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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

duty def

A

obligation recognized by law
requiring D to conform to a certain standard of conduct
for the protection of others against unreas risk

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2
Q

duty is owed to __

A

foreseeable Ps

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3
Q

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?

A

No- nonfeasance rule

D who gratuitously promises to take action to aid P has no duty to actually do it

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4
Q

Parents must save children from being trampled by a herd of wildabeasts. Why?

A 
Duty imposed by a special relationship.
-duty to take affirmative action
-special rel 
or
-P is especially vulnerable and dependent on D
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5
Q

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?

A

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

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6
Q

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?

A

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

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7
Q

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?

A

NIED
zone of danger
phys manifestation of emo distress

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8
Q

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?

A

NIED
close relation
zone of danger

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9
Q

land possessor liability: duty owed to invitee

A

reasonable care
discover dangerous cond
warn

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10
Q

land possessor liab: licensee

A

reas care
warn of known artificial dangers P is unlikey to discover
no duty to inspect

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11
Q

land possessor liab: unknown trespasser

A

no duty

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12
Q

land possessor liab: known trespasser

A

reas care
warn of hidden artificial dangers
D knows about
P doesnt know about

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13
Q

land possessor liab: children

A 
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
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14
Q

land possessor liab: Ps not on D’s land

A

reas care to protect fromu nreas dangerous artifical conds

minority: also reas care to protect from natural conds

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15
Q

land possessor liab: LL/T- when is LL liable and not

A

latent defect (tenant unaware/ not reasonably apparent)

patent defects= no duty to warn or repair, or inspect

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16
Q

land possessor liab: sellers of land

A

duty to disclose any hidden dangerous nat or artificial conds
S knows or reas should know
B will reas not discover

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17
Q

default standard of care

A

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

18
Q

test for breach of reas prudent pers std

A

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

19
Q

children default standard of care

A

reas child of same age, edu, intell and experience

adult activities = adult std of care

20
Q

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?

A

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

21
Q

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?

A

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

22
Q

The standard of care used to determine if professionals breached is

A

customary practice of professionals of the same field who are in good standing

now: deviation from custom= duty breached
compliance w custom= no breach

23
Q

neg: breach - 2 ways

A

failure to conform to applicable std of care

res ipsa loquitur

24
Q

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?

A

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

25
Q

neg: 3 ways to establish CIF

A

but-for
substantial factor
alternative liability theory

26
Q

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?

A

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

27
Q

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?

A

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

28
Q

neg prox cause: D owes duty to

A

foreseeable Ps who are within the zone of danger

29
Q

neg prox cause: unforeseeable extent of harm

A

doesn’t matter

eggshell P rule

30
Q

neg prox cause: superseding vs intervening

A

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

31
Q

neg: types of damages available

A

actual
punitive (USU NOT ALLOWED)
NO NOMINAL

32
Q

neg dmgs: actual

A

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:

33
Q

neg dmgs/ actual: collateral source rule

A

bene are not subtracted from P’s recovery when stuff is paid for by ins policies, employment bene, gratuities etc

34
Q

neg dmgs: punitive damages

A
  • 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

35
Q

neg dmgs: restrictions on punitive dmgs

A

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

36
Q

defenses to neg

A

contrib neg
comparative neg
assumption of risk

37
Q

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?

A

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

38
Q

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?

A

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
39
Q

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?

A

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

40
Q

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?

A

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

41
Q

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?

A

nope- implied assumption of the risk

knowledge of danger
appreciation of danger (subjective std)
voluntarily subjected self to danger

Torts (10 decks)

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