NEGLIGENCE Flashcards
Duty (2 questions)
- to whom do i owe a duty?
2. how much duty is owed?
How much duty is owed?
reasonable person under similar circumstances
- DEFAULT STANDARD (sometimes higher, lower, or no duty)
- stupidity, mentally challenged, mentally ill→ NO EXCUSE
TWO EXCEPTIONS:
1. D has customized or super skill/knowledge
Ex. Dave driving around corner in his neighborhood aware of 40 yrs
2. Ds physical characteristics incorporated if
Ex. reasonably prudent BLIND person
6 Special DUTY scenarios
- children
- professionals
- premises liability
- statutory (negligence per se)
- no duty to act
- NIED
Children’s Duty
- < 5→ ZERO DUTY (no negligence)
- 5-18→ care of a hypothetical child of similar age, experience, and intelligence, acting under similar circumstances→ SUBJECTIVE (pro defendant)
-EXCEPTION: child engaged in an adult activity, apply DEFAULT
Ex. operating car, truck, motorcycle
Professional’s Duty ((FLORIDA))
exercise skill and knowledge normally possessed by other members of that profession in good standing
- what is ACTUALLY done by others in field
- CUSTOM sets standard
- NATIONAL standard, not community
((FLORIDA no damage cap in MED MAL))
Premises Liability (solve by…)(2)
- fixing problem and/or
2. giving warning
Unknown Trespasser (premises liability)
NO DUTY (not detected within 24 hrs)
Known or Anticipated trespasser (premises liability)
“KNOWN MAN MADE DEATH TRAPS”
- artifical
- highly dangerous
- concealed to P
- known to D
Licensee (premises liability) ((FLORIDA))
enter w/ permission but do not confer economic benefit on possessor
“ALL KNOWN TRAPS”
- concealed to P
- prior knowledge of hazard
((FLORIDA))
- No LICENSEE CATEGORY, SOCIAL GUESTS are “licensees by invitation”
- EVERY OTHER LICENSEE (hunter, girl scout) treated like discovered trespassers
- No TORT LIABILITY for person trying to commit felony on your property
Invitee (premises liability) ((FLORIDA))
enter w/ permission but DO confer economic benefit on possessor OR property open to the public
“ALL REASONABLY KNOWABLE TRAPS”
- concealed to P
- knew in advance or COULD HAVE upon reasonable inspection
((FLORIDA))
-No TORT LIABILITY for person trying to commit felony on your property
Special case involving premises liability (2) ((FLORIDA))
- firefighters/police– assume risk, no recovery
((FLORIDA–treated as invitees, NO FIREFIGHTER/POLICE RULE) - trespassing children
- possessor must exercise DEFAULT care to protect children
- “what are the odds of children trespassing?” HIGH or LOW
- “attractive nuisance doctrine”
- child comes to play with A and hurt by B
((FLORIDA))
Child comes to play with A must be HURT BY A
Negligence Per Se (P may use criminal statute as criminal duty if 2 part test)
- class of person stat seeks to protect
- accident in class of risks stat seeks to protect
EXCEPTIONS:
1. statutory compliance danger > violation (don’t use even if two part test met)
- compliance impossible (ex. mental incapacity)
NO DUTY TO ACT AFFIRMATIVELY (one of special duty scenarios)
NO DUTY TO RESCUE SOMEONE IN PERIL
EXCEPTIONS:
- pre existing relationship (innkeeper, common carrier)
- D caused peril
- these two TRIGGER duty to act
- *act reasonable under circumstances, no requirement to put oneself in danger
- **if not duty but attempt and do so negligently- LIABLE
Negligent Infliction of Emotional Distress (one of special duty scenarios) “Near miss cases” ((FLORIDA))
“near miss cases”
- Ds negligence placed P in a physical zone of danger
- as result of being upset, had subsequent, physical manifestations
((FLORIDA) (3) SUPER CLOSE to zone of danger and P suffers casually connected, clearly discernible, physical impairment following the trauma)
Breach (2)
- what they did wrong? -FACT
- affirmative act
- failure to act - why is it wrong?
- “P will allege this is unreasonable because..”
Cause in Fact
- “but for test”
- “substantial factor” -if either act could have caused the harm by itself” (ex. two neg fires)
- “unascertainable cause”
- two shooters, one bullet
- D burden of proof
**ALL 4, COURTS DECIDED P WOULD WIN:
dealing with proximate causation
- Intervening negligent medical treatment
• D liable, and doctor liable for his conduct as well - Intervening negligent rescue
• Negligent driver liable - Intervening reaction or protecting forces
- Subsequent disease or accident
Damages (negligence and all torts)
“eggshell rule”
-liable for ALL even if surprisingly great in scope
Comparative Negligence ((FLORIDA))
D offers evidence of Ps own negligence, P loses percentage of own fault
((FLORIDA IS A PURE COMPARATIVE NEGLIGENCE JURISDICTION AND FAILURE TO WEAR A SEATBELT WHEN REQUIRED TO DO SO BY LAW MAY BE CONSIDERED AS EVIDENCE IN ANY CIVIL ACTION))
((joinder not necessary, percentage of fault calculated regardless of whether or not they are joined in the suit))
Tavern-keepers ((FLORIDA))
not liable for damages caused by intoxicated person
EXCEPTIONS:
- to a minor and injury/damage results
- serve to addict and injury/damage results
- if knows or should have known of the likelihood of disorderly conduct of 3rd parties in general and he fails to do anything about it
Negligent Infliction of Emotional Distress (one of special duty scenarios) “Bystander Cases” ((FLORIDA))
directly, seriously INJURES or KILLS a nonparty and P is sad as a result
- must be close family members
- see it as it happens, contemporaneous observation
((FLORIDA)) can recover if you come on scene if victim is still there, EVEN if you didn’t see it)
Negligent Infliction of Emotional Distress (one of special duty scenarios) “Relationship Cases”
business or commercial relationship
-nature of the business tells us P will be upset, “highly foreseeable”
-Medical patient-medical laboratory
Ex. STD test, they tell you that you have aids
Ex. cremate when you asked for normal funeral
