Negligence

Question 1

Prima facie case for negligence

Answer 1

1) a duty on the part of defendant to conform to a specific standard of contact for protection of plaintiff against an unreasonable risk of injury
2) a breach of that duty by defendant
3) the breach is the actual and proximate cause of plaintiff’s injury
5) damage

Question 2

Duty of care

Answer 2

A duty of care is owed to all foreseeable plaintiffs.

Extent of the duty is determined by the applicable standard of care

Question 3

What is a foreseeable plaintiff

Answer 3

A plaintiff is foreseeable if she was located in the foreseeable zone of danger

Question 4

The reasonable person standard of care

Answer 4

The reasonable person standard is an objective standard meaning one’s conduct is measured against what the average person would do.

A defendant’s mental deficiencies and it inexperience are not taken into account.

The reasonable person is considered to have the same physical characteristics as defend it.

Question 5

Professional standard of care.

Answer 5

A professional or someone was special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities

Question 6

Medical duty to disclose risk of treatment

Answer 6

A doctor has a duty to disclose the risk of treatment to enable the patient to give an informed consent. The doctor breaches this duty is an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk

Question 7

Children standard of care

Answer 7

Children are held to the standard of a child of like age, education, intelligence, and experience.

The child under four is usually without the capacity to be negligent.

Children engaged in adult activities may be required to conform to an adult standard of care

Question 8

Common carrier innkeeper standard of conduct

Answer 8

Common carriers and innkeepers are held to a very high degree of care; i.e., they are liable for slight negligence.

For the higher common carrier and innkeeper standards to apply, the plaintiff must be a passenger or guest

Question 9

Duty of care owed by an automobile driver to guest

Answer 9

A guest in an automobile is owed a duty of ordinary care.

Question 10

Duty of care owed by Bailee

Answer 10

Depends on who benefits from them.

If the bailment is for the sole benefit of the bailor there’s a low standard of care

If the bailment is for the sole benefit of the bailee there is a high standard of care.

If the bailment is of mutual benefit to both the bailee and the bailor there is a ordinary care standard

Question 11

Duty of care owed by bailor

Answer 11

If the bailment is for the sole benefit of the bailee the bailor must inform the bailee of knowing dangerous defects in the chattel.

If the bailment is for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware

Question 12

Duty of care in emergency situation

Answer 12

A defendant must act as a reasonable person would under the same emergency conditions.

The emergency is not to be considered however if it is of defendant’s own making

Question 13

Duty of owner/occupier to those off premises

Answer 13

There is no duty to protect one off the premises from natural conditions on the premises however, there is a duty for unreasonably dangerous artificial conditions or structures on abutting land

Question 14

Duty of owner/occupiers to those on premises

Answer 14

Depends on the plaintiff status as trespasser, licensee, invitee

Question 15

Duty owed by an owner/occupier to trespassers

Answer 15

No duty is owed to an undiscovered trespasser.

To discovered or anticipated trespassers landowner must (1) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and (2) use reasonable care in the exercise of active operations on the property

Question 16

Attractive nuisance doctrine

Answer 16

Most courts impose on landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property.

Question 17

Elements to make a claim under the attractive nuisance doctrine

Answer 17

1) a dangerous condition on the land that the owner is or should be aware of
2) the owner knows or should know children frequent the vicinity of the condition
3) the condition is likely to cause injury
4) the expense of remedying the situation is slight compared with the magnitude of the risk

Question 18

Duty of care owed by owner/occupier to licensee

Answer 18

A licensee is one who enters onto land with the possessor cock’s permission for her own purpose or business rather than for the possessor’s benefit.

The possessor has a duty to (1) warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and (2) exercise reasonable care in the conduct of active operations on the property

Question 19

Duty of care owed by owner/occupier to invitees

Answer 19

Invitees enter on the land for a purpose connected with the business of the landowner.

The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover non-obvious dangerous conditions and thereafter make them safe

Question 20

Duty of care owed by lessee.

Answer 20

The lessee has a general duty to maintain the premises

Question 21

Duty of care owed by the lessor

Answer 21

The lessor must warn of existing defects of which he is aware or has reason to know, in which he knows the lessee is not likely to discover on a reasonable inspection.

If the lessor covenants to repair, he is liable for unreasonably dangerous conditions.

If the lessor volunteers to repair and does so negligently he is liable

Question 22

Statutory standard of care (negligence per se)

Answer 22

A Statue’s specific duty may replace the more general common-law duty of care if:

1) the statute provides for a criminal penalty
2) the statute clearly defines the standard of conduct
3) plaintiff is within the protected class
4) the statute was designed to prevent the type of harm suffered by plaintiff

Question 23

Excuse for violation of the statute

Answer 23

Violation of some statutes may be excused where compliance would cause more danger in violation or where compliance would be beyond the defendant’s control

Question 24

Effect of violation or compliance with the statutory standard of care

Answer 24

Unexcused statutory violation is negligence per se, it establishes a conclusive presumption of duty and breach of duty.

Compliance with the statute will not necessarily established due care

Question 25

Duty regarding negligent infliction of emotional distress

Answer 25

Duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff.

Plaintiff usually must satisfy two requirements to prevail: (1) the plaintiff must be within the zone of danger and (2) the plaintiff must suffer physical symptoms from the distress

Question 26

Bystander exception to negligent infliction of emotional

Answer 26

A bystander outside the zone of danger of physical injury may recover for negligent infliction of emotional distress so long as (1) the plaintiff and the person injured by the defendant are closely related, (2) the plaintiff was present at the scene of the injury, and (3) the plaintiff personally observed or perceived the event.

Question 27

Affirmative duty to act

Answer 27

Generally one does not have a legal duty to act.

Question 28

Exceptions to the affirmative duty to act

Answer 28

1) assumption of duty by acting.
2) peril due to defendant’s conduct
3) special relationship between parties
4) duty to control third person

Question 29

Theories to prove breach

Answer 29

1) custom or usage
2) violation of statute
3) res ipsa loquitur

Question 30

Custom or usage to prove breach

Answer 30

May be used to establish standard of care, but does not control the question of whether certain conduct amounted to negligence.

Although certain behavior is custom in an industry, Court may find the entire industry is acting negligently

Question 31

Violation of a statue to prove breach

Answer 31

Existence of a duty owed to plaintiff and breach thereof may be established as a matter of law by proof that defendant violated any applicable statute.

Question 32

Res ipsa loquitur to establish breach

Answer 32

Requires plaintiff to show that

1) act the accident causing the injury isn’t a type that would not normally occur unless someone was negligent
2) the negligence is attributable to defendant (this can be shown by evidence that the instrumentality causing the injury was in the exclusive control of defendant)
3) plaintiff was not contributory negligence

Question 33

Effect of res ipsa loquitur

Answer 33

Plaintiff has made a prima facie case and no directed verdict maybe given for defendant.

Plaintiff can still lose if the inference of negligence is rejected by the trier of fact.

Question 34

Actual cause (causation in fact)

Answer 34

1) an act or omission is the cause in fact of an injury when injury would not have occurred but for the act.
2) Were several causes bring about injury and anyone alone would have been sufficient to cause the injury, defendant’s conduct is the cause in fact if it was a substantial factor in causing injury
3) Alternative causes approach applies when there’re two acts only one of which causes injury but it is not known which one. The burden of proof shifts to defendants and each must show that his negligence is not the actual cause.

Question 35

General rule of proximate cause

Answer 35

A defendant generally is liable for all harmful results that are the normal incidence of and within the increased risk caused by his acts. This is a foreseeability test.

Question 36

Liability in direct cause cases

Answer 36

In a direct cause case defendant is liable for all foreseeable harmful results regardless of the unusual manner in which they arose or the unusual timing of cause and effect.

Defendant is not liable for unforeseeable harmful results not within the risk created by defendant’s negligence.

Question 37

Foreseeable intervening forces in indirect cause case

Answer 37

Defendant is liable where his negligence caused a foreseeable harmful response or reaction from independent injury being forced or created a foreseeable risk that an independent intervening force or harm plaintiff

Question 38

Foreseeable dependent intervening forces

Answer 38

1) subsequent medical malpractice
2) negligence of rescuers
3) efforts to protect the person or property of oneself or another
4) injuries caused by another reacting to defendant’s conduct
5) subsequent diseases caused by a weakened condition
6) subsequent accident substantially caused by the original injury

Question 39

Unforeseeable intervening forces and indirect cause cases

Answer 39

Defendant is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force.

This rule does not apply where the unforeseeable intervening force was a crime or intentional towards of a third person

Question 40

Unforeseeable extent or severity of harm

Answer 40

In all cases defendant takes his plaintiff as he finds him i.e. defendant is liable for all damages including aggravation of an existing condition even if the extent or severity of the damages was unforeseeable

Question 41

Contributory negligence

Answer 41

Contributory negligence on part of the plaintiff that contributes to her injuries.

Question 42

Effect of contributory negligence

Answer 42

Contributory negligence completely barred plaintiff’s right to recovery common-law.

Almost all jurisdictions now favor a comparative negligence system.

Question 43

Last clear chance doctrine

Answer 43

Permits plaintiff to recover despite her contributory negligence if the person with the last clear chance to avoid an accident who fails to do so is liable for negligence.

Only applies in contributory negligence states

Question 44

Assumption of risk

Answer 44

Plaintiff may be denied recovery if she assume the risk of any damage caused by defendant’s at.

Plaintiff must have (1) known of the risk and (2) voluntarily proceeded in the face of the risk.

Question 45

Implied assumption of risk

Answer 45

Knowledge may be implied where the risk is one than average person would clearly appreciate.

Plaintiff may not be said to have assumed the risk where there’s no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency.

Question 46

Express Assumption of risk

Answer 46

The risk may be assumed by an express agreement.

Watch out for fraud, force, or an emergency.

Question 47

Comparative negligence

Answer 47

In comparative negligence states, plaintiff’s contributory negligence is not a complete bar to recovery. Rather the trier of fact weighs plaintiff’s negligence and reduces damages accordingly.

Question 48

Partial comparative negligence

Answer 48

Bars plaintiffs recovery if his negligence was more serious than defendant’s negligence

Question 49

Pure comparative negligence

Answer 49

Allows recovery no matter how great plaintiff’s negligence was