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GA Bar Prep > Negligence > Flashcards

Negligence Flashcards

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1
Q

Negligence Prima Facie Case

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

For duty you must have: (2)

A
  1. A foreseeable plaintiff (P will almost ALWAYS be foreseeable on bar)
  2. A standard of care
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3
Q

Foreseeable P’s a matter of LAW (2)

A
  1. Rescuers

2. Viable fetuses

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4
Q

Reasonable person and disabilities

A

D’s physical characterisitcs WILL be taken into account - D must act in a manner reasonable to that which someone who had the same handicap would act.

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5
Q

Children’s Standard:

A

Child of like age, intelligence, and experience. This is a subjective standard. In GA a child under 13 cannot be liable EVEN IF participating in an adult activity.

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6
Q

The Professional Standard: A reasonable professional must exercise:

A

the degree of care and skill ordinarily exercised under similar conditions by persons employed in the same or similar professions as determined by a national standard. (Excluding facilities)
Specialists expertise is taken into account and they are held to an even higher standard.

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7
Q

The Common Carrier/Innkeeper Standard

A

They will be held liable for even SLIGHT negligence. CAREFUL!
To get the standard of care you must be a passenger or a guest.
But in GA this liability may be avoided in respect to property losses by posting a notice.

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8
Q

Duty of Care to Discovered Trespasser (3)

A

Responsible for:

  1. Artificial conditions,
  2. Involving a risk of SERIOUS injury,
  3. That the o/o knows of.
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9
Q

Duty of Care to a Licensee (2)

A

Responsible for:

  1. Artificial AND natural conditions,
  2. That the o/o knows of.
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10
Q

Duty of Care to an Invitee (2)

A
  1. All dangerous conditions,

2. That the o/o SHOULD know of.(Must make reasonable inspection)

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11
Q

Negligence per se: In GA, violating criminal statues enacted before1 July 10:

A

There will be a conclusive presumption of negligent conduct on the D’s part.
For criminal statutes enacted after that the right to a civil action must be expressly stated in the statute for negligence per se.

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12
Q

2 Exceptions for compliance with a statute

A
  1. Compliance would be more dangerous.

2. Compliance would be impossible.

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13
Q

2 elements to be able to apply statutory standards of negligence (negligence per se)

A
  1. P must fall within the protected class.

2. Statute must be designed to prevent this type of harm.

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14
Q

Negligent infliction of emotional distress P must show either:

A
  1. Some impact resulting in a physical injury or non-physical personal injury, or
  2. Conduct was malicious, willful, or wanton
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15
Q

Infant trespasser: Duty to

A

warn or make safe artificial conditions if foreseeable risk to child outweighs expense of eliminating danger.

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16
Q

Res Ipsa Loquitur: Applies ONLY to ordinary negligence cases (3)

A
  1. Accident that caused injury is not type that occurs w/o negligence.
  2. Negligence is attributable to D (usually by showing exclusive control)
  3. Injury was not P’s fault.
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17
Q

Actual cause

A

Requires P to show that he would not have been injured BUT FOR the D’s act.

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18
Q

Proximate cause (Legal Causation)

A

If one of the reasons that make a D’s act negligent is a greater risk of of a particular harmful result occuring, and that harmful result does occur, D is generally liable.

A person is only liable for those harms that are normal incidents of and w/i the increased risks caused by his acts.

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19
Q

Direct cause cases occur when there is an:

A

uninterrupted chain of events from D’s negligence to P’s injury: D is liable for ALL foreseeable results (and almost all harmful results are foreseeable.)

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20
Q

Indirect cause cases

A

An intervening force comes into motion after the time of D’s negligent act and combines with it to cause injury to P.
If D’s negligence created a foreseeable risk that an intervening force would contribute to P’s harm, D is liable for harm caused.

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21
Q

Damages: Injured party entitled to compensation for all: (2)

A
  1. economic loss. (special damages)
  2. past and future non-economic losses (general damages)
    Include: medical expenses, lost earnings, pain and suffering, impaired future earning capacity, and property damage.
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22
Q

Modified comparative negligence (GA STANDARD)

A

P may not recover if she is 50% OR MORE responsible for the injury or damages claimed.

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23
Q

Res ipsa loquitor

A

injury is a type that would not normally occur absent negligence and it usually occurs because of negligence of the manufacturer.

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24
Q

Products liability case based on negligence

A

P must show negligent conduct by D leading to the supplying of a defective product by the D.

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25
Q

Attractive Nuisance (4)

A
  1. Dangerous condition present on the land of which the owner is or should be aware;
  2. Owner knows or should know that kids are in the vicinity of the dangerous condition;
  3. Condition is likely to cause injury, (i.e., is dangerous, because of the child’s inability to appreciate the risk); and
  4. Cost of fixing the situation is slight compared with the magnitude of the risk.
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26
Q

To prove breach of duty in a products liability action, the plaintiff must show: (2)

A

(i) negligent conduct by the defendant leading to

(ii) the supplying of a defective product by the defendant

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27
Q

Comparative Negligence

A

In every case where contributory negligence is shown, the trier of fact weighs plaintiff’s negligence against that of defendant and reduces plaintiff’s damages accordingly.

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28
Q

For assumption of risk to be available as a defense, the plaintiff must have (2)

A
  1. known of the risk and

2. voluntarily assumed it.

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29
Q

Dependent Intervening Forces are:

A

normal responses or reactions to the situation CREATED BY defendant’s negligent act.
Dependent intervening forces are almost always foreseeable.

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30
Q

6 Common dependent intervening forces:

A
  1. Subsequent Med/Mal
  2. Negligence of rescuers
  3. Efforts to protect person or property.
  4. “Reaction” forces
  5. Subsequent disease
  6. Subsequent accident
31
Q

Independent Intervening Forces also operate on the situation created by defendant’s negligence but are:

A

independent actions rather than natural responses or reactions to the situation.
Independent intervening forces may be foreseeable where defendant’s negligence increased the risk that these forces would cause harm to the plaintiff.

32
Q

3 common independent intervening forces:

A
  1. Negligent acts of third persons.
  2. Criminal/Intentional Torts of third persons
  3. Acts of God.
33
Q

Standards of care: General rule is:

A

Ordinary care

34
Q

Gross negligence is:

A

the absence of slight diligence.

35
Q

Three classes of P must prove gross negligence: (or the D is only required to provide slight diligence)

A
  1. Releasees??
  2. Bailments for the sole benefit of the bailor
  3. Naked depositories.??
36
Q

Emergency medical care in GA. A P must prove:

A

GROSS NEGLIGENCE by CLEAR AND CONVINCING evidence.

37
Q

Absence of extraordinary care is called:

A

slight diligence.

38
Q

Ordinary care: The amount of care that would be taken by a:

A

Reasonably prudent person in like or similar situations.

39
Q

To be liable for negligence in GA a child must be at least

A

13

40
Q

To be liable for negligence in GA a child must be at least 13, EVEN IF:

A

she’s engaged in an adult activity. She STILL can’t be held liable.

41
Q

Professionals in GA apply the locality standard (not the national standard, but only for:

A

facilities.

42
Q

GA special pleading req’t for professional negligence actions. Requires P attach to the complaint: (3)

A
  1. an affidavit of an expert,
  2. specifying at least one act of negligence on the part of D, and
  3. a factual basis for it.
43
Q

In GA informed consent is only required for:

A

diagnostic and surgical procedures.

44
Q

In GA if property is made available to the public at no charge for RECREATIONAL PURPOSES, the owner cannot be liable for negligence only for:

A

willful and wanton misconduct.

45
Q

GA provides that a tort cause of action WILL NOT be implied from:

A

the violation of a criminal statute enacted after 1 Jul 10.

46
Q

Statutory standards of care: Clearly stated specific duty may apply if: (2)

A
  1. P is w/i the protected class, and

2. the statute was designed to prevent the type of harm suffered by P.

47
Q

Statutory standards of care: Two Exceptions:

A
  1. Compliance w/ statute is MORE dangerous than violating the statute.
  2. Compliance is impossible under the circumstances.
48
Q

Statutory standards of care more often referred to as:

A

negligence per se.

49
Q

Negligence per se: In GA no tort cause of action is implied from the violation of any civil or criminal statute. Liability must flow from: (3 sources)

A
  1. A public or common law tort duty.
  2. A private duty (K created), or
  3. Express statutory authorization.
50
Q

There is generally ________ to rescue.

A

No duty.

51
Q

Times where there IS an affirmative duty to rescue: (4 cases) SCRAP

A

Statutory
Control, duty to id D has ACTUAL ability and AUTHORITY to control (Psych wards)
Relationship (special like spousal, parent child…)
Assumption of duty by acting
Peril (if one causes)

52
Q

Affirmative duty to rescue: Special relationships: (3)

A
  1. Parent/Child - familial relationships.
  2. Common carriers/innkeepers.
  3. Invitors
53
Q

After volunteering to rescue, you must do so in a non-negligent way. Examples of negligent voluntary rescue acts: (4)

A
  1. If response is unreasonable.
  2. If it has increased the danger
  3. Misled the P into believing there was no danger.
  4. Deprived P help of other services.
54
Q

Negligent inflictions of emotional distress: General rule:

A

No duty, no liability.

55
Q

Negligent inflictions of emotional distress: GA Impact rule:

A

requires a physical impact on the person of P, resulting in PHYSICAL injury or other personal injury besides emotional distress.

56
Q

Negligent inflictions of emotional distress: GA does not permit the recovery of a bystander who witnesses the injury of another. Actionable mental distress must result from:

A

impact on, or conduct directed toward P himself.

57
Q

Negligent inflictions of emotional distress: Common force rule: The bystander may only recover for emotional distress if: (2)

A
  1. s/he is a parent who witnesses the DEATH of her child, AND
  2. is also herself impacted by the common force.
58
Q

In GA Res ipsa loquitur only applies in:

A

ordinary negligence cases. It may not be used to establish a prima facie case for gross negligence.

59
Q

In GA res ipsa loquitur does not apply in:

A

med mal cases (they require a showing of gross negligence) It is presumed that medical or surgical services were performed in a skillful manner. THAT’S FUCKED UP.

60
Q

Actual Causation: Substantial factor test: (3)

A
  1. Where several causes bring about injury, and
  2. any one alone would have been sufficient to cause the injury,
  3. D’s conduct IS cause in fact if it was a SUBSTANTIAL FACTOR in causing the injury.
    ??
61
Q

When to use the substantial factor test?

A

Cases with multiple Ds and commingled causes of injury.

62
Q

Actual Causation: Burden shifting: (Alternative causes approach)

A

Applies when there are two acts only one of which causes injury, but it is not known which one. The burden of proof shifts to D, and each must show that his negligence is not the actual cause.

63
Q

Use burden shifting (alternative causes) in cases:

A

with multiple D’s and unknown causes.

64
Q

Cases in which an intervening cause will almost never cut off liability: (4)

A
  1. Subsequent med mal.
  2. Negligent rescue
  3. Reaction forces
  4. Subsequent diseases or accidents.
65
Q

Cases in which an intervening cause will NOT cut off liability IF D can anticipate the intervening cause: (3)

A
  1. Negligence of 3d party.
  2. Criminal conduct
  3. Acts of god(s)
66
Q

In GA, w/ cases that involve intervening criminal conduct, GA usually requires evidence of:

A

substantially similar prior criminal activity.

67
Q

In GA what does substantially similar prior criminal activity MEAN?

A

Crimes against PROPERTY cannot be used to show foreseeability of crimes against PERSONS, and vice versa.

68
Q

Defenses to Negligence: Contributory negligence:

A

P’s failure to use the relevant degree of care for his own safety.

69
Q

Defenses to Negligence: Assumption of the risk: Emergency situations:

A

DESTROY voluntariness.

70
Q

Defenses to Negligence: When it exists comparative negligence destroys all other affirmative standard of care defenses EXCEPT:

A

Assumption of risk.

71
Q

Proximate cause is a limitation on D’s liability for:

A

unforeseeable or unusual consequences or occurrences following D’s act.

72
Q

Independent intervening forces may be foreseeable where:

A

defendant’s negligence increased the risk that these forces would cause harm to the plaintiff.

73
Q

Three different tests for causation in fact: SAB

A

Substantial factor test
Alternative causes (multiple defendants)
“But-For” test

GA Bar Prep (24 decks)

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