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Torts 2013 Bradford > Negligence > Flashcards

Negligence Flashcards

1
Q

How does “negligence” allow a plaintiff to win damages?

A

by showing that even though the defendant did not mean to do anything that the law prohibits, the defendant failed to act as carefully as the law requires.

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2
Q

What is Duty?

A

“Duty” to other persons to act in a reasonable way as to be careful not to injure others.

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3
Q

Define reasonable person

A

A person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others interests. A legal standard.

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4
Q

Someone who exercises the degree of attention, knowledge, intelligence and judgment that society requires of its members for the protection of their own and others interest is known as a…

A

Reasonable Person

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5
Q

What is the exception to the standard definition of a “reasonable person?”

A

The “Sudden Emergency Doctrine”

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6
Q

What three points must be met to qualify under the reasonable person exception of the Sudden Emergency Doctrine?

A
  1. You weren’t negligent prior to the sudden emergency
  2. Comes about suddenly, without warning
  3. No time for reflection
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7
Q

Under the Standards of Care, there are three additional standards outside of the expectation of the “reasonable person.” Name the other three

A
  1. Superior Knowledge
  2. Physical Disability
  3. Mental Disability
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8
Q

If one falls into the class of Superior Knowledge in the Standards of Care, how are they held?

A

Held to a higher standard based on that superior knowledge.

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9
Q

What is the standard of care for someone with a physical disability?

A

The individual is held to the standard of acting as a reasonable person with a similar disability.

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10
Q

Typically, how does a Mental Disability affect the reasonable person standard?

A

Generally speaking, mental illness does not affect the reasonable person standard. The individual would still be held to the same regard as someone who does not have mental illness.

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11
Q

What exception to the reasonable person standard IS made for mental disability

A

Sudden onset.

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12
Q

What is the standard of care for a minor?

A

reasonable child of like age, intelligence, and experience.

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13
Q

Under what age would a child have to be so that they are not liable for negligence according to the Standard of Care for a minor?

A

Under the age of 7 (UNDER only. At age 7 a child IS liable).

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14
Q

If over the age of 7 a child can still fall under an Exception to the Standard of Care they are held to. What exception to negligence may they be granted?

A

Over the age of 7, a child can be negligent, but to a lesser extent than an adult.

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15
Q

What is the third Exception to the Minor’s Standard of Care? The first is with regard to children under 7 years of age. The second is regarding the level of negligence a child is held at if they are over 7. The third exception is…

A

Inherently Dangerous activities/adult activity

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16
Q

WISCONSIN goes by the Adult Activity Standard (with regard to the exception to minor’s standard of care). What is the adult activity standard.

A

The child engaged in an activity which is typically engaged in only by adults and for which adult qualification or a license is required.

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17
Q

Under the Adult Activity Standard followed by WI, in such a situation, the child will be held to the standard of…

A

adult skill, knowledge, and competence, and no allowance will be made for the child’s immaturity.

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18
Q

In WISCONSIN, does license matter with regard to the adult activity standard for an exception to a minor’s standard of care?

A

NO. In Wisconsin, if a license is needed, the child will be held to the standard of adult skill.

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19
Q

What does the term “Statutory” mean with regard to the Standard of Care in the subject of negligence?

A

There may be statutes that absolve a person of a negligence suit but does not keep them from being charged with recklessness.

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20
Q

What are the two opinions on duty as they relate to Palsgraf?

A
  1. Cardozo

2. Andrews

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21
Q

By Cardozo, what duty is owed?

A

Owe a duty to foreseeable victims against foreseeable harm.

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22
Q

By Andrews, what duty is owed?

A

Owe a duty to protect ALL others by using reasonable care.

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23
Q

What approach to duty does Wisconsin take?

A

WI uses the Andrews approach.

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24
Q

(under Palsgraf) What is the definition of “Foreseeable Harm?”

A

A reasonable person would be able to predict or expect the ultimately harmful result of their actions.Under negligence law, the duty to act reasonably to avoid foreseeable risks of physical injury extends to any person.

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25
Q

Under negligence law, to whom is owed the duty to act reasonably to avoid foreseeable risks of physical injury?

A

Under negligence law, this specific duty extends to any person.

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26
Q

Name the 4 “Special Duty Rules”

A
  1. Duty to Rescue or Protect
  2. Rescue Doctrine
  3. Firefighter’s Rule
  4. Protecting Third Parties from Injury
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27
Q

Does the Duty to Rescue or Protect REQUIRE one person to rescue another from harm despite the forseeability of harm to that other person?

A

NO

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28
Q

According to the “Duty to Rescue or Protect” special duty rules, there is no obligation to do what?

A

Act to avert the impending calamity even if the action out may be easy and the harm it might avert is enormous.

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29
Q

What 4 things must be true in order to be held under the “Rescue Doctrine?”

A

a. Defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the rescuer.
b. The peril or appearance of peril was imminent
c. A reasonably prudent person would have concluded such peril or appearance of peril existed
d. The rescuer acted with reasonable care in the rescue.

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30
Q

What does the Firefighter’s Rule mean in Wisconsin?

A

When someone is paid, they are not allowed to be compensated to take on the risks and rescues

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31
Q

Does the Firefighter’s Rule apply only to firefighters?

A

NO, in some jurisdictions it extends to police officers.

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32
Q

Name the 6 factors (each of which can be independently satisfied) that will preclude liability under the Firefighter’s Rule.

A

a. The injury is too remote from the negligence
b. The injury is too wholly out of proportion to the culpability of the negligent tortfeasor
c. It appears too highly extraordinary that the negligence should have brought about the harm
d. Because allowance of recovery would place too unreasonable a burden on the negligent tortfeasor
e. Because allowance of recovery would be too likely to open the way for fraudulent claims
f. Allowance for recovery would enter a field that has no sensible or just stopping point.

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33
Q

Under the Special Duty Rules, what does “Protecting Third Parties from Injury” mean in a medical context?

A

In the medical context some courts have taken positions that require affirmative acts by healthcare professionals who have an opportunity to protect strangers from danger.

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34
Q

Under “Duty Limited by Type of Harm,” what is “Negligently Inflicted Emotional Distress?”

A

Defendant’s negligent conduct causes the plaintiff to suffer a physical injury at the time of the conduct and all courts allow the plaintiff to recover damages for the immediate physical harm and also for emotional harm associated with that initial physical harm.

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35
Q

What are the two rules that are followed under “Negligently Inflicted Emotional Distress?”

A
  1. Impact Rule

2. Zone of Danger Rule

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36
Q

What is the “Impact Rule?”

A

Generally there is a problem with proof, it is difficult to prove emotional distress so the plaintiff can assert that they are emotionally harmed. Hard to link the injury back to the fright without physical.

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37
Q

What is the “Zone of Danger Rule?”

A

A person who is in the zone of danger is someone who could possibly get injured by the negligent act because they were physically in the area. But given that they were in the zone of danger the potential for impact is sufficient the NIED rule

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38
Q

Someone who could possibly get injured by a negligent act due to their physical location would in the ___ __ ____.

A

Zone of Danger

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39
Q

Under Breach, what 3 elements are part of “Negligence per se?”

A
  1. Negligence due to the violation of a safety statute
  2. Victim was part of the class protected by the statute.
  3. A plaintiff alleging negligence per se need not prove that a reasonable person should have acted differently – the conduct is automatically considered negligent, and the focus of the suit will be over whether it proximately caused damage to the plaintiff.
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40
Q

If alleging negligence per se, what will the focus of the suit be over?

A

It will be over whether the conduct proximately caused damage to the plantiff

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41
Q

What are the 7 facets of Breach?

A
  1. Negligence per se
  2. Failed to act as a reasonable person (or other relevant standard of care)
  3. Res Ipsa Loquitor
  4. Industry Standard/Custom
  5. Learned Hand Formula
  6. Recklessness
  7. Gross negligence.
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42
Q

What does Res Ipsa Loquitor permit?

A

An inference of negligence from circumstantial evidence.
(Ordinarily things like this don’t happen unless someone was negligent and more likely than not it was the defendant’s negligence that caused the harm)

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43
Q

What 4 elements are required to rest under Res Ipsa Loquitor?

A
  1. Doesn’t normally happen absent negligence
  2. Exclusive control by the defendant
  3. Plaintiff did not contribute to the harm
  4. Defendant has superior access to information
44
Q

What is the Industry Standard/Custom mean with regard to “Breach?”

A

Does not set the standard but is some evidence of breach. If the litigant can show that an industry as a whole has a customary way of doing something the courts may acknowledge it. They typically give less power to industry custom than they do to violation of a statute.

45
Q

Does the Industry Standard/Custom set the actual standard?

A

No, but it provides some evidence of breach if the it can be shown that there is a customary way of doing things that one would expect to have been followed.

46
Q

What is the “Learned Hand Formula?”

A

B<PL
The reasonable person assesses the burden of the precautions against the magnitude and probability of the loss. Use this to figure out what kind of evidence to present to the jury.

47
Q

The “Learned Hand Formula” is used to figure out what with regard to juries?

A

Used to figure out what kind of evidence to present to the jury.

48
Q

What are the 4 factors of Recklessness?

A
  1. Willful and wanton behavior
  2. High degree of carelessness
  3. Conduct that involves a grave risk to others
  4. Actor foresees the possibility of harm but consciously takes the risk anyways.
49
Q

What is Gross Negligence?

A

Conduct which shows either a willful intent to injure or reckless and wanton disregard of the rights, safety, or property of another person.

50
Q

Is Gross Negligence part of WI common law?

A

No, not anymore.

51
Q

What does “Cause in Fact” mean?

A

Cause in Fact means “Producing cause”

52
Q

What is a “But for” statement?

A

Damage wouldn’t have occurred but for (in the absence of) the negligence of the defendant.

53
Q

What does the “Multiple Sufficient” create?

A

a rebuttable presumption which shifts the burden of proof to the defendant to prove that he was not a cause in the fact of the plaintiff’s damages.

54
Q

Can you have more than one “but for” cause?

A

Yes

55
Q

With regard to “Multiple Sufficient,” explain the “two fire situation.”

A

The plaintiffs burden is to show that each of these causes alone were sufficient to create the ENTIRE harm that is being claimed. The burden shifts to the defendant to show that they are not a substantial in the destruction of the home.

56
Q

What are the three elements of Alternative Liability

A
  1. Only one actor caused the harm
  2. All parties were negligent
  3. Impossible to figure out which party actually caused the harm.
57
Q

What elements make up “Concert of Action?”

A
  1. Encouragement from a third party (substantial assistance/encouragement)
  2. Knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself
  3. Gives substantial assistance to another in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
58
Q

What 5 Factors determine substantial assistance with regard to “Concert of Action?”

A

a. Nature of the act
b. The kind and amount of the assistance
c. Relationship between the parties
d. Presence or absence of the defendant
e. Defendant’s state of mind

59
Q

What is Proximate (Legal) Cause?

A

An event sufficiently related to a legally recognizable injury to be held as the cause of that injury.

60
Q

What is the Direct test for proximate cause?

A

Figure out if harm is directly traceable to the act and find out if there are any independent acts that are acting in between.

61
Q

How does the Direct test treat the defendant’s conduct?

A

This treats the def’s conduct that is a cause in fact of a plaintiff’s harm as a proximate cause if there are no intervening forces between the def’s act and the plaintiff’s harm.

62
Q

What are the three Factors under the Direct test?

A

a. Foreseeability
b. Length of time
c. Intervening factors

63
Q

What are the elements of the Forseeability test?

A
  1. Whether the defendant should have reasonably foreseen as a risk of conduct, the general consequences or type of harm suffered by the plaintiff.
  2. Other concepts
    a. Egg Shell Plaintiff - The eggshell plaintiff rule is an additional legal doctrine that determines the extent of a defendant’s liability. Some plaintiffs may be more susceptible to injury than others. As such, the cost that a defendant may have to pay if he hurts that particular plaintiff can be much higher than it would have been had he hurt a different plaintiff. Some may believe that the defendant should not have to pay those extra costs… however, the court says that since the defendant breached his duty, he is responsible for all costs that come from that breach, even if they weren’t foreseen.
    b. Type of harm must be foreseeable, not the degree of harm
64
Q

What is the Restatement Approach?

A
  1. An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.
  2. For proximate cause restatement uses a “risk standard” to define the scope of a defendant’s liability. A def is only liable for those types of accidents that made the defendants conduct negligent in the first place.
65
Q

What Standard does the Wisconsin Policy Approach use?

A

Andrews Standard

66
Q

Using the Andrews Standard, what duty is owed?

A

Owe a duty to protect all others by using reasonable care. WI uses Andrews approach.

67
Q

Under the Wisconsin Public Policy Approach, what is Cause in Fact?

A

substantial factor (different than other jurisdictions which use substantial factor under proximate cause).

68
Q

In the Wisconsin Public Policy Approach, what are the 6 Public Policy Factors used by the judge?

A

a. Injury too remote from negligence
b. Injury wholly out of proportion to defendant’s culpability
c. Highly extraordinary result in retrospect
d. Recovery places unreasonable burden on defendant
e. Recovery opens way for fraudulent claim
f. Recovery has no sensible stopping point

69
Q

(Defenses and Apportionment of Damages)

What is Modified Comparative Negligence?

A

Plaintiff is barred from recovering only if the plaintiff’s percentage of the responsibility is greater than 49% or 50% (depending upon the jurisidiction)

70
Q

(Defenses and Apportionment of Damages)

What is Pure Comparative Negligence?

A

A plaintiff is barred from recovering only if the plaintiff’s percentage of responsibility is 100% - the damages will be reduced by whatever percentage the jury assigns to the plaintiff’s negligence.

71
Q

(Defenses and Apportionment of Damages)

What is Express Assumption of Risk?

A

Plaintiff may expressly agree in advance (usually in writing) to relieve Defendant of their duty to exercise care for Plaintiff’s safety

72
Q

In what 2 ways can an agreement by unenforceable under the Express Assumption of the Risk?

A
  1. Agreement may be unenforceable when contrary to public policy
  2. Agreement may be unenforceable as to a risj that the parties did not contemplate (example: release covers negligence and may not be binging if defendant’s reckless conduct is the cause of Plaintiff’s harm.
73
Q

(Defenses and Apportionment of Damages)

What is Primary Assumption of Risk?

A

Provides that a Defendant does not owe a duty to Plaintiff where the safety risk is an inherent and commonly accepted risk associated with Defendant’s activity. (Without a duty there is no negligence example spectators and participants in sporting events)

74
Q

(Defenses and Apportionment of Damages)

What is Implied Assumption of the Risk?

A

Plaintiff’s conduct manifests their intent to consent to a risk created by Defendant’s negligence. Plaintiff knew of the risk and appreciated it and it was voluntary to assume the risk.

75
Q

(Defenses and Apportionment of Damages)

What is Mitigation of Damages?

A

The doctrine of avoidable consequences requires plaintiff to make reasonable efforts to mitigate the consequences of his/her injury and take reasonable steps to prevent harmful consequences from developing. (Safety belt – failure to wear one reduces the plaintiff’s damages)

76
Q

What is Joint and Several Liability?

A

The plaintiff may collect the entire amount of damages from any defendant whose negligence was a proximate cause of her harms.

77
Q

What does Concerted Action mean?

Joint and Several Liability

A

If two or more parties act in accordance with a common scheme or plan those parties are jointly and severally liable for all damages resulting from that action.

78
Q

If two or more parties act in accordance with a common scheme or plan, how are those parties liable?

A
  1. Concerted Action – If two or more parties act in accordance with a common scheme or plan those parties are jointly and severally liable for all damages resulting from that action.
79
Q

What 3 things must be present for Concerted Action

Joint and Several Liability

A

a. There must be an explicit agreement among the parties to act in accordance with a mutually agreed upon scheme or plan. Parallel action without more is insufficient to show a common scheme or plan.
b. There must be mutual acts committed in furtherance of that common scheme or plan that are tortious acts.
c. The tortious acts that are undertaken to accomplish the common scheme or plan must be the acts that result in damages.

80
Q

What is it called if an actor is liable for someone else’s tortious conduct?

A

Vicarious Liability

81
Q

What is the primary instance of Vicarious Liability?

A

The primary instance is an employer’s obligation to pay for an employee’s tortious conduct, known as the doctrine of respondeat superior. Also vehicle owners are vicariously liable for the tortious conduct of all users of their vehicles.

82
Q

Professional Prudence is defined by what?

A

by actual or accepted practice with a profession.

83
Q

With regard to Medical Malpractice, what must doctors do before performing procedures on them?

A

Obtain informed consent from their patients

84
Q

With regard to Medical Malpractice, to recover damages on informed consent theory, what must the plaintiff show?

A
  1. That the defendant provided less information than the jurisdictions standards required the defendant to provide and
  2. that there was a causal link between that lack of information and the patient’s consent to treatment and that the patient suffered and injury. More specifically the plaintiff must show that he or she would have declined to undergo the procedure if the defendant had provided fuller information about its risks.
85
Q

What 3 basic elements must the plaintiff prove to recover damages under Legal Malpractice?

A
  1. Employment of the attorney or some other basis for a duty
  2. The failure of the attorney to act as well as the standard of care required
  3. Causal connection between the negligence and the plaintiff’s damage.
86
Q

The traditional approach to liability of landowners and occupants categorizes the injured person under these three titles:

A
  1. trespasser
  2. licensee
  3. invitee
87
Q

What are the three types of “Trespasser”

A
  1. Criminal
  2. Mere
  3. Discovered Frequent or Tolerated
88
Q

Some jx say that the only duty in criminal tresspass is to not intentionally injury. Other jx say what?

A

Duty is not to intentionally injur or wantonyly injure.

89
Q

What is Mere trespasser treated as?

A

It’s the same as Crinminal

90
Q

Discovered Frequent or Tolerated Trespasser is considered the same as mere PLUS…

A

PLUS there is an additional duty to protect the trespasser form injuries caused either by the landowner’s activities or by artificial conditions on the land.

91
Q

With regard to Owners and Occupiers of Land, what duties are owed to a Child?

A

Same duties as trespasser plus duty to use reasonable care or eliminate unreasonable artificial conditions on the land which pose a risk of death or serious bodily injury.

92
Q

With regard to duties owed to children by the owners and occupiers of land, what must the owner know or have reason to know?

A

Owner must know or have reason to know the children are likely to trespass at the place where the dangerous conditions exist. The child, due to their immaturity, must not discover the condition or appreciate the danger involved.

93
Q

What are the duties owed to the Licensee by Owners and Occupiers of Land?

A

Same as trespasser plus duty to use ordinary care to warn a licensee of a dangerous condition of which the owner is aware and the licensee is not.

94
Q

What are Slip and Fall Cases about?

A

Plaintiff seeks damages for injuries suffered in a fall at a defendant’s premises.

95
Q

From the plaintiff’s point of view in a Slip and Fall case, the ideal proof would be that the defendant did two things:

A

a. Defendant knew (actual knowledge) about the hazard.

b. Defendant failed to remove it

96
Q

Constructive notice treats the defendant as…

A

as if she had actual knowledge of the hazard if there is proof that the condition was present for a significant period of time prior to the plaintiff’s injury.

97
Q

The Mode of Operation treats the defendant as…

A

as having actual knowledge of a hazardous condition if the defendant has chosen to operate an enterprise in a way that makes it likely that dangerous conditions will occur often.

98
Q

In some jurisdiction, the Open and Obvious Dangers rule applies to…

A

…all hazards that are open and obvious whether natural or made by a person.

99
Q

With regard to Slip and Fall Cases, a jurisdiction applying the Open and Obvious Dangers Rule would reject liability to…

A

…an invitee who slipped and fell over spilled milk in a grocery store if the evidence showed it was was an obvious spill.

100
Q

Natural Accumulations protect landlords from…

A

…responsibility for hazards such as ice, drifts of snow, puddles of water etc. If a landowners conduct intensifies risks related to these conditions the land owner will lose the benefit of the rule.

101
Q

With Criminal Conduct by Third Parties, the duty to protect invitees from third party criminal conduct arises where…

A

…the frequency and severity of criminal conduct around the defendant’s location substantially exceed the norm and where the risk of crime is above and beyond the ordinary.

102
Q

An Invitee is treated the same as trespasses PLUS…

A

…exercise ordinary care to protect invitee from risks of which the owner is actually aware and risks which the owner should be aware of after a reasonable inspection.

103
Q

Liability to Tenants and Their Guests state that landlords…

A

do NOT owe any duty of care to tenants with regard to the safety of leased premises.

104
Q

The Liability landlords have to their tenants and guests is limited by …

A

doctrines that identify specific circumstances in which a landlord might be liable to a tenant or tenant’s guest for injuries related to the condition of the leased premises.

105
Q

What are the two grounds that the exception to immunity for areas under control of the landlord can be justified?

A

The landlord is able to inspect those places easily and therefore to discover dangerous conditions AND if the law did not provide an incentive to landlords to maintain those areas, it is unclear how multiple tenants might organize themselves to maintain or repair those places. They would probably go unremedied.

106
Q

What two elements are used in the Direct test?

A
  1. No intervening or superseding acts

2. Factors

107
Q

What are the elements of the “Substantial Factor” test?

A
  1. Defendant’s negligence was a substantial factor in causing the harm
  2. Factors
    a. Lapse of time
    b. Number of other factors
    c. Weight of each factor

Torts 2013 Bradford (4 decks)

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