Negligence Flashcards
duty def
obligation recognized by law
requiring D to conform to a certain standard of conduct
for the protection of others against unreas risk
duty is owed to __
foreseeable Ps
D offers to aid P with carrying a simba statue. Never actually does it. P injures self while carrying the simba statue. sues D to recover for injuries.
D liable? why?
No- nonfeasance rule
D who gratuitously promises to take action to aid P has no duty to actually do it
Parents must save children from being trampled by a herd of wildabeasts. Why?
Duty imposed by a special relationship. -duty to take affirmative action -special rel or -P is especially vulnerable and dependent on D
The person Bob is with is about to get hit by a rogue tee shirt blasted by some idiot 3p at an Os game. Bob sees it and does not protect the person. is he liable:
if the person is his son?
if the person is a rando?
why?
wife: yes.
speical relationship that imposes a duty to protect, and a duty to keep her from hurting others
rando: no.
generally no duty to protect or control the actions of 3p
Is the MD department of natural resources liable for constructing a defective table in its nature workshop? why?
Are they responsible for failing to allocate enough nature employees for its nature workshop?
yes- when acting in an area usu occupied by priv entities govt tx like any other D
no- discretionary activity (using judgment to allocate resources): no duty
P is sitting outside when a throwing star lodges in a tree a half inch from her head. She gets so scared she hyperventilates and has to be hospitalized.
Action against D for what? why?
NIED
zone of danger
phys manifestation of emo distress
P is sitting outside with her sister when a throwing star hits the sister in the eyeball. She is calm and gets the sister to the ER.
Action against D for what? why?
NIED
close relation
zone of danger
land possessor liability: duty owed to invitee
reasonable care
discover dangerous cond
warn
land possessor liab: licensee
reas care
warn of known artificial dangers P is unlikey to discover
no duty to inspect
land possessor liab: unknown trespasser
no duty
land possessor liab: known trespasser
reas care
warn of hidden artificial dangers
D knows about
P doesnt know about
land possessor liab: children
same duty as to natural conditions artificial: foreseeable risk of unreas danger fs risk that children will trepass child unaware of danger risk of danger outweighs utility ----- MD: abandoned attractractive nuisance doc same standard of care for adults and children
land possessor liab: Ps not on D’s land
reas care to protect fromu nreas dangerous artifical conds
minority: also reas care to protect from natural conds
land possessor liab: LL/T- when is LL liable and not
latent defect (tenant unaware/ not reasonably apparent)
patent defects= no duty to warn or repair, or inspect
land possessor liab: sellers of land
duty to disclose any hidden dangerous nat or artificial conds
S knows or reas should know
B will reas not discover
default standard of care
reasonably prudent person under the same or similar circ
same phys characteristics (height weight sight etc)
don’t take into consideration mental illness or mental disability or self-induced intox
test for breach of reas prudent pers std
burden of precautions vs likelihood and severity of injury. also take into consideration the social utility of the activity
if burden of precautions < prob of injury x severity , D failed
children default standard of care
reas child of same age, edu, intell and experience
adult activities = adult std of care
state has a criminal law prohibiting cars from driving on the sidewalk. D drives his car on the sidewalk to avoid traffic. Hits P who is walking on the sidewalk.
D civilly liable? why?
yes- negligence per se
where D’s conduct also violates a stat that does not provide for civil liab.
maj: D breached duty to P
min: rebuttable presumption
applies if:
type of inj stat seeks to prevent
mem of class stat intented to protect
violation not excused
state has a criminal law prohibiting cars from driving on the sidewalk. D drives his car on the sidewalk to avoid hitting a bus of schoolchildren that suddenly broke down in front of him. Hits P on the sidewalk.
D liable? Why?
not under negligence per se
violating a stat and then causing the injury it seeks to pevent is excused when following the statute would have produced greater harm
or it would have been impossible
The standard of care used to determine if professionals breached is
customary practice of professionals of the same field who are in good standing
now: deviation from custom= duty breached
compliance w custom= no breach
neg: breach - 2 ways
failure to conform to applicable std of care
res ipsa loquitur
P is unconscious in operating room with a doctor and 3 nurses. When she wakes up, she has a random scalpel slice on her cheek. She can’t prove who is responsible.
Who can be held responsible and why?
the doctor and the 3 nurses
RIL available where P doesn’t/ can’t determine what D’s behavior was that led to the harm
event would not occur without negligence
more likely than not that D’s neg caused the event
P is not responsible for the event
maj: showing of RIL allows the jur to infer D’s breach of duty
neg: 3 ways to establish CIF
but-for
substantial factor
alternative liability theory
D and F are hunting in the woods. Both think they see a turkey and fire an arrow at it at the same time. D’s arrow strikes P in the eye, F’s arrow strikes P in the heart. P dies.
Who’s negligence is the cause in fact of the death? Who is liable and how?
Both under substantial factor
conduct of 2+ Ds results in injury
each individuals conduct would have been sufficient to directly cause the injury
—-
parties are jointly and severally liable
D and F are hunting in the woods. Both think they see a turkey and fire an arrow at it at the same time. One arrow hits P in the femoral artery, and P bleeds out and dies. D and F have identical arrows.
Who’s negligence is the cause in fact of the death? Who is liable?
Both under alternative liability theory
conduct of 2+ Ds
only 1 can actually be responsible
P can’t establish which D is resp
every D is treated as CIF unless D can prove he didn’t cause P’s inj
neg prox cause: D owes duty to
foreseeable Ps who are within the zone of danger
neg prox cause: unforeseeable extent of harm
doesn’t matter
eggshell P rule
neg prox cause: superseding vs intervening
superseding: unforeseeable intervening cause that breaks the chain of causation bt the initial wrongful act and the ultimate injury
intervening force: actively operates in producing harm to P after D has already committed his neg act or omission
D is held liable. ex neg of rescuers or mds
neg: types of damages available
actual
punitive (USU NOT ALLOWED)
NO NOMINAL
neg dmgs: actual
pers injury, prop dmgs recoverable. not atty fees. P has duty to mitigate
aka compensatory dmgs
MD: comp for emo inj ok even if no phys manifestation
—
MD:
neg dmgs/ actual: collateral source rule
bene are not subtracted from P’s recovery when stuff is paid for by ins policies, employment bene, gratuities etc
neg dmgs: punitive damages
- aka exemplary dmgs
- amount over and above the compensation needed to make P whole
- P is never entitled to punitive dmgs, but jur has discretion to award them
MD: must prove malice
neg dmgs: restrictions on punitive dmgs
DP restrictions
degree of resp of D’s conduct
ration bt P’s compensatory dmgs and punitive (Pun shouldnt be > 10x compens)
diff bt the punitive dmg award and civil or crim sanctions that could be imposed for comparable conduct
defenses to neg
contrib neg
comparative neg
assumption of risk
D is texting a hot dude instead of looking where she’s driving and hits P, a pedestrian. P was also texting, but was only a little distracted and had a split second to jump out of the way, but didn’t. Jury finds P was 5% responsible and D was 95% responsible.
what happens if it’s a contrib neg state? MD?
recovery barred under contrib:
- P’s conduct fell below standard to which she should have conformed for her own protection
- legally contributing cause of harm
recovery super-barred in MD:
MD has adopted the last clear chance doctrine: where P’s claim would otherwise be barred due to contrib neg, he can proceed if he can show that D had the last clear chance to prevent the injury
D is texting a hot dude instead of looking where she’s driving and hits P, a pedestrian. P was also texting, but was only a little distracted and had a split second to jump out of the way, but didn’t. Jury finds P was 5% responsible and D was 95% responsible.
what happens in a pure comparative negligence state?
partial comparative neg state?
pure:
apportionment of dmgs tracks apportionment of fault perfectly
D will pay for 95% of damages.
partial comparative neg: damages apportioned only if D’s resp exceeds P’s resp
D will pay for 95% of damages.
- aggregate sys
- ind equality sys: P doesn’t recover if his resp exceeds that of any one D
P signs a waiver saying he won’t sue the skydiving company if he gets injured. P’s gear is messed up and it causes him to break his leg when he lands.
D liable?
Nope: express assumption of risk
expressly releived D of his obligation to act non-neg. will be upheld as long as it’s not against public policy and lang is clear
Physician failed to disclose that a possible side effect of laser eye surgery is rainbow-colored irises. P gets rainbow-colored irises and sues.
Physician liable?
Probably.
P must prove that a reas person, had he been told of all the risks,
wouldnt have consented
(dont need expert testimony saying that D breached the standard of care, cause it’s about what a reasonable person would have done, not what other doctors do)
MD: is considered med mal, not battery
P, an ex-MLB player, is at a baseball game and sits right by the foul line. Gets hit in the head by a foul ball.
D liable?
nope- implied assumption of the risk
knowledge of danger
appreciation of danger (subjective std)
voluntarily subjected self to danger
