Negligence Flashcards
1
Q
588 - What are the four elements of negligence?
A
Duty of Care; Breach of duty; Actual and Proximate cause; damages
2
Q
589 - How does the court determine the DUTY OF CARE?
A
The court determines the duty o care through a two-step inquiry: (1) the ct decides WHETHER the D owed a duty of care; (2) if it does, then the court must define the SCOPE of the duty.
3
Q
590 - What is the MAJORITY RULE regarding whether a P was FORESEEABLE?
A
Majority rule states that the D owes a duty of care to those persons that a reasonable person would have foreseen a risk of harm under the circumstances.
*Thus, the ct must determine that the RP would have foreseen a risk of harm to the P or the type of person the P was, located in a foreseeable zone of danger.
Tip: The rule was first espoused by Justice Cardozo in Palsgraf.
4
Q
591 - What is the REASONABLE PERSON standard of care?
A
Under the reasonable person standard of care, each person owes a duty to act as a reasonable person under the same or sinilar circumstancecs.
A D owes a general duty of care to all foreseeable plaintiffs.
Tip: This is an OBJECTIVE test. The issue is not what the D believed or intended, but how a reasonable person would have acted.
5
Q
592 - What is the SOC for PROFESSIONALS?
A
A professional owes a duty to prossess and exercise the knowledge and skill of a member of the profession or occupation in good standing in a similar community.
6
Q
593 - What is the SOC for children?
A
Children/minors are held to the standard of care that would be expected from a child of like age, education, intelligence, and experience. AEIE
7
Q
594 - What is the SOC for common carrier/innkeeper?
A
Historically, court held common carriers to a HIGHER standard, but modern courts are moving toward the [R]easonable [P]erson [S]tandard. Tip: prior to modern times, common carriers were held to the “utmost care” standard.
8
Q
595 - What is the SOC for owner/occupier of land?
A
Landoccupiers are accorded a special status that limits their liability to injuries to others arising from conditions or activities on their land. [lower land from air(common carriers).
A landowner may be held to a higher duty imposed by statute depending on the status of the entrant (i.e., invitee, licensee, trespasser).
Tip: Distinguish this from the SOC for common carriers.
9
Q
596 - What duty does a landowner/occupier owe to child trespassers?
A
The attractive nuissance doctrine imposes a special duty of care on a land occupier with respect to ARTIFICIAL CONDITIONS on the land that involve a risk of harm to children unable to recognize the danger involved.
10
Q
597 - Does a landowner owe a heighened duty of care to child trespassers as compared to adult trespassers?
A
Yes - there is a special duty of care for children
11
Q
598 - What is a LICENSEE?
A
A licensee is a person coming onto the land, with the express or implied permission of the land occupier for the entrant’s own purposes, conferring no particular benefit on the land occupier or any use to which the land occupier is putting the land. Tip: A social guest invited into your home will likely be a licensee.
12
Q
599 - What is an INVITEE?
A
An invitee is a person who enters by the express or implied invitation of the land occupier for some purpose related to he activities or interests of the land occupier. Tip: A business visitor who comes on the land that is open to the public at large is likely an invitee.
13
Q
600 - What are the two ways a statute creates a tort duty?
A
A statute can create a tort duty by: (a) creating a statutory tort; OR (b) recognizing a common law tort duty.
14
Q
601 - Is there a general duty to aid other during an emergency?
A
No, under common law, a D owes no duty to [W]arn, [P]rotect, or [R]escue a stranger from a risk of harm. Tip: However, if the D created the risk of harm, they may owe the P a duty.
15
Q
602 - What constitutes a breach of duty for purposes of tort liability?
A
Conduct falling short of the duty owed is a breach of duty.
16
Q
603 - How will a court find a breach of a duty of care?
A
A ct will find a breach of duty of care by: (1) a determination of the D’s conduct; AND (2) whether the conduct was unreasonable.
17
Q
604 - Negligense per se
A
… applies where a common law duty of care is already owed and a statute provides that specific conduct breaching that duty is subject to criminal penalties. A D’s violation of the statute establishes a PRIMA FACIE case for duty and breach. Tip: The P must be a member of the protected class and the harm must be the type of harm that hte statute was designed to protect against.
18
Q
603 - Res ipsa loquitur
A
Under the doctrine, the court may permit an inferences or a presumption that the D was at fault when the very fact that a particular harm has occured may itself tend to establish a breach.
19
Q
606 - What are the two types of causation under a neg claim?
A
Actual and proximate
20
Q
607 - Actual causation
A
Actual causation/cause in fact establishes a causal connection between the alleged breach of duty and the resulting injury to the plaintiff. Tip: The substantial factor or burden-shifting tests are used to measure actual cause.
21
Q
608 - Proximate cause
A
Proximate/legal cause estabishes that is fair/foreseeable for the court to hold the D responsible for the P’s injuries. Tip: Consider whether an INDIRECT or INTERVENING CAUSE is present when analyzing proximate cause.
22
Q
609 - Intervening cause
A
An intervening cause is an event that occurs after a D’s initial act of negligence and causes harm to a victim. *An intervening cause will releive the D of libaility for the V’s injury only if the event is deemed a SUPERSEEDING (unforeseeable) cause to the injuries.
23
Q
610 - Eggshell plaintiff rule
A
The eggshell P rule is the concept that the tortfeasor takes their victim AS THEY FIND THEM, meaning all courts hold the D liable for the full extent of the P’s injuries, even if the P suffers an unforeseeable high level of damage due to a pre-existing vulnerability or medical condition.
24
Q
611 - May a V recover for personal injuries in tort? What are noneconomic damages.
A
Yes - a P may sue for past, present, and prospective damages from personal injuries tortiously inflicted on them, including economic and non-economic damages. Tip: Noneconomic damages are damages from pain and suffering.
25
#612 - Requirement for damages in a negligence suit?
Once a negligent act and causation are established, the P must show damages resulting from the negligent act in order to impose liability on the D. *There must be a showing of actual damages to person or property.
26
#613 - When may punitive damages be awarded as a remedy for negligence?
Generally, punitive damages are not recoverable under negligence. However, some states do permit punitive damages when the D has engaged in wanton, reckless, or malicious conduct.
27
#614 - 2 types of damages generall not recoverable in a negligence claim?
i) Nominal; and ii) punitive
28
#615 - 3 Defenses to negligence.
(i) contributory negligence; (ii) comparative negligence; and (iii) assumption of risk.
29
#616 - What is the impact of contributory negligence at common law?
At common law, a P's contributory negligence was an ABSOLUTE AND COMPLETE BAR to any recovery for the negligence of the D.
30
#617 - Last Clear Chance
Under the doctrine of last clear change, cts hold that P's contributory negligence would NOT bar or reduce recovery if the D, immediately prior to the accident, had the last clear chance to avoid the accident and failed to do so. Tip: was meant to soften the complete defense of contributory negligence at COMMON LAW.
31
#618 - What is "pure comparative negligence"?
In a PCompN jx, the court will apportion fault between the parties and to the extent that the P's conduct contributed to the injury, the award will be reduced by that percentage of fault. Tip: Pure comparative negligience has been adopted in most jxs.
32
#619 - 2 elements of assumption of risk
To meet the required elements of an assumption of risk, the P must: (1) recognize and understand the particular risk or danger involved, AND (2) voluntarily choose to encounter it.
33
#631 - Vicarious Liability
Distinguished from DIRECT liability, "vicarious liability" is the concept of holding a D liable for the actions of a third party (e.g., liability of an employer for an employee).
34
#632 - Respondeat Superior? Relationship to intentional torts?
The doctrine of respondeat superior allows for an employer to vicariously liable for the tortious acts committed by an employee within the scope of employment. Tip: Intentional torts often are held to be outside the scope of employment unless they are committed in furtherance of the employer's business.
35
#633 - Does respondeat superior apply when employee commits an intentional tort?
Generally, no. However, employers may NOT avoid liability by writing rules that discourage tortious behavior such as forbidding drunk driving.
36
#634 - 2 exceptions to the general rule that employers are NOT liable for the torts of their independent contractors.
Vicarious liability MAY be imposed on an employer if the IC either: (i) is an APPARENT or OSTENIBLE AGENT or is hired to perform NONDELEGABLE DUTIES; or (ii) is performing an activity so INHERENTLY DANGEROUS that the employer should realize it involves a peculiar risk of physical harm.
37
#635 - Are automobile owners vicariously liable for the tortious actions of someone else driving the automobile?
Courts are split - some hold that a driver and rider who agree on an itinerary, to take turns driving, and split all costs are engaged in a JOINT ENTERPRISE; while others hold that the mere sharing of expenses without a business purpose is not enough.
38
#636 - Are parents vicariously liable for the torts of their children? How might parents be liable?
At common law, parents are NOT vicariously liable for the torts of their children. Tip: Parents may still be liable for their own negligence in failing to control their children.
39
#637 - Dram Shop Acts
are statuties that create a cause of action against the TAVERNKEEPER in favor of 3rd parties injured by an intoxicated patron.
40
#639 - What is "satisfaction" in tort law?
Satisfaction is the concept that a P should only recover once for a particular injury. *A satisfied judgement against one tortfeasor prevents recovery for any additional amount against others.
41
#642 - What is a "survival statute"?
provide for the contiuation of personal injury or property actions after a party to the lawsuit has died. HOWEVER, torts based on intagible personal interests (such as defamation, malicious prosecution) generally expire upon the claimant's death.
42
#643 - INTRFAMILY tort immunity
Abolished by most Jxs, it’s a type of immunity that prevents spouses, parents, and children from suing each other in tort.
43
#644 - GOVERNMENTAL tort immunity
means that the state/fed governments and agencies are generally immune from tort liability.
44
#645 - are state governments immune from all torts?
There are some jxs that hae reenacted limited governmental immunity.
45
#811 - is a rescuer a foreseeable plaintiff?
Yes - the theory is that "danger invites rescue"
46
#812 - When may a parent recover for "wrongful birth" or "wrongful pregnancy"?
when a contraceptive procedure or failure to diagnose a birth defect occurs.
47
#813 - What does the ct ask under the "RP" standard?
Would a reasonable person of ordinary prudence, in the D's position do as the D did? Tip: The RPS is viewed under an objective standard.
48
#814 - Informed consent
is the duty doctors have to disclose relevant information about BENEFITS AND RISKS of proposed treatment, ALTERNATIVES to that treatment, and the LIKELY OUTCOME if the patient remains UNTREATED.
49
#815 - Excpetion to the rule that minors are held to a RP standard based on their age?
If children engage in DANGEROUS ACTIVITIES normally undertaken only by adults (e.g., operating cars, airplanes, motorboats, etc.), no special allowance is made for their immaturity or limited experience. *They are held to the same standard as adults, even if they are "beginners."
50
#816 - When is a bailor liable for a bailee's conduct?
(i) the bailee's wrongful conduct is committed in the bailor's PRESENCE; or (ii) the bailor failed to exercise reasonable care in selecting the bailee.
51
#817 - Which 2 sitchs, will a bailor (who has exercised reasonable care in selecting the bailee) be liable for negligent or intentional harm inflicted by the bailee outside of the bailor's presence?
(i) The FAMILY PURPOSE DOCTRINE, which states that an automobile owner will be liable for a family member's consented-to but negligent operation of the vehicle; AND/OR (ii) PERMISSIVE USE STATUTES, which state than an automobile owner will be liable for ANYONE's negligence while that person is driving their automobile with consent.
52
#818 - SoC in emergency situations?
In emergency situations, the SoC is that of a reasonable person acting under the same emergency conditions. Tip: this is also called the GOOD SAMARITAN OBLIGATION.
53
#819 - What duty to a LANDOWNER owe to people outside the premises of their land?
There is NO duty of reasonable care owed to a person outside the land who enteres as a trespasser, and whose presence on the land is unknown, nor is there a duty to discover the presence of trespassers. Tip: This applies to natural and artificial conditions on the property.
54
#820 - Attractive nuisance doctrine and what does it apply?
Applies: AFTER landowner discovers children trespassing, and holds that the LO owes a duty of due care to warn or protect children from artificial conditions involving a risk of death or serious bodily harm. Tip: To be a child trespasser, the child must be so immature that they cannot understand the danger involved.
55
#821 - How does an INVITEE exceed their invitation to enter?
by wandering beyond the part of the premises they were invited to enter. Tip: INVITEE then becomes a LICENSEE, or even a TRESPASSER.
56
#822 - What duty does a LO owe to a recreational user of the land?
In nearly every state, there is no duty owed to a user of rec land, as long as the P had been using the land for rec purposes, and unless the owner has engaged in willfull or wanton conduct against the P.
57
#823 - Does a property lessee owe a duty of care?
Yes - a lessee has a duty to maintain the property in a way that does not cause injury to their own invitees. Tip: lessee is treated as though they were the owner of the property for purposes of applying the common law rules of liability.
58
#824 - What are the 2 excuses for a violation of a statutory standard of care?
May be excused by: (i) a legally acceptable excuse; OR (ii) the application of the SoC would be unreasonable.
59
#825 - What are the 3 elements of NIED?
(1) the D's negligence presents a threat of physical harm WITHIN THE ZONE OF DANGER; (2) the D's negligence RESULTS in the P's SEVERE emotional distress; and (3) the P has a physical manifestation of the emotional distress (i.e., has a heart attack). Tip: Bystanders may recover if additional elements are met.
60
#826 - What is the ZONE OF DANGER?
To recover under a NIED claim, the P must show he was in a foreseeable "zone of danger" where a reasonable person would foresee risk. Tip: If a P is not in the zone of danger, the D will not owe that P a duty of care, unless an exception applies.
61
#827 - WHEN does one have a duty to control 3rd parties and prevent them from injury others?
One has a duty to control third parties and prevent them from injuring others when a special relationship exists between the D and the 3-party. Tip: Special relationship exists between: THERAPISTS&CLIENTS; INNKEEPERS&GUESTS, etc
62
#828 - How is causation established when multiple parties are concurrently liable?
Where there are multiple Ds and which tortfeasor caused the harm is in question, the jury may determine causation by using: (i) the market share liability doctrine; (ii) the alternative liability doctrine; OR (iii) the joint venture/joint enterprise doctrine.
63
#829 - What is an "independent intervening cause"?
is an act or event (by a party other than the D) that happens after the negligent act injures the P. Tip: a D will remain liable for the foreseeable results of their act.
64
#830 - What is the P's duty to mitigate damages?
The P must take reasonable action to avoid or minimize damages.
65
#831 - What is the collateral source rule in tort law?
prevents a D from introducing evidence that the P received FINANCIAL assistance from other sources (e.g., insurance) as a way to reduce an award for damages.
66
#832 - which 2 situations trigger imputed contributory negligence?
In a few states retaining contributory negligence, it is imputed in two situations: (i) employer-employee; AND (ii) partners in joint enterprise. Tip: ContN is not imputed between spouses or a parent-child relationships unless one of the above two situations also applies.
67
#833 - How does "partial comparative neg" affect recovery in a multi-D lawsuit?
Nearly all states apply partial comparative neg, which DENIES RECOVERY TO A P IN A MULTI-D SUIT WHERE THE P'S OWN NEGLIGENCE EXEEDS A THRESHOLD LEVEL. *For example: a P who is more than 50% liable may be denied any recovery when suing multiple Ds for neg. Tip: Compare pure compN used in a number of states, which alows recovery regardless of the extend of P's own negligence compared to the D's.
68
#834 - assumption of risk
is the general rule that if the P expressly or impliedly consents to the harm from a particular risk created by the D, the P is held to have assumed the risk and is barred from any recovery for neg. Tip: The P must have recognized and understood the risk and voluntarily chosen to confront it.
69
#835 - HYPO: When a P assumes a risk, what impact will compN have on their recovery?
In some Jxs, when a P is found to have unreasonably assumed the risk, they are considered contributorily neg, and their recovery will be reduced according to the jx's comparative neg statute. Tip: In this scenario, the two doctrines effectively merge to reduce the damages award.
70
#837 - What is comparative contribution?
Contribution between joint tortfeasors on a comparative fault basis means that each tortfeasor will pay for damages based on their percentage of fault for the harm. Tip: A majority of jx have adopted a comp contribution system but a small number of states require all tortfeasors to pay equal shares regardless of their portion of fault.
71
#838 - Is wrongful death a cuase of action at common law?
No - not under common law. Today, however, wrongful death statutes exist in every jx. Tip: A spouse or next of kin may bring this action.
72
#839 - Which 3 defenses are available in a wrongful death action?
(i) victims negligence; (ii) victim's inter vivos recovery; AND (iii) beneficiary's negligence.
73
#1322 - What is DUTY OF CARE in tort law?
general requirement that a person act reasonably toward others. Tip: The level of the duty owed may change based on the situation (i.e., the duty may be heightened depending on the facts) and is a question of law.
74
#1323 - Must a P have been "foreseeable" to recover against a D in a neg action?
Generally, yes. If a reasonable person would not have foreseen any injury to anyone from the D's actions, most courts will hold there is no duty owed to a person who is unexpectedly hurt.
75
#1324 - What is JOINT AND SEVERAL LIABILITY
applies when more than one D is the proximate cause of the O's indivisble harm, so each D is liable for the entire harm. Tip: Joint and several liability allows the P to sue and collect the entire damages from a single D or any combination of the Ds together.
76
#1325 - What is CONTRIBUTION
Contribution is partial reimbursement from one D to another D who has paid more than their pro rata (ie fair) share of the P's damages. Tip: An intentional tortfeasor may not get contribution from fellow tortfeasors.
77
#1326 - What is INDEMNITY
shifts the entire responsibility and liability from one D to another D who is vicariously liable. Tip: Distinguish from contribution, which is partial reimbursemnt.
78
#1327 - SoC to a person with a disability?
is what a reasonable person with that physical disability would have done.
79
#1328 - What is a parent's duty of care regarding harm caused by their minor child?
A parent has a duty of reasonable care in the supervision of their child to PREVENT the child from either: (a) intentionally harming other people; OR (b) acting in a way that poses an unreasonable risk of harm to others. Tip: A breach of this duty is considered direct neg by the parent, NOT vicarious libaility for the actions of the child.
80
#1329 - May a D be liable in tort solely for the FAILURE to act?
No - At CL, a D is not liable the law distinguishes between affirmative acts and a passive failure to take action. Tip: HOWEVER, some special relationships do give rise to an affirmative duty to act.
81
#1330 - 3 elements of NPS
(1) a statute is violated; (2) the statute was designed to protect against the same kind of accident that the D's conduct caused; AND (3) the P falls within the class of persons the statute was intending to protect.
82
#1331 - 4 elementss of RIL
the P must prove: (1) no direct evidene exists showing how the D behaved; (2) the event does not ordinarily happen except through a person's (or entity's) negligence; (3) the instrument that caused the harm was in the D's exclusive control; AND (4) the P's injury was NOT SELF-INFLICTED.
83
#1332 - What is the effect of a successful RIL showing?
creates an inference that the D was negligent, even though there was no direct or eyewitness evidence of the D's negligence. *The P, by establishing RIL, may establish a breach of duty owed.
84
#1333 - Employee in tort law?
A worker who is subject to the detailed control of the person who has hired them (i.e., their employer).
85
#1334 - IC in tort law?
a worker who is NOT subject to the detailed control of the person who hired them. *an IC is hired to produce a certain result and can control how they produce that result. Tip: Respondeat superior only applies when the worker is an EMPLOYEE; not an IC.
86
#1335 - When is an employee acting "whithin the scope of their employment"?
An employee is wihtin the scope of employment if they were acting with an intent to further their employer's business purpose in any way.
87
#1336 - Is a principal liabile for the torts of their IC?
Generally, no unless an exception applies. Tip: the principal MAY be liable for their own negligence in hiring or supervising the IC.
88
#1337 - What is a NONDELEGABLE DUTY?
is an obligation that may NOT be outsourced t oanother party to perform. Tip: a DELEGABLE duty, by contrast, is a duty that MAY be performed by another (e.g., a contractual duty that is transferred to another party who is obligated to perform).
89
#1338 - DIRECT CAUSATION
means that there was no intervening force or action happening between the D's negligent act and the occurence of the harm to the P.
90
#1339 - INDIRECT CAUSATION
means that some force or agency intervened between the D"s negligent act and the occurence of the P's harm, and either extended the results of the D's negligence or combined with the D's act to produce the injury.
91
#1340 - 3 acts that are NOT considered intervening acts?
(i) preexisting conditions; (ii) forces set in motion; (iii) omissions to act.
92
#1341 - does the eggshell plaintiff rule apply to property?
No, eggshell P rule only applies to preexiting conditions of the P, not property.
93
#1342 - 4 exceptions to the general rule that there is no duty to aid others in an emergency?
D may owe a duty to warn/protect/rescue a person if they have: (a) special relationship to P; (b) caused the P's peril; (c) a statutory duty to act; OR (d) a SPECIAL RELATIONSHIP.
94
#1343 - Ordinary trespasser
is anyone who comes onto the land without the express or implied permission from the landowner.
95
#1344 - What is a LO's duty to KNOWN trespassers?
ordinary care when they know that trespassers constantly intrude upon a limited area of the property where the owner either carries on a dangerous activity orhas maintained an artificual condition that they have reason to know is dangerous.
96
#1345 - LO's duty to UNknown trespassers?
If the trespassers are undiscovered, the LO only has a duty to regrain from willful or wanton misconduct. Tip: effectively means that the LO ownes no duty of care to unknown trespassers.
97
#1346 - What is the effect of a foreseeable result caused by an UNforeseeable intervening force?
Even though the intervening force was not foreseeable, the D will still be liable as long as the result (i.e., the P's injury) was foreseeable.
98
#1347 - What is the effect if an UNforeesable result is caused by a foreseeable intervening force?
If an intervening force was foreseeable, the courts are split on whether to hold a D liable for an unforeseeable result.
99
#1348 - What is the effect if an UNforeseeable result is caused by an UNforeseeable intervening force?
Rarely will a D be liable for an unforeseeable result caused by an unforeseeable intervening force. Tip: only in a few exceptional cases has libaility been found.
100
#2012 - PARTIAL/MODIFIED COMPARATIVE NEGLIGENCE
the ct will apportion fault between the parties and to the extend that the P's conduct contributed to the injury, the award will be reduce by that percentage of fault BUT if the P is more than 50% at fault their recovery is completely barred.
101
#2013 - JOINT VENTURE DOCTRINE
holds that a jury may impute one D's tortious conduct on others who are engaged in a common enterprise. There must be an EXPLICIT or IMPLIED AGREEMENT to engage in the tortious conduct.
102
#2014 - Under respondeat superior, when is an employee acting within the scope of their employment?
(a) performing work assigned by the employer; OR (b) engaging in conduct that is subject to the employer's control.
103
#2015 - HYPO: when an employee disregards the employer's instructions, is the employee's conduct automatically outside the scope of the employment?
No, if the employee did so but did so in an attempt to serve the employer, the employee's actions are not considered outside the scope of employment.
104
#2016 - When will an employer NOT be vicariously liable for an employee's conduct?
When: (a) there is a FROLIC/major deviation; (b) unless expressly authorized by employer, passangers and trespassers are outside the scope of employment; (c) there are unauthorized instrumentalities. Tip: If the employee goes on a "detour"/minor deviation, the employer is liable.
105
#2017 - What is the difference between an employee and IC?
Control. An employer controls the manner and means of an employee's work; IC is not controlled or is only subject to limited control of a principal.
106
#2018 - What factors are considered when determining whether an agent is an IC?
PRINCIPAL'S AMOUNT OF CONTROL IS KEY. Other fators include: characterization by the parties; nature of the work; skill required' who supplies the tools/equipment/facilities; length of employment; and basis of compensation. Tip: A principal is generally not liable for the torts committed by an agent functioning as an IC.
107
#2019 - define NIED
Under NIED, the D must create a foreseeable risk of harm to the P, who must be in the zone of danger, and suffer symptoms from the emotional distress.
108
#2020 - when may a bystander who is outside the zone of danger recover for NIED?
Recovery is permissible for a 3 party outside the ZoD when they are: (1) closely related to the person who suffered the harm; (2) present at the scene; and (3) observed or perceived the event through their own senses. Tip: Most jx require a physical manisfestation of symptoms, although there is a modern trend to dispense with this requirement.
109
#2021 - SoC owed to INVITEES?
Invitees who enter the D's premises for a purpose connected to the business of Ds are owed a duty o reasonable care on the D's premises from foreseeable risks. This includes MAKING REASONABLE INSPECTIONS TO FIND OR MAKE SAFE NON-OBVIOUS RISKS.
110
#2022 - elements of the attractive nuisance doctrine?
Typically applied when a minor is engaged in an activity appropriate for children. The P must show: (1) the D was aware of the dangerous condition; (2) the owner knws minors frequently are near this condition; (3) the condition will likely cause injury; AND (4) the expense of remedying the situation is slight when compared to the magnitute of the risk.
111
#2023 - SoC owed to LICENCEES?
Licensees include social guests who are owed a duty of reasonable care and duty to warn of known dangerous conditions that create an unreasonable risk of harm that the licensee is unlikely to discover.
112
#2024 - What is the actual cause "SUBSTANTIAL FACTOR TEST" and when does it apply?
holds that a D's conduct also i sth actual cause of the P's injury if that conduct was a substantial fator in bringing abou tthe injury. This accounts for the situation where the conduct of two or more Ds, results in injury to P, and each individual D's conduct, taken alone, would have been sufficient to directly cause the injury. Tip: A mechnical application of the "but for" test would permit each D to claim that the P's injury would have occured whether they acted or not and thus "but for" causation did NOT exist.
113
#2025 - What is the "MARKET SHARE" liability doctrine?
Permits the jury to apportion damages based on the manufacturer's market share of a defective product. Courts have held this only applies to products that are mutually interchangeable in their capacity to cause harm.
114
#2026 - What is the alternative liability doctrine from the case Summers v Tice?
permits a jury to find TWO defendants liable when each was negligent, and either could have caused fault.
115
#2027 - difference between contribution and indemnification?
Contribution is an action whereby a D who pays more than their share of damages can seek to share liability with other tortfeasors. Indemnification is an action where a tortfeason seeks to shift responsibility or the entire loss to another tortfeasor.
116
#2028 - define breach
Failure to meet the standard of care.
117
#2029 - 4 elements for a prima facie case of negligence
To establish a negligene action, (1) the plaintiff must show that the D owed a duty of care; (2) the D breached that duty; (3) the breach was a the actual and proximate cause of the plaintiff's injuries, and (4) the plaintiff suffered damages.
118
#2030 - is there an affirmative duty to act?
no, unless there is: (a) pre existing special relationship between the parties; (b) the D was the cause of the harzardous situation; (c) the D has begun to act as a rescuer; OR (d) a duty is imposed by law.
119
#2031 - What the 2 exceptions to NPS?
(a) when compliance with the statute would be MORE DANGEROUS; or (b) compliance with the statute would be IMPOSSIBLE. Tip: compliance with the statute does not raise any presumption in a D's favor.
120
#2032 - SoC for a rescuer?
liability will not attach unless; the individual fails to exerise reasonable care to secure the safety of the other; OR discontinues aid leaving the other in a worse position.
121
#2033 - SoC for a physician?
owes a duty to possess and exerise the knowledge and skill of a member of the profession in good standing. Tip: most cts will apply a national standard of care to evaluate a physician's conduct.
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#2024 - when a professional psychologist/psychotherapist have a duty to warn?
duty to warn potential victimes when their patient makes a credible threat to others. The patient must pose a real risk of violence to a readily ascertainable victime, and possess the intent and ability to follow through with the threat. Tip: a shrink may be found liable for the victim's injuries when a reasonable therapist would have warned, and this shrink failed to do so.
