Negligence Flashcards
When may a plaintiff recover for negligent infliction of emotional distress based on injury to a third party?
1) P is closely related to a party injured by D’s negligent conduct
2) P was present at the scene of the injury (“zone of danger”)
3) P personally observed or perceived the injury
When may a plaintiff recover for negligent infliction of emotional distress, even if they were not a bystander and there was not a “near miss”?
When the defendant is engaged in a special activity or there is a special relationship between the defendant and the plaintiff such that the defendant’s negligence has great potential to cause plaintiff severe emotional distress.
When may defendants be jointly and severally liable for a plaintiff’s divisible injury?
When the defendants are acting in concert and the joint act causes P’s harm
When does D have a duty to rescue P?
When there is a special relationship b/w the parties, D negligently or innocently placed P in danger, D assumed the duty to rescue, or D has the ability/authority to control the actions of a third party who they know/should know is likely to commit acts that require the exercise of control
What is the duty owed by a owner/occupier of land to trespassing children?
The landowner must exercise reasonable care to prevent reasonably foreseeable harm to trespassing children when…
1) There is a dangerous artificial condition on the land that the owner is aware of
2) The owner knows or should know that children are likely to trespass on the land because of an aspect of the land that is attractive to children
3) The condition is likely to cause injury (children unlikely to recognize the danger)
4) The expense of remedying the situation is slight compared to the magnitude of risk
When will D’s violation of a special statutory standard of care NOT establish negligence per se?
When compliance is out of D’s control or would be more dangerous than violation of the statute
What approach is used to determine factual cause when there is an unascertainable cause?
If multiple def. were negligent and only one negligent act caused P’s injury, but it cannot be determined which act, the burden of proof shifts to each D to prove their act was not the factual cause of P’s injury
What is the “eggshell skull doctrine”?
A negligent D is liable for foreseeable injury to P even if extent/severity of injuries was not foreseeable
When does an intervening force NOT break the chain of proximate causation in a negligence case?
When D’s negligence created a foreseeable risk of harm from the intervening force.
When is contributory negligence of a third party imputed to P?
When P is vicariously liable for the negligence of the third party
In a negligence action against a manufacturer for defective product design (as opposed to strict liability), what must P show to satisfy element of breach?
Manufacturer knew or should have known enough facts to put a reasonable manufacturer on notice of danger of marketing the defective product to the public
What are the elements of a PF case of negligence?
D owed P a duty to conform to a particular standard of conduct to prevent an unreasonable risk of harm to P, D breached the applicable standard of care, D’s breach was the factual and proximate cause of P’s injury, and P suffered damages
Generally, when is the defendant’s negligent conduct the factual cause of the plaintiff’s injury?
When the plaintiff’s injury would not have occurred “but-for” the defendant’s conduct.
What is the test for factual cause when there are multiple sufficient causes for P’s injury?
A defendant’s conduct will be considered the factual cause of P’s injury when they were a substantial factor in causing P’s injury
When is the general rule of proximate cause in negligence cases?
A defendant’s negligent conduct is the proximate cause of plaintiff’s injury if plaintiff’s injury was a foreseeable result of defendant’s breach.
Which intervening forces are usually considered foreseeable to the defendant as natural responses/reactions to the defendant’s negligent conduct?
Medical malpractice, negligence of rescuers, reaction/protection behavior, and disease or accidents substantially caused by plaintiff’s original injury.
When may a P recover for emotional distress under a negligence COA?
When the plaintiff’s physical injuries caused emotional distress, or when they have suffered no physical injuries but have a claim for negligent infliction of emotional distress
What is the ordinary standard of care?
As to foreseeable plaintiffs, D has a duty to exercise the care of a reasonably prudent person under the same circumstances to avoid unreasonable risk of injury to P.
What is the ordinary standard of care owed by a person with a physical disability?
If the disability is relevant to the claim, the person must exercise the care of a reasonably prudent person with their disability under the circumstances.
When does a statutory duty replace the ordinary standard of care in a negligence action?
When a specific duty is clearly stated in a statute which imposes criminal penalties and
1) The plaintiff is within the class of persons protected by the statute.
2) The harm to the plaintiff is the type of harm the statute is designed to prevent.
What is negligence per se?
A conclusive presumption of duty and breach, established when a defendant violates an applicable statutory duty of care.
What is the standard of care owed by children?
Children b/w the ages of five and eighteen owe a duty to exercise the same care as a child of like age, experience, and intelligence.
What is the standard of care owed by professionals?
Professionals owe a duty to exercise the same care/skill as an average member of their profession providing similar services, practicing in a similar community.
