Negligence

Question 1

Negligence Prima Facie Case

Answer 1

1. Duty
2. Breach
3. Causation
4. Damages

Question 2

For duty you must have:

Answer 2

1. A foreseeable plaintiff (P will almost ALWAYS be foreseeable on bar)
2. A standard of care

Question 3

Foreseeable P’s a matter of LAW

Answer 3

1. Rescuers

2. Viable fetuses

Question 4

Reasonable person and disabilities

Answer 4

D’s physical characterisitcs WILL be taken into account - D must act in a manner reasonable to that which someone who had the same handicap would act.

Question 5

Children’s Standard

Answer 5

Child of like age, intelligence, and experience. This is a subjective standard.

BIG EXCEPTION: If the child is participating in an adult activity then the adult reasonable person standard applies.

Question 6

The Professional Standard

Answer 6

A reasonable professional in the same or similar communities.

Specialists expertise is taken into account and they are held to an even higher standard.

Question 7

The Common Carrier/Innkeeper Standard

Answer 7

They will be held liable for even SLIGHT negligence.

CAREFUL! To get the standard of care you must be a passenger or a guest.

Question 8

Duty of Care to Discovered Trespasser

Answer 8

Responsible for:

1. Artificial conditions,
2. Involving a risk of SERIOUS injury,
3. That the o/o knows of.

Question 9

Duty of Care to a Licensee

Answer 9

Responsible for:

1. Artificial AND natural conditions,
2. That the o/o knows of.

Question 10

Duty of Care to an Invitee

Answer 10

1. All dangerous conditions,
2. That the o/o SHOULD know of.

(Must make reasonable inspection)

Question 11

Negligence per se

Answer 11

There will be a conclusive presumption of negligent conduct on the D’s part

Question 12

2 Exceptions for compliance with a statute

Answer 12

1. Compliance would be more dangerous.

2. Compliance would be impossible.

Question 13

2 elements to be able to apply statutory standards of negligence

Answer 13

1. P must fall within the protected class.

2. Statute must be designed to prevent this type of harm.

Question 14

Negligent infliction of emotional distress

Answer 14

1. P must suffer physical injury. Shock is enough.

2. P must be in target zone of D’s negligent conduct

Question 15

Infant trespasser

Answer 15

Duty to warn or make safe artificial conditions if foreseeable risk to child outweighs expense of eliminating danger.

Question 16

Res Ipsa Loquitur

Answer 16

1. Accident that caused injury is not type that occurs w/o negligence.
2. Negligence is attributable to D (usually by showing exclusive control)
3. Injury was not P’s fault.

Question 17

Actual cause

Answer 17

Requires P to show that he would not have been injured BUT FOR the D’s act.

Question 18

Proximate cause

Answer 18

Limitation on D’s liability for unforeseeable or unusual consequences or occurrences following D’s act.

Question 19

Direct cause cases

Answer 19

There is an uninterrupted chain of events from D’s negligence to P’s injury:

D is liable for ALL foreseeable results (and almost all harmful results are foreseeable.)

Question 20

Indirect cause cases

Answer 20

An intervening force comes into motion after the time of D’s negligent act and combines with it to cause injury to P.

If D’s negligence created a foreseeable risk that an intervening force would contribute to P’s harm, D is liable for harm caused.

Question 21

Damages

Answer 21

Injured party entitled to compensation for all

1. economic loss. (special damages)
2. past and future non-economic losses (general damages)

Include: medical expenses, lost earnings, pain and suffering, impaired future earning capacity, and property damage.

Question 22

Contributory negligence

Answer 22

If P has ANY fault - NO recovery.

Question 23

Pure comparative negligence

Answer 23

CAN recover even if MOSTLY AT FAULT.

P’s award is reduced by the amount of his own negligence.

Question 24

Modified comparative negligence

Answer 24

NO recovery is P’s fault exceeds 50% or 51%.

Otherwise award will be reduced by his own negligence.

Question 25

Res ipsa loquitor

Answer 25

injury is a type that would not normally occur absent negligence and it usually occurs because of negligence of the manufacturer.

Question 26

Products liability case based on negligence

Answer 26

P must show negligent conduct by D leading to the supplying of a defective product by the D.

Question 27

Attractive Nuisance

Answer 27

1. There is a dangerous condition present on the land of which the owner is or should be aware;
2. The owner knows or should know that young persons frequent the vicinity of this dangerous condition;
3. The condition is likely to cause injury, i.e., is dangerous, because of the child’s inability to appreciate the risk; and
4. The expense of remedying the situation is slight compared with the magnitude of the risk.

Question 28

To prove breach of duty in a products liability action, the plaintiff must show:

Answer 28

(i) negligent conduct by the defendant leading to

(ii) the supplying of a defective product by the defendant

Question 29

Effect of Contributory Negligence:

Answer 29

At common law, plaintiff’s contributory negligence completely barred his right to recover.

Question 30

Comparative Negligence

Answer 30

In every case where contributory negligence is shown, the trier of fact weighs plaintiff’s negligence against that of defendant and reduces plaintiff’s damages accordingly.

Question 31

“Partial” Comparative Negligence

Answer 31

Most comparative negligence jurisdictions will still bar the plaintiff’s recovery if his negligence passes a threshold level.

1. A plaintiff will be barred if his negligence was more serious than that of the defendant (i.e., the plaintiff will recover nothing if he was more than 50% at fault). OR
2. A plaintiff will be barred from recovering if his negligence was at least as serious as that of the defendant (i.e., the plaintiff will recover nothing if he was 50% or more at fault).

Question 32

“Pure” Comparative Negligence:

On the MBE, pure comparative negligence is the applicable rule unless the question specifies otherwise.

Answer 32

allows recovery no matter how great plaintiff’s negligence is (e.g., if plaintiff is 90% at fault and defendant 10%, plaintiff may still recover 10% of his damages).

Question 33

For assumption of risk to be available as a defense, the plaintiff must have

Answer 33

1. known of the risk and

2. voluntarily assumed it.

Question 34

Dependent Intervening Forces

Answer 34

normal responses or reactions to the situation created by defendant’s negligent act.

Dependent intervening forces are almost always foreseeable.

Question 35

6 Common dependent intervening forces:

Answer 35

1. Subsequent Med/Mal
2. Negligence of rescuers
3. Efforts to protect person or property.
4. “Reaction” forces
5. Subsequent disease
6. Subsequent accident

Question 36

Independent Intervening Forces:

Answer 36

also operate on the situation created by defendant’s negligence but are independent actions rather than natural responses or reactions to the situation.

Independent intervening forces may be foreseeable where defendant’s negligence increased the risk that these forces would cause harm to the plaintiff.

Question 37

3 common independent intervening forces:

Answer 37

1. Negligent acts of third persons.
2. Criminal/Intentional Torts of third persons
3. Acts of God.