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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

Reasonably Prudent Person

A
  1. Considers foreseeable risks of injury to others resulting from conduct, and in light of the utility of that conduct
  2. Considers the extent of the risk posed by their conduct
  3. Considers the likelihood of risk actually causing harm
  4. Considers whether alternatives to their proposed conduct would achieve the same process
  5. Considers the costs of various courses of action when determining which risk precautions are reasonable
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2
Q

Hand Formula

A

Liability is found when the burden of precaution is less than the probability of loss times the magnitude of loss

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3
Q

Deviating from the RPP-UTC

A
  1. Lack of good judgment - no deviation
  2. Especially dangerous instrumentalities - no deviation
  3. An actor’s knowledge and skill - deviation up when superior
  4. Youth
    a. Generally RP child of like age, intelligence and experience UTC
    b. Rules of 7s
    c. Adult only or inherently dangerous activities - no deviation
  5. Disability
    a. Mental - no deviation
    b. Physical - That of a RPP with that disability
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4
Q

Duty as a limit on liability

A
  1. Foreseeability
  2. Special Relationships
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5
Q

Duty - Special Relationship Facts

A
  1. Control
  2. Victim’s inability to protect self from the harm
  3. Foreseeability of the harm to the plaintiff
  4. Whether the plaintiff bestowed an economic benefit on the defendant
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6
Q

Special Duty Rules

A
  1. Duty to Rescue or Protect
  2. Rescue Doctrine
  3. Duty for a Therapist to Protect a Third Party
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7
Q

Duty to Rescue or Protect

A
  1. There is no obligation to intervene to rescue from a risk that one’s own conduct did not create, but once an actor does, they have a duty to intervene reasonably
  2. Once one begins to rescue someone, they cannot leave them in a worse off position than they were in before
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8
Q

Rescue Doctrine Test

A
  1. Defendant must have been negligent to rescued person and negligence must have caused peril
  2. Peril to the rescued person was imminent
  3. RPP would have concluded that the peril existed
  4. Rescuer used reasonable care in effectuating rescue
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9
Q

Duty for a Therapist to Protect a Third Party Factors

A
  1. Threat is immediate, specific, and communicated to the professional
  2. Threatened individual is specifically named or readily identifiable
  3. Patient must, in professional judgment of therapist, present a serious danger of violence to the third person
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10
Q

Occupiers of Land Standards of Care

A
  1. Trespasser - willful or reckless conduct
  2. Licensee - Warn of concealed dangers actually known to the land possessor
  3. Invitee - Duty to exercise reasonable care in maintaining premises
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11
Q

Attractive Nuisance

A
  1. Defendant knows or has reason to know that children are likely to trespass
  2. Defendant knows or has reason to know that the condition will involve an unreasonable risk of harm to children
  3. Children do not discover the condition or realize the risk involved in encountering it
  4. Utility of possession to maintaining the condition and burden or elimination are slight compared with risk to children involved AND
  5. Defendant failed to exercise reasonable care to eliminate the danger or otherwise protect the children
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12
Q

Negligent Infliction of Emotional Distress

A
  1. Zone of Danger Rule
  2. Bystander Recovery Rule
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13
Q

Zone of Danger Rule

A
  1. Individual is in the immediate area of physical danger from the defendant’s negligence and who suffers emotional distress as a result of the defendant’s negligence
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14
Q

Bystander Recovery Rule

A
  1. The bystander and victim are married or have another intimate familial relationship
  2. Bystander actually perceived the accident or shock otherwise “follows closely on the heels of the accident”
  3. The victim suffered death or serious injury
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15
Q

Malpractice

A
  1. Strict Locality Rule
  2. Modified Locality Rule
  3. National Standard
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16
Q

Breach

A
  1. Negligence Per Se
  2. Industry Custom
  3. Res Ipsa Loquitur
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17
Q

Negligence Per Se

A
  1. Suffered the kind of harm the statute was intended to prevent; AND
  2. They were in the. class of people the statute was intended to protect
18
Q

Res Ipsa Loquitur

A
  1. Accident does not ordinarily happen without negligence
  2. Injuring instrumentality is shown to have been under “exclusive” control of the defendant
  3. NC: There is no direct proof to the cause of the injury that is available to the plaintiff
19
Q

Causation

A
  1. But-for
  2. Multiple Sufficient Causes
  3. Concerted Action
  4. Alternative Liability
20
Q

Multiple Sufficient Causes

A
  1. It is impossible to apportion the harm between the actors
  2. All the actors have acted negligently
  3. Any wrong act would have caused the harm regardless of the other
21
Q

Alternative Liability

A
  1. Concurrent tortfeasors breach duties to plaintiff
  2. Only one caused the harm and plaintiff cannot tell which one did
  3. Each defendant caused a “substantially similar risk of harm”
22
Q

Proximate Cause

A
  1. Was one event a substantial factor in producing the other?
  2. Was there a direct connection between them without too many intervening causes?
  3. Is the effect of causes on result not too attenuated?
  4. Based on experience, is the cause likely to achieve the result?
  5. Was the result foreseeable?
23
Q

Proximate Cause - Substantial Factor

A
  1. Number of other facts that contributed in producing the harm
  2. Whether actor’s conduct has created a force or series of forces that are in continuous and active operation at the time of the harm
  3. Lapse of time
24
Q

Proximate Cause - Foreseeability

A
  1. Define the type of accident that the plaintiff suffered
  2. Determine whether it was a reasonably foreseeable consequence of the defendant’s negligence
25
Q

Substantial Factor - Eggshell Skull Rule

A
  1. Type of harm must be foreseeable; but
  2. How the harm preciously occurred does not have to be foreseeable nor
  3. Extent of the harm does not have to be foreseeable
26
Q

Was the third party’s intervening act foreseeable to the defendant at the time of the defendant’s negligence?

A
  1. If yes, intervening act and thus liable
  2. If no, superseding event and not liable
27
Q

Defenses to Negligence

A
  1. Comparative Fault
  2. Assumption of Risk
  3. Mitigation and Avoidable Consequences
  4. Statutes of Limitations and Repose
  5. Sovereign Immunity
28
Q

Comparative Fault

A
  1. Contributory Negligence
  2. Pure Comparative Fault
  3. Modified Comparative Fault - 49% Rule
  4. Modified Comparative Fault - 50% Rule/”less than equal to”/”Does not exceed”
  5. Recklessness
29
Q

Last Clear Chance Doctrine

A
  1. Plaintiff, by their own negligence, placed themselves in a position of peril which they could not escape
  2. Defendant saw or should have seen plaintiff’s peril
  3. Defendant could have avoided the accident
  4. Defendant failed to avoid the injury
  5. Plaintiff was injured as a result
30
Q

Assumption of Risk

A
  1. Express Assumption of Risk
  2. Primary Implied Assumption of Risk
  3. Secondary Implied Assumption of Risk
31
Q

Express Assumption of Risk

A
  1. Does public policy permit any release in connection with this particular policy?
    a. Is the business usually thought of as suitable for public regulation?
    b. Does the party seeking exculpation provide a service to the public?
    c. Does the business hold itself out as willing to perform the service to any member of the public?
    d. Does the business have a decisive advantage in bargaining strength?
    e. Does the agreement make any provision to buy additional insurance against negligence by party seeking exculpation?
    f. Is the person or property placed under the control of exculpation-seeking party?
  2. Even if so, should the particular release signed by the plaintiff be enforced?
32
Q

Primary Implied Assumption of Risk

A
  1. The risk is inherent and either cannot be eliminated or would be too costly to eliminate; AND
  2. The risks are obvious to the people who encounter them
33
Q

Secondary Implied Assumption of Risk

A
  1. This particular plaintiff knew of, comprehended and undertook the risk
34
Q

Mitigation

A
  1. Failure to seek medical care or unreasonably engaging in post-accident activities
35
Q

Avoidable Consequences

A
  1. Risk avoiding measures a plaintiff takes prior to an accident that can protect against some of the harm the negligence otherwise would have inflicted
36
Q

Statutes of Limitations

A
  1. Plaintiff Based
  2. Relate to the time when the plaintiff can file suit
37
Q

Statutes of Repose

A
  1. Defendant Based
  2. Relate to the time that the defendant committed the allegedly tortious act
38
Q

Discretionary Function Doctrine

A
  1. Involve an element of judgement or choice; and
    Be grounded in considerations of public policy
39
Q

Proprietary Function Doctrine

A

A state, city or county is liable for torts committed by its employees if the activity is proprietary
1. Is the specific act or omission out of which the injury is claimed to have arisen performed for the public good on behalf of the state or is it commercial or chiefly for the private advantage of the government in question?
a. Governmental: police and fire protection, providing parks and libraries, installing and maintaining traffic signals
b. Proprietary: providing electricity, operating an airport, negotiating a lease

40
Q

Damages for Negligence

A
  1. Several Liability
  2. Joint and Several Liability
  3. Vicarious Liability
  4. Direct Employer Liability
41
Q

Direct Employer Liability

A
  1. Employer negligently hired, supervised, or retained employee

Torts (3 decks)

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