Negligence Flashcards
588 - What are the four elements of negligence?
Duty of Care; Breach of duty; Actual and Proximate cause; damages
589 - How does the court determine the DUTY OF CARE?
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.
590 - What is the MAJORITY RULE regarding whether a P was FORESEEABLE?
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.
591 - What is the REASONABLE PERSON standard of care?
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.
592 - What is the SOC for PROFESSIONALS?
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.
593 - What is the SOC for children?
Children/minors are held to the standard of care that would be expected from a child of like age, education, intelligence, and experience. AEIE
594 - What is the SOC for common carrier/innkeeper?
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.
595 - What is the SOC for owner/occupier of land?
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.
596 - What duty does a landowner/occupier owe to child trespassers?
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.
597 - Does a landowner owe a heighened duty of care to child trespassers as compared to adult trespassers?
Yes - there is a special duty of care for children
598 - What is a LICENSEE?
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.
599 - What is an INVITEE?
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.
600 - What are the two ways a statute creates a tort duty?
A statute can create a tort duty by: (a) creating a statutory tort; OR (b) recognizing a common law tort duty.
601 - Is there a general duty to aid other during an emergency?
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.
602 - What constitutes a breach of duty for purposes of tort liability?
Conduct falling short of the duty owed is a breach of duty.
603 - How will a court find a breach of a duty of care?
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.
604 - Negligense per se
… 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.
603 - Res ipsa loquitur
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.
606 - What are the two types of causation under a neg claim?
Actual and proximate
607 - Actual causation
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.
608 - Proximate cause
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.
609 - Intervening cause
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.
610 - Eggshell plaintiff rule
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.
611 - May a V recover for personal injuries in tort? What are noneconomic damages.
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.
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.
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.
614 - 2 types of damages generall not recoverable in a negligence claim?
i) Nominal; and ii) punitive
615 - 3 Defenses to negligence.
(i) contributory negligence; (ii) comparative negligence; and (iii) assumption of risk.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
644 - GOVERNMENTAL tort immunity
means that the state/fed governments and agencies are generally immune from tort liability.
645 - are state governments immune from all torts?
There are some jxs that hae reenacted limited governmental immunity.
811 - is a rescuer a foreseeable plaintiff?
Yes - the theory is that “danger invites rescue”
812 - When may a parent recover for “wrongful birth” or “wrongful pregnancy”?
when a contraceptive procedure or failure to diagnose a birth defect occurs.
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.
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.
