Negligence Flashcards
What are the requirements for negligence?
Duty, breach, causation and damages
Duty of Care
Owed to all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care
Duty of Care: Majority View
Cardoza (Maj): D only liable to P within zone of foreseeable danger
Duty of Care: Minority View
D owed duty to every harmed, foreseeable or not
Negligence Per Se
(Statute) (1) harm is type statute is meant to prevent (2) P is class of persons statute is meant to protect and (3) harm is proximately caused by D’s violation of statute
Attractive Nuisance
Liable for injuries to trespassing children for artificial conditions if:
(1) Condition is foreseeable risk of unreasonable danger to trespassing children, (2) foreseeable that child will trespass (3) child is unaware of the risk AND (4) risk of danger outweighs conditions utility
Known Trespassers
Must exercise reasonable care to warn and protect against hidden dangers
Unknown Trespasser
No duty to unknown trespasser
Invitee
Individual is invited to enter land for purpose of which land is held open/business purposes.
Reasonable care to inspect, discover dangerous conditions and protect invitees. Duty doesn’t extend beyond invitation.
Licensee
Gives permission or privilege to enter the land of another
Breach
Duty is breached when D’s conduct falls below the standard of care owed to the plaintiff
Res Ipsa Loquitur
occurrence of accident causing P’s injuries suggests negligent conduct. P must show (1) act wouldn’t have occurred w/o negligence (2) it was under D’s exclusive control and (3) injury not due to P’s fault
Causation
Requires both actual and proximate cause
Actual Cause
conduct was the actual cause. But For the action, injury would not have occurred
Proximate Cause
D is liable for reasonable foreseeable consequences
Intervening Cause
cause of injury occurs after D’s conduct
Multiple defendants: substantial factor
Each D’s conduct alone would have been sufficient to bring P’s injury. Assume joint and several liability
superseding cause
unforeseeable event that occurs that breaks the chain of causation
Contributory Fault
If P is any percentage at fault it is a complete bar to recovery.
Contributory fault – Last Clear Chance Rule
If D had last chance to avoid harm, P can fully recover
Pure Comparative Fault
P’s damages are reduced by the proportion of P’s fault.
Partial/Modified Comparative Faults
If P is less at fault than D, P’s recovery reduced by % of fault. If P is more at fault than D, P recovers nothings. If P and D are equally at fault, P recovers 50% of damages.
Assumption of risk
Recovery may be reduced if P knew of risk to D and voluntarily assumed risk
negligent hiring
Employer has duty to P to exercise reasonable care in hiring employees that a D may be liable to P if employee subsequently injures P.
independant contractor
person who hires IC is not vicariously liable for negligence of the IC unless (1) IC engaged in inherently dangerous activities (2) duty is non-delegable as a matter of public policy or safety
respondeat superior
employer is liable for torts committed by employee within scope of employment
NIED
(1) D’s negligence results is close risk of bodily harm to P (2) D’s negligence results in severe emotional distress (3) physical harm suffered
Bystander recovery: (1) closely related to Person injured by D (2) present at scene and (3) personally observed injury
Public nuisance
an act that unreasonably interferes with the health, safety, or property rights of the community.
Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.
private nuisance
an activity that substantially and unreasonably interferes with another individual’s use and enjoyment of his land.
Defense: Coming to the Nuisance
One may “come to a nuisance” by purchasing land next to an already existing nuisance that one had knowledge about and, thereafter, sue for nuisance.
generally not a defense to a nuisance action unless the person “came to the nuisance” for the sole purpose of bringing a harassing lawsuit.
permanent injunction
A permanent injunction requires a showing of an inadequate legal remedy, a property right, feasibility of enforcement, balancing of the hardships, and no defenses.
parental duty
Parents owe a duty to exercise reasonable care to prevent their minor child from causing foreseeable harm to others.
