Negligence Flashcards
What are the elements of Negligence?
Prima Facie Case also for an Essay
- Duty on the part of the person to conform to a specific standard of conduct;
- breach of that duty by the person;
- the breach was the actual and the proximate cause of the P’s injury; and
- damages to the P’s person or property.
Duty, Breach, Actual Cause, Proximate Cause, and Damages.
Attractive Nuisance
- (i) there is a dangerous condition present on the land of which the owner is or should be aware;
- (ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition;
- (iii) the condition is likely to cause injury (i.e., is dangerous) because of the child’s inability to appreciate the risk; and
- (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.
Special Note:
Appreciate of the Risk (Assumption of the Risk) can negate element 3 for a child trespasser, and treat them like an adult trespasser for duty of care eliminating the application of Attractive Nuisance.
Assumption of the Risk
Ability to understand and appreciate the risk and volutarily assume the consequences of the actions involved.
Best used to impute an Attractive Nuisance Duty of Care, and reduce it to an ordinary adult general duty of care.
True of False:
One spouse’s negligence is ordinarily not imputed to the other.
TRUE!
Ordinarily, the negligence of the husband or wife does not bar the other spouse from recovery for personal injury or damage to his/her property.
I.e.: wife forgot tell husband brake fluids were gone, husband driving great. D driving bad and runs a stop sign. Husband brakes but hits D. Husband sues D, and wife’s omission will not bar husband from full recovery even in a pure comparative liability state where the neglience of both parties are weighed against each other.
True or False:
A parent’s negligence is not imputed to the child in actions against a third party.
TRUE!
Thus, the negligence of a child’s parent will not be imputed to the child, and the child should receive a full recovery for all of thier injuries.
NIED (Generally)
Neglient Inflction of Emotional Distress
A duty to avoid NIED may be breached when D creates a foreseeable risk of physical injury to P. P usually must satisfy two requirements to prevail:
1. P must be within the “zone of danger”; and
2. P must suffer physical symptoms from the distress.
NIED Bystander Outside Zone of Danger Rule
Neglient Inflction of Emotional Distress
RPO
- P is closely related to the person D injured;
- P was present when the injury occurred; and
- P personally observed the harm.
(Related, Present, Observed)
Most states dropped the requirement of physical symptoms in this situation.
Substantial Factor Doctrine
Actual Cause
Actual Cause in negligence, the “But For” Test is ordinarily used.
However, when several causes commingle and bring about an injury, and any one alone would have been sufficient to cause the injury, the “but for” test is inadequate to determine actual cause. In these cases, it is sufficient if the defendant’s conduct was a “substantial factor” in causing the injury.
True of False
Prenatal injuries are actionable.
Duty of Care
TRUE!
i.e., a duty of care is owed toward a fetus. Example: A mother’s doctor owes a duty to both mother and child not to act in a negligent manner.
A child would have standing to bring a claim is such a scenario were to realize.
Negligence Per Se
Duty of Care
Class and Harm
A conclusive presumption of duty and breach of duty.
P must then establish causation and damages to complete the prima facie case of negligence.
To prove that the statutory standard applies, P must show that:
- P is in the class intended to be protected by the statute; and
- The statute was designed to prevent the type of harm that occurred.
Joint and Several Liability
The Doctrine of Joint and Several liability makes each of several tortfeasors liable to the plaintiff for the entire amount of damages to which the plaintiff is entitled.
However, if one tortfeasor does have to pay the plaintiff the entire judgment, the rule of contribution allows the paying tortfeasor to recover the excess over his share from the nonpaying tortfeasor.
Actual Cause (Cause in Fact)
But For Test
“But for the D’s conduct, would this accident have occurred?”
* If yes, then D’s breach is not an actual cause.
* But for Cesar shooting the gun, would Sandra have died? No, but for Cesar shooting the gun, Sandra would not have have died.
Proximate Cause
Legal cause of damage.
To hold D responsible, there must be a reasonable relationship between D’s act and the result.
Foreseeability Test
* Proximate cause will be established if the harm was foreseeably caused by D’s negligent act.
Last Clear Chance Doctrine
Permits P to recover despite his own contributory negligence because D had the last clear chance to avoid the accident.
(In effect, Last Clear Chance is P’s rebuttal to D’s defense of Contributory Negligence.)
Traditional Contributory Negligence
P’s contributory negligence is a COMPLETE defense to a negligence suit against D.
I.E.: it COMPLETELY bars P’s right to recover.
Contributory Negligence
Default of PURE COMPARATIVE NEGLIGENCE on MBE.
P’s conduct may reduce the P’s recovery in a jurisdiction applying pure comparative negligence.
Example:
Because the pilot’s (plaintiff) wrongful death claim derives from her son’s death, either the son’s or the pilot’s contributory negligence will diminish the claim.
Wild Animal Liability
The general rule is that one who possesses an animal not customarily domesticated in that area is strictly liable for all harm done by the animal as a result of its harmful or dangerous characteristics.
For trespassers, however, strict liability is not imposed against landowners. Trespassers cannot recover for injuries inflicted by the landowner’s wild animals in the absence of negligence, such as where the landowner knows that trespassers are on the land and fails to warn them of the animal.
Damages
Damages are not presumed in negligence cases. There must be actual harm or injury.
Punitive damages generally are not recoverable in negligence cases, unless the defendant’s conduct was reckless, malicious, or willful and wanton.
Nominal damages are not allowed for negligence, thus plaintiffs cannot recover any compensatory damages from defendants.
