Negligence

Question 1

Duty

Answer 1

There is no duty to others absent some exception: 1. Special relationship where D has power and control over P.

a. parent/child
b. employer/employee
c. common carrier innkeeper/customer
d. jailor/prisioner
e. school/pupil
2. If D began to rescue
3. If Ds actions where negligent and placed P in danger. (modern view even when not negligent .

Question 2

Good Samaritan law FL

Answer 2

Protects licensed medical professional who in good faith and with ordinary care aids at the scene of an accident.
Reckless only if she should have known she created an unreasonable risk and risk wax substantially greater than negligence v

Question 3

Effect of negligence per se FL

Answer 3

Violation of a statute will sometimes pose strict liability and other times establish prima facie evidence if negligence.

Question 4

Negligent infliction if emotional distress- direct claim

Answer 4

1. P is in zone of danger, ie at risk of being physically injured
2. Has some physical manifestation of emotional distress. (or in some JDs, severe emotional distress wo physical symptoms.)

Question 5

Negligent infliction if emotional distress- by stander claims.

Answer 5

1. Was near scene if accident,
2. Suffered severe emotional distress resulting from sensory and contemporaneous observance of the accident, and
3. Had close relationship with victim.

Question 6

Negligent infliction of emotional distress - direct - FL

Answer 6

Physical impact required.
Ingestion is a form of impact. Can recover emotional damages for consumption if contaminated food wo need to prove physical injury.

Question 7

Negligent infliction of emotional distress - by stander - FL

Answer 7

Not need to show impact where:

1. Suffered anxiety about safety of another,
2. Exceptionally close relationship with the V,
3. Incident within his sensory perception,
4. Suffered causally connected, clearly discernible physical impairment that follows the psychic trauma.

Question 8

Land possessor liability factors

Answer 8

Type of condition that caused injury:

1. Activity/conduct if persons
2. Artificial condition: buildings, excavations etc.
3. Natural conditions

And the type of person injured

1. Trespasser
2. Licensee
3. Invitee

Question 9

Invitee

Answer 9

Business invitee enters land for purpose related to Ds business.
Public invitee enters land on general invitation.
D has duty of reasonable care to make safe regarding activities.

Question 10

Licensee

Answer 10

D has duty to warn, and to use reasonable care.

Question 11

Invited licensee -FL

Answer 11

Common law invitees and social guests invited by owner.

Duty to inspect, warn and make safe.

Question 12

Trespassers

Answer 12

Duty to warn known trespassers of hidden dangers on the land. No duty regarding natural conditions.
No duty to unknown trespassers.

Question 13

Trespassers FL

Answer 13

Define known trespassers as one whose presence has been detected within Previous 24 hrs.
Duty to refrain from intentional misconduct that injured unknown trespassers.
Duty to known trespassers to refrain from gross negligence or intentional misconduct.

Question 14

Children trespassers

Answer 14

Same standard of care as adults, except heightened for artificial conditions.

Question 15

Land lord tenant duty

Answer 15

L has duty to warn T if latent defects: natural of artificial conditions of the land of which the L is aware, but T is not.

Question 16

Attractive nuisance -FL

Answer 16

Possessor of land liable for physical harm to trespassing children caused by an artificial condition if:

1. L has reason to know children are likely to trespass,
2. Condition posses unreasonable risk of sbi,
3. Child not aware if danger or risk,
4. Utility of maintaining risk is slight compared to risk to children
5. Landowner fails to exercise reasonable care to protect children
6. Property owner entices children upon dangerous premises.

Question 17

Reasonably prudent person

Answer 17

Act as a reasonable person would in the same circumstance.
Objective standard based on experience, knowledge, and mental capabilities of an average member if the community.

Consider:

1. Burden to D of remedying the risk,
2. Likelihood that risk will cause injury,
3. Severity of injury likely to be caused,
4. Social utility of the activity engaged by D.

Question 18

Reasonably prudent child

Answer 18

What would reasonable child of same age, education, and experience do.
Minority JDs
Age 0-6: incapable of being negligent
Age 7-13: rebuttable presumption that not negligent,
14+: rebuttable presumption that capable of negligence.
Children engaging in adult activities are subject to adult standard (driving etc).

Question 19

Negligence per se

Answer 19

When Ds conduct violates a criminal statute, the standard of care was breached when:
1. Injury caused was type statute was designed to prevent.
2. P is member if class intended to be protected by statute,
3. Ds violation of statute is not excused.
Compliance with statute does not raise presumption in Ds favor.

Question 20

Medical malpractice

Answer 20

Non disclosure of risks of procedure and alternatives or gross negligence.

Question 21

Medical malpractice -FLv

Answer 21

P needs to get written opinion of medical expert that there are reasonable grounds for her claim.
Must serve D 90 days before filing suit. D has to respond either reject, offer to settle, or offer to admit liability and arbitrate damages.
If suit is filed, have mandatory mediation within 120 days.
Damages limited if refuse arbitration.

Question 22

Res ipsa loquitur

Answer 22

The thing speaks for itself.
Used to prove breach of duty when can’t figure out what D did.
1. Event that caused injury not one that would ordinarily occur absent negligence.
2. More likely than not that Ds actions caused the injury causing event
3. P was not responsible for event that caused injury.
Allows burden to shift to D to prove not liable.

Question 23

Cause in fact

Actual cause

Answer 23

Event would not have occurred but for Ds conduct. Or Ds conduct was substantial factor- when more than one actor. BOP shifts to D to price he did not cause injury.
Must prove by preponderance of evidence.

Question 24

Res ipsa loquitur -FL

Answer 24

Not apply to tire blow out that occurred after some significant use.
Medical malpractice if negligence happened while P unconscious and can’t prove which Dr acted. (Even though Drs not have exclusive control over patient.)

Question 25

Proximate cause

Legal cause

Answer 25

In addition to cause in fact, must also be proximate cause.

D liable even if actions result In Unforeseeable extent, type or manner of harm.

Question 26

Superseding cause

Answer 26

Unforeseeable intervening cause that breaks the chain of causation and therefore D not liable for injury after superseding act.
Eg acts of god, intervening intentional torts or criminal acts of TPs, extraordinary forms of negligence b

Question 27

Intervening force

Answer 27

D liable for harm caused by foreseeable intervening force.

Eg negligent rescue, subsequent medical malpractice, subsequent disease, general negligence.