negligence

Question 1

Expecting care by 3rd persons

Answer 1

A reasonable person may not be found to have breached a duty when relying on another person to protect the Plaintiff.

Question 2

What is actual harm (the 3rd? element of negligent)

Answer 2

The plaintiff who proves that the defendant’s conduct was negligent, but fails to show that actual damages resulted from it, will lose the case.

Question 3

The substantial factor test
(double dead fish)

Answer 3

The actor’s negligent conduct is a
the legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.”

Question 4

Joint & several liability

Answer 4

When someone is partly responsible for causing harm, that person can be responsible for fully compensating the victim even if others share the blame.

Question 5

Pure Several Liability

Answer 5

Each tortfeasor is responsible for paying the portion of damages for which they are responsible.

Question 6

Alternative causation
(quail hunting)

Answer 6

When a plaintiff sues two defendants who both engaged in tortuous activities, but only one caused him harm, the burden of proof is shifted to the defendants.

Question 7

Liability for aggregation of preexisting injury

Answer 7

If a tortfeasor makes an injury worse, they are liable only for the worsening of the injury, not the original harm.

Question 8

what are the exceptions to negligence per see?

Answer 8

1. The violation is reasonable
2. The actor exercised reasonable care in trying to comply with the statute
3. The actor doesn’t or shouldn’t know the circumstances in which a statute is applicable
4. The requirements of the statute are presented confusingly
5. Compliance would involve greater risk than non-compliance

Question 9

Res Ipsa Loquita

Answer 9

The defendant had exclusive control over the instrumentality of harm ( or other responsible causes sufficiently eliminated), there was no interference from the plaintiff, the harmful event usually does not occur w/o negligence

Question 10

Primary assumption of risk (baseball rule)

Answer 10

1. The defendant owes no duty to protect the plaintiff from a particular risk
2. The plaintiff is implied to have consented to the risk so there is no recovery.

Question 11

Secondary Assumption of the Risk

Answer 11

1. The defendant owes a duty of care to the plaintiff
2. The plaintiff knows of the risks but proceeds anyway
3. comparative negligence applies

Question 12

Parental Waivers of Care for Children

Answer 12

The majority rule is that parents cannot release a minor’s minor’s prospective claims for negligence in a Defendant’s care of a child.

Question 13

Thunkle Factors

Answer 13

Exculpatulatory provisions will be held invalid if: It’s a business suitable for public regulation, The party performs a service of great importance to the public, If the party holds a decisive advantage against those seeking service.

Question 14

What is negligence

Answer 14

Negligence may be any
conduct that creates an unreasonable risk of harm to others.

Question 15

Obviousness of the risk

Answer 15

It may not be unreasonable to not take steps to reduce the risk of harm when the risk is so obvious that the other person can be relied on to avoid it.

Question 16

Sudden physical impairment

Answer 16

The conduct of an actor during a period of sudden incapacitation is only negligence if that sudden incapacitation was foreseeable.

Question 17

attractive nuisance

Answer 17

(1) the occupant can foresee that children would trespass on the property

(2) the occupant can foresee that an artificial condition on the property poses an unreasonable risk of serious harm to children

3) the occupant can foresee that a child of the plaintiff’s age would either overlook the condition or fail to appreciate the risk posed by the condition

(4) the burden of avoiding the risk is reasonable, considering the utility of the condition to the occupant and the severity of the potential harm.

Question 18

non-feasance

Answer 18

omitting to act/ not doing something you ought to do

Question 19

Malfeasance

Answer 19

doing an action one ought not to do at all

Question 20

misfeasance

Answer 20

the improper doing of an act which a person might lawfully do

Question 21

Special relationships (nonfeasance)

Answer 21

For nonfeasance, there is no duty unless there is an additional factor such as Defendant having a “special relationship” with Plaintiff.

Question 22

Duty of prior conduct.

Answer 22

Prior conduct by an actor that creates a continuing risk of harm may impose a duty to act to eliminate or minimize risk.

Question 23

Statute of limitations

Answer 23

An affirmative defense that bars liability is a claim is not brought within a set amount of time. The burden of pleading SOL is on the defendant.

Question 24

Discovery/ modern rule (SOL)

Answer 24

For injuries that accrue over time, the clock starts when the plaintiff is informed by a competent medical professional or at a time when through reasonable diligence, the plaintiff should have discovered the injury

Question 25

estoppel SOL

Answer 25

Estoppel may be used to prevent the affirmative defense of the SOL as long as the elements are present.

Question 26

Elements of equitable estoppel SOL

Answer 26

1. A delay in filing an action is induced by the defendant
   
   2. The defendant misled the plaintiff
   3. The plaintiff must have acted on the information in good faith to the extent that he failed to pursue action in a timely manner

Question 27

Statute of repose

Answer 27

An outer limit on the right to bring a claim that is measured from the defendant’s conduct instead of when the plaintiff is injured or the claim otherwise accrues.

Question 28

Are exculpatory clauses in employment agreements enforcabe?

Answer 28

Exculpatory clauses in employment agreements offend public policy and are generally therefore unenforceable

Question 29

Can exculpatory clauses bar liability in recreational activities?

Answer 29

Releases for participation
in adult recreational activities are generally
enforceable, if “conspicuous, clear and
unambiguous.” But sometimes they are not, such as a ski area that tries to limit liability for their negligence beyond the inherent risks in skiing.

Question 30

express assumption of the risk

Answer 30

Express assumption of the risk is based on a contract between the parties regarding risk. An exculpatory clause.

Question 31

Modified comparative fault

Answer 31

To recover, the plaintiff must be responsible for less than half of the negligent conduct

Question 32

Pure comparative fault

Answer 32

The plaintiff’s negligence reduces the defendant’s liability and never bars it.

Question 33

right of contribution for joint and several liability

Answer 33

A jointly and severally liable defendant who has paid more than his assigned share of the judgment may seek contribution from an underpaying defendant up to the amount of any overpayment.

Question 34

The 3 theories of liability

Answer 34

1. The defendant created and failed to take reasonable actions to address the hazard
   
   2. The defendant didn’t create but discovered or should have discovered a hazard created by others
   3. Defendants mode or method of business made it foreseeable that others would create a dangerous condition, and the defendant failed to take reasonable measures to discover and remove it.

Question 35

Customs

Answer 35

Evidence that a defendant failed to follow customary safety rules can be used as evidence of negligence. Even if they follow all safety regulations, if they ignore a customary safety rule, they can be found negligent

Question 36

What costume Proves

Answer 36

It might prove the defendant knew or should have known of risk, and that the risk was an “unreasonable’ one.

Question 37

Negligence per se

Answer 37

1. Standard of conduct must the clearly laid out in the statute.
2. The person harmed was the class of person the statute was meant to protect. (O’Guin v. Bingham County)
3. The harm was the type of harm that the statute was enacted to prevent.
4. The violation must be the proximal cause of the injury.

Question 38

Respondeat Superior/ Vicarious liability

Answer 38

the doctrine that an employer is responsible for an employee’s wrongful acts committed within the scope of employment.