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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

What are the elements of negligence?

A
  1. a duty of reasonable care
  2. breach of duty
  3. causation
  4. damages
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2
Q

What are all of the steps for assessing negligence?

A
  1. do you owe a duty to this plaintiff?
  2. did you have a duty to act?
  3. if so, what is the standard of care owed to them?
  4. did you fail to conform with the standard of care?
  5. were you the actual cause of the harm?
  6. were you the proximate cause of the harm?
  7. were there damages?
  8. if so, what type of damages were there?
  9. did the defendant assume the risk?
  10. was the defendant comparatively negligent?
  11. are you immune from suit?
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3
Q

What are the two questions to assess duty?

A
  1. do I owe a duty to this person?
  2. if so, what standard of care do I owe them?
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4
Q

Who do you owe a duty to?

A
  1. Cordozo says that you only owe a duty to foreseeable plaintiffs
  2. Andrews says you have a duty of reasonable care to society as a whole
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5
Q

Under what circumstances do you have a duty to act?

A
  1. when you have assumed a duty
  2. when you have imperiled someone (this duty extends to their rescuer)
  3. there is a special relationship
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6
Q

What is the standard care for an adult?

A

How a reasonably prudent person would act under the circumstances.

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7
Q

What is the standard care for an minor?

A

The standard behavior expected from a child of like age, intelligence, and experience.
Except when participating in adult activities.

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8
Q

What is the standard care for an elderly person?

A

How a reasonably prudent person would act under the circumstances.

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9
Q

What is the standard care for a person with mental disabilities?

A

How a reasonably prudent person would act under the circumstances.
Except when the mental disability was not foreseeable.

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10
Q

If there is no forewarning to the mental episode, what should be assessed?

A
  1. whether the defendant had control over their own actions during the psychotic episode
  2. whether the defendant understood during the psychotic episode that they should not take the action
  3. whether the defendant had previous psychotic episodes
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11
Q

What is the standard care for a person with physical disabilities?

A

How a reasonably prudent person similarly afflicted would act under the circumstances.

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12
Q

What duty is owed to a trespasser?

A

When the landowner knows there are trespassers, there is a duty to warn them of known, man-made hazards that are likely to cause harm

Exception: children and an attractive nuissance

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13
Q

What duty is owed to a licensee?

A

The landowner must warn of known hidden or concealed dangers, regardless of if they are natural or man-made, but otherwise has no duty to keep them safe

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14
Q

What duty is owed to a invitee?

A
  1. The landowner has a duty of reasonable care - the same as non-premises liability.
  2. This may require more than just warning about dangers. The landowner may be required to make inspections to learn about potential hazards and correct them.
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15
Q

What are the options for establishing breach of duty?

A
  1. failure to conform with the duty of care (risk-utility test)
  2. the role of custom
  3. negligence per se
  4. res ipsa loquitur
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16
Q

When has a defendant failed to conform with the standard of care?

A
  1. when a reasonably prudent person would recognize a risk of harm
  2. the risk outweighs the utility of the act
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17
Q

What is Learned-Hand’s risk-utility test?

A

B = burden of precautions
L = liability if the risk occurs
P = probability of occurrence
B < LP then liability / breach
B > LP then no liability / breach

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18
Q

What is the role of custom in determining if a duty was breached?

A

Custom is a factor, but it is not determinative

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19
Q

What is negligence per se?

A

Negligence per se holds that a defendant who violates a statute is negligent as a matter of law.

The statute becomes the standard of care, so in violating the statute, they breached the standard of care.

20
Q

What is the test for negligence per se?

A
  1. was the statute designed to protect this time of plaintiff?
  2. was the statute designed to protect against this type of harm?
21
Q

What are the five theories of actual causation?

A
  1. but for
  2. concert of action
  3. substantial factor
  4. alternative liability
  5. market share
22
Q

What is the “but for” theory of causation?

A

But for the defendant’s negligent act, the harm would not have occurred

23
Q

What is the “concert of action” theory of causation?

A

When the defendant encouraged or induced the other to commit a tort

24
Q

What is the “substantial factor” theory of causation?

A

When there are two concurrent harms, each of which would have been sufficient to cause the entire injury

25
Q

What is the “alternative liability” theory of causation?

A

When two or more persons are possibly the sole cause of the harm

26
Q

What is the “market share” theory of causation?

A

When liability is apportioned against a set of defendants according to their respective market shares of sales of a harmful product during the period that the harm occurred

27
Q

What are the elements required to establish proximate cause?

A
  1. foreseeable plaintiff
  2. foreseeable defendant
  3. foreseeable intervening causes
28
Q

What are the two types of damages?

A
  1. punitive: damages designed to punish the defendant for particularly egregious behavior
  2. compensatory: damages designed to compensate the plaintiff and represent the amount of money required to make them whole
29
Q

What are the two types of compensatory damages?

A
  1. pecuniary (economic)
  2. non-pecuniary (non-economic)
30
Q

What are pecuniary damages?

A

Expenses the plaintiff incurs as a result of their harm (ex: medical expenses, lost wages)

31
Q

What is the collateral source rule for pecuniary damages?

A

The fact that damages are covered by a third party does not affect the defendant’s liability

32
Q

What are non-pecuniary damages?

A

Damages for things that are lost but non-monetary in nature

33
Q

What is pain?

A

The physical pain that the plaintiff experiences from their injuries

34
Q

What is suffering?

A

The psychological pain that the plaintiff experiences due to their condition

35
Q

How can liability be allocated when there are multiple tortfeasors?

A
  1. joint and several liability
  2. proportionate liability
36
Q

What is joint and several liability?

A

Where there are several concurrent negligent causes, the effects of which are not separable, and any of which is sufficient to produce the entire loss, all are jointly and severally liable for the entire loss

37
Q

What is proportionate liability?

A

The court will assess the percentage of fault of each defendant and only hold a defendant liable for their percentage of the plaintiff’s harm

38
Q

What are the defenses to negligence?

A
  1. contributory negligence
  2. comparative negligence
  3. assumption of the risk
  4. immunities
39
Q

What is contributory negligence?

A

The plaintiff’s failure to use due care for their own safety is considered a complete bar to recovery

40
Q

What is comparative negligence?

A

Comparative negligence reduces the damages the plaintiff actually recovers based on their own negligence

41
Q

What are the two types of comparative negligence?

A
  1. pure comparative negligence: the plaintiff can recover unless they are 100% at fault
  2. modified comparative negligence: a plaintiff whose percentage of negligence reaches a certain level is totally barred from recovery
42
Q

What are the two types of assumption of the risk?

A
  1. express: the plaintiff, in words or writing, agrees not to hold the defendant liable for certain harms
  2. implied: the plaintiff has voluntarily encountered a known risk
43
Q

What is primary implied assumption of the risk?

A

The plaintiff assumes the risk inherent in an activity, knowing that others don’t have a duty for their safety (ex: playing football)

44
Q

What is secondary implied assumption of the risk?

A

The plaintiff is told about the risk and voluntarily engages in the activity regardless (ex: bungee jumping)

45
Q

What are the types of immunities?

A
  1. family: parents are immune from suit by their minor, unempancipated children
  2. governmental: the immunity to liability of governmental agencies for torts committed by their agents and employees
46
Q

What is res ipsa loquitur?

A

A doctrine that allows a plaintiff to meet the plaintiff’s burden of proof on the element of breach without showing what the defendant actually did wrong.

It states that the harm could not have occurred without negligence.

47
Q

What are the requirements for res ipsa loquitur?

A
  1. the accident must be of a type that normally does not occur in the absence of negligence
  2. the instrumentality that caused the accident was within the exclusive control of the defendant
  3. the plaintiff did not contribute to his or her own harm

Torts (4 decks)

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