Negligence Flashcards
Elements
Negligence
- Duty
- Breach
- Causation
- Damages
To whom is duty owed to?
Foreseeable Plaintiffs in Zone of Danger
What is the standard of care?
Reasonably Prudent Person
What are the duties a landowner owes to persons who come to their land?
- Unknown Trespasser: no duty
- Known Trespasser: warn of known dangers
- licensee (social guest): warn of known dangers
- invitee (businesses): warn, inspect and make safe
When does duty of a parent arise?
when a parent knew/should have known that child was likely to cause harm
Is there a duty to rescue?
No, UNLESS
1. you try to get involved (assumption of duty) OR
2. special relationship (common carrier, innkeeper, teacher, employer)
THEN, reasonable care standard
What is the duty of a child?
To act like other children of same Age, Experience, and Maturity
What is the duty of a Professional?
To act like similar professionals with the same Education, Training, and Customs
What is Breach of Duty?
Failure to comply with Duty of Care
What are the two types of causation?
- Actual Cause: But for
- Proximate Cause: Foreseeability
Are both Actual and Proximate causation necessary for a case of negligence?
Yes
Negligence damages
Actual physical injury must happen
When is the original tortfeasor liable for following events out of his hands?
When the events are intervening causes (foreseeable events)
What are foreseeable events?
ANYTHING that is NOT unforeseeable
EVEN if it happens YEARS later
What are Superseding causes?
- unforeseeable event
- cuts off liability
When is it considered unforeseeable event?
- Act of God
- Intentional Tort
- Criminal Act
- OR fact says it’s unforeseeable
Negligence Per Se
- Violation of ordinance/statute
- Injured part is of class statute was trying to protect
- Injury is of the type the statute was trying to prevent
Res Ipsa Loquitur
Creates INFERENCE of negligence if:
1. Whatever happened does not normally happen absent negligence
2. Defendant had ** Exclusive Control**
Res Ipsa Loquitur question indicator
“motion [to court]”, how should court rule?
Negligence question indicator
“is [defendant] liable for damages?”
Negligence per so question indicator
violation of statute?
What is the definition of Attractive Nuisance
Artificial Condition causing Children to Trespass
5 Elements
Attractive Nuisance
- Owner knows/should know children is going to trespass
- condition poses Unreasonable Risk of Harm
- Children cannot Appreciate the Risk
- Cost of Remedy is Less than the Danger
- Owner Fails to Make Safe
What are the defenses to Negligence?
- Pure Comparative Negligence
- Modified/Modern Comparative Negligence
- Contributory Negligence
- Assumption of the Risk
Pure Comparative Negligence
Plaintiff is also at fault, but damage is reduced by % of fault (Even if 99% at fault)
Modified/Modern Comparative Negligence
If Plaintiff is more than 50% at fault, Plaintiff cannot recover
Contributory Negligence
If Plaintiff is just 1% at fault, Plaintiff get NOTHING*
*Last Clear Chance: If Defendant had last clear chance to avoid accident, and Defendant did not do so, Plaintiff can recover
Assumption of the Risk
Plaintiff must have KNOWLEDGE and APPRECIATE the danger
Joint & Several Liability
- 2 or more people cause single accident
- all defendants jointly and severally liable for damages (Plaintiff can choose 1 defendant recover all damages, or distribute)
What is it called when Defendant sues Co-defendant to recoup money?
Contribution
Vicarious Liability
- Employer liable for Negligent Employees
- Employees acting within Scope of Employment
Are Employers liable for Independent Contractors?
No, unless
1. Abnormally Dangerous Activity
2. Non-Delegable Duty (public)
Non-Delegable Duty
Duties that involve safety or benefit of the PUBLIC
What is Indemnification?
- As Contribution goes with Joint and Severable Liability, Indemnification goes with Vicarious Liability.
- May seek indemnification from whoever actually caused the damage (i.e. employer sues employee)
