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TORTS > Negligence > Flashcards

Negligence Flashcards

1
Q

General Principle

A

reasonable care owed to another; person has duty to exercise ordinary care when his actions could injure another

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2
Q

3 main approaches

A

cardozo (majority); Andrews (minority); Law and Econ

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3
Q

Cardozo approach

A

presume we have no duty,

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4
Q

andrews

A

assume duty with island of no duty

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5
Q

L&E approach

A

Least Cost and Coase Theorem

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6
Q

Least Cost

A

which party can best prevent the harm (least cost + quality)

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7
Q

Coase Theorem

A

parties naturally gravitate toward most efficient and mutually beneficial outcome; high transactions costs= less likely to find most efficient solution

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8
Q

Factors to determine duty

A

foreseeability, knowledge, reliance, morality, contracts

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9
Q

Foreseeability

A

no foreseeable = no duty; need foreseeability for there to be duty; negligent if person would foresee risk of a certain act

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10
Q

Duty to children

A

parents not responsible for the torts of their children; exception attractive nuisance

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11
Q

Attractive nuisance

A

if hazardous condition alluring to children, and owner aware of presence

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12
Q

Artificial Conditions

A

liable to children for artificial condition; knows/reason to know children likely trespass; knows condition could cause harm; children dont realize the risk; cost of eliminating is slight compared to risk; owner fails to exercise reasonable care to eliminate danger; doesnt go past 15; MD does not have this

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13
Q

Public Path exception

A

well-worn path on property that appears to be public, not trespassing to use

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14
Q

Duty to a 3rd person

A

no duty to control the conduct of 3rd person; UNLESS: special relation exists (actor and 3rd person); special relation (actor and the other); duty to protect from crim attack by 3rd party

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15
Q

Duty to Therapists, Psychologists, and Social workers

A

reasonable care if know or have reason to know of a threat to a foreseeable victim;

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16
Q

Employer liabiltiy

A

respondiat superior (employer liable when it is in the scope of their employment)

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17
Q

Respon Superior

A

breaks: not responsible; minor deviation; major frolic

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18
Q

Minor deviation

A

violate direct order but foreseeable (one block for coffee); employer is liable

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19
Q

major frolic

A

going to NY instead of local courthouse, employer not liable,

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20
Q

3 types of liability for employers

A

negligent hiring, negligent supervision, negligent entrustment

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21
Q

Negligent Hiring

A

shouldnt hire someone with DWI to deliver pizza

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22
Q

Negligent supervison

A

did not supervise well

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23
Q

negligent entrustment

A

should not have entrusted them with the responsibility

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24
Q

When employer is responsible for intentional torts

A

foreseeable, employee is furthering business in misguided manner

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25
Q

Employees v Independent contractors

A

responsible for employees negligence not Indep Contractors; EXCEPT: negligently select an independent contractor you are liable

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26
Q

Independent contractos

A

what they are called, degree of control by the principal, relative knowledge of the issue, length of working relationship, how relationship is communicated to 3rd parties

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27
Q

Non-delegable duty doctrine

A

liable if delegate inherently dangerous activity to contractor

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28
Q

Duty to manufacturers

A

neglignet design, negligent manufacturing, and negligent warning; look to the intended use and what is reasonably foreseeable

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29
Q

Duty to prevent emotional harm

A

harm to the person; harm to economic interests; quasi tort (harm to constitutional right); dignitary tort

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30
Q

Dignitary tort

A

harm to someone’s dignity, feelings, emotions: negligent infliction of emotional distress, intentional infliction of emotional distress, assault

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31
Q

Defamation

A

has to be false; harm reputation; must be alive; communicated to 3rd party; without privilege and consent; intentional or negligent; Public figure it must be false or reckless disregard for truth; proof of actual damages must be shown

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32
Q

Insults

A

do not rise to a tort (47 states), if physical contact then rises to a tort; if a lie then it is a tort; power relationship will give rise to a tort (police and teacher)

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33
Q

3 approaches to negligent infliction of emotional distress

A

Mitchell “no touch, no duty”; McLoughlin “line drawing rule” (majority); MD; California Rule

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34
Q

Mitchell “no touch, no duty”

A

negligence must be direct, prox cause to claim damages; no remedy for emotional harm with no physical contact

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35
Q

McLoughlin “line drawing” majority

A

if D negligent then they care for the close family member; relationship to injured must be close; zone of danger/proximity to accident

36
Q

How shock can be caused

A

cannot be by communication thru a 3rd party

37
Q

4 reasons to draw boundaries

A

flood the court system with cases; unreasonable extension of duty unfair; extension of liability would increase difficulties and lengthen litigation; scope of litigation should be made by legislature

38
Q

MD Rule

A

Line drawing; must have actual physical manifestation of emotional harm (heart attack); pro-defendant approach

39
Q

California Rule

A

3 factors: 1. was plaint located near scene of accident; 2. was shock a direct result of emotional impact; were P and V closely related

40
Q

Intentional infliction of emotional distress (w/o touching MD + majority)

A

intentional (reckless in some states) conduct; extreme and outrageous; causes emotional distress must be severe (MD: must cause physical injury); D knows of susceptibility and acts anyway

41
Q

Owners and Occupiers of Land

A

trespass; trespass to person/chattel; private nuisance

42
Q

Trespass

A

invasion of P interest in exclusive possession of land; someone walks on your property; intentional or negligent

43
Q

trespass to person

A

usually negligent

44
Q

trespass to chattel

A

touch someone’s property

45
Q

Private nuisance

A

unreasonable interference with a person’s use or enjoyment of land (unreasonable amount of noise)

46
Q

when people enter another’s property categories

A

Invitee; Licensee; trespasser

47
Q

Invitee

A

by invitation with mutual econ benefit; express or implied; cant set trap;

48
Q

Business invitee

A

mutually economic interest

49
Q

Public invitee

A

church, hospital, university

50
Q

Duty owed to Invitee

A

reasonably inspect + fix or inform, cant set tratp

51
Q

Licensee

A

social guest (anyone who has permission to be on property, no business intersts

52
Q

Duty owed Licensee

A

no duty to ensure property is safe; no traps or concealed dangers not apparent to visitor; fix or inform dont set a trap

53
Q

Firemans’ rule

A

Firefighters and polci officers are owed same duty as licensee

54
Q

Trespasser

A

w/o permission, invitation or licensee of occupier

55
Q

Duty owed to Trespass

A

no duty to inspect, fix or war, cant set a trap, cannot intentionally try to kill someone who comes on your property

56
Q

Examples of people on property

A

Visitor at a hospital: licensee
Furniture delivery guy: invitee
Traveling sales person: trespasser (most jurisdictions)
Shopper that doesnt buy anything: invitee

57
Q

Bare Licensee

A

traveling salesman; treated as trespasser in most jurisdictions

58
Q

Discovered trespasser rule

A

duty to common humanity makes them licensee; duty to common humanity

59
Q

Trespasser ab initio

A

guest who overstays welcome, trespasser from beginning

60
Q

public path doctrine

A

if well worn path, not trespassing to walk on it; path must cross public land at some point

61
Q

Reasonable care standard

A

owner owes reasonable care in view of the probability of injury to others.

62
Q

Duty of landlords to tenant: Common law

A

tenants seen as trespassers; only duty is to not set traps; buy at own risk; Most states recognize duty to maintain rental property in safe habitable condition

63
Q

Implied warranty of habitability

A

landlord must exercise reasonable care not to subject others to unreasonable risk of harm

64
Q

MD rules of owners and occupiers of land

A

pigeon hole system; no attractive nuisance; punitive damages for invitee and licensee; salesman is bare licensee; public park patron: business invitee (most states licensee); tenants in common areas: invitee; in own apartment: invitee with duty on landlord to make reasonable inspections, no SL; vicious watchdog is not a trap (liability to invitee and licensee not trespasser; landlord has duty for security measures

65
Q

duty to rescue

A

no duty to rescue

66
Q

exceptions to no duty to rescue: express K

A

express K: lifeguards, police and firefighters, nurse or doctor (only have duty while on duty)

67
Q

Exceptions to no duty to rescue: implied K

A

parents and child; spouse and spouse; employer and employee; occupier of land and social guest or biz invitee; common carrier and lawful passenger; landlord and tenant but duty is complicated; captain to crewmember

68
Q

rescuer Doctrine

A

imposes duty of care on person who creates the harm; does not create open-ended duty but expires after spontaneous excitement to rescue has passed

69
Q

Good Samaritan doctrine

A

duty to not make things worse, no duty to complete rescue unless your effort prevents someone else from attempting rescue and you quit

70
Q

good samaritan doctors

A

cant make things worse; requires gross negligence reckless conduct or willful wrong

71
Q

Duty to warn special relationship

A

duty of reasonable care if they knew or should have known of the FORESEEABLE threat to V; most states including MD: just what you knew, NOT what you should have known

72
Q

Wrongful Death Common law

A

only get damages from from when someone is injured until they die. Tort dies whent he party dies

73
Q

Wrongful death statutes

A

specifically named people can sue after someone’s death, typically up to a maximum amount, can sue for income the person would have made (no cap but have to show what they would have made)

74
Q

survival statutes

A

for direct victim of tort; allows others to sue on behalf of the deceased (brought by husband, wife, or child for damages); damages before the death and burial expenses, can get medical, lost wages, pain and suffering

75
Q

Wrongful death v Survial

A

survival allows punitive damages wrongful death does not;

76
Q

MD wrongful deaht

A

no punitive damages; yes for pain and suffering (parents, spouses, and children)

77
Q

MD survival statute

A

yes for economic damages, punitive damages, and pain suffering, cap on non-economic damages

78
Q

harm to unborn children Common law

A

no duty, considered part of the mother,

79
Q

duty to unborn children modern approach

A

duty to fetus is VIABLE at the time or born alive; no preconception duty

80
Q

wrongful birth

A

child born with medical problem/handicap caused by medmal; suit brought by parents of the child. Majority: can recover for med expenses, emotion distress, and therapy

81
Q

Wrongful life

A

brought by the child born with the birth defects, recover for med bills, lost wages, pain and suffering until age of majority;

82
Q

wrongful pregnancy

A

brought against physician for failure to prevent pregnancy; recover for pain and suff and med expenses not for costs of rearing the child

83
Q

4 approaches to victim compensation

A

no recovery benefits of having child outweigh costs, all expenses recoverable for rearing child + emotional distress, damages for pregnancy related expenses and pain and suff NO rearing costs, benefit rule (all costs minus benefits of having child, least predictable)

84
Q

MD wrongful birth

A

can recover if child is born alive or not as long as fetus is VIABLE at the time of injury

85
Q

MD wrongful pregnanc

A

benefit rule: all costs minus benefits of having child are recoverable, least predictable (how courts determine benefit of healthy child in economic value)

86
Q

MD wrongful life

A

no recovery

TORTS (7 decks)

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