT negligence. Also special relationship. **Inkeeper: ordinary (but used to be slight, minority view). Also special relationship. DUTY ONLY TO CUSTOMERS

Car drivers. majority: ordinary care to guests and passengers (paying). Minority: “guest statute” only to refrain from gross or wilfiull/wanton. Simple negligence means no recovery for guests. [Because driving is inherently dangerous and ppl should be grateful for a ride]

Bailor/baliee.
free loaner: duty to inform buddy of known dangerous defects
renter of thing: duty to tell renter of defects known or should know with reas diligence
Person holding on to it: if done as favor only, only liable for gross neligence. If a free loaner: extraordinary care for loaned property. Slight negligence liable. IF MUTUAL benefit, reasonable care.

Emergencies: act as reas. person in same emergency SO LONG AS did not cause emergency

Land possessors. Others using land are not protected by these rules (easement holders or licensee must use reasonable care). LOTS of rules so see new sheet.

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14
Q

what duty does an easement holder owe to entrants to the land

A

Any non-posessor of the land, like easement holders and fellow entrants, owe a duty of ordinary care to others on the land. Only possessors get the benefit of lowered duties to land entrants.

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15
Q

What conditions or happenings on the land invokes a possessor’s duty to entrants?

A

Conduct by the possessor
Artificial and Natural conditions
Risk created when affirmative duties are applicable

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16
Q

50% of JDXs with modern/RST approach do

A
  • reasonable care to all entrants except trespassers
    re: conduct and artificial conditions
  • known/obvious dangers entrant can easily observe: warning not required
  • known but harder danger: duty to warn, comparative negligence in effect
ordinary trespasser (no consent or privilege to enter): reasonable care, take trespass status into account when deciding reasonable. (MINORITY)
*3RST, not popular): Flagrant trespassers who are not imperiled (burglar yes, public park at night injury no) only owe duty not to be willful or wanton*

-no duty to remove/protect re: natural conditions. (except rotting urban trees)

everything else: go w/ traditional general approach

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17
Q

Traditional approach to duty to land trespassers

A

All trespassers: no intentional, willful wanton, reckless behavior TOWARD trespassers. No traps likely to inflict grievous bodily injury. Cannot do indirectly what forbidden to do directly

Known trespassers: must warn or protect from hidden artificial conditions IF risk of seriously bodily injury. Reason care while conducting activities and to control activities of 3Ps on land. This also applies to trespassers about whom possessor reasonably should know.

Undiscovered trespassers: no duty to them, or duty to inspect for them

Attractive nuisance (see separate card)

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18
Q

attractive nuisance doctrine

A

Possessor may be liable to trespasser kids for injury IF:

  1. artificial conditions exists
  2. k/rtk that kids likely to trespass
  3. k/rtk artificial condition poses unreasonable risk of serious bodily harm
  4. kids cannot appreciate danger because of youth
  5. utility of the condition and burden of elimination is slight compared to risk of harm AND
  6. possessor fails to exercise reasonable care to protect kids from harm
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19
Q

Traditional approach to duty to invitee on land

A

invitee: someone invited to enter land for business dealings OR open to public

Owes reasonable care to inspect and protect from unreasonably dangerous conditions. ONLY extends to scope of invitation; beyond that, a trespasser

This duty is non-delegable (both modern and traditional)–
independent Ker is not liable for their management of site

note: sometimes, land open to public for recreation is not liable so long as no fee unless willful and malicious or sometimes gross negligence

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20
Q

what is a licensee to enter land?

A

licensee: express/implied permission or privilege to enter land from possessor

social guests

tolerated: kids who routinely cut across land to get to school

emergency personnel–police, firefighters, EMTs

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21
Q

Traditional approach to duty to licensees

A

duty to correct or warn of concealed dangers that are known or should be obvious

no duty to inspect for dangers

reasonable care in conducting activities

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22
Q

What is a LL liable for to tenant and others entering land?

A
  • generally no duty: assumed by possessor
  • tenant has duty, even if LL ALSO has duty, to 3Ps from dangerous conditions within T’s control

EXCEPT: liable for injury to tenant and entrant from:

  • common areas
  • hidden dangers that LL fails to warn tenant about
  • premises leased for public use
  • LL’s negligent repair or hazard LL agreed to repair
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23
Q

negligence Duty to people not on your land but harmed by things on your land

A
  • no duty to protect from natural conditions except urban trees
  • artifical conditions and activities: duty to protect passersby ad neighbors from unreasonable risk of harm
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24
Q

what duty does a seller of real property owe to a buyer?

A

-disclose known concealed and unreasonably dangerous conditiosn
unlikely for find on reasonable inspection

seller’s liability to 3Ps on land continues
until buyer has reas opp to discover and remedy defect

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25
Q

What is a breach of duty? Examples of types?

A

when a D departs from std of care

by

  • failure to act as reasonably prudent person (objective) traditional majority approach
  • modern RST approach: foreseeable likelihood and severity of harm from conduct vs D’s burden in avoiding harm (B>PL)
  • unexcused violation of statute
  • res ipsa loquitur if no direct evidence
26
Q

how to use custom to show a breach of duty

A

custom within a community or industry is admissible to show proper standard of care, but is not conclusive because the entire community or industry may be negligent

safety codes are admissible to show custom

for PROFESSIONALS (doc and L) custom IS dispositive

27
Q

standard and breach of duty by a professional (other than custom)

A

professional must exhibit same skill, knowledge and care as an ordinary practitioner in the same community. specialist can be higher std than non.

expert testimony is generally required to show negligence, though sometimes it’s so obvious a layperson can ID it and then expert testimony not needed
(surgeon amputated wrong leg)

for PROFESSIONALS, custom IS dispositive

28
Q

rules for doctors re: breach of duty–consent etc.

A

doctors are now held to national std of care (majority)

must get informed consent in advance
UNLESS P is unconscious or incompetent (reas attempt to get consent from guardian)
or UNLESS P waives consent or risk is commonly known
or UNLESS disclosure would be detrimental to the patient

majority on disclosure: custom
minority on disclosure: any material risk (might make diff to reasonable person)

29
Q

negligence per se, principle and 5 elements

A

majority: violation of stu conclusively establishes duty and breach
minority: establishes a rebuttable presumption of duty and breach

ELEMENTS:

  1. statute or regulation imposes a duty for protection of others
  2. D violates statute by failing to perform that duty
  3. P is in class of people stu intended to protect
  4. harm is of type stu intended to prevent
  5. D’ stu violation is what caused harm to P
30
Q

does compliance with a statute or regulation disprove negligence?

A

No, but it may preempt common law tort actions

probably also evidence of lack of negligence

31
Q

Defenses to negligence per se

A
  1. D shows that compliance would have had greater risk of harm to P (usually an emergency)
  2. incpacity–D could not comply or is a child
  3. D atttmepd to comply and used reasonable care
  4. vagueness of statute itself–hard to understand requirements
  5. reasonable ignorance–D is not aware because statute only applies under unusually circumstances and D didn’t know the circumstances were present
  6. P also violated statute–contributory negligence per se, same requirements
32
Q

Res Ipsa Loquitur

A

when no direct evidence of the cause of injury: res ipsa is reliance on circumstantial evidence of negligence. Gets Q to the jury but is not conclusive.

Traditional:

  1. accident would not ordinarily occur in absence of negligence
  2. was caused by agent or instrumentality in D’s exclusive control (watch out for product liability chain!)
  3. not due to any action on part of P

P need not disprove all other causes than negligence. enough that facts permit the conclusion. Gets it to the jury.

33
Q

Exclusive control requirements of res ipsa: interpretation by court

A

often interpreted broadly. For example, a nondelegable duty like keeping open store premises safe to public means that

if an independent Ker mops your floor and a customer slips, you are liable

34
Q

weird group res ipsa application for group of medical practitioners

A

If something res ipsa-worthy happens during medical care (sew glove inside patient) then all docs etc involved in care of patient are jointly and severally liable unless each can exonerate themselves, often by ratting others out

35
Q

weird group res ipsa application for product liability

A

even if the package passes though a chain of hands, many JDXs will ignore exclusivity element if manufacturer wrapped the package or there was any obvious negligence during the production

36
Q

third restatement (recent, very minority) restatement of res ipsa

A

The fact-finder may infer that the defendant has been negligent when:

i) The accident that caused the plaintiff’s harm is a type of accident that ordinarily happens as a result of negligence of a class of actors; and
ii) The defendant is a relevant member of that class of actors.

37
Q

Procedural effect of res ipsa loquitur

A

If P makes prima facie case of res ipsa:

  • no directed verdict or dismissal etc. for D
  • bring it to fact finder
38
Q

Actual Cause, Cause in Fact: tests

A
  1. but for test: would not have occurred w/o D’s tortious act/omission
  2. multiple or indeterminate causes of harm:
    1. substantial factor: majority. is but-for cause if was substantial factor in causing P’s harm. Each cause is considered a factual cause
    2. alternative causation (burden shift to Ds): if P’s harm caused by one of a small # <5 Ds, each tortious and all before court, then court may shift burden to them to prove they were not the cause
    3. concert of action: common design and 1 or more tortiously caused harm, then all Ds are jointly and severally liable. (3 guys in drag race, one injures someone, all are jointly and severally liable)
    4. loss of chance theory: most medical, see other card
39
Q

loss of chance doctrine on but-for cause of medical misdiagnosis of terminal patient

A

if person already was likely to die but doc also negligently misdiagnosed them

P can recover reduced damages in the amount of what they would have got for total causation minus the percent loss in chance of recovery

so if P had total damages of 100K, 40% chance of survival before misdiagnosis and 10% chance after misdiagnosis, he gets 30K

40
Q

what standard of proof is applied to causation of harm

A

preponderance –more likely than not a but-for cause

like almost everything thing else in civil law

41
Q

medical: risk of loss calculation in misdagnosis

A

if person already was likely to die but doc also negligently misdiagnosed them

P can recover reduced damages in the amount of what they would have got for total causation minus the percent loss in chance of recovery

so if P had total damages of 100K, 40% chance of survival before misdiagnosis and 10% chance after misdiagnosis, he gets 30K

42
Q

what if tortious conduct was a but-for cause, but doesn’t really make sense to push him because his conduct did not increase the risk of THAT TYPE of harm? example

A

Tree blows down and hits speeding car, injuring passenger, who sues driver. Car was only there to be hit because it was speeding.

HOWEVER

driver’s speeding should not be found the cause because the harm caused was not the type of risk taken by someone who is speeding

43
Q

majority rule for proximate cause

A

plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendant’s conduct.

44
Q

majority rule on foreseeability of harm, prox cause

A

D is only liable for conduct that foreseeability caused the type of P’s harm (though not the extent of harm–eggshell P is still OK).

Only liable for the harms caused by risk that made conduct tortious

45
Q

minority rule on proximate cause

A

proximate cause exists and D is liable for all consequences that flow from D’s tortious conduct

(though intervening causes and remoteness of cause>effect is considered)

(some also just toss foreseeability totally and say liable for harm if direct cause)

46
Q

Does an intervening cause of P’s harm break the chain of proximate cause and therefore prevent liability ?

A

If the intervening cause was foreseeable, then it does not break the chain (even if it occurred in an unforeseeable manner)

47
Q

Examples of foreseeable intervening causes that do not prevent liability of original tortfeasor

A
  • mediical malpractice after D causes accindet
  • disease or accindet in hsoptial

rescuer negligence (negligent intervening acts generally are foreseeable)

  • normal forces of nature
  • efforst to protect person or property
48
Q

examples of unforeseeable intervening causes (prox cause)

A

extraordinary Acts of God

criminal acts or intentional torts of 3Ps

UNLESS the breach was failing to use reasonable care to protect P from those kinds of acts

49
Q

an original tortfeasor remains liable despite an intervening act unless the results of the intervening act are…

A

UNFORESEEABLE!

50
Q

A negligently breaks B’s leg. Doctor negligently causes an infection and get leg amputated. Who is liable to B?

A

A and Doc are jointly and severally liable.

51
Q

eggshell plaintiff rule

A

while the nature of the damages must be foreseeable for D to be liable for them, the extent of the damages never need be foreseeable even if they are super weirdly huge

52
Q

are nominal damages (symbolic for symbolic harms) available in negligence actions?

A

No. The P must prove actual harm, like personal injury or property damage.

53
Q

When can a P sue for NIED

A

only as “parasitic” damages off a physical injury

nausea might count as physcial

54
Q

can a P in a negligence suit get attorney’s fees?

A

No, interest and atty’s fees are not available in a negligence action

55
Q

what is the default type of damages for a negligence action

A

compensatory damages

compensation to make victim whole

(as though injury never occurred)

56
Q

how will a failure to mitigate harm limit the damages a negligence P can collect?

A

Any harm that P could have avoided through reasonable care after the tort occurred may reduce or even eliminate her recovery.

This may be handled similarly to contributory negligence

57
Q

types of damages recoverable in personal injury action

A
  1. medical and rehab expenses, past and future
  2. pain and suffering, past and future (including emotional distress)
  3. loss of income and future reduction of income
58
Q

types of damages recoverable in personal injury action

A
  1. medical and rehab expenses, past and future
  2. pain and suffering, past and future (including emotional distress)
  3. loss of income and future reduction of income
59
Q

types of damages recoverable in property damage action

A

difference in fair market value before and after the damage

alternately: cost of repairs, so long as do not exceed property value

household items: replacement value of them

60
Q

Collateral source rule for calculating damages

A

Compensation for accident that P gets from outside sources (including insruance) do not reduce the D’s liability, but D’s insurance paying P does.

MOST STATES HAVE ELIMINATED OR MODIIFED THIS RULE

61
Q

when can a negligence P get punitive damages?

A

If D acted willfully and wantonly, recklessly, or with malice
so maybe not a negligence case

Note: punitive damages cannot outweighs compensatory by more than 9:1

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