negligence Flashcards
elements of negligence
duty +
breach +
cause (actual and proximate) +
damages
duty owed to?
majority: owed to all foreseeable π within the zone of danger
minority: owed to everyone
no affirmative duty to act
standard of care for duty
a reasonably prudent person
an objective standard
duty std for intoxication
same std as sober person unless the intoxication was involuntary
community customs
may be relevant but NOT dipositivec
duty std for children
reasonably prudent children of similar age, experience, or intelligence
unless the child was engaged in adult activities
duty std for professionals
exhibit the knowledge and skills of a member of the profession in good standing in a similar community
duty std for physicians
national std
disclose the risk of treatment to enable a person to give informed consent
duty std for psychotherapist
duty to warn potential victims of a patients serious threats of harm
duty std for a trespasser
trespasser = without valid consent
(a) discovered/anticipated trespassers = warn of hidden dangers on land that pose a risk of death or serious bodily harm
(b) undiscovered trespassers = no duty
duty std for licensee
licensee = social guest
no duty to inspect property
duty to warn of hidden dangers that pose an unreasonable risk of harm
for both artificial or natural conditions
duty std for invitees
invited for owners benefit = business
ex. customers shopping
duty to reasonably inspect the land for hidden dangers that pose an unreasonable risk of harm
if discovered then make them safe like installing warning signs
attractive nuisance doctrine
artificial dangerous conditions on a landlord’s property that attract children
same std as invitee = eliminate danger or provide warning
(1) landlord knew children trespass
(2) dangerous
(3) children do not appreciate the danger
(4) risk of harm outweighs the expense of making the condition safe
negligence per se
statute imposes a specific duty for the benefit or protection of others
(1) πis in the class of people meant to be protected
(2) πsuffers the type of harm the statute sought to protect
(3) ∆’s violation was the proximate cause of the π’s injuries
res ipsa loquitur
when the element of negligence is difficult to prove
(1) kind of harm does not occur in the absence of negligence
(2) within the ∆’s exclusive control
actual cause
πmust show that the injury would not have occurred BUT FOR the ∆’s breach
substantial factor test if but for cannot be proven
proximate cause
injury was a foreseeable result of the ∆’s conduct
intervening cause
foreseeable outside force or action that contributes to the π’s harm AFTER ∆breached duty
ex. car accident witness tries to help the injured but ends up making the injury worse
∆ laible
superseding cause
a type of intervening cause that is unforeseeable to injuries that ∆liability is cut off
ex. mechanic improperly fixes breaks on car. car is struck by falling debris from plane crash on the way home. mechanic is not laible.
fireman rule
bars lawsuits by police offers and firefighters from collecting damages that occur in the course of their duty
eggshell plaintiff rule
∆is liable for all harm suffered by the π even if it was unforeseeable
respondeat superior
an employer may be held liable for the torts committed by an employee if
employer-employee relationship exists + commission of the tort occurs within the scope of employment
detour v frolic
detour is a minor deviation and the employer is still liable
frolic is a major deviation and the employer is not liable
business partner liability
negligence of one business partner can be implied on other business partners if it was committed within the scope of the business’s purpose
NIED
(1) ∆was negligent
(2) πsuffered emotional distress
(3) either in the zone of danger or was closely related to the π
zone of danger
NIED
(1) πwas in a zone of danger
(2) ∆negligence caused a threat of injury
(3) caused emotional distress
bystander recovery
NIED
(1) ∆negligently harms another
(2) πwas closely related
(3) πwas present at the scene
(4) πpersonally observed
(5) SOME jurisdictions require physical manifestation of symptoms
special relationship
NIED
pre-existing relationship bw πand ∆
(ex. doctor/patient)
(1) ∆negligently mishandled corpse
OR
(2) ∆ negligently provides false medical info that is serious
joint and several liability
2+ parties are jointly and severally liable = each party is independently liable to the full extent
may collect full value from any one of them
whoever pays more than their share can recover contributions from others
alternative liability
πcannot identify with specificity which ∆ caused the harm
allows π to shift the burden to proving causation on the ∆
indemnification
allows a passive tortfeasor who was forced to pay for damages recover a complete reimbursement from an active tortfeasor
arises in situations involving vicarious liability or strict liability
defenses to negligence
contributory negligence
comparative negligence
assumption of risk
contributory negligence
πcannot recover damages if their own actions contributed to their injuries UNLESS
- wilful and wanton misconduct
- last clear chance
not a valid defense for intentional torts
pure comparative negligence
π’s recovery is limited by the % of fault the jury attributes to the π’s own negligence
modified comparative negligence
π’s recovery is barred if πis more at fault than the ∆
assumption of risk
a party knowingly and willingly embraces a risk
