Negligence

Question 1

Negligence elements (5)

Answer 1

1. duty of care
2. standard of care
3. breach
4. causation (actual + proximal)
5. damages

Question 2

What must D do to be liable for negligence (3)

Answer 2

1. Fail to exercise such care as a reasonable person in his position would have exercised
2. conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in P’s position
3. breach must have caused P’s damages

Question 3

Duty of Care

Answer 3

D owes a duty not to subject any foreseeable P to unreasonable risk of injury

Question 4

Two methods for determining foreseeable Ps

Answer 4

1. Cardozo (Majority)
2. Anders

Question 5

Cardozo method of determining foreseeable Ps

Answer 5

D has a duty of care to Ps in the foreseeable zone of danger (threat of physical danger)

Question 6

Anders method of determining foreseeable Ps

Answer 6

D has a duty of care to everyone (everyone is foreseeable)

Question 7

Is there a duty owed to take steps to rescue or aid?

Answer 7

No, EXCEPT where affirmative duty is created (nonfeasance)

Question 8

Nonfeasance exceptions (5)

Answer 8

1. special relationship (parent-child, common carriers, innkeepers, shopkeepers)
2. D’s conduct creating the peril
3. D’s undertaking the action for P’s benefit (attempt to assist)
4. D’s creating reliance
5. contract

Question 9

Are rescuers foreseeable Ps?

Answer 9

Yes, per se, as long as behavior was not wanton, rescued party (D) is liable for rescuer’s (P’s) injuries caused by the rescue

Question 10

Where is a duty to control a third party created? (2 instances)?

Answer 10

1. “dram shop” act (served customer harms another person)
2. special relationship