Negligence Flashcards
What are the general elements of negligence?
Duty, Breach, Causation, and Damages.
What constitutes a duty in negligence?
A duty to use reasonable care.
What is a breach in the context of negligence?
A breach of that duty.
What are the two types of causation in negligence?
Cause in fact and proximate cause.
What are damages in negligence?
Actual loss or damage resulting to the interests of another.
What can a plaintiff obtain if the defendant’s negligent conduct threatens but does not harm them?
An injunction to stop the activity as a ‘nuisance’.
What factors are considered for an injunction in nuisance cases?
Factors include character and location of the premises, purpose of use, probability of injury, necessary precautions, and the relation of precautions to beneficial use.
When is a property owner liable in negligence?
If the anticipated dangerous condition outweighs the expense or inconvenience necessary to make it safe.
What is the standard of care in negligence?
The reasonable prudent person standard.
What does the reasonable person standard refer to?
The care that a ‘reasonable’ person would conduct their actions with regards to the totality of the circumstances.
What must be considered in every negligence action?
The totality of the circumstances.
What is the standard of care for a child in negligence cases?
The care required is according to the capacity of the child, determined by age.
What is the duty of care for a minor engaging in inherently dangerous activities?
A minor should be held to the same duty of care expected of adults.
What is the policy basis for holding a permanently insane person liable for torts?
To ensure loss is borne by the person who occasioned it, to induce control over the insane person, and to prevent false claims of insanity.
When can insanity be a defense in negligence cases?
If the insanity is suddenly onset and the person had no prior warning of such illness.
What is the standard of care for professionals in negligence cases?
The duty of care of a professional is higher than that of an average person; based on minimum skills required in the field on a national standard.
What is the standard for negligence in malpractice cases?
Negligence must be affirmatively proven and is not presumed.
What is required for informed consent malpractice cases?
The plaintiff must prove the physician failed to inform adequately of a material risk.
What does Restatement (Third) of Torts § 7 state about duty?
An actor ordinarily has a duty to exercise reasonable care when their conduct creates a risk of physical harm.
What is the general rule regarding duty to warn?
Generally, there is no duty to warn about danger from criminal acts of third parties unless a special relationship exists.
What is the general rule regarding duty to rescue?
Generally, there is no duty to rescue unless certain conditions are met.
What is the duty of care for landowners regarding trespassers?
Landowners owe a duty of care to anticipate known trespassers and take action to avoid injury.
What duty of care do property owners owe an invitee?
Property owners owe a duty to warn and duty to make premises safe for invitees.
What is the ‘Hand formula’ in negligence?
B=PL where B is the cost of taking precautions, P is the probability of harm, and L is the magnitude of harm.
What is negligence per se?
Negligence per se occurs when a statute or ordinance imposes a specific duty for the protection of others, and neglecting that duty results in liability.
What must be proven for liability in negligence per se?
A person must not be held liable unless the conduct violating the statute caused the injuries sustained by a third party.
Who should civil liability for negligence per se be applied to?
Civil liability should only be applied to those with a statutory duty of care, such as mandated reporters in child abuse cases.
What are the three approaches courts use to assign civil liability for negligence per se?
- Category: Victim in the category of people protected by the statute.
- Harm: Actual harm to the victim.
- Appropriate: Is the statute appropriate to assign civil liability?
What does a violation of a statute establish?
It establishes a prima facie case of negligence, but the defendant may present evidence as an affirmative defense.
What is an excused violation of a statute?
An excused violation is not considered negligence unless the enactment or regulation does not permit such an excuse.
What are the conditions under which a violation of a statute may be excused?
- The violation is reasonable due to incapacity.
- The actor did not know or should not have known of the occasion for compliance.
- Unable to comply despite reasonable diligence.
- Confronted by an emergency not due to misconduct.
- Compliance would involve greater risk of harm.
What is particularized foreseeability?
It refers to the duty of a person in a special position to prevent or warn of imminent harm to a third party.
What is Res Ipsa Loquitur?
It is a doctrine that allows for an inference of negligence based on the circumstances of an accident.
What are the requirements for Res Ipsa Loquitur?
- An accident occurred.
- The event does not ordinarily occur without negligence.
- The event was caused by something within the exclusive control of the defendant.
- Indicated negligence within the defendant’s duty to the plaintiff.
- Other potential causes are eliminated.
- Not due to the plaintiff’s voluntary actions.
What is the distinction between actual notice and constructive notice?
Actual notice means the defendant knew about the hazardous condition, while constructive notice means the defendant should have known about it.
What is the Daubert test?
It is a standard for admitting expert scientific testimony, assessing if the theory is generally accepted, tested, and helpful to the fact-finder.
What is the rescue doctrine?
It allows a rescuer to sue the party whose negligence caused the danger requiring the rescue.
What is the ‘zone of danger’ rule?
It requires the plaintiff to be in proximity to the negligent action to recover for emotional distress.
What is the ‘Egg-shell skull’ rule?
The defendant must take the plaintiff as they are, meaning they are liable for the full extent of the plaintiff’s injuries, even if unforeseen.
What is contributory negligence?
It is a defense that bars recovery if the plaintiff is found to be negligent.
What is the doctrine of last clear chance?
It bars a plaintiff from recovering damages if they had a chance to avoid the injury but failed to do so.
Can contributory negligence be a defense for intentional torts?
No, contributory negligence cannot be a defense for intentional torts.
“One cannot defend against a battery by arguing that the plaintiff was negligent in failing to duck.”
When is contributory negligence usually a defense?
When the defendant is negligent per se.
What are statutes intended to protect a plaintiff unable to protect himself?
Statutes prohibiting child labor, the sale of firearms to minors, the sale of liquor to intoxicated persons, and those that require safety devices to protect factory workers.
What are the two approaches to Comparative Negligence?
Pure and modified.
What is Pure Comparative Negligence?
Plaintiffs’ damages are reduced in proportion to the percentage of negligence attributed to them.
What is Modified Comparative Negligence?
Plaintiffs recover as in pure jurisdictions, but only if their negligence is less than the defendant’s negligence.
What is the difference between ‘Not greater than’ and ‘Not as great’ in Modified Comparative Negligence?
‘Not greater than’ means 50% or less total fault, while ‘Not as great’ means 49% or less, less than defendant’s negligence.
What is the Doctrine of Avoidable Consequences?
The failure to take reasonable precautions bars recovery of damages if found that the plaintiff did not take reasonable precautions.
What is Assumption of Risk?
Express or implied - affirmative defense stating plaintiff assumed the risk inherent in a situation and their recovery should be less that assumed risk.
What are the three public policy exceptions to the validity of exculpatory clauses?
- When the party protected intentionally causes harm or engages in acts of reckless, wanton, or gross negligence; 2. When the bargaining power of one party to the contract is so grossly unequal; 3. When the transaction involves the public interest.
What is Implied Assumption of Risk?
Requires actual knowledge of the particular risk, appreciation of its magnitude, and voluntary encountering of the risk.
What does the Discovery Doctrine state?
The statute does not begin to run until the negligent injury is, or should have been, discovered.
What is the difference between Immunities and Privilege?
Privilege avoids liability for tort under particular circumstances, while immunity avoids liability in tort under all circumstances, within the limit of the immunity.
What is Judicial Proceedings Immunity?
Absolute privilege to publish defamation in the course of judicial, legislative, or executive proceedings.
What is Employer Immunity?
When an employee injured on the job files a Workers Compensation claim, they cannot also file a tort claim.
What is Interspousal Tort Immunity?
Old common law doctrine that is no longer acceptable; neither spouse is liable for separate debts of the other.
What is the general rule regarding negligent supervision of a child by a parent?
There is generally no liability for negligent supervision of a child by a parent or person standing in loco parentis.
What was the holding in Abernathy v. Sisters of St. Mary’s?
A nongovernmental charitable institution is liable for its own negligence and for the negligence of its agents and employees acting within the scope of their employment.
What is the doctrine of respondeat superior?
The employer is liable for the employee’s harmful conduct in the course of their work.
What is the Coming and Going Doctrine?
Injuries arising out of an employee’s daily commute do not normally impose vicarious liability.
What is the slight deviation rule in respondeat superior?
If an employee deviates slightly from duties while performing tasks of employment, vicarious liability applies. If employee completely abandons tasks of employment, even momentarily, vicarious liability from injuries resultant from that abandonment doesn’t apply.
What is the standard for vicarious liability for intentional torts?
Most courts hold that the principal is liable for punitive damages only if the principal authorized or ratified the act.
What is the distinction between vicarious liability and negligence in hiring?
Vicarious liability cases differ from cases where an employer is liable for its own negligence in hiring or retaining an employee.
What is the rule regarding independent contractors?
Those who enter into a contract to have work performed are not vicariously responsible for the tortious acts of their independent contractors.
What are Nondelegable Duties?
Certain responsibilities that cannot be delegated to an independent contractor.
What is Apparent Authority?
One who represents that another party is his servant or agent may be held vicariously liable for the latter’s negligent acts.
What are Inherently Dangerous Activities?
Activities that involve a peculiar risk of harm that calls for more than ordinary precaution.
What is the rule regarding illegal activities and vicarious liability?
One who contracts for performance of an illegal act is vicariously liable for any damage even if the agent is an independent contractor.
What is Strict Liability?
When imposed, defendant must pay damages although they neither acted intentionally nor failed to live up to the objective standard of reasonable care.
What is the basis of liability for animals?
Liability is imposed on those who keep, possess, or harbor the animal, not just the owner.
What are ‘Fencing out’ statutes?
If the plaintiff fenced land properly, there was strict liability assigned to the defendant when animals broke through the fence.
What is the ‘one-bite’ rule?
Owner is liable if they know or have reason to know that a domestic animal has vicious propensities.
What is the standard for Abnormally Dangerous Activities?
The defendant will be liable when they damage another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained.
What are the factors to determine if something is ‘ultrahazardous’?
- Existence of a high degree of risk; 2. Likelihood that the harm will be great; 3. Inability to eliminate the risk by reasonable care; 4. Not a matter of common usage; 5. Inappropriateness of the activity to the place; 6. Extent of its value to the community.
What was held in Miller regarding firearm usage?
Miller held that firearm usage is not ‘abnormally’ dangerous and should not have strict liability imposed due to the risk being associated with misuse rather than the activity itself, and the public good outweighing the risk.
What does Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. state about ultrahazardousness?
Ultrahazardousness or abnormal dangerousness is a property not of substances, but of activities. Manufacturers are generally not held strictly liable for dangers present with their dangerous products.
What are the types of tests to determine ‘detriment’ in product liability?
- Negligence risk-utility analysis; 2. Risk-utility test; 3. Consumer expectations; 4. Combination of risk-utility and consumer-expectation tests.
What is the Bourbon rule?
The inherent danger of a product doesn’t mean it’s a defect.
What does Anderson v. Owens-Corning Fiberglass Corp. state about informational defects?
Informational Defect is the failure to warn. Companies need to warn consumers of potential serious injury.
What is implied warranty in the context of automobiles?
Under modern marketing conditions, when a manufacturer puts a new automobile in the stream of trade, an implied warranty that it is reasonably suitable for use accompanies it into the hands of the ultimate purchaser.
What is Rest. 2nd § 402A regarding product liability?
One who sells any product in a defective condition unreasonably dangerous to the user or consumer is subject to liability for physical harm caused to the ultimate user or consumer.
What are the categories of product defect according to Rest. 3rd § 2?
A product is defective when it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.
What must a plaintiff prove in a manufacturer defect case?
- Product was manufactured by defendant; 2. Product was defective; 3. Defect existed at the time the product left the factory; 4. Defect was the direct and proximate cause of the accident and injuries.
What does Daly v. General Motors Corp. state about strict liability?
Strict liability is not absolute liability. The plaintiff’s injury must have been caused by a ‘defect’ in the product.
What is the Government Contractor Defense?
A contractor could be immune from liability for an allegedly defective product if they show that the United States approved reasonably precise specifications, the equipment conformed to those specifications, and they warned the United States about known dangers.
What is causation in fact?
Principle stating that a defendant’s negligent acts have to be the in-fact cause of plaintiff’s injuries.
What is proximate cause?
Common law limit on liability - plaintiff’s injuries have to be a reasonably foreseeable consequence of defendant’s actions.
How do you determine proximate cause?
Use Palsgraf majority (Cardozo) view: Liability only for reasonably foreseeable consequences of negligent action, when in unbroken causal chain.
What is the Palsgraf minority view on proximate cause?
Andrews Dissent: Liability for direct result or natural consequences of negligent action.
What is a superseding cause?
A superseding cause breaks the chain of causation resultant from a negligent action.
What elements must be met in the rescue doctrine?
1) The defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued
2) the peril or appearance of peril was imminent
3) A reasonably prudent person would have concluded such peril or appearance of peril existed
4) the rescuer acted with reasonable care in effectuating the rescue
What are the elements of the risk-utility test?
1) Usefulness and desirability of product
2) Safety aspects; likelihood of injury, probable seriousness of injury
3) availability of substitute product
4) manufacturers ability to eliminate unsafe aspects of product without impairing usefulness
5) user’s ability to avoid danger w/ reasonable care
6) user’s anticipated awareness of dangers inherent, existence of suitable warnings
7) feasibility of manufacturer spreading loss
What duty of care do property owners owe to licensees?
Property owners owe a duty to warn of unknown dangers to licensees
What duty of care do property owners owe to known trespassers?
If property owner has actual or constructive notice of trespasser, has duty to warn of unknown dangers.
What duty of care do property owners owe to unknown trespassers?
If property owner does not have actual or constructive notice of presence of trespasser, does not owe any duty of care. Once actual or constructive notice is established, has duty to warn or to prevent harm, depending on circumstances.
What is vicarious liability?
Liability for injuries resultant from actions of a subordinate.
What are concurrent causes?
Two parties are negligent, but for the negligence of BOTH parties there would be no injury
What are alternative causes?
Two parties are negligent, but for the negligence of ONE of them there would be no injury, unknown which party’s action was the cause-in-fact of the injury.
Why does the alternative causes doctrine exist?
It exists to allow an injured party to be made whole. Normally the non-identification of the cause-in-fact would bar recovery, not in alternative causes. Defendants are in better position to raise affirmative defense that they are not negligent.
