Negligence

Question 0

The general rule for duty is:

Answer 0

When defendant is engaged in affirmative risk-creating conduct causing personal injury or property damage, a duty is owed to a foreseeable plaintiff.

Question 1

What are the elements of negligence?

Answer 1

Duty
Breach of duty
Causation (actual and proximate)
Damages

Question 2

If a plaintiff is not a foreseeable plaintiff, then

Answer 2

No duty is owed.

Question 3

True or False: A rescuer is owed an independent duty.

Answer 3

True.

Question 4

Nonfeasance is:

Answer 4

The failure to act.

Question 5

Misfeasance is:

Answer 5

Affirmative risk-creating conduct or negligent omission

Question 6

A duty to rescue or aid is created when:

Answer 6

Defendant’s tortious conduct creates the need for rescue.

It is also created when the person in need of help relies on the rescuer causing the person not to seek help elsewhere.

Question 7

Once a person undertakes to rescue or aid another, he or she must:

Answer 7

act reasonably.

Question 8

Under a Good Samaritan statute, those who do rescue:

Answer 8

Will not be liable just for negligence. The rescuer must have breached a higher standard, such as reckless, gross negligence, or intentionally tortious behavior.

Question 9

What kind of relationship will create a duty to rescue or aid?

Answer 9

Special relationship, such as parent/child, babysitter/child, common carrier/passenger; innkeeper/guest; captain/passenger

Question 11

Does a person have a duty to control the acts of a third party?

Answer 11

No, unless there is a special relationship, an applicable Dram Shop Act regarding providers of alcohol in the jurisdiction, or negligent entrustment (giving a dangerous object to someone he knows/should know is incapable of handling).

Question 12

There is no duty to protect unless:

Answer 12

Special relationship, such as Landlord/Tenant or Business/Patron.
This requires a high level of foreseeability and require plaintiff to put on evidence of similar prior act so that conduct is foreseeable.

Question 13

A defendant who is a governmental entity will be treated as any other defendant if:

Answer 13

The government entity is acting in a proprietary function (acting in an area traditionally occupied by private entities).

Question 14

When a governmental entity is acting in a discretionary activity (using judgment and allocating resources):

Answer 14

the courts will not find a duty.
Ex: P sues city after she was injured at an intersection where no stop sign is installed. City will win because city has discretion on where to place stop signs.

Question 15

When the government is acting in a ministerial function:

Answer 15

courts will find a duty; once the governmental entity has undertaken to act, it must do so non-negligently.
Ex: P sues city after she was injured at an intersection where the city failed to properly install the stop sign. P could likely recover.

Question 16

Generally, when a gov’t agency (police, fire dept) is sued for failing to provide an adequate response, courts will find no duty. Exceptions:

Answer 16

If the government creates a special relationship or if the the government increases danger to the person.

Question 17

When a defendant is a utility, courts will often require:

Answer 17

a contractual relationship between P and the utility.

Question 18

A direct action for emotional distress requires that:

Answer 18

Plaintiff is:

1) in the “zone of danger” - area where one is at risk of physical harm
2) near miss of physical injury
3) physical manifestation of the emotional distress (such as headaches, heart attack)

Question 19

Exceptions for emotional distress recovery:

Answer 19

1) Telegram informing wrongly about the death of a loved one - no physical manifestation required to recover
2) Mishandling of a corpse - no zone of danger and no physical manifestation required.

Question 20

Most courts require for a bystander action for neg. infliction of emotional distress (NOT THE MBE RULE):

Answer 20

1) was located near the scene of an accident
2) suffered severe emotional distress
3) had a close relationship with the victim

Question 21

MBE Rule for bystander action for NIED:

Answer 21

Zone of danger test applies

Question 22

Wrongful conception applies where the injury is:

Answer 22

a healthy but unwanted child.

Damages usually include cost associated with birth. No damages for cost of raising child and no emotional distress.

Question 23

Wrongful birth:

Answer 23

When an unhealthy child has been born. Doctor failed to inform parents of a possible birth defect.
Many courts will not recognize a claim for wrongful birth. Some courts will award the extraordinary costs of having a child with special needs, but the jury may offset by the benefit of having a child.

Question 24

Wrongful life:

Answer 24

Child’s action for having been born unhealthy.
Most courts will not award damages for wrongful life. Minority of courts will award damages for the costs of the child’s special needs after the age of majority.

Question 25

An invitee is:

Answer 25

a person who enters onto D’s land at D’s express or implied invitation, and who enters for a purpose relating to D’s interest or activities.

Question 26

Business vs. public invitees:

Answer 26

Business invitee is an invitee who enters onto D’s land for a purpose related to D’s business activities or interests.
Public invitee is a member of the public who enters onto D’s land for a purpose as to which land is held open to the public (airports, churches, etc)

Question 27

To invitees, a defendant owes a duty:

Answer 27

to exercise reasonable care to prevent injuries to invitees caused by activities conducted on his land. (Not strict liability).

Question 28

A licensee is:

Answer 28

a person on the land with express or implied consent of the landowner and does not enter for a purpose benefiting the defendant or the defendant’s activities (Ex: visiting relatives, social guests, and door-to-door salesmen)

Question 29

To licensees, a defendant owes a duty:

Answer 29

to exercise reasonable care to protect them from injury arising from activities conducted by the defendant or on the defendant’s behalf. There is also a duty to warn of any known concealed dangers

Question 30

A trespasser is:

Answer 30

Someone who enters onto D’s land without D’s permission or without privilege to enter.

Question 31

To trespassers, a defendant owes a duty:

Answer 31

to avoid willful or wanton harm.

Question 32

For a known trespasser, most jurisdictions will require D:

Answer 32

to exercise reasonable care to protect known trespasser from injuries deriving from activities conducted on his land.
D must exercise reasonable care to warn a known trespasser of hidden dangers.

BUT - no duty to protect a known trespasser from injuries due to NATURAL conditions on the land

Question 33

For an unknown trespasser:

Answer 33

no duty of care owed and no duty to inspect the land to discover unknown trespassers

Question 34

Latent defects (Landlord/Tenant) - when tenant is unaware of dangerous natural or artificial conditions and the landlord is aware:

Answer 34

the landlord has a duty to warn the the tenant or repair.

Question 35

In general, a defendant breaches a duty to the plaintiff if he fails to conduct himself:

Answer 35

as a reasonable person would in the same circumstances

Question 36

The reasonable person standard is objective, meaning that:

Answer 36

the standard is applied as though the reasonable person possessed the experience, knowledge and mental capabilities of an average member of the community, even if defendant did not himself possess it

Question 37

For children, the standard of care is:

Answer 37

what a reasoanble child of the same age, education, intelligence, and experience would have done.

Question 38

Children who engage in adult activities are held to a standard of care that:

Answer 38

conforms to the adult standard of care

Question 39

Negligence per se - defendant’s violation of a criminal statute has the effect of establishing the standard of care only when all of the following 3 are present:

Answer 39

1) the injury caused by defendant’s conduct is the type that the statute was intended to prevent;
2) plaintiff is a member of the class intended to be protected by the statute; and
3) defendant’s violation of the statute is not excused

Question 40

Non-disclosure to a plaintiff/patient about the risks and alternatives of a proposed medical procedure or treatment is typically treated as:

Answer 40

a form of malpractice

Question 41

Res ispa loquitur requires plaintiff to show that:

Answer 41

1) The event that caused plaintiff’s injury was one which would not ordinarily occur in the absence of negilgence;
2) it is more likely than not that it was defendant’s negligence that was responsible for the injury-causing event; and
3) plaintiff was not responsible for the event that caused injury

Question 42

Defendant’s conduct was the cause-in-fact of an event if:

Answer 42

that event would not have occurred but for the existence of the conduct (but for test)

Question 43

A defendant’s conduct also is the cause-in-fact of plaintiff’s injury if that conduct was:

Answer 43

a substantial factor in bringing about the injury (substantial factor test).

This accounts for the situation where the conduct of two or more defendants results in injury to plaintiff, and each individual defendant’s conduct, taken alone, would have been sufficient to directly cause the injury.

Question 44

Joint and several liability applies where:

Answer 44

There are multiple negligent parties, each of whom contributes to plaintiff’s indivisible harm.

Plaintiff can recover fully against any of the defendants and those defendants can sue each other for contribution.

Question 45

In addition to being a cause-in-fact of plaintiff’s harm, the defendant’s conduct must also be the:

Answer 45

proximate, or legal, cause of the injury.

Question 46

A defendant is generally still liable, even if his actions result in:

Answer 46

1) Unforeseeable extent of harm;
2) unforeseeable type of harm; or
3) unforeseeable manner of harm

Question 47

What is a superseding cause?

Answer 47

An unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury, and thus relieves the original tortfeasor of any further liability.

Question 48

Examples of unforeseeable superseding causes:

Answer 48

1) Acts of God (lightning, floods, etc)
2) Intentional torts of 3d parties
3) Criminal acts of 3d parties
4) Extraordinary forms of negligent conduct

Question 49

A defendant will be held liable for harm caused by foreseeable intervening forces, including such things as:

Answer 49

1) Negligent rescue
2) Subsequent medical malpractice
3) Subsequent disease
4) General negligence

Question 50

Damages for negligence:

Answer 50

Plaintiff must prove actual damages.

Nominal damages not allowed

Punitive damages generally not allowed

Question 51

Contributory negligence:

Answer 51

Conduct on the part of the plaintiff that falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with defendant’s negligence in bringing about plaintiff’s harm

Will bar the plaintiff from recovery, but this is a minority rule.

**ONLY USE on exam if the fact pattern says it is a Contributory Negligence JX

Question 52

Last Clear Chance Rule:

Answer 52

In contributory negligence, the LCC Rule allows a negligent plaintiff to still recover if he can show the defendant had the last clear chance to avoid the injury and failed to do so.

Question 53

Comparative Negligence:

Answer 53

Where plaintiff’s negligence has contributed to her own injuries, the total damages caused by defendant may be apportioned based upon a determination of the relative fault of each party.

Question 54

Pure Comparative Fault:

Answer 54

A plaintiff can recover damages even if P’s percentage of fault is greater than Ds

Question 55

Modified Comparative Fault:

Answer 55

Plaintiff can only recover if P’s negligence is less than Defendants

Question 56

Where there are 2 or more defendants who are not jointly liable, two different systems of comparative negligence exist:

Answer 56

1) Aggregate system: P does not recover anything if his responsibility exceeds the total percentage responsibility of all the defendants combined.
2) Individual equality system: P does not recover anything if his responsibility exceeds that of any single defendant

Question 57

Assumption of the Risk:

Answer 57

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

(Think sports)