Negligence Flashcards
Test yourself on the Laws governing Negligence
What duty of care is owed by a possessor of land to a known trespasser
(1) To warn of or make safe, (2) highly dangerous and (3) concealed (4) artificial conditions (5) known to the possessor.
What are the usual standards of care applied to minors and children?
- No duty owed by children under the age of 5
- Children between the ages of 5 and 18: held to the standard of a child of like age, intelligence, and experience.
- Driving is the only conduct tested on the Exam that will hold a child to an adult’s duty of care.
What is the standard of care for a Professional?
Expected to possess the knowledge and skill of an average member of the profession or occupation in good standing
What duty of care is owed by a possessor of land to a Licensee
(1) To warn of or make safe, (2) Concealed Hazardous Conditions, that are (3) Known to the possessor.
What duty of care is owed by a possessor of land to an Invitee?
(1) To warn of or make safe (2) Concealed hazardous conditions (3) Known to the possessor in advance, or (4) could have been discovered by a reasonable inspection.
What duty of care is owed by a possessor of land under the theory of Attractive Nuisance? How would one establish a prima facie case for Attractive Nuisance?
- Ordinary Care
- A Plaintiff must show, (1) A dangerous condition on the land that the owner is or should be aware of, (2) the owner knew or should know that children might trespass, (3) the condition is likely to cause injury to trespassing children, (4) the expense of mitigation is slight compared to the magnitude of the risk.
What duty of care is owed by a possessor of land to a person off premises?
- Generally, there is no duty
- There is a duty for unreasonably dangerous artificial structures or conditions abutting adjacent land.
- One must carry on activities on the premises to avoid unreasonable risk to others off the premises.
What are the duties of care owed by a lessor and lessee regarding the leased premises?
- The lessee, presently in possession of the property, has a general duty to maintain the property.
- The lessor must warn of existing defects of which they are aware or have reason to know, and which they know the lessee is not likely to repair.
How does one establish a conclusive presumptive duty and breach using Negligence Per Se?
Plaintiff (1) was within the protected class of the violated statute, and (2) the statute was designed to prevent the type of harm suffered by the plaintiff.
How would one establish a prima facie case for a ‘Near Miss’ instance of Negligent Infliction of Emotional Distress (NIED)?
(1) All of the regular elements of Negligence, plus (2) the Plaintiff must be within the ‘Zone of Danger’, and (3) must suffer physical symptoms from the resulting distress.
How would one establish a prima facie case for a ‘Bystander’ instance of Negligent infliction of Emotional Distress (NIED)?
(1) All of the regular elements of Negligence, plus (2) the plaintiff and victim are Closely related (Spouse, Parent, or Minor Child), and (3) the Plaintiff was present at the scene of the injury, and (4) personally observed or perceived the event.
How does one establish that a breach of duty has occurred using a theory of ‘Res Ipsa Loquitur’? What affect will successfully doing so have on a negligence claim?
- (1) absent clear evidence of a breach of duty, (2) the incident at issue is normally associated with negligence, (3) the negligence is ordinarily attributed to the negligence of someone in the Defendant’s position.
- It will prevent a directed verdict against the plaintiff, as it establishes a prima facie case of breach. This may still be rejected by the trier of fact.
Name the Four most common foreseeable intervening events that are tested on the exam
(1) Medical Malpractice; (2) Negligence of rescuers; (3) The tendency of people to protect themselves or react out of reflex; and (4) Disease or Accident caused by the original incident.
What is the difference between pure and partial comparative negligence?
In Partial comparative negligence, the Plaintiff cannot recover if they are more than 50% liable for the damages.
How does one establish an activity is abnormally dangerous for the purposes of a Strict Liability theory of Negligence? What are some commonly tested abnormally dangerous activities?
- The activity must create a (1) foreseeable risk of serious harm, even when reasonable care is exercised by all actors, and (2) the activity is not common in the community.
- Blasting or manufacturing explosives; storing or transporting dangerous chemicals or biological materials; or anything involving potentially high doses or exposures to ionizing radiation.
