NEGLIGENCE

Question 1

What are the four elements of negligence cause of action?

Answer 1

1) Duty 2) Breach 3) Causation 4) Damage

Question 2

To whom is a duty owed?

Answer 2

Foreseeable victims

Question 3

How much care is required for duty of care?

Answer 3

As much as would have been exercised by hypothetical reasonably prudent person acting under similar circumstances

EXCEPTIONS:

(a) If D has relevant superior knowledge, imputed to standard
(b) Reasonably prudent person assumed to have physical attributes of actual D

Question 4

The standard of care of children alters the general reasonable prudent person presumption for duty of care relating to them. What is the child standard of care?

Answer 4

1.

Question 5

What is the professional standard of duty of care?

Answer 5

Owes patient/client care of average member of that profession practicing in similar community

Question 6

What is the difference between a professional standard of care and a jo blogs one?

Answer 6

The jo blogs one is this reasonably prudent person, professional standard is that of an existing average person in the profession.

Question 7

What is the informed consent doctrine for doctors?

Answer 7

Doctor must explain risks of recommended procedures to patient before decision, EXCEPT

(a) need not disclose commonly-known risks
(b) need not disclose if patient declines/incompetent
(c) need not disclose if would be harmful

Question 8

Is there any duty of care owed to an undiscovered trespasser?

Answer 8

No care of duty at all because they are unforeseeable.

Question 9

Is there any duty of care owed to a discovered trespasser?

Answer 9

default negligence standard

Conditions: protect from known, hidden, man-made death traps

Question 10

What is the duty of care owed to the licensee, i.e. your friends etc?

Answer 10

(social guests)

Activities: default negligence standard

Conditions: protect from known, concealed conditions

Question 11

What is the duty of care owed to the invitee?

Answer 11

(confer $ benefit or open to public)

Activities: default negligence standard

Conditions: protect from all reasonably knowable concealed conditions

Question 12

Does NY have the rules around duty of care to various different entrants on property?

Answer 12

No, abolished the rules, use reasonably prudent person ‘under the circumstances’ test.

Question 13

What are two exceptions to the rules around entrants to property?

Answer 13

For firefighters and cops and children.

Question 14

So can Firefighters and police officers recover for injury when going on property?

Answer 14

May never recover from those risks inherent to their jobs even if traced to other’s negligence

Question 15

What is the obligation with children who trespass?

Answer 15

You have an obligation to exercise reasonable prudence under the circumstances to protect trespassing children from artificial conditions on the land.

Question 16

How on earth can i escape premises liability?

Answer 16

Fixing the problem

Giving a warning

Question 17

When might we be able to borrow words of a criminal statute to use as a one time special standard of care?

Answer 17

1. P is member of class of persons statute seeks to protect
2. Accident in class of risks statute seeks to prevent

EXCEPT:

1. If compliance with statute more dangerous than violation, statute does not set standard of care
2. If compliance with statute impossible, statute does not set standard of care

Question 18

What are examples of borrowing words of criminal statute to use as one time special standard of care?

Answer 18

Motorvehicles etc. But can’t borrow weed statute to get someone because she lit doobie and gas leak and apartment blew up yah

Question 19

Whats an example of where compliance with a statute would be more dangerous than the violation?

Answer 19

If i swerve to stop hitting child and cross yellow lines.

Run red light cause having a heart attack.

Question 20

Is there any affirmative duty to act?

Answer 20

NOOOO!!!

Question 21

Is there a duty for rescuers to act?

Answer 21

Only if:
1. Preexisting relationship between D and person in peril; OR
2. D put person in peril
Then: default negligence standard

Question 22

Is a good ol gratuitous rescuer liable?

Answer 22

Hardout they are liable for botched rescue

Question 23

Are you liable as a good samaritan? NY good samaritan law insulates you from gratuitous negligence liability. BUT who does it protect?

Answer 23

Protects only:

1. Nurses
2. Doctors
3. Veterinarians

Not against gross negligence

Question 24

What are the two instances of negligent infliction of emotional distress?

Answer 24

1) Near miss cases.

2) Bystander cases.

Question 25

What are the requirements for near miss infliction of emotional distress cases?

Answer 25

(a) Near-miss case: P in zone of physical danger produced by D’s negligence AND THEN suffered physical manifestations of distress

Question 26

What are the requirements for bystander infliction of emotional distress cases?

Answer 26

Bystander case: P bystander observes D’s negligent injury of third party in real time at close proximity AND physical victim is close family member (NY: must be in zone of danger)

Question 27

What do you do for breach?

Answer 27

Identify what D did wrong and explain why it is wrong.

Question 28

What about where I know the defendant did something wrong but I lack information about what the D did wrong? i.e. I got injured by barrel but no idea why it fell.

Answer 28

Res ipsa loquitor is used in these circumstances.

Used by P when lacking information and therefore cannot identify what D did wrong

Two substitute facts:

1. accident is type normally associated with negligence
2. accident normally due to negligence of someone in D’s position (or D had control of instrumentality immediately before accident)

Question 29

What is the factual causation test?

Answer 29

ALWAYS MENTION FIRST

Whether, but for breach, P would have escaped unharmed

If 2+ defendants:

1. Merged causes (2 fires burn down house): ask whether each breach substantial factor; if any 1 breach could have caused injury alone, factual cause
2. Unascertainable cause (2 shooters, 1 bullet): each D must come forward with prove to exonerate

Question 30

How do you show proximate cause?

Answer 30

If foreseeable, proximate cause

1. Direct cause: only unforeseeable if freakish or bizarre
2. Indirect cause: if this injury is why this breach is problematic, proximate cause

Question 31

What are the four types of cases that have been found by precedent to indicate that injury is foreseeable and fair?

Answer 31

1) Cases with intervening medical malpractice issues
2) Intervening negligent rescue
3) Intervening reaction or protection forces
4) Subsequent disease or accident.

Question 32

What is the eggshell skull doctrine?

Answer 32

Once D committed all other elements, liable for all damages suffered by P even if surprisingly great in scope

NY: tort reduced by monies received elsewhere by P to compensate for same injury