Negligence Flashcards
3 types of Negligence Broad
Regular Negligence, Negligence per se, Res Ispa Loquitor
Negligence
Duty, Breach, Causation, Damages
Negligence
Duty & Standard of Care
Duty
* I only owe a duty to foreseeable plaintiffs who are in the zone of danger.
o If someone is a foreseeable plaintiff my standard is to act like a reasonably prudent person
Duty of a landowner: to
-Unknown Tresspasser
-Known Tresspasser
-Licensee
-Invitee
- Unknown trespasser= No duty of care
- Known trespasser = Duty to warn of known dangers
- Licensee (social guest, personal) = Duty to warn of known dangers
- Invitee (business, grocery store) = Duty to warn of the danger, to inspect and to make safe
Duty of a parent to supervise a child
A parent has a duty to control or supervise their child if the parent knows or should have known that the child would be likely to cause harm.
Duty to aid/ Rescue
- There is no duty to come to someone’s aid or rescue, except if I try to render aid then I must exercise reasonable care.
Duty to aid in cases with special relationship with the party
- Duty to aid in cases with special relationship with the party
o Ie: common carrier: ur on plane, train bus, those ppl have duty to help the passengers.
o Ie: inkepper guest, in hotel, they have duty to come to ur aid help you
No general duty to rescue unless
- AKA no general duty to rescue unless
1. Assumption of duty
2. Special relationship
Duty of a child
Like other children of the same age, experience and maturity.
Duty of a professional
- Professional: someone with elevated amount of education: Dr. lawyer, pro athlete: They have to act like similar professionals with the same education, training and customs in the community.
Breach
- Failure to comply with duty of care.
Causation
2 types : Actual and proximate (need both)
-
Actual= but for test
o But for my actions nothing bad would have happened in the first place -
Proximate cause= foreseeability
o Was it foreseeable.
o If have 1 and not other then there will be no causation
Negligence
Damages
-
Actual physical injury must happen to sue for negligence damages
o No physical injury no win
Intervening Cause
- Intervening: if its foreseeable its intervening cause meaning D will pay for all of the damages
Superseding Cause
Its unforeseeable and cuts off D liability. Only pay for orig act of negligence.
o If its act of God, intentional tort or a criminal act then its unforeseeable and superseding and cuts off liability.
o If the facts dnt tell u its superseding by default it means its intervening and D will pay for everything.
Negligence per se
- Has nun to do with negligence
1. A violation of an ordinance, staute
2. The injured party is part of a protected class of people the statue was designed to protect and
3. The injury is the kind of injury we were trying to prevent.
Res Ispa Locquitor
- Whatever happened does not normally happen absent negligence.
- The defendant was in exclusive control of the instrumentality ie no one else could have done it, I was the only one there, I was the only one in control.
- Liable for damages =
- Liable for violating statue=
- Inference motion to ct=
- Liable for damages = negligence
- Liable for violating statue= negligence per se
- Inference motion to ct= res ispa looking for res ispa elements.
Attractive Nuisance
Artificial condition on the owners land causing children to trespass.
- Owner of the land knows or should know that the kids will trespass.
- The condition poses an unreasonable risk of harm
- The children because of their age or maturity don’t realize the risk.
- The utility of maintaining the artificial condition is slight compared to the risk to the children. AKA it’d be cheaper, easier to fix to maintain than the harm that could happen to the children
- The owner fails to make it safer.
Pure Comparative Negligence
P is also negligent as well. They will still recover but their damages will be reduced by their percentage of fault.
Modified/ Modern Comparative Negligence
If the plaintiff is more than 50% responsible, they cannot recover anything.
Contributory Negligence
o If the plaintiff was just 1% responsible they get 0. It’s a bar to recovery.
Exception to contributory negligence
- Exception to contributory negligence
o Last clear chance rule: If the D had the last clear change to avoid the accident but did not do so, then the P can recover.
o Last clear chance only applied to contributory negligence.
Assumption of the risk
- P must have knowledge and appreciate the danger and you proceed anyway. They assume the risk.
joint and several liability
2 or more defendants cause a single accident. We don’t know the percentage of fault for each Defendant. We just know that 2 or more people hit John. All defendants are jointly and severally liable for all the damages which means that John can choose 1 of the defendants and recover all his damages.
Vicarious liability
-
An employer is liable for the negligent acts of their employees as long as the employee was acting in the scope of their employment. **
o The employer is not liable for the intentional acts** or torts of the employees.
o Scope of employment means in the course of their duties, their job. If there were on lunch break or going home they are not within scope of employment.
o Independent contractor: someone who hires an independent contractor is not liable for their negligent actions. Unless
o** Exception**
The work the contractor is doing is abnormally dangerous activity. Then person who hired the indep contractor will be responsible.
Or the contractor is doing a nondelegable duty: those duties that are work, involves safety or the benefit of the public at large (other people). The person who hired the indep contractor will be liable.
AKA: independent contractors generally not liable unless - Abnormally dangerous activity
- Non delegable duty
Indemnification
Indemnification: They want to get money back from their guy who screwed up
o Goes with vicarious liability
o Can seek indemnification from whoever actually caused the damage
o HYPO: person (party whos responsible) didn’t do anything wrong because they were in the ex the bus company they did nun rong juss hired bus driver. So the busy company is liable and has to pay so they seek indemnification from the bus driver.
