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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

Negligence PFC

A

(i) Duty
(ii) Breach
(iii) Causation
(iv) Damages

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2
Q

Negligence PFC: Duty

A

(i) A foreseeable P

(ii) A standard of care

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3
Q

Duty: Foreseeable P

A

Duties of care are only owed to foreseeable Ps. (On exam–almost always foreseeable)
Foreseeable Ps as a matter of law: Rescuers, and viable fetuses.
Unforeseen Ps: persons who were not within the foreseeable zone of danger (measured from time of neg. conduct).

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4
Q

Duty: Standard of Care

A

First: Determine the standard of care
Second: Determine what the standard is

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5
Q

Duty: Standard of Care

Reasonable Person Standard

A

Standard: reasonable person under the circumstances
Exception: D’s physical characteristics taken into account–> If D is aware of his/her disability, he/she is supposed to act as a reasonable person with it would act.

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6
Q

Duty: Standard of Care

The Children Standard

A

Standard: Child of like age, intelligence, and experience.
The child’s traits and characteristics taken into account (subjective test).
Exception: Where the child is engaged in an adult activity, the reasonable person standard applies.

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7
Q

Duty: Standard of Care

The Professional Standard

A

Standard: A reasonable professional in the same or similar communities.
Specialists: we take their expertise into account –raises standard.

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8
Q

Duty: Standard of Care

Common Carrier/Innkeeper Standard

A

Standard: Liability for even slight negligence.

Only applies to passengers or guests– half the time on bar exam its neither.

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9
Q

Duty: Standard of Care

Owner/Occupier Standard

A
  1. Make sure D is an owner/occupier or in “privity” with one
  2. Determine if the injury occurred on or off land.
  3. (assuming injury on the land). Threshold inquiry– undiscovered trespasser: no duty owed to him OR discovered TP/Licensee/Invitee–determine what caused injury (activity or dangerous condition).
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10
Q

Duty: Standard of Care

The Activity Standard

A

This is an ordinary negligence case and P’s status is irrelevant. The standard is the reasonable person standard.

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11
Q

Duty: Standard of Care

The Dangerous Condition Standards

A

P’s status is relevant because the o/o is responsible for (i)different types of dangerous conditions depending on (ii) type of P.

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12
Q

Duty: Standard of Care- type of P

Discovered/Anticipated Trespasser

A

Responsible for Artificial conditions involving a risk of serious injury the o/o knows of.

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13
Q

Duty: Standard of Care - Type of P

Licensee

A

On land for his/her own purpose eg. door to door salesman (includes social guests**)
Responsible for: Dangerous conditions the o/o knows of

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14
Q

Duty: Standard of Care - Type of P

Invitee

A

On land for o/o purpose. eg. business, public invitees
Responsible for Dangerous condition the o/o knows or should have known of.
This means the o/o must make a reasonable inspection of the property for the benefit of invitees.

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15
Q

Duty: Discharge of Duties

A

These duties may be discharged by either warning of or making safe the dangerous condition. On exam–look for adequate warning given.

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16
Q

Duty: Very Obvious Dangerous conditions

A

NO liability

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17
Q

Infant Trespassers/Attractive Nuisance Doctrine

A

The child must be able to show that he/she did not understand the risk involved.
Has NOTHING TO DO WITH ATTRACTIVENESS.

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18
Q

The Statutory Standards

A

Statutory standard wins over reasonable person standard (assuming both can be applicable).
TEST: (i) P must fall within protected class (ii) Statute must be designed to prevent this kind of harm.

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19
Q

Effect of Statute being Inapplicable

A

The lawsuit is not over. Rather you must apply a different standard (usually reasonable person).

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20
Q

Effect of Non-compliance with an Application Statute

A

Negligence per se
There will be a conclusive presumption of negligent conduct on the D’s part.
Doesn’t mean that the D is automatically liable.
Exception: Excuse for non-compliance
1. Compliance would be more dangerous
2. Compliance would be impossible

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21
Q

Effect of Compliance with an Applicable Statute

A

This will not necessarily establish due care if the circumstances require more.
This arises on exam as D’s argument

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22
Q

Miscellaneous Duty Problems

Negligent Infliction of Emotional Distress

A
  1. P must suffer physical injury. Shock is enough
  2. P must be within the target zone of D’s negligent conduct.
    Exception: P can recover if he/she is (i) close relative and (ii) perceived the injury.
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23
Q

Miscellaneous Duty Problems

Affirmative Duty To Act

A 
No affirmative duty to act.
Exceptions:
1. Special Relationship Between Parties
2. Duty to Control Third Persons--> Right and ability to control and know or should know it's required
3. Assumption of Duty to Act by Acting
4. P's Peril Due to D's Negligence
24
Q

Breach: What is Breach?

A

Negligent Conduct

25
Q

Breach: How do you determine if there has been a Breach?

A

By seeing whether or not the D has met the standard of care.

26
Q

Breach: Res Ipsa Loquitor– How do you know when RIL is at issue?

A

The fact pattern will indicate that the P does NOT have enough solid evidence to establish negligent conduct on D’s part.

27
Q

Breach- RIL: The Probability Inference Test

A
  1. Inference of Negligence: This usually would not happen unless someone was negligent
  2. Negligence is attributable to D: Evidence connects D with negligence. (showing the instrumentality causing injury was within D’s EXCLUSIVE CONTROL)
  3. P not Contributorily Negligent.
28
Q

The Res Ipsa Results Rules

A
  1. If RIL applies doesn’t mean P wins.
  2. P’s case will survive a motion for a directed verdict and will go to the jury with an inference of negligence.
  3. Then it’s up to jury to accept or reject inference.
29
Q

Causation: Actual Cause (causation in fact)

A

This is the true causation part of analysis. You simply ask: Did the D’s negligent conduct actually cause the injury?

30
Q

Actual Causation: Three Tests:

A
  1. But For (basic): But for D’s negligent conduct, would this injury have occurred?
  2. Substantial Factor Test: D’s conduct was substantial factor in causing injury.
  3. Alternative Causes Test: Two or more negligent Ds but uncertainty as to which caused injury. Shift BOP to Ds to show which one caused it. If they cannot succeed then they will both be liable.
31
Q

Proximate Cause (Legal Causation)

A

It is a way for the jury to let a negligent defendant who actually caused an injury off based on lack of foreseeability.
Direct Cause: Uninterrupted chain of events between negligent act and injury.
Indirect Cause Case: Between negligent act and injury there is an intervening force which combines with prior act to cause injury.

32
Q

Rules of Proximate Causation

A
  1. If the result was unforeseeable let the defendant go!!
  2. If the result was foreseeable hold the defendant liable.
    Exception to 2.
    In an indirect cause case if the intervening force was an unforeseeable intentional tort or crime defendant will not be held liable even though the result was foreseeable.
33
Q

Egg-Shell Thin-Skulled P

A

D’s negligence caused contact with P’s head. Because of egg-shell condition there were severe injuries instead of a mere bruise.
NOT unforeseeable result case. It is only necessary that one be able to foresee an injury, not the extent of the injury.

34
Q

Damages

A

Property Damage Rule: You take your P’s property as you find it.
1. There is a duty to mitigate. 2.Collateral Source Rule: damages not reduced because of payments from other sources.
Punitive Damages: Generally not available against a negligent defendant.

35
Q

Defenses

A

I. Contributory Negligence
II. Comparative Negligence
III. Assumption of Risk

36
Q

Contributory Negligence: Type One

A

Knowing Contributory Negligence/Implied Assumption of Risk

37
Q

Contributory Negligence: Type Two

A

Unknowing Contributory Negligence

38
Q

Implied Assumption of Risk

A
  1. One knew of the risk (perceived it)
  2. One voluntarily proceeded in the face of it.

Bar exam trick: To recognize the fact pattern where both contributory negligence and implied assumption of the risk are available it is where the P (i) unreasonably (ii)voluntarily takes on a (iii) known risk.

39
Q

Exceptions to Implied Assumption of Risk

A

(i) No other viable alternative

ii) Emergency (P’s or Another’s

40
Q

Contributory Negligence State

A

Any contributory negligence completely bars recovery

41
Q

Comparative Negligence State

A

Contributory negligence reduces the recovery in comparative negligence state.
**Partial Comparative Negl. state there is no recovery if one was more negligent than the other party. In a “pure” comparative negligence state, even the more negligent party can recover.

42
Q

Implied Assumption of the Risk

Contrib. v. Comparative

A

Contributory: Yes
Comparative: No

43
Q

Last Clear Chance Doctrine

A

A Contributorily negligent P successfully contends that after his/her negligence, defendant still had the last clear chance to avoid the accident and, thus, contributory negligence should be disregarded as a defense.
Contrib: Yes
Comp: No

44
Q

Defendant’s Tortious Conduct was reckless

A

Contrib: Contrib Neg. not a good defense
Comp: Contrib Neg. will reduce the amount

45
Q

KANSAS: Duty owed to Discovered Trespassers

A

NO higher duty toward discovered trespassers, only to avoid injury by willful, wanton, or reckless conduct

46
Q

KANSAS: “Attractive Nuisance” Doctrine

A

KS still requires that the child be lured onto the land by the nuisance.

47
Q

KANSAS: Duty owed to Licensee

A

KSC has merged the licensee category with the invitee category by holding that licensee, like invitees, should receive a full duty of Reasonable Care.
MODERN TREND: RC standard to both BUT retains CL rules for trespassers.

48
Q

KANSAS: Negligence Per Se

A 
Must be class of person and class of risk foreseeable 
AND
P must show that the drafters of the statute intended to create a private cause of action.
49
Q

KANSAS: Negligent infliction of Emotional Distress (addition to above)

A

KS: P MUST suffer some ACTUAL physical injury or impact as a result of the D’s conduct (vomiting without seeking counseling or medical help is insufficient to demonstrate significant physical injury).

50
Q

KANSAS: Affirmative Duties to Act

*GR: no duty to act

A

KSC has recognized a duty of care to protect third parties from the dangers presented by release of an involuntarily committed mental patient — court refused to extend negligent release action to voluntarily committed mental patients.

51
Q

KANSAS: Good samaritan statutes

A

KS, any health care provider rendering emergency care at the scene of an accident is liable only for gross negligence or willful or wanton conduct

52
Q

KANSAS: Causation

*Joint Cases–Substantial Factor Test

A

KS uses the substantial factor test to allow a cause of action for “loss of chance” in a wrongful death action.
A patin with a 50% or less chance of survival before the medical treatment can recover if the doctor’s malpractice substantially reduced the patient’s chance of survival.

53
Q

KANSAS: Damages

*Personal Injury

A

KS imposes a cap of $250K on damages for noneconomic loss, such as pain and suffering
*the cap does NOT apply to damages for economic loss.

54
Q

KANSAS: Punitive Damages

A

An award of only nominal compensatory damages is not sufficient to justify an award of punitive damages.
By statute, punitive damages generally may not exceed the D’s highest annual gross income during the past five years or $5 million, whichever is the lesser amount [Kan. Stat. Ann. Sec. 60-3701(e)]

55
Q

KANSAS: Defenses to Negligence

* Partial Comparative Negligence

A

KS adheres to the 49% system of determining comparative negligence. Under the KS statute, the P may recover a percentage of his damages ONLY if his fault was LESS than the D’s fault.

56
Q

KANSAS: Defenses to Negligence

* Implied Assumption of Risk

A

Use of IAR as a complete defense is limited in KS to cases involving an employer-employee relationship.
All other situations are analyzed as comparative negligence.

57
Q

KANSAS: P’s failure to Use Seat Belt

A

Evidence of P’s failure to use seat belt is NOT admissible for the purpose of determining comparative negligence or mitigation of damages.
HOWEVER– it is admissible for other purposes, such as to establish causation (eg. in product liability type case).

Torts (6 decks)

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