Negligence

Question 1

Negligence Defined

Answer 1

1) Duty 2) Breach 3) Causation (Actual & Proximate) 4) Damages

Question 2

Duty

Answer 2

The obligation to take risk-reducing precautions

Question 3

Duty- To whom is the duty owed?

Answer 3

Foreseeable victims. An unforeseeable victim always loses a negligence case, because an unforeseeable victim was never owed a duty in the first place; people outside the zone of danger are not owed a duty. Rescuers Exception: Always owed a duty of care; danger invites rescue

Question 4

Duty- How much care is owed?

Answer 4

Reasonably Prudent Person Standard: Must exercise that care as would be exercised by a reasonably prudent person acting under similar circumstances. Objective standard; no allowances are made for the D’s particular shortcomings. Exceptions: If the D has a superior skill or superior knowledge, the standard becomes a reasonably prudent person with that superior skill or knowledge. If the facts make them relevant, the D’s physical characteristics become part of the reasonably prudent person standard.

Question 5

Children Standard of Care

Answer 5

Children are held to the standard of a child of similar age, experience, and intelligence acting under similar circumstances; subjective standard. Exception: when a child is engaging in an adult activity, held to reasonably prudent person standard

Question 6

Professionals Standard of Care

Answer 6

A professional is held to the care of the average member of that same profession performing similar services. For medical specialists, standard of national care

Question 7

Duty to Undiscovered Trespassers

Answer 7

Entrants that come on the land without permission and the land possessor does not know that they are there. No duty owed.

Question 8

Duty to Discovered or Anticipated Trespassers

Answer 8

Entrants that possessor knows are on the land or should know are on the land. Duty: only owe a duty to protect from the known, artificial dangerous conditions on the land

Question 9

Duty to Licensees

Answer 9

Entrants who enter land with permission, but they do not confer any economic benefit on the possessor (social guests). Duty: to protect from all known traps

Question 10

Duty to Invitees

Answer 10

Entrants who enter land with permission, and they do confer economic benefit on the possessor, or the property is open to the public at large. Duty: to protect from all reasonably knowable traps

Question 11

Duty to Firefighters & Police Officers on Land

Answer 11

Cannot recover from inherent risks of their job

Question 12

Child Trespassers (Attractive Nuisance Doctrine)

Answer 12

P must show the following to assess the special duty upon the landowner: 1) dangerous condition present on land of which owner is or should be aware, 2) owner knows or should know that children frequent vicinity, 3) condition is likely to cause injury, 4) expense of remedying the situation is slight compared with magnitude of risk

Question 13

Statutory Standard of Care

Answer 13

A statute is used as a duty when the P can show: 1) the type of harm is within the class of risks that the statute is designed to prevent and 2) the P is within the class of persons the statute is designed to protect. Once established, duty and breach are satisfied.

Question 14

Affirmative Duties

Answer 14

No duty to rescue. Exceptions: assumption of duty by acting, peril due to D’s conduct, special relationship between parties, duty to control third persons

Question 15

Negligent Infliction of Emotional Distress (NIED)

Answer 15

P must satisfy 2 requirements: 1) P must be within the zone of danger and 2) P must suffer physical symptoms from the distress. Bystander case: If P sees D inflict serious physical injury or kills third person, P can recover if shows: 1) they were a close relative and 2) they saw it happen

Question 16

Breach

Answer 16

Custom or Usage, Violation of Statute, Res Ipsa Loquitor

Question 17

Res Ipsa Loquitor

Answer 17

When P cannot identify what the D did wrong, P can get to the jury by making a substitute showing of proving: 1) the accident which occurred is a type normally associated with negligence and 2) an accident of this type would normally be due to the negligence of someone in the D’s position

Question 18

Actual Cause- But For Test

Answer 18

P must convince that but for the breach, he would be uninjured today.

Question 19

Actual Cause- Joint Causes

Answer 19

Substantial Factor Test: A breach is a substantial factor if it was capable of causing the injury all by itself. If both D’s are found to be substantial factors, then both D’s will be held jointly and severally liable

Question 20

Actual Cause- Alternative Causes Approach

Answer 20

A problem of causation exists where 2 or more persons have been negligent, but uncertainty exists as to which one caused P’s injury. The burden of proof is shifted to the D’s to prove that they did not cause the harm, if cannot prove that they did not cause the harm, then liable or jointly liable

Question 21

Proximate Cause

Answer 21

Foreseeable harmful results- D usually always liable, unless intervening force is crime or intentional tort. Unforeseeable harmful results- D not liable. Foreseeable and liable: Intervening Medical Malpractice, Intervening Negligent Rescue, Intervening Reaction or Protection Force, Subsequent Disease or Accident

Question 22

Damages

Answer 22

Eggshell Skull Principle. Both economic and noneconomic damages. Property damage. Punitive damages not available unless D’s conduct is wanton and willful. Duty to Mitigate. Collateral Source Rule.

Question 23

Affirmative Defenses- Contributory Negligence

Answer 23

Negligence on the part of P that contributes to her injuries. Exception: last clear chance doctrine

Question 24

Assumption of Risk

Answer 24

P may be denied recovery if she assumed the risk of any damage caused by D’s act.

Question 25

Comparative Negligence

Answer 25

The jury will be instructed to consider the evidence and assign a percentage of responsibility to the two parties in the case and P’s recovery will be reduced based on the P’s percentage of fault. Pure Comparative Fault: P always recovers something, even if the jury decides the P bears the predominant percentage of fault. Partial Comparative Fault: If P’s fault is under 50%, then recovery will be reduced accordingly; if P’s fault is over 50%, he is barred from recovery

Question 26

Strict Liability- Animals

Answer 26

Domesticated: not strictly liable unless have prior knowledge of vicious propensities. Wild: strictly liable. Trespassing animals: strictly liable. Strict liability not available to trespassers

Question 27

Strict Liability- Abnormally Dangerous Activities

Answer 27

1) The activity must be one that causes a foreseeable risk of serious harm even when reasonable care is exercised and 2) the activity must be uncommon in the area where D pursues it

Question 28

Products Liability

Answer 28

1) D was a merchant, 2) P must demonstrate that the product is defective, 3) The product must not have been altered since leaving the hands of the D, and 4) The P must be making a foreseeable use of the product at the time of injury

Question 29

Products Liability- Manufacturing Defect

Answer 29

A product that differs from all the others that came off the same assembly line in a way that makes it more dangerous than consumers would expect

Question 30

Products Liability- Design Defect

Answer 30

If the P can show that there is another way the product could have been built that meets following 3 conditions, then the version sold is defective: 1) there must be an alternative design that is safer than the version actually sold, 2) that safer design must be cost effective, 3) the alternative design must be practical

Question 31

Products Liability- Information Defect

Answer 31

If a product has risks that cannot be designed out and are not apparent to consumers and it lacks adequate warnings, then it is defective

Question 32

Implied Warranty of Merchantability

Answer 32

Refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used

Question 33

Implied Warranty of Fitness

Answer 33

Arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting the goods

Question 34

Express Warranty

Answer 34

Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty

Question 35

Misrepresentation of Fact

Answer 35

A seller will be liable for misrepresentations of facts concerning a product where: 1) the statement was of a material fact concerning quality or uses of goods (mere puffery insufficient, and 2) the seller intended to induce reliance by the buyer in a particular transaction

Question 36

Private Nuisance

Answer 36

A substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.

Question 37

Pubilc Nuisance

Answer 37

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.

Question 38

Defenses to Nuisance

Answer 38

Legislative Authority, Conduct of Others, Contributory Negligence, Coming to the Nuisance

Question 39

Vicarious Liability

Answer 39

One person commits a tortious act against a third party and another person will be liable to the third party for this act.

Question 40

Vicarious Liability- Respondeat Superior

Answer 40

Employer is vicariously liable if the employee committed the tort within the scope of employment. Frolic and Detour: a minor deviation is still within scope, a substantial deviation is not within scope. Intentional torts normally outside scope.

Question 41

Vicarious Liability- Independent Contractor

Answer 41

Hiring party not liable for torts of an independent contractor unless engaged in inherently dangerous activities or the duty is nondelegable

Question 42

Vicarious Liability- Automobile Owner to Driver

Answer 42

Owner is not liable for torts of driver, unless driver is doing an errand for owner

Question 43

Vicarious Liability- Parent & Child

Answer 43

Parents are not liable for torts of children

Question 44

Joint & Several Liability

Answer 44

Where 2 or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable. If the injury is divisible, each D is liable only for the identifiable portion.

Question 45

Contribution

Answer 45

Each D will be assigned a percentage and the out-of-pocket D (the D the P recovers fully from) can then recover based on those percentages from the other D’s

Question 46

Indemnification

Answer 46

D can get all his money back if: D held vicariously liable, can be indemnified by the active tortfeasor; non-manufacturer can get indemnification from the manufacturer

Question 47

Loss of Consortium

Answer 47

Granted to a married, uninjured spouse whose spouse has been injured in a tort. Derivative cause of action. 3 types of damages can be recovered: loss of services, loss of society, loss of sexual intimacy