Negligence Flashcards

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1
Q

Negligence Elements

A
  1. Duty
  2. Breach
  3. Causation
  4. Damages
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2
Q

Duty Owed to:

A

ONLY to foreseeable plaintiffs

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3
Q

Standard of Care

A

Reasonably prudent person.
Objective standard.

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4
Q

UNKNOWN Trespasser - Duty of Care?

A

NO DUTY of Care

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5
Q

KNOWN Trespasser - Duty of Care?

A

Warn of KNOWN dangers

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6
Q

Licensee

(1) Who?
(2) Duty of Care?

A

(1) Social Guest
(2) Warn of KNOWN Dangers

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7
Q

Invitee

(1) Who?
(2) Duty of Care

A

(1) Business (Office, Store, Grocery Store)
(2) WARN, INSPECT, AND MAKE IT SAFE

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8
Q

Parent - Duty to Supervise/Control Child

A

Parent has a duty if they:

Knew/Should have Known that child was likely to cause harm

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9
Q

Duty to Rescue

A

NO general duty to rescue, unless:

1) Assumption of duty (now rx care)
2) Special Relationship

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10
Q

Duty via Special Relationship

A

Common Carrier (Plane, train, bus)
Innkeeper/Guest (Hotel)
Teacher/Student
Employer/Employee

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11
Q

Duty - Child

A

Other children of same age, experience & maturity,

UNLESS

Performing an adult activity (driving)

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12
Q

BREACH of Duty = _________

A

Failure to comply with Duty of Care

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13
Q

Proximate Causation =

A

Foreseeability

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14
Q

Causation =

A

BOTH actual AND proximate

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15
Q

Duty of a Professional (lawyer, doctor, etc.)

A

That of similar professionals with the same education, training and custom in the community (Miami doctor act like other Miami doctors)

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16
Q

Damages

A

PHYSICAL Injury – they must TELL YOU

17
Q

Intervening Cause

A

FORESEEABLE (YOU WILL PAY)

Almost everything IS foreseeable on the MBE

18
Q

Superseding Cause

A

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

19
Q

NEGLIGENCE PER SE

A

(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

20
Q

RES IPSA LOCQUITOR

A

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

21
Q

Attractive Nuisance

A

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

22
Q

DEFENSES to Negligence

A

Pure Comparative Negligence
Modified Comparative Negligence
Contributory Negligence

23
Q

Pure Comparative Negligence

A

P recovers even if 99% negligent (D’s harm - P’s harm) = P’s recovery

24
Q

Modified (Modern) Comparative Negligence

A

P can’t recover ANYTHING if 50.1% negligent

25
Q

Contributory Negligence

A

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)

26
Q

Assumption of Risk

A

Knowledge + Appreciation of Danger and you proceed anyway

(THEY HAVE TO TELL YOU THEY KNEW AND APPRECIATE IT)

27
Q

Joint & Several Liability

A

2 or more people cause single accident
All defendants jointly and severally liable (one can get sued and have to pay whole thing)

28
Q

Contribution

A

Co-defendants can sue to recoup money

29
Q

Vicarious Liability

A

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)

30
Q

Independent Contractors

A

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

31
Q

Indemnification (Vicarious Liability)

A

May seek indemnification from whoever actually caused the damage

Party who is liable did nothing wrong