Negligence

Question 1

Elements

Negligence

Answer 1

1. Duty
2. Breach
3. Causation
4. Damages

Question 2

To whom is duty owed to?

Answer 2

Foreseeable Plaintiffs in Zone of Danger

Question 3

What is the standard of care?

Answer 3

Reasonably Prudent Person

Question 4

What are the duties a landowner owes to persons who come to their land?

Answer 4

1. Unknown Trespasser: no duty
2. Known Trespasser: warn of known dangers
3. licensee (social guest): warn of known dangers
4. invitee (businesses): warn, inspect and make safe

Question 5

When does duty of a parent arise?

Answer 5

when a parent knew/should have known that child was likely to cause harm

Question 6

Is there a duty to rescue?

Answer 6

No, UNLESS
1. you try to get involved (assumption of duty) OR
2. special relationship (common carrier, innkeeper, teacher, employer)
THEN, reasonable care standard

Question 7

What is the duty of a child?

Answer 7

To act like other children of same Age, Experience, and Maturity

Question 8

What is the duty of a Professional?

Answer 8

To act like similar professionals with the same Education, Training, and Customs

Question 9

What is Breach of Duty?

Answer 9

Failure to comply with Duty of Care

Question 10

What are the two types of causation?

Answer 10

1. Actual Cause: But for
2. Proximate Cause: Foreseeability

Question 11

Are both Actual and Proximate causation necessary for a case of negligence?

Answer 11

Yes

Question 12

Negligence damages

Answer 12

Actual physical injury must happen

Question 13

When is the original tortfeasor liable for following events out of his hands?

Answer 13

When the events are intervening causes (foreseeable events)

Question 14

What are foreseeable events?

Answer 14

ANYTHING that is NOT unforeseeable
EVEN if it happens YEARS later

Question 15

What are Superseding causes?

Answer 15

• unforeseeable event
• cuts off liability

Question 16

When is it considered unforeseeable event?

Answer 16

• Act of God
• Intentional Tort
• Criminal Act
• OR fact says it’s unforeseeable

Question 17

Negligence Per Se

Answer 17

• 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

Question 18

Res Ipsa Loquitur

Answer 18

Creates INFERENCE of negligence if:
1. Whatever happened does not normally happen absent negligence
2. Defendant had ** Exclusive Control**

Question 19

Res Ipsa Loquitur question indicator

Answer 19

“motion [to court]”, how should court rule?

Question 20

Negligence question indicator

Answer 20

“is [defendant] liable for damages?”

Question 21

Negligence per so question indicator

Answer 21

violation of statute?

Question 22

What is the definition of Attractive Nuisance

Answer 22

Artificial Condition causing Children to Trespass

Question 23

5 Elements

Attractive Nuisance

Answer 23

1. Owner knows/should know children is going to trespass
2. condition poses Unreasonable Risk of Harm
3. Children cannot Appreciate the Risk
4. Cost of Remedy is Less than the Danger
5. Owner Fails to Make Safe

Question 24

What are the defenses to Negligence?

Answer 24

• Pure Comparative Negligence
• Modified/Modern Comparative Negligence
• Contributory Negligence
• Assumption of the Risk

Question 25

Pure Comparative Negligence

Answer 25

Plaintiff is also at fault, but damage is reduced by % of fault (Even if 99% at fault)

Question 26

Modified/Modern Comparative Negligence

Answer 26

If Plaintiff is more than 50% at fault, Plaintiff cannot recover

Question 27

Contributory Negligence

Answer 27

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

Question 28

Assumption of the Risk

Answer 28

Plaintiff must have KNOWLEDGE and APPRECIATE the danger

Question 29

Joint & Several Liability

Answer 29

- 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)

Question 30

What is it called when Defendant sues Co-defendant to recoup money?

Answer 30

Contribution

Question 31

Vicarious Liability

Answer 31

- Employer liable for Negligent Employees - Employees acting within Scope of Employment

Question 32

Are Employers liable for Independent Contractors?

Answer 32

No, unless 1. Abnormally Dangerous Activity 2. Non-Delegable Duty (public)

Question 33

Non-Delegable Duty

Answer 33

Duties that involve safety or benefit of the PUBLIC

Question 34

What is Indemnification?

Answer 34

* 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)