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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

Elements of Negligence

A
  • D owes the P a duty
    a. Does the duty exist
    b. If so, duty to comply with applicable SOC
  • Breach
    Did D act consistent with SOC
  • C/F
  • Proximate Cause
  • Actual Harm
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2
Q

Default SOC

A

How a RP would act under similar circumstances

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3
Q

Relevant Circumstances under RP SOC

A

External
- Dangerous instrumentality
- Emergency
D-Specific
- Superior skills/experience
- Physical Disability

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4
Q

Irrelevant Circumstances under RP SOC

A

D-Specific
- Unreasonably unintelligent
- Mental disability

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5
Q

Kid SOC

A

How a reasonable kid of the same age, experience, and intelligence would have acted under similar circumstances

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6
Q

Exceptions to Kid SOC

A
  • inherently dangerous activity
  • adult activity

reverts back to adult RP

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7
Q

Professional SOC

A

How a reasonable professional, exercising the level of skill and knowledge common to the profession, would have acted under similar circumstances

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8
Q

Doctor SOC

A

How a reasonable doctor |in same community|*, exercising that level of skill and knowledge common to the profession, would have acted under similar circumstances

*strict locality, modified locality, national

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9
Q

Breach of Duty

A

Did D act consistent with applicable SOC (like a RP)

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10
Q

Methods of Demonstrating Breach

A

RP SOC
- Learned Hand
- Negligence Per Se
- Custom
- Res Ipsa Loquitur
- Constructive Notice, Mode of Operation (slip and fall)
Prof SOC
- Accepted Practice
- Negligence Per Se
- Res Ipsa Loquitur
- Informed Consent (Drs)

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11
Q

Learned Hand Test

A

Breach = Burden of Precaution < (Probability of injury x Severity/gravity of injury)

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12
Q

Requirements for Negligence Per Se

A
  1. Law is specific regarding what is required/prohibited
  2. P is a member of the class statute designed to protect
  3. Accident/injury is the type of accident/injury the statute was designed to prevent
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13
Q

NPS Majority Test

A
  • Unexcused violation of statute = D breached
  • Jury must find breach
  • Violation = conclusive on breach
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14
Q

NPS Minority Test

A
  • Unexcused Violation of statute = jury may or may not find breach
  • violation = evidence of breach
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15
Q

Evidentiary Effect of Compliance with Statute

A

Evidence of No Breach

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16
Q

Excuses for Violating Statute

A
  • Actor’s incapacity
  • Neither knows nor should have known of the occasion for compliance
  • Confronted with an emergency not due to his own misconduct
  • Compliance would involve greater risk of harm to the actor or others
  • If there is evidence of any of ^ it is left up to the jury
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17
Q

Deviation from Custom under RP SOC

A

Evidence of Breach

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18
Q

Compliance with Custom under RP SOC

A

Evidence of No Breach

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19
Q

Elements of RIL

A
  1. D has exclusive control of the instrumentality
  2. Occurrence does not normally happen unless unreasonable conduce
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20
Q

Evidentiary Effect of RIL

A

permissive inference of breach (evidence; more likely than not)

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21
Q

Actual Notice

A

D actually knows

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22
Q

Constructive Notice

A

-The spill was there so long that it translates to unreasonable conduct
- Allows jury to infer breach

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23
Q

Mode of Operation

A
  • Was there a continuous dangerous condition that has to do with their business
  • Allows jury to infer breach
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24
Q

Deviation from Accepted Practice under Prof SOC

A

very strong evidence of breach

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25
Q

Compliance with Accepted Practice under Prof SOC

A

very strong evidence of no breach

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26
Q

How to determine accepted practice under Prof SOC

A

Need experts

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27
Q

Informed Consent

A
  • Whether the doctor has provided enough information that the patient’s consent was informed
  • Patient consented but question on whether it was informed
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28
Q

Informed Consent Majority Rule

A
  • Traditional Prof SOC
  • What risks to doctors customarily disclose
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29
Q

Informed Consent Minority Rule

A
  • Materiality
  • Dr. has to disclose the material risks; risks that a reasonable patient would want to know
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30
Q

Proximate Cause Minority Test

A
  • Direct Consequences
  • Satisfied if P’s injury directly resulted from D’s conduct
  • Policy: tortfeasor should be liable for all consequences that directly result from D’s conduct
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31
Q

Proximate Cause Majority Test

A
  • Foreseeability
  • Satisfied if general type of accident/injury was reasonably foreseeable consequence of the D’s conduct
  • Policy: negligent tortfeasors have to pay for foreseeable consequences of their negligent conduct
32
Q

Eggshell Plaintiff

A
  • Take P as they are
  • D still has to pay all of P’s damages even if P had a preexisting condition that led to making the harm worse
33
Q

Shabby Millionaire

A

D still has to pay for all lost wages even if P was super rich and you couldn’t tell

34
Q

Intervening Acts

A

Anything that happens between D’s conduct and P’s injury (chronologically)

35
Q

Effect of Intervening Acts on Direct Consequences

A

Negates proximate cause

36
Q

Effect of Intervening Acts on Foreseeability

A
  • If unforeseeable from D’s conduct, then superseding act and no proximate cause
  • If foreseeable, still proximate cause
37
Q

Can Medical Treatment be a Superseding Cause

A

No, even if negligent

38
Q

Factors to Determine if Duty Exists

A
  1. Any relationship between P and D
  2. Whether P was foreseeably at risk
  3. Public policy
39
Q

When to use factors to determine duty

A

If no special rule applies

40
Q

Special Rules for Duty

A
  • Premises Liability
  • Duty to help
  • Duty to protect
  • Emotional distress
  • Economic loss
  • Wrongful pregnancy, birth, life
  • Primary assumption of risk
41
Q

Premises Liability Cases

A

When P is hurt by dangerous condition on D’s land

42
Q

Status of P for Premises Liability

A
  • Trespasser
  • Invitee
  • Licensee
43
Q

Trespassers for Premises Liability

A
  • D landowner does not owe a negligence based duty to a trespasser
  • Landowner never liable in negligence to a trespasser
44
Q

Kid Trespassers

A
  • Attractive nuisance doctrine
  • Landowner owes a duty if:
    1. artificial condition
    2. know or had reason to know that kids are likely to trespass
    3. know or reason to know that the condition poses and unreasonable risk of death/serious bodily harm
    4. Kid doesn’t know of danger (shouldn’t know)
45
Q

Invitees

A
  • Mutual Benefit
  • Invited to do business (both want to be there) or public invited onto land and person there for that reason
46
Q

Licensees

A
  • Everyone who is not a trespasser or invitee
  • Includes social guests
47
Q

Duty to Trespasser

A

No duty unless attractive nuisnace for kid trespassers then warn or protect for condition known or should be known to landowner

48
Q

Duty to Licensee

A

Act like RP (warn/protect) with respect to condition the landowner KNOWS about

49
Q

Duty to Invitee

A

Act like RP (warn/protect) with respect to condition the landowner KNOWS about and conditions they SHOULD KNOW about

50
Q

Premises Liability Majority Rules

A
  • Is duty owed: trichotomy
  • Except no duty if open/obvious (natural conditions)
51
Q

Premises Liability Minority Rules

A
  • Is duty owed (two rules)
    Invitee duty to invitees and licensees, no duty to trespassers
    Invitee duty to all land entrants
  • Duty still exists to licensee and invitee with open and obvious, but open/obvious relevant to breach
52
Q

Is there a duty to help

A

no liability for failure to help/protect/aid/rescue a person because no duty exists to help

53
Q

Exceptions to No Duty to Help

A
  1. Special relationship (ex: employer-employee)
  2. Voluntary assumed duty (if start helping, need to act reasonably in helping)
54
Q

Good Samaritan Statute

A

D can’t be liable in tort as long as they act in good faith

  • doesn’t apply if there is a preexisting duty
55
Q

Rescue Doctrine

A
  • Rescuer can sue the tortfeasor who created the need for the rescue
  • Creates a duty between tortfeasor and rescuer
  • Duty is RP
  • Does not apply to firefighters or cops
56
Q

Is there a duty to protect

A

No, no duty to control the conduct of a third party to protect another from harm

57
Q

Duty to Protect can exist when

A

Special relationship between D and
- person who needs to be controlled or
- P (person who needs protection)

58
Q

Duty to Protect Special Relationship Examples

A
  • Employer-Employee
  • Therapist who determined or should have determined that a patient is a threat to someone else (prof SOC), then the therapist owes a duty of reasonable care to warn the victim (RP SOC) (victim must be readily identifiable)
  • Physicians have a duty to warn identifiable third persons of the patient’s family against foreseeable risks from the patient’s illness
  • Business if there was a crime and the crime was foreseeable
59
Q

Elements of NIED

A
  • Duty
  • Breach
  • C/F
  • Proximate Cause
  • Actual Harm
60
Q

NIED Duty Tests

A
  • Impact Test (minority)
  • Danger Zone (minority)
  • Dillon Test (majority)
61
Q

Impact Test

A
  • P physically impacted (something touched them)
  • [physical manifestation]
62
Q

Danger Zone Test

A
  • P in the immediate area of physical danger
  • [physical manifestation]
    Fear for own physical safety
63
Q

Dillon Test

A
  • Near scene of the accident
  • Sensory and contemporaneous observance of the death/serious bodily harm
  • Close relationship between P and victim (death/serious bodily harm)
    Must be family or married
  • [physical manifestation]
64
Q

Indirect IIED v. RIED v. NIED

A
  • Intentional conduct = Indirect IIED
  • RIED = they had some knowledge they were going to cause distress but less knowledge than intent
  • NIED = unreasonable conduct, no consideration they were going to cause distress
65
Q

Economic Loss Doctrine

A
  • Economic loss = D did something that made them pay more money or close business causing lost profits
  • If physical property is harmed, not economic loss
  • Majority Rule: When P’s only injury is economic loss, there is no duty
    There are exceptions
66
Q

Wrongful Pregnancy Duty Rule

A
  • Medmal in sterilization procedure
  • Injury: birth of healthy baby
  • Majority: yes duty, but damages limited to prenatal care
67
Q

Wrongful Birth Duty Rule

A
  • Medmal in failing to diagnose abnormalities in baby
  • Injury: lost chance to have abortion (cost of raising disabled child)
  • Majority: Yes duty
68
Q

Wrongful Life Duty Rule

A
  • Medmal in failure to diagnose abnormalities in baby
  • Injury: being born (kid’s harm)
  • Majority: No duty
69
Q

C/F for Wrongful Pregnancy, Birth Life

A

But for the medmal would the baby still be born

70
Q

Primary Assumption of Risk

A

No duty if
- risk can’t be eliminated or way too costly to be eliminated
- obvious, people know about them

71
Q

Actual Harm

A
  • Could be emotional/mental distress
    - Can be intangible
    - Lost relationship
    - Economic loss
  • Injury to person or property
  • If no harm, no negligence
72
Q

Does the Duty exist

A
  • 3 Factors or
    - Relationship (not need to be special)
    - Foreseeability
    - Public Policy
    - Don’t need all three met
  • Premises liability
  • Duty to help
  • Duty to protect
  • Emotional distress
  • Economic loss
  • Wrongful pregnancy, birth, life
  • Primary assumption of risk
73
Q

If so, what duty is owed to P

A
  • What SOC
  • Mention the circumstance
    - Emergency, superior skills, etc.
74
Q

Breach (review)

A
  • Factually, did D act like RP would have
    - RP: LH, NPS, custom, RIL, notice
    - If multiple arguments make all of them unless RIL
    - Prof: accepted practice, NPS, RIL, Informed consent
75
Q

Cause in Fact (review)

A
  • But for
  • Multiple sufficient causes (substantial and sufficiency tests, 2 fires)
  • Alternative liability burden shift (2 shooters)
  • Market share burden shift
  • All or nothing and loss chance of recovery for medmal
  • All or nothing and increased risk for future injuries
  • Intentional Tort: but for, multiple sufficient causes, alternate liability
76
Q

Proximate Cause (review)

A
  • Direct consequences (minority)
  • Foreseeability (majority)
  • Effect of intervening acts
    - Whether they are superseding for foreseeability
77
Q

Actual Harm (review)

A
  • not just physical
  • can be intangible

Torts (4 decks)

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