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torts > Negligence > Flashcards

Negligence Flashcards

0
Q

foreseeable plaintiffs

A

Defendants owe a duty to foreseeable plaintiffs

including rescuers who are per se foreseeable plaintiffs

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1
Q

duty

A

obligation
requiring conformity
to a standard of conduct protecting others
against unreasonable risk

where D engages in affirmative risk creating conduct there is a duty owed to a foreseeable plaintiff.

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2
Q

duty to aid

A

no affirmative duty to aid

except

conduct responsible for placing plaintiff in peril
or special relationship exists
or created reliance on promise to aid

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3
Q

Once Aid is Rendered

A

Once aid is undertaken, a duty to exercise due care arises as to subsequent conduct.

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4
Q

negligent omission

A

failure to do something a reasonable person would have done

stop at a stop sign.

A duty to act where conduct caused plaintiff to be in peril

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5
Q

Good Samaritan statutes

A

limits liability of rescuers providing aid

absent reckless or intentional wrongdoing

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6
Q

nonfeasance

gratuitous promise to render aid

A

A gratuitous promises to render aid

no duty to actually take the promised action

even if plaintiff relied on the promise to his detriment.

If D does attempt to render promised aid he is obliged to exercise reasonable care in doing so.

minority view D is liable for the complete failure to perform a gratuitous promise if P relied on the promise to his detriment (foregoing other aid)

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7
Q

duty to take affirmative action where a ‘special relationship’ exists

A

D has a duty to take affirmative action to benefit P where a special relationship exists from which D derives or occupies a position of power over the plaintiff

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8
Q

6 types of Special Relationships that trigger duty to care for P

A
  1. employer-employee during scope of employment
  2. common carrier and innkeeper-customer
  3. school-pupil
  4. parent-child
  5. business-patron
  6. jailer-prisoner
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9
Q

duty to control 3rd parties

A

no duty to control the conduct of third parties unless:

  1. a special relationship between D and the 3rd party giving rise to duty to control
  2. a special relationship exists between D and the 3rd party that gives the 3rd party a right of protection
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10
Q

parents duty to control a minor child

A

duty to exercise reasonable care to control a child to prevent intentional harm or create an unreasonable risk of harm if the parent:
1. knows he has the ability to control the child
and
2. knows of the necessity and opportunity for exercising control.

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11
Q

masters duty to control servant acting outside the scope of employment

A

A master has a duty to exercise reasonable care to control his servant to prevent the servant from intentionally harming others or creating an unreasonable risk of harm IF:

  1. The servant is upon the masters premises or on the premises the servant is privileged to enter or
  2. is using a chattel of the master AND
  3. the Master knows or has reason to know that he has the ability to control the servant AND
  4. knows or should know of the necessity and opportunity for exercising such control
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12
Q

employers duty of care in hiring

A

D employer has a duty to P to exercise reasonable care in hiring employees such that D may be liable if an employee subsequently injures P. As distinguished from vicarious liability for an employee’s torts, negligent hiring the employer is liable for his own negligence in hiring the employee and not vicariously liable for the wrongful conduct of the employee.

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13
Q

duty to warn of 3rd parties intent to do harm

A

where D has a special relationship with a 3rd party and becomes aware of the 3rd parties intent to do specific harm to an identified plaintiff, he has a duty to warn the plaintiff of the harm.

psychotherapist-patient
custodian-prisoner

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14
Q

list functions of government giving rise to duty to plaintiff

A

Proprietary
Discretionary
Ministerial

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15
Q

Proprietary Function of a Government Entity

A

government acting in an area traditionally occupied by private entities, the government is treated as any other defendant for purposes of determining a duty

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16
Q

Discretionary Activity of Government Entity

A

Government using judgement in allocating resources

NO duty

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17
Q

Ministerial Function of Government Activity

A

once government entity has undertaken an act,

it must do so non-negligently

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18
Q

Public Utility Doctrine

A

When a government agency fails provide an adequate response,
NO duty unless:
1. reliance on the response of the agency
2. special relationship between the plaintiff and the agency or
3. the agency has increased the danger

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19
Q

Special Rules of Courts:

Negligent Infliction of Emotional Distress

A

Where injury is neither personal injury or property damage,
duty issues arise.

Courts are reluctant to allow liability for emotional distress and apply special rules for pure emotional distress claims.

*pain and suffering are not subject to the limitations placed on claims for pure emotional distress.

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20
Q

NIED - Direct Claims Requirements

A

to recover for NIED P must

  1. Be in Zone of Danger - area at risk of injury
    AND
  2. have a physical manifestation of the emotional distress*

*most jurisdictions

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21
Q

NIED
Zone of Danger and Physical Manifestation Requirement
EXCEPTIONS (2)

A
  1. transmitting a telegram announcing the death of a loved one
  2. mishandling of a corpse
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22
Q

Bystander NIED recovery factors (3)

A
  1. In the Zone of Danger
  2. suffered severe emotional distress resulting from observance of the accident and
  3. had a close relationship with the victim
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23
Q

derivative nature of bystander NIED claims

A

Recovery may be reduced proportionally if the injured party is found to be comparatively negligent

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24
Q

3 Examples of wrongful acts

A
  1. Wrongful Conception
  2. Wrongful Birth
  3. Wrongful Life

*Usually the WRONG answer on MBE

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25
Q

Wrongful Conception

A

Injury is Birth of a healthy child

a negligently performed vasectomy or other form of birth control.

Damages involve the cost of birth and to rectify the ineffective birth control

Courts are reluctant to award costs of raising child

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26
Q

Wrongful Birth

A

birth of Unhealthy child

failure to diagnose a disability in the fetus
would not have given birth to child

Courts sometimes award costs of having a special needs child
offset award by the benefit of having a child

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27
Q

Wrongful Life

A

Childs Action for being born Unhealthy

Most courts - no damages. Court cannot return plaintiff to position prior to injury…thats pre life?!

some awarded damages for costs of child’s special needs after the age of majority

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28
Q

categories giving rise to liability of land possessors

A
  1. Activities - derived from conduct of persons
  2. Artificial Conditions - circumstances created by persons on the land.
  3. Natural Conditions - circumstances existing not created by persons
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29
Q

7 types of Plaintiffs on Land

A
  1. Invitees
  2. Licensee
  3. Trespasser
  4. Privileged Entrants
  5. Plaintiffs not on land
  6. Landlord and Tenant
  7. Sellers of land
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30
Q

Invitee Defined

A

Person enters land at D’s express or implied invitation.
There to confer an economic benefit.
Enters for a purpose relating to D’s interests or activities.
Classified as either Business or Public

Land Possessor must act reasonably - duty of reasonable care owed

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31
Q

business invitee

A

enters land with purpose related to business activities or interests

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32
Q

Public invitee

A

enters the property for a purpose the land is held open to the public for

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33
Q

minority view of public and business invitees

A

do not distinguish between public and business invitees

find a business purpose for persons who are otherwise public invitees

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34
Q

duty of care to invitees

A
  1. reasonable care to prevent injuries caused by activities
  2. reasonable care to discover dangerous natural and artificial conditions invitee would not be aware of
  3. warn, make safe, or provide other precautions of such conditions. applies to natural conditions as well.
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35
Q

invitee vs licensee vs trespasser

A

an invitee may be a licensee or trespasser if

invitee enters areas his invitation does not extend or

stays in a permitted area longer than was contemplated.

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36
Q

licensee defined

A

person enters land with express or implied permission

does NOT enter for a purpose of conferring benefit.

Contrast invitee.

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37
Q

duty to licensees

A

Duty to warn of known concealed dangers

exercise reasonable care in discovering licensees of whom he is unaware

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38
Q

Trespasser defined

A

enters land of another without permission or privilege.

Duty is to avoid willful or wanton harm to trespassers.

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39
Q

sub-categories of Trespassers - list

A

Unknown
Known
Frequent
Children

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40
Q

Duty to Unknown Trespasser

A

there is NO duty of care as to a trespasser who is unknown to D

There is no duty to attempt to discover unknown trespassers

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41
Q

duty to Known Trespassers

A

Duty will vary according to the category of danger

Activities - Exercise reasonable care to protect from injuries deriving from activities

Warn of hidden dangers defendant is aware

no duty to protect from injuries derived from natural conditions

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42
Q

frequent trespasser duty

A

duty is higher than normally applicable
owe the same duty of care as known trespassers if

D should know that trespassers frequently enter upon a portion of his land even if unaware of a particular trespasser

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43
Q

Duty to Children who Trespass

A

heightened standard of care applies to artificial conditions

exercise reasonable care to protect children from dangerous artificial conditions

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44
Q

Factors considered when a child trespasser will be considered an invitee

A
  1. Is the child too young to appreciate the danger?
  2. Is it foreseeable trespassing children.
    • no duty to search for trespassing children*
  3. Is D aware of the dangerous condition?
  4. Is this an artificial condition?
  5. Is the risk great enough to outweigh the utility of what D is doing and the burden imposed to avoid harm?
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45
Q

plaintiffs not on land but adjacent to it

A

Duty of care to parties adjacent to the land for
ARTIFICIAL CONDITIONS on the land.

No Duty for natural conditions unless it is a tree in an urban area.

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46
Q

Majority View of Dangers posed by
natural conditions on the land
to persons not on the land

A

no duty to protect P not on D’s land from danger derived from natural conditions of the land.

Minority view sees a duty to exercise reasonable care to prevent injury from dangers deriving from natural conditions

standard of care applies to person in possession of the land including owner, tenant, purchaser, or adverse possessor

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47
Q

landlord and tenant

standard of care

A

applies when tenant is in possession of leased premises.

landlord possess common areas and is responsible for them.
Landlord may be liable to the tenant or 3rd parties under certain circumstances for areas he has surrendered possession to the tenant

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48
Q

Patent Defects - defined

A

dangerous conditions that are or should be apparent to the tenant

Landlord is under no duty to warn or repair obvious conditions

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49
Q

latent defects defined

A

dangerous natural or artificial conditions to which the tenant is UNAWARE and are not reasonably apparent. Landlord HAS a duty to warn the tenant of such dangers and repair them. Landlord has no duty to inspect the premises for latent dangers.

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50
Q

duty of landlord after possession has been transferred

A

there is no duty to as to dangerous conditions arising after possession is transferred unless

the landlord undertakes to repair or covenants to repair them.

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51
Q

landlord duties to 3rd parties

A

no duty to 3rd parties from from dangerous conditions or activities on the leased premises.

Unless the landlord knew tenant intended to open the leased premises to the public.

then landlord has a duty to prevent injury to the public and
exercise reasonable care to discover and repair any dangerous natural or artificial conditions existing at the time of the transfer of possession.

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52
Q

duties of sellers of land

A

After transfer of possession and ownership no further duty arises except:

  1. known hidden dangerous natural or artificial conditions the seller reasonably could anticipate the purchaser will not discover. Duty continues until purchaser has a reasonable time to discover and remedy the dangers
  2. Active concealment of a dangerous condition will maintain a duty
    until the purchaser ACTUALLY discovers and remedies the condition
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53
Q

Reasonable Person Exceptions (3)

A

Similar physical characteristics
Mental defect or intoxication
emergency situations

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54
Q

Cognitive Deficient Reasonable person

A

abilities diminished due to mental illness or intoxication
are assessed as a reasonable person WITHOUT diminished abilities.

*individuals with greater than average knowledge or expertise the will be compared to reasonable persons who also possesses this knowledge or expertise

55
Q

Reasonable person standard in an emergency situation

A

reasonable person would behave in the emergency situation,

unless negligent conduct caused the emergency situation.

56
Q

learned hand formula

A

If the burden of taking precautions is
outweighs the probability being injured,
considering the severity of the injury,
and considering the social utility of the activity
then defendant failed to act as a reasonable person.

If B of D taking P + SU < Pr I x S I

the greater the benefit to society, D is less likely to have breached a duty to P

57
Q

Reasonable Children Standard

A

Standard takes into consideration the age of a defendant minor.

Majority view -
reasonable child of same age, experience, education and intelligence.

Minority View
below 6 years - presumed incapable of negligence
7-13 years - rebuttably presumed not negligent
14+ years - rebuttably presumed capable of negligence

58
Q

Standard of Care for Children engaged in Adult Activities

A

expected to conform to an adult standard of care.

59
Q

Statutory Provision Establishing Standard of Care

A

conduct violating a statute that does not provide for civil liability
the statute may establish the standard of conduct for breach of duty purposes.

Majority position: unexcused violation of the statute conclusively establishes breach of duty.

Minority View: violation creates a rebuttable presumption D has burden to overcome.

60
Q

Statutory Per Se conditions

A
  1. Injury was the type the statute intended to prevent
  2. plaintiff was a member of the class the statute intended to protect
  3. violation was not excused
61
Q

Standard of Care - Common Carriers

A

must exercise of the highest degree of vigilance, care and precaution

62
Q

excuse for violating statute

A
  1. would have resulted in greater harm than the harm produced by the violation or
  2. would have been impossible
63
Q

Professional Standard of Care

A

The customary practice of professionals in good standing.

deviation demonstrates breach of duty,

compliance is evidence he has not.

Standard - failure to conduct oneself as a competent member of the profession with minimally adequate knowledge and expertise.

64
Q

Res Ipsa Loquitur prerequisites

A
  1. injury does not ordinarily occur in the absence of negligence
  2. It is more likely than not D’s was responsible for the injury
  3. P was not responsible for the event that caused injury.
65
Q

cause in fact

A

ties the defendants breach of duty to plaintiffs injury.

P must satisfy by a preponderance of the evidence or lose

That D’s negligence was more likely than not was the cause

66
Q

But For Test

A

conduct was the cause-in-fact of an event if it would have been more likely than not the injury would not have occurred but for D’s conduct.

67
Q

Substantial Factor Test

A

Where there are Multiple Causes

conduct was the cause-in-fact if it was a substantial factor in bringing about the injury.

where either Defendants conduct, taken alone, would be sufficient to cause injury. Application of but-for test here would permit D’s escape liability because but-for causation does not exist.

68
Q

Joint and Several liability

A

P may recover against each of D’s who contribute to P’s harm.

D’s may sue each other for contribution.

69
Q

Alternative Liability Theory

Summers v Tice

A

conduct of 2 or more independently acting D’s,
only one of whom can be responsible, and
P cannot establish which D is in fact responsible,
each D’s conduct is regarded as the cause-in-fact of the injury
unless a D can prove he did not cause P’s injury.

Shifts BoP to D

70
Q

slip and fall - P’s burden

A

condition of the item was there long enough

was unreasonable to not discover and remedy the condition

71
Q

Proximate cause

A

conduct must be the proximate, or legal, cause of the injury.

D owes a duty to foreseeable P’s - individuals at risk because of D’s conduct

majority view = individuals within the zone of danger.
minority view = allows recovery to any person harmed by D’s breach

Chain of Causation will be broken by Superseding causes

72
Q

Unforeseeable Extent of Harm

A

D is liable for the full extent of P’s harm.

P’s particular susceptibility is not relevant.

73
Q

Superseding Cause

A

an unforeseeable, intervening cause that breaks the chain of causation relieving the original tortfeasor of any further liability.

  1. naturally occurring phenomena
  2. criminal acts of 3rd persons
  3. intentional torts of 3rd persons
  4. extraordinary forms of negligent conduct
74
Q

Intervening force

A

actively operates producing harm to another
after actor has committed a negligent act

D is liable for harm caused by foreseeable intervening forces

Rescuers are foreseeable,

original tortfeasor will be held liable for negligence of a rescuer.

75
Q

factors determining whether intervening force is a superseding cause of harm

A
  1. harm of a different kind than resulted from D’s negligence
  2. Its operation or the consequences appear extraordinary and unforeseeable after the event
  3. Intervening force is independent of situation created by D
76
Q

Duty to Rescuers

A

D owes a duty to rescuers, even if done negligently.

D is liable for personal injury and property damage, whether rescuer injures himself, the person rescued, or a stranger

77
Q

damages in negligence

A

plaintiff must prove actual damages for negligence claim
nominal damages are not allowed in negligence and
punitive damages are generally not allowed.

personal injury, property damages, general and special damages, past and future pain and suffering, medical expenses, lost wages, and loss of consortium

not attorneys fees.

Payments made or benefits conferred from other sources are not deducted from Ds liability

78
Q

collateral source rule

A

collateral benefits are NOT subtracted from plaintiffs recovery. ie.

insurance policies
employment benefits
gratuities
social legislative benefits
Payments made by a tortfeasor or person acting for him to the injured plaintiff are credited
79
Q

Punitive damages

A

intended to punish or deter D from egregious conduct.

available where there has been willful, wanton, or malicious conduct.

Generally not available in negligence or contract actions

Awards are at jury’s discretion

80
Q

Considerations for Punitive Damages

A

Degree or reprehensibility
intentional, malicious, reckless disregard;
was conduct isolated or repeated;
harm economic or non-economic.

ratio of compensatory damages to punitive damages should not exceed 10x CD award

Punitive damages may be limited by state law.

81
Q

Defenses to Negligence - LIST

A
  1. Contributory Negligence
  2. Comparative Negligence
  3. Assumption of Risk
82
Q

contributory negligence

A

P’s conduct falls below the standard he should conform for his own protection and
is a legally contributing cause in bringing about P’s harm.

D must prove by a preponderance of the E that conduct fell below the relevant standard of care and this was the cause in fact and proximate cause of P’s injuries

83
Q

Limits on Contributory Negligence Defense

A

Intentional Torts,
Recklessness
Strict Liability

84
Q

Risks in an Emergency and Contributory Negligence

A

Acts that might otherwise be regarded as CN are viewed as reasonable in an emergency or if P is attempting to rescue someone

85
Q

CN of a child plaintiff

A

Reasonable Child standard applies in majority of jurisdictions

child of the same age, education, intelligence, and experience would have acted as plaintiff did

Minority View:
6 and under - CN precluded as a matter of law
7-13 - rebuttably presumed incapable of CN
14+ - rebuttably presumed capable of CN

86
Q

CN of a 3rd person imputed to P - 2 situations

A
  1. sufficient relationship to be vicariously liable and

2. claims are completely derivative of the 3rd person who was CN

87
Q

Last Clear Chance Doctrine

A

Provides basis for recovery where P is CN

If injury could be avoided through subsequent exercise of due care by D,
then D had the last clear chance to avoid harm.

P’s fault will not bar claim.

D must be aware breach placed P in ‘helpless peril’ rather than ‘inattentive peril’

88
Q

helpless peril

A

P’s negligence placed him in a position that he cannot extricate himself

89
Q

inattentive peril

A

P’s CN placed him in a position of danger that he could escape if observant enough to recognize his peril.

90
Q

comparative negligence

A

the total damages are apportioned based on the relative fault of the parties

91
Q

Pure Comparative Negligence Scheme

A

Apportionment of damages tracks apportionment of fault

92
Q

Partial Comparative Negligence

A

D’s responsibility must exceed P’s responsibility.

P will be denied if his responsibility exceeds 50%

93
Q

Comparative Negligence systems where there are multiple D’s who are not jointly liable - list

A

Aggregate system - % of responsibility of all D’s are combined and apportioned only if this total exceeds P’s % of responsibility.

Individual Equality System - P does not recover anything if his individual responsibility exceeds that of any single defendant.

94
Q

Assumption of Risk Defense

A

P assumes the risk of injury from D’s negligence if P expressly or impliedly consents to undergo the risk created by D’s conduct

95
Q

Express waiver of D’s negligence

A

P will be barred from recovery for D’s negligence if he has expressly relieved D’s obligation to act non-negligently toward P.

Waiver is valid so long as not void as against public policy and the language is clear. will be enforced by most courts

96
Q

Implied Assumption of Risk

A
  1. P had knowledge of and appreciated the nature of the danger involved
  2. P appreciated the specific danger that injured him and
  3. P voluntarily chose to subject himself to that danger
97
Q

limitation on assumption of risk defense

A

May not assert defense where P is a member of a class intended to be protected by statute, and D’s conduct violates the statute and threatens the risk the statute was designed to prevent.

98
Q

Elements of Negligence

A 
Duty
Standard Of Care
Breach of Duty
Cause in Fact
Proximate Cause
Damages
99
Q

General Duty Rule

A

D is engaged in affirmative risk creating conduct

Causing personal injury or property damage

A duty is owed to a foreseeable plaintiff

100
Q

Situations where a Significant Duty Issue Will Arise (4)

A
  1. Unforeseeable Plaintiffs
  2. Nonfeasance
  3. Harm other than Personal Injury or Property Damage
  4. Where D is a land possessor, landlord, or government entity
101
Q

Nonfeasance

A

The failure to act or to provide a benifit

102
Q

Misfeasance

A

Affirmative risk creating conduct or

Negligent omission - failure to do something creating an affirmative risk of harm (failure to stop at a stop sign)

103
Q

Nonfeasance creating a condition requiring rescue

A

Where D created a condition requiring the rescue of P, D will have a duty to render aid.

104
Q

Duty to Control 3rd Parties - exceptions

A

Special Relationship - taking charge of another
Providers of Alcohol - Dram Shop acts
Negligent Entrustment
Duty to Protect - only where there is a HIGH LEVEL of foreseeability

105
Q

Duty to Protect

A

Generally no duty to take affirmative steps to protect 3rd parties from Criminal Actions of others

Except

Existence of a special relationship and there is a high level of foreseeability. P may need to show prior similar incidents to show that a duty exists

106
Q

Negligent Entrustment

A

Where D entrusts a dangerous object to a person they know or should know is incapable of handling the object.

107
Q

Exceptions to the Zone of Danger Test for NIED Claims

A
  1. Receipt of a telegram wrongly informing of the passing of a loved one.
  2. Mishandling a corpse of a loved one.
108
Q

In General a Landlords are not liable EXCEPT:

A
  1. Common Areas
  2. Negligent Repairs
  3. Known hidden dangerous defects - until such time as T should have discovered such conditions.
  4. Where L knows property is to be held open to the public, L has a duty to discover and repair dangerous conditions.
109
Q

Rules for Compensatory Damages

A
  1. Must be foreseeable - type of damages, not the extent
  2. Reasonably certain, not speculative
  3. Not unavoidable
110
Q

Two Categories of Compensatory Damages

A
  1. Special Damages - tangible - medical expenses, lost wages. Includes past, present and future (future damages will be reduced to present value)
  2. General Damages - Pain and suffering
111
Q

Avoidable Consequences Rule

A

Plaintiff has a duty to mitigate damages

112
Q

Proximate Cause - 3 Types of Harm

A
  1. Unforeseeable Extent of Harm - D is responsible for the full extent of harm caused. Take your plaintiff as you find him.
  2. Unforeseeable Type of Harm - Is the harm within the risk created by D’s conduct?
  3. Unforeseeable Manner of Harm - is the harm so far removed from D’s conduct? Culpability of other parties? Passage of time, un foreseeability, and culpability will be considerations.
113
Q

Cause in Fact - Summers v Tice Test

A

Where there are a small number of D’s
Each is negligent
All are before the court
Burden will be shifted to D to show that they are not liable. All D’s will be jointly and severally liable

114
Q

market Share Liability

A

Where there are a large number of D’s
P may sue all D’s who may have been liable
D’s will be liable according to their market share

Not heavily tested

115
Q

Cause in Fact - Theories

A

But For - D is more likely than not the cause

Substantial Factor - Multiple D’s

Loss of Chance

Summers v Tice

Market Share Theory

116
Q

Plaintiff Showing for Res Ipsa Loquitur

A
  1. Injury is typically the result of Negligence
  2. D is in control of the harm causing instrumentality
  3. P did not contribute to his injury

Showing will get the case to jury.

117
Q

RiL in Medical Malpractice

A

Common knowledge Exception - no need for expert testimony that harm was but for the result of negligence - sewing instruments into P

Multiple defendants - where all D’s act as a group, all are jointly and severally liable unless they can show they are not liable.

118
Q

Landlords are not liable to Tennants UNLESS

A
  1. Common Areas
  2. Negligent Repairs
  3. Known Hidden Dangerous Defect
  4. Where Landlord knows property is held open to the public he has a duty to exercise reasonable care to discover and repair dangerous conditions.
119
Q

how to frame a negligence question

A 
Duty
Standard of care
Breach of duty
Cause in fact
proximate cause
damages
defenses

Essay - use headings and separate elements

120
Q

nonfeasance contrast with misfeasance

A

the failure to bestow a benefit or do something. - nonfeasance - no duty

Misfeasance - failure to do something a reasonable person would do - stop at a stop sign

121
Q

Negligent entrustment

A

Version of misfeasance.

Where D gives a dangerous object to someone he knows is not capable of handling it.

122
Q

4 standards of care

A

Reasonably prudent person
negligence per se
child standard of care
Professional standard of care

123
Q

Informed Consent - Doctors Standard of Care

Professional Rule vs Patient Rule

A

Doctors are required to divulge those risks that are customarily divulged.

Trend is moving toward one of materiality.

Doctor must divulge material risks - those a reasonable patient would want to know.

124
Q

Plaintiffs burden in a legal malpractice claim

A

P must prove that they would have prevailed in the underlying action and that but for the lawyers malpractice they would have prevailed.

125
Q

plaintiffs burden in a negligence case

A

Plaintiff has the burden of showing the elements of the prima facie case by a preponderance of the evidence.

126
Q

how to frame a negligence question

A 
Duty
Standard of care
Breach of duty
Cause in fact
proximate cause
damages
defenses

Essay - use headings and separate elements

126
Q

nonfeasance contrast with misfeasance

A

the failure to bestow a benefit or do something. - nonfeasance - no duty

Misfeasance - failure to do something a reasonable person would do - stop at a stop sign

126
Q

Negligent entrustment

A

Version of misfeasance.

Where D gives a dangerous object to someone he knows is not capable of handling it.

127
Q

4 areas where Cause in Fact Issues Arise

A
  1. Multiple D’s
  2. Summers v Tice - Alternative liability theory
  3. Loss of Chance
  4. Market Share Liability
128
Q

Loss of Chance

A

Where timely diagnosis of illness would have been a 40% chance of survival but failure to do so results in terminal condition.

Injury is the loss of chance rather than the cure.

129
Q

Unforeseeable Type of Harm

Proximate Cause Problem

A

Foreseeability of Risk Rule

Is the injury suffered the type that is within the risk created by D’s negligence?

130
Q

Unforeseeable Manner of Harm

Proximate Cause Problem

A

Where the manner of harm is from an intervening cause becomes a superseding cause and cuts off liability from D.

131
Q

Compensatory Damages

A

Attempt to return Plaintiff to original position - at least in theory.

Money used to compensate in negligence.

132
Q

Compensatory Damages Rules 3

A

Must be foreseeable - the type of damage, not extent

Reasonably Certain - not speculative

Not unavoidable.

133
Q

2 categories of compensatory Damages

A
  1. Special Damages - tangible and pecuniary, repairs, medical expenses, lost wages, etc. Can be past, present and future. Future damages reduced to present value. Collateral Source Rule applies*
  2. General Damages - pain and suffering. Intangible.

torts (11 decks)

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