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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

Learned Hand Formula

A

B<PL

Burden of prevention
Probability of injury
L-gravity of resulting harm

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2
Q

Mental/physical disabilities

A

actor’s mental/ emotional disability not considered in determining whether conduct is negligent,

physical disabilities are taken into account

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3
Q

Child negligence

A

if conduct doesn’t conform to reasonable child with same intelligence, age, and circumstances
- not apply in dangerous activities

x not negligence
MIN -> rule of 7

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4
Q

Professional Duty of care

A

reasonableness of other professionals under circumstances

two reasonable choices?
- not liable if choose wrong one

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5
Q

Adult duty of care

A

Not taken into account

  • mental illness
  • inferior knowledge

Taken into account

  • physical disability
  • superior knowledge
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6
Q

Exceptions to no duty to aid

A
  • D creates Peril

D voluntarily undertakes act AND

  • negligence
  • P relies on Ds actions to peril
  • D keeps others from helping
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7
Q

Spousal Duty

A

Must act when

  • actual knowledge OR special reason to know
  • particular knowledge of who is being abused
  • duty of care to take reasonable steps
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8
Q

Rescue Doctrine

A

D is negligent to V if negligence caused peril or appearance of peril to victim

  • Peril is imminent
  • reasonable person conclude peril existed
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9
Q

Special relationships to 3rd party

A

acts that need to be controlled OR

to victim to protect from harm of 3rd party

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10
Q

Therapists

A

special relationship with patient

relationship to foreseeable victim of harmful conduct
- reasonable care to protect others from dangers of illness

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11
Q

Negligence per se

A

1) statute creates duty
2) statute designed to protect against particular conduct
3) V is in class of those intended to be protected

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12
Q

Res Ipsa Loquitur

A

Elements:

  • incident wouldn’t happen without negligence
  • cause of injury in Ds exclusive control
  • injury not caused by P
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13
Q

“but-for” cause

A

would incident occur “but-for” Ds acts?

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14
Q

Concurrent causes

A

2 or more independent negligent acts combine to cause individual injury

  • neither alone would’ve caused harm
  • each tortfeasor liable
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15
Q

Substantial factor/ Multiple sufficient causes

A

2 or more independent negligent acts combine

- either act would’ve caused harm

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16
Q

Alternate Liability

A

Multiple Ds

  • P proves breach
  • Burden shifts -> D must prove not cause harm
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17
Q

Market-Share Liability

A
  • liability limited to market share of each D
  • Theory -> pay roughly amount that represents contributed harm

P must prove

  • all named Ds are tortfeasors
  • products IDENTICAL
  • can’t ID which D caused harm
  • Ds represent substantial share of market
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18
Q

Reasonably foreseeable consequences

A

limited to those harms that result from risks taken

D need to only foresee general type of harm
- exact manner/ extent NO foreseeability

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19
Q

Exceptions to Reasonable foreseeable consequences

A

D creates peril/ risk

D voluntarily undertakes act AND

  • act negligent
  • P relies on Ds acts OR
  • D keeps others from helping P
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20
Q

Superseding Causes

A

intervening act

  • breaks causal b/w Ds breach and Ps injury
  • must be reasonably foreseeable consequence of Ds conduct
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21
Q

intervening causes

A

intervening negligence of 3rd party

  • intentional acts
  • criminal acts
  • acts by P
  • acts of god
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22
Q

Economic Loss Rule

A

no duty to P that suffer pure economic loss due to negligence (MAJ rule)

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23
Q

Zone of Danger (near miss)

A

1) danger of physical contact
2) reasonably fears for own safety
3) suffers severe emotional distress because of that fear

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24
Q

Bystander (Dillon Rule)

A

recover for one who:

  • closely related to victim
  • present at scene
  • observes event and injury
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25
Q

exceptions to NIED limitations

A
  • mishandling corpses & genetic material

- special relationships

26
Q

NIED limitations

A 
impact rule (directly contacted)
Zone of danger "near miss"
27
Q

Duty to Trespasser

A

refrain from injuring in willful or wanton manner

28
Q

Exception for Discovered/Tolerated Trespasser

A
  • reasonable care to avoid injury from active operations

- duty to warn of hidden/ concealed dangers

29
Q

Duty to Child Trespasser

A
  • o/o knows or reason to know children likely to trespass
  • child b/c age not able to protect self from danger
  • burden of eliminating danger slight compared to gravity of potential harm
  • reasonable care to eliminate danger or protect child
30
Q

Duty to Invitee

A
  • reasonable/ ordinary care
  • keep reasonably safe
  • warn of condition or activity that poses unreasonable risk of harm
  • possessor must have actual/ constructive knowledge of unsafe condition
31
Q

Duty of Lessors (MAJ)

A 
NO DUTY UNLESS:
- common areas -> under lessors control
- concealed defect known to landlord
- undertakes duty and negligent or fails
- premises leased for public use
conditions dangerous to those outside
32
Q

Duty of Lessors (MIN)

A

reasonable care to everyone

33
Q

Duty to those outside premises

A

duty of reasonable care to persons injured off premises-

  • activities conducted on premises
  • artificial conditions created by o/o on premis
34
Q

Exceptions to Duty to those outside premises

A

Roadside tree

  • limited duty -> urban v. rural
  • general duty of reasonable care for all locales
35
Q

Duty to protect from 3rd party criminal

A

Generally:

  • nature/ frequency of prior incidents
  • burden of o/o
  • location

Still needs “but-for” causation

36
Q

Firefighters Rule

A

emergency responders in official duty can’t claim tort action against risks that caused need to respond

37
Q

Contributory negligence

A
  • all or nothing

- p completely barred from recovery even if Ps negligence is far less than Ds negligence

38
Q

last clear chance doctrine

A
  • if P had last opportunity to avoid harm -> more negligent

- D discovered or should’ve P situation in sufficient time to avoid harm -> negligent

39
Q

Pure comparative negligence

A

MINORITY

damages proportionate to Ps negligence

40
Q

Modified Comparative Negligence

A

1) 50% bar rule
- P barred if 50% or over

2) 51% bar rule
- P barred if 51% or over

41
Q

Factors for liability

A

1) nature of person’s risk-creating conduct

2) strength of causal connection b/w person’s conduct and harm

42
Q

Expressed Assumption of Risk

A

P voluntarily assumes risk

Agreements before entering relationship

1) D acts in reliance of Ps agreement
2) specify scope of conduct

43
Q

Enforcement of expressed assumption of risk

A

enforced if:

1) doesn’t adversely affect public interest
2) no legal duty to perform
3) not public utility or common carrier
4) contract not from unequal bargaining power

44
Q

Implied assumption of Risk

A

P must have actual knowledge; voluntarily assume risk

45
Q

Primary implied assumption of Risk

A
  • P relieves LEGAL DUTY of reasonable care for known risk inherent in activity
  • partial bar -> no relief for wanton or reckless
46
Q

Secondary implied assumption of risk

A
  • p voluntarily assumes risk
  • CL -> complete bar
  • Stat. Mod -> merged into comparative faults (MAJ)
47
Q

avoidable consequences

A

failure to mitigate

- P not compensated for damages P could’ve avoided

48
Q

Interspousal Immunity

A
  • mostly car accidents
  • no IIED/NIED for adultery
  • mostly abolished
49
Q

Parental Immunity

A

-few states -> reasonable parent

shouldn’t hamper
- discipline; parental discretion

50
Q

charitable immunity

A
  • originally immune
  • caps against damages
  • some states -> no immunity
51
Q

Governmental Immunity

A

government and employee immune
- unless expressly waived

Retained for:

  • discretionary acts/ functions ground in policy decisions
  • public duty doctrine
52
Q

Statutes of limitations

A

absolute limit on time lawsuit can be brought
- regardless of when P discovers injury

Vary by J -> usually 10-20 years

53
Q

Concerted Actions

A

independent acts causing indivisible injury

- concurrent tortfeasors

54
Q

One satisfaction of judgment

A

once P collects total judgment from one D, can’t sue others to collect more $$$

55
Q

Right of contribution

A
  • D who pays more than fair share -> sue other Ds
  • must be jointly/severally liable
  • no right of contribution from responsible third parties
56
Q

Right of Indemnity

A

Full reimbursement where Ds liability arises solely by operation of law / contract and not Ds own fault

  • respondeat superior
  • vicarious liability
57
Q

Effect of Settlement

A

Depending on J -> remaining D damages reduced

  • by $$$ amount or
  • % fault by jury attributable to settling party
58
Q

Respondeat Superior

A

1) is person employee?
2) acting within scope of employment?
- related to employment
- not wholly personal
- derive benefit from employer
3) employer liable for employee’s torts
4) full amount of compensatory damages

59
Q

Employer directly liable

A

Negligent:

  • hiring
  • supervising
  • retaining employee
60
Q

Liability for contractors

A

employers generally not liable for negligence

- unless controlling physical details of work

61
Q

Non delegable duty

A

Employer can’t delegate duty

employer may seek indemnity against independent contractor

Torts (2 decks)

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