negligence

Question 1

elements of negligence

Answer 1

duty +
breach +
cause (actual and proximate) +
damages

Question 1

duty owed to?

Answer 1

majority: owed to all foreseeable π within the zone of danger

minority: owed to everyone

no affirmative duty to act

Question 2

standard of care for duty

Answer 2

a reasonably prudent person

an objective standard

Question 3

duty std for intoxication

Answer 3

same std as sober person unless the intoxication was involuntary

Question 4

community customs

Answer 4

may be relevant but NOT dipositivec

Question 5

duty std for children

Answer 5

reasonably prudent children of similar age, experience, or intelligence

unless the child was engaged in adult activities

Question 6

duty std for professionals

Answer 6

exhibit the knowledge and skills of a member of the profession in good standing in a similar community

Question 7

duty std for physicians

Answer 7

national std

disclose the risk of treatment to enable a person to give informed consent

Question 8

duty std for psychotherapist

Answer 8

duty to warn potential victims of a patients serious threats of harm

Question 9

duty std for a trespasser

Answer 9

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

Question 10

duty std for licensee

Answer 10

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

Question 11

duty std for invitees

Answer 11

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

Question 12

attractive nuisance doctrine

Answer 12

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

Question 13

negligence per se

Answer 13

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

Question 14

res ipsa loquitur

Answer 14

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

Question 15

actual cause

Answer 15

πmust show that the injury would not have occurred BUT FOR the ∆’s breach

substantial factor test if but for cannot be proven

Question 16

proximate cause

Answer 16

injury was a foreseeable result of the ∆’s conduct

Question 17

intervening cause

Answer 17

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

Question 18

superseding cause

Answer 18

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.

Question 19

fireman rule

Answer 19

bars lawsuits by police offers and firefighters from collecting damages that occur in the course of their duty

Question 20

eggshell plaintiff rule

Answer 20

∆is liable for all harm suffered by the π even if it was unforeseeable

Question 21

respondeat superior

Answer 21

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

Question 22

detour v frolic

Answer 22

detour is a minor deviation and the employer is still liable

frolic is a major deviation and the employer is not liable

Question 23

business partner liability

Answer 23

negligence of one business partner can be implied on other business partners if it was committed within the scope of the business’s purpose

Question 24

NIED

Answer 24

(1) ∆was negligent

(2) πsuffered emotional distress

(3) either in the zone of danger or was closely related to the π

Question 25

zone of danger

Answer 25

NIED

(1) πwas in a zone of danger

(2) ∆negligence caused a threat of injury

(3) caused emotional distress

Question 26

bystander recovery

Answer 26

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

Question 27

special relationship

Answer 27

NIED

pre-existing relationship bw πand ∆
(ex. doctor/patient)

(1) ∆negligently mishandled corpse

OR

(2) ∆ negligently provides false medical info that is serious

Question 28

joint and several liability

Answer 28

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

Question 29

alternative liability

Answer 29

πcannot identify with specificity which ∆ caused the harm

allows π to shift the burden to proving causation on the ∆

Question 30

indemnification

Answer 30

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

Question 31

defenses to negligence

Answer 31

contributory negligence

comparative negligence

assumption of risk

Question 32

contributory negligence

Answer 32

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

Question 33

pure comparative negligence

Answer 33

π’s recovery is limited by the % of fault the jury attributes to the π’s own negligence

Question 34

modified comparative negligence

Answer 34

π’s recovery is barred if πis more at fault than the ∆

Question 35

assumption of risk

Answer 35

a party knowingly and willingly embraces a risk