Negligence Flashcards
Negligence Elements
- Duty
- Breach
- Causation
- Damages
Duty Owed to:
ONLY to foreseeable plaintiffs
Standard of Care
Reasonably prudent person.
Objective standard.
UNKNOWN Trespasser - Duty of Care?
NO DUTY of Care
KNOWN Trespasser - Duty of Care?
Warn of KNOWN dangers
Licensee
(1) Who?
(2) Duty of Care?
(1) Social Guest
(2) Warn of KNOWN Dangers
Invitee
(1) Who?
(2) Duty of Care
(1) Business (Office, Store, Grocery Store)
(2) WARN, INSPECT, AND MAKE IT SAFE
Parent - Duty to Supervise/Control Child
Parent has a duty if they:
Knew/Should have Known that child was likely to cause harm
Duty to Rescue
NO general duty to rescue, unless:
1) Assumption of duty (now rx care)
2) Special Relationship
Duty via Special Relationship
Common Carrier (Plane, train, bus)
Innkeeper/Guest (Hotel)
Teacher/Student
Employer/Employee
Duty - Child
Other children of same age, experience & maturity,
UNLESS
Performing an adult activity (driving)
BREACH of Duty = _________
Failure to comply with Duty of Care
Proximate Causation =
Foreseeability
Causation =
BOTH actual AND proximate
Duty of a Professional (lawyer, doctor, etc.)
That of similar professionals with the same education, training and custom in the community (Miami doctor act like other Miami doctors)
Damages
PHYSICAL Injury – they must TELL YOU
Intervening Cause
FORESEEABLE (YOU WILL PAY)
Almost everything IS foreseeable on the MBE
Superseding Cause
UNFORESEEABLE (YOU WILL NOT PAY)
Something is superseding if it is:
1) Act of God
2) Intentional Tort
3) Criminal Act
4) Anything fact pattern tells you is unforeseeable
NEGLIGENCE PER SE
(1) Violation of Ordinance or Statute
+
(2) Injured Party is of class statute trying to PROTECT
(3) Injury is of the TYPE statute was trying to prevent
**Never “YES BECAUSE HE BREACHED DUTY OF CARE” NEVER CHOOSE THE NEGLIGENCE ANSWERS, ONLY NEGLIGENCE PER SE ANSWERS
*Lady who gets hurt by the ricochet of the kid falling cannot recover for negligence per se
RES IPSA LOCQUITOR
ABOUT AN INFERENCE of negligence; R.I.L. if:
(1) whatever happened wouldn’t normally occur unless negligence
(2) Defendant had EXCLUSIVE CONTROL
JURY COULD INFER NOTHING ABOUT LIABILITY OR DAMAGES
**MULTIPLE PEOPLE COULD HAVE DONE IT? NO*
IF “MOTION” “MOTION FOR SUMMJ/DIRECTED VERDICT/MTD” –> ITS A NEGLIGENCE PER SE QUESTION
Attractive Nuisance
Artificial condition on the land causing children to trespass (trampoline, treehouse)
1) Owner knows/should know kids will trespass
2) Condition poses unrx risk of harm
3) Children, bc of age or maturity, do not realize risk
4) Cheaper to fix than the danger to children
5) Owner knows this but fails to make safe
DEFENSES to Negligence
Pure Comparative Negligence
Modified Comparative Negligence
Contributory Negligence
Pure Comparative Negligence
P recovers even if 99% negligent (D’s harm - P’s harm) = P’s recovery
Modified (Modern) Comparative Negligence
P can’t recover ANYTHING if 50.1% negligent
Contributory Negligence
P can’t recover ANYTHING if 0.1% negligent,
Except if D had last clear chance (only applies if THAT IS WHAT FACTS ARE TALKING ABOUT)
Assumption of Risk
Knowledge + Appreciation of Danger and you proceed anyway
(THEY HAVE TO TELL YOU THEY KNEW AND APPRECIATE IT)
Joint & Several Liability
2 or more people cause single accident
All defendants jointly and severally liable (one can get sued and have to pay whole thing)
Contribution
Co-defendants can sue to recoup money
Vicarious Liability
Liable for negligent employees if acting within scope of employment
No liability for INTENTIONAL employee acts
Not liable for lunch breaks or drives home (unless school bus driver)
Independent Contractors
Employer Generally NOT liable, unless:
1) Abnormally dangerous activity
2) “Non-delegable duty” (work that involves safety or benefit of people at large – chopping off ice on sidewalk, clean windows, polish the floors of an office building); NOT fixing my bathroom
Indemnification (Vicarious Liability)
May seek indemnification from whoever actually caused the damage
Party who is liable did nothing wrong
