Negligence

Question 1

What was the ruling in Blyth (frozen pipes) regarding negligence?

Answer 1

The builder is not negligent because the horrible winter was not foreseeable.

Question 2

What was the outcome of Pipher’s case?

Answer 2

D was negligent because a reasonable person would tell their friend to stop.

Question 3

What is the Learned Hand formula

Answer 3

Negligence occurs when the burden of taking precautions is less than the probability of harm times the severity of harm. B < PL

Question 4

What is the reasonable person standard if the party has a disability?

Answer 4

The reasonable person has the disability if they are disabled.

Question 5

What is the standard for children in negligence cases?

Answer 5

The standard is based on the child’s degree of learning, maturity, and training.

Question 6

What is the standard for emergencies in negligence cases?

Answer 6

A person is less likely to be liable if they act negligently in an emergency situation.

Question 7

What is the duty of care regarding custom and practice?

Answer 7

If others are doing it across your industry, there may be a duty to follow that custom. If other landlords use tampered glass, you may have a duty to use tampered glass.

Question 8

What is negligence per se?

Answer 8

Negligence per se occurs when a statute creates a duty.

Question 9

What are the elements of Res Ipsa Loquitor?

Answer 9

(1) Don’t know what happened; (2) thing was in exclusive control of D or likely possibilities are ruled out; (3) thing doesn’t typically occur without negligence

Question 10

What is the duty of care for premises liability outside?

Answer 10

There is no duty for natural land unless it is clearly dangerous upon inspection. There is a duty to make artificial land safe for passersby.

Question 11

What is the duty of care for trespassers?

Answer 11

For unknown trespassers, they assume risk; for known trespassers, you must warn of hidden dangers.

Question 12

What is the duty of care for invitees?

Answer 12

You have a duty to make the premises safe for invitees because they benefit the owner’s business

Question 13

What is the duty of care for licensees

Answer 13

Duty to warn of hidden dangers because licensee is on the property for their own personal business

Question 14

What is the Attractive Nuisance doctrine?

Answer 14

Liable to child trespassers if the thing looks cool, is dangerous, and the child can’t appreciate the risk.

Question 15

What is the Learned Hand formula for breach?

Answer 15

Cost of reducing likelihood to 0 < likelihood * severity.

Question 16

What is ‘but for’ causation?

Answer 16

But for D’s negligence, no injury would have occurred.

Question 17

What are concurrent causes in negligence?

Answer 17

Multiple facts or forces come together to cause an injury, and none would cause the injury on their own.

Question 18

What is the substantial factor test?

Answer 18

Multiple sources come together for P’s injury, but either force could cause the injury on its own.

Question 19

What is the concept of alternate causes?

Answer 19

When two parties are clearly negligent, but it is unknown who caused the injury.

Question 20

What is proximate cause?

Answer 20

It determines if the injury is a foreseeable consequence of the negligent act.

Question 21

What is the eggshell plaintiff rule?

Answer 21

You take P as you find her; the severity of the injury does not need to be foreseeable.

Question 22

What are the damages in negligence?

Answer 22

Is there an ouchie? Is the ouchie too remote from the injury?

Question 23

What is the impact rule for emotional distress?

Answer 23

If you have a contemporaneous physical impact, then you can recover.

Question 24

What is the zone of danger rule?

Answer 24

P can recover from emotional distress if they narrowly escaped imminent and serious harm.

Question 25

What is the Dillon foreseeability test?

Answer 25

Multi-factor balancing test: (1) Distance between P and the injury
(2) Whether the shock was from a sensory and contemporaneous witnessing or just learning about it from another
(3) Whether P and victim were closely related

Question 26

What is contributory negligence?

Answer 26

If P was negligent, he cannot recover.

Question 27

What is pure comparative fault?

Answer 27

If P was negligent, they can recover less based on their percentage of fault.

Question 28

What is the 49% Modified Comparative Fault Rule?

Answer 28

If P is responsible for more than 49% of the injury, they cannot recover

Question 29

What is the 50% Modified Comparative Fault Rule?

Answer 29

If P is responsible for more than 1/2 of the injury, no recovery.

Question 30

What is the last clear chance doctrine?

Answer 30

If P had the last chance to prevent the injury, they cannot recover.

Question 31

What is assumption of risk?

Answer 31

P has actual knowledge of the risk and appreciates the severity of the risk, yet
voluntarily encounters it.

Question 32

Do employers have negligence immunities?

Answer 32

Workers comp makes employers immune from suits by employees.

Question 33

What is vicarious liability?

Answer 33

If an employee is acting within the scope of their employment, the employer is liable for injuries caused.

Question 34

What constitutes acting within the scope of employment?

Answer 34

Doing anything foreseeable under their employment.

Question 35

What is the difference between a detour and a frolic?

Answer 35

A detour is a minor deviation for personal errands; a frolic is abandoning employment.

Question 36

What is the liability of independent contractors?

Answer 36

Employers are not liable for independent contractor’s negligence unless they have apparent authority.

Question 37

What is the duty of professional standards?

Answer 37

Duty to exercise the minimal required level skill, knowledge, and judgment of a profession

Question 38

When is Negligence Per Se applicable?

Answer 38

If (1) injured party was meant to be protected; (2) damage the kind of injury the statute wants to prevent; (3) is it appropriate to impose liability?

Question 39

When is there an active duty?

Answer 39

When P and D have a special relationship and D foresees imminent harm

Question 40

Elements of informed consent

Answer 40

(1) D failed to adequately warn of material risk before securing consent; (2) Had P been aware of the risk, no consent; (3) The consequences of undisclosed risk resulted in injury

Question 41

Do physicians have a duty to disclose conflicts of interest?

Answer 41

Yes

Question 42

Constructive notice

Answer 42

Had D been exercising reasonable care, they would have been aware of the hazard

Question 43

Palsgraf Majority

Answer 43

Damage must be a foreseeable result of the negligent act. Any injuries outside the zone of forseeability cannot recover

Question 44

Palsgraf Minority

Answer 44

Once the negligent act occurs, there is a natural continuous sequence of events in which D is liable for every injury unless a superseding cause cuts off liability

Question 45

What is the Dailey physical manifestation rule?

Answer 45

D causes emotional distress so severe that it causes an objective physical injury

Question 46

What are the elements of the Thing Rule?

Answer 46

(1) P is closely related to the victim; (2) P is present at the time of injury and aware that the act is harming the victim; and (3) P suffered emotional distress greater than a disinterested witness

Question 47

What defense would you use if your client is being sued by someone who signed a liability waiver?

Answer 47

Express assumption of risk

Question 48

Name 3 abrogated (dead) immunities

Answer 48

Spouse, charity, parental

Question 49

Are state and local governments immune from discretionary functions and ministerial acts?

Answer 49

Yes for discretionary functions. No for ministerial acts.

Question 50

Are police immune to negligence

Answer 50

Police cannot be held liable for not going above and beyond their duty, but may lose immunity if they develop a special enough relationship with P.