Negligence Flashcards
1
Q
What are the elements of negligence?
A
- Duty: does the law impose legal obligation between the π & ∆
- Standard of Care: what is the duty owed
- Breach of Duty: the failure to meet the standard of care
- Cause in Fact Connects the defendant’s breach to the π’s injury
- Proximate Cause: Are there still policy reasons to cut off liability even with the other elements established?
- Damages: π must prove damages to recover for negligence
- No Defenses apply
2
Q
What is the general rule for the duty element of negligence?
A
When a defendant is engaged in affirmative, risk-creating conduct causing personal injury or property damage, then a duty is owed to any foreseeable person who may be injured.
3
Q
When is the element of duty a significant issue?
A
Where there is:
- Unforeseeable plaintiff
- Nonfeasance or failure to act
- Harm other than personal injury or property damage
- ∆ is a land possessor, landlord, utility or governmental entity.
4
Q
What is the duty of ∆ unforeseeable πs?
A
None: a duty is only owed to foreseeable plaintiffs.
5
Q
Who are foreseeable πs?
A
Persons who could reasonably be injured based upon the nature of the ∆’s negligent acts.
6
Q
What is the duty owed to non-professional rescuers? When the rescuers are not foreseeable?
A
All rescuers are per se foreseeable plaintiffs and are owed a duty.
7
Q
What is nonfeasance?
A
The failure to intervene or protect someone when there is a duty to.
8
Q
What is misfeasance?
A
- Affirmative risk-creating conduct
Or
- A negligent omission (failing to stop at a stopsign)
9
Q
What is the obligation to intervene, rescue, or aid another?
A
There is no duty to rescue, aid, control, or protect.
10
Q
When does the duty to rescue or aid occur?
A
- When ∆’s tort creates a need for rescue
- If a person chooses to undertake the rescue
- ∆ creates reliance on their rescue attempt
Or
- There is a special relationship of dependence or mutual dependence.
11
Q
When ∆ creates a duty by undertaking a rescue act, what is ∆ liable for?
A
- In some jurisdictions ∆ is only liable if they leave the defendant in a worse position.
- Good Samaritan statutes: ∆ who rescues another will not be liable for a negligent rescue. ∆ is only liable if ∆ is reckless or intentional harm caused.
12
Q
When does a ∆ create a reliance to rescue or aid occur that gives rise to a duty?
A
When π reasonably relies on the assurances of ∆ for rescue.
13
Q
When does ∆ have a special relationship to rescue or aid occur that gives rise to a duty?
A
- Parent - child
- Common carrier - passenger
- Innkeeper - guest.
- Captain - passenger or seaman.
- Shopkeeper - customer
14
Q
What is the default duty to control/warn third parties?
A
There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another.
15
Q
When is there a duty to control/warn third parties?
A
- When ∆ should know of the dangerousness of a third party
And
- ∆ Controls Third Party: A special relationship exists between the actor and the third person that imposes a duty upon the actor to control the third party’s conduct
16
Q
What is the liability of a provider of alcohol?
A
Generally, a provider of alcohol is not responsible for the acts of a recipient.
17
Q
What is the exception to alcohol provider liability?
A
Dram Shop Acts
18
Q
What is the impact of a dram shop act?
A
Impose liability on certain ∆’s such as commercial establishments for providing alcohol to a patron they know or should know is intoxicated.
19
Q
When do dram shop acts apply?
A
When a state statute specifically stipulates it applies.
20
Q
When does negligent entrustment arise?
A
A duty is owed to any foreseeable plaintiff if:
- ∆ gives something dangerous to someone
- the ∆ knows or should know
- Is incapable of handling the dangerous object.
21
Q
What is the default duty to protect?
A
As a default, there is not a duty to protect anyone from third-party criminal conduct.
22
Q
When does the duty to protect arise?
A
- Special relationships exists: landlord/tenant, business/invitee, common carriers
And
- The third-party’s conduct is foreseeable
23
Q
When ∆ is a governmental entity, what does their duty owed depend upon?
A
Whether the government’s act is:
- Discretionary
- Proprietary
or
- Ministerial
24
Q
When is the government acting in a proprietary function? What is the duty of government?
A
The government is acting in a proprietary function when it is acting in an area traditionally occupied by private entities. The government will be treated as any other ∆ for the purposes of duty.
25
When is the government acting in a **discretionary function**? What is the **duty** of government?
The courts will not find a duty if the governmental entity is using:
1. Judgment
2. Discretion
Or
3. Allocating resources.
26
When is the government acting in a **ministerial function**? What is the **duty** of government?
Ministerial: there is no discretion in the act, the actions are the performance of government decisions.
Courts will find a duty once the government has started the act.
27
What is the **liability** of an **emergency department** for an inadequate response?
When a government agency (e.g., police, fire department) is sued for failing to provide an adequate response, courts will find n**o duty**.
28
**When** will **liability** be **imposed** upon an **emergency department** for an **inadequate** response?
1. There is a special relationship between the plaintiff and the emergency department that creates reliance in the plaintiff
Or
2. The emergency department has increased the danger beyond what would otherwise exist.
29
When a ∆ is a **utility company**, what is the **duty**?
1. Duties exist to π in privity of contract of the utility
And
2. π injured on the premises where the contract applies.
30
What are the **types** of **injuries** that can entitle a **π** to **tort damages**?
1. Personal Injuries
2. Property Damage
3. Emotional Distress
4. Bystander Actions
31
What is the **base** **requirement** for an **emotional distress** claim?
The emotional distress is the first injury suffered by the π.
32
What are the **elements** for **direct emotional distress**?
1. ∆ engages in negligent conduct
2. π is in the zone of danger of the conduct
3. As a result, the π suffers emotional distress
And
4. π's emotional distress manifests physically
33
What must **emotional distress** **transform** into for a successful claim?
The stress from the event must turn into a physical ailment. The pain must move from mental to physical.
34
What is the **zone of danger**?
An area where the π was reasonably at risk of suffering physical harm from ∆'s conduct.
35
What are the **exceptions** to recovery for **direct emotional distress**?
Emotional distress can occur without being in the "zone of danger" or having to suffer an accompanying physical manifestation if:
1. ∆ negligently transmits a telegram announcing the death of a loved one
Or
2. ∆ negligently mishandled a corpse.
36
What is a **bystander action**?
When physical harm occurs to a loved one (a close relative), the bystander directly observes it, and the bystander suffers emotional distress as a result.
37
What is the **majority/minority** distinction in **bystander actions**?
Majority: π must be in the zone of danger
Minority: π only needs to be near the accident
38
The **duty of care** owed by a **land possessor** liability depends upon what?
The status of the visitor:
1. Invitees
2. Licensees
3. Trespassers
39
Who is an **invitee**?
1. Customers: anyone who could potentially confer an economic benefit on the land possessor
2. Any Person in a Public Space: places held open to the public at large.
40
When someone comes onto a land and is **injured** by a **condition** on the **land**, their **recovery depends** upon?
Whether they are an invitee, licensee, or a trespasser.
41
What is the **duty owed** by land possessors to an **invitee**?
The duty to exercise reasonable care to prevent injuries to invitees caused by conditions on his land.
42
Who is a **licensee**?
A licensee is a person who enters onto defendant's land with defendant's express or implied permission. Friends and social guests of the landowner are licensees.
43
What **status** are **social guests** of a land possessor?
Licensees
44
What is the **duty** owed by land possessors to a **licensee**?
Land possessors must warn licensees of known concealed dangers on the property.
To incur liability, the condition must be:
1. Known
And
2. Non-obvious
45
Who is a **trespasser**?
Any person or animal that enters a land without the express or implied consent of the land possessor. It does not matter how the person got onto the land; a mistake does not change their status.
46
What is the **duty** owed by land possessors to a **trespasser**?
Must avoid the infliction of willful or wanton harm. Cannot intentionally hurt trespassers.
47
What is the **key** to analyzing **land possessor liability**?
The status of the π in the specific area where the injury occurred. The status of the π can change multiple times within the same facility.
48
If a **land possessor** is **performing activities** on their **land**, what **duty** is owed?
Then a duty of reasonable care is owed to any person on the land (except for unknown trespassers).
49
**To whom** does a landowner have a **duty** to **search out dangers** on the property?
Invitees
50
If there are known or **frequent trespassers**, what **must** the **land possessor** do?
Warn of known artificial conditions on the land.
51
What are the **elements** of the **child** trespasser doctrine/**attractive nuisance?**
All factors must be proven:
1. A child is too young to appreciate the danger
2. It is foreseeable to the landowner that there are children entering the property
3. The ∆ know of the dangerous condition on the property
4. The condition is an artificial condition (man-made)
5. The risk is so great that it outweighs the utility and the burden that would be placed on the ∆.
52
If the doctrine of **child trespasser** applies, then what **duty** is owed?
Child is treated as an invitee and owed a duty of reasonable care.
53
What is the **duty** of a **land possessor** to **π** on **adjacent** to land If an **artificial condition** exists on their land?
The land possessor owes a duty of reasonable care to π.
54
What is the **duty** of a **land possessor** to **π** on **adjacent** to land if a **natural condition** exists on their land?
No duty
55
**After a duty** is found, what are the **next steps** in a tort claim?
1. Breach of duty
2. Causation of Injury
56
What is the **duty** owed to **tenants** and third parties for injuries on a **leased property**?
A landowner generally has no duty to land tenants.
57
**When** is a **duty** owed to **tenants** and third parties for injuries on a **leased property**?
1. The condition is in a common area (a lobby)
2. ∆ negligently repairs the property
3. The landlord knows of concealed conditions at the time of lease and does not warn
Or
4. The landlord knows that tenant is going to hold the property open to the public at large.
58
What is the **standard** of care for a **reasonably prudent person** under the same or similar circumstances?
An objective standard of care that measures the ∆'s conduct against a reasonable person's circumstances. ∆ must rise up to the level of the average person in the community
59
What **factors** of **∆** affect the **reasonably prudent standard** of care?
1. Physical conditions (blind, deaf, missing limb)
2. Emergencies not of the ∆'s making
3. ∆ is a child
60
What **factors** of ∆ do **not affect** the **reasonably** prudent standard of care?
1. Lack of experience
2. Slow reflexes
3. Insanity
4. Low IQ
61
When is evidence of **custom** **relevant**?
To bolster the reasonably prudent standard in a community.
Deviation from a well-established, relevant custom favors the π.
Compliance favors the ∆.
62
What is the **standard of care** for **children** **∆**? Majority rule?
A minor defendant's conduct is assessed according to what a reasonable child of the same:
1. Age
2. Experience
And
3. Intelligence would have done
63
What is the **minority rule** for the **standard** of **care** for **children** **∆**?
1. Ages 0-6: Incapable of negligences
2. Ages 6-13: Presumption against negligence
64
What is the **standard of care** for **children** ∆ **exception**?
If a child is engaging in an inherently dangerous adult activity, then the child is held to an adult reasonable standard of care.
65
What is the **statutory** and **negligence per se** standard of care?
Where ∆'s conduct violates a statute that does not talk about civil liability but violates:
1. Criminal law
Or
2. Ordinance or Regulation.
The statute, regulation or ordinance becomes the standard of care.
66
Which **source** of law is **supreme** in tort liability:
Statutes v. Common law
Statute \> Common law
67
When does the statutory and **negligence per se** standard of care **apply**?
1. The π is a member of the class intended to be protected by the statute
And
2. The injury caused by ∆ is the type of injury that the statute is designed to protect against.
68
If a **statute** is **violated**, but it does **not apply to π** and ∆, what is the **standard** of **care**?
Reasonable person standard of care
69
When will a **statute standard** of care **not apply**?
1. There is an unexcused violation of the statute
Or
2. Licensing statutes (driving without a license)
70
When is there an **unexcused violation** of the **statute**?
When in an emergency not of ∆'s making, it would be more dangerous to apply the law than break it.
71
What is the **standard of care** for **professionals**?
As long as the professional does what other professionals customarily do in good standing: the professional is not liable.
72
What are the **different** **standards of care**?
1. Reasonable Prudent Person
2. Child
3. Statute/Negligence Per Se
4. Professionals
73
What is the **standard of care** for **doctors**?
Doctors are required to possess and use the knowledge, skill and training of other doctors in good standing in the relevant geographic community.
74
What is the **relevant geographic** community for **doctors**?
Specialists: national standard
General practitioners: same or similar locality
75
What is the **impact** of a **professional** **complying** with the **customs** of his profession?
They have complied with the standard duty of care.
76
What is the **impact** of a **professional** **deviating** from the **customs** of his profession?
There is malpractice; unless the professional uses a respected alternative.
77
What is a doctor's **standard of care** in providing **informed** **consent**? What is the majority/minority distinction?
**Majority**: doctors must divulge those risks that are customarily divulged.
**Minority**:
Standard of materiality: requires physicians to divulge all material risks that a reasonable patient would want to know in deciding whether to undergo a specific procedure. The failure to divulge a material risk is malpractice provided the π can show they would have refused the procedure had they known of the risk.
78
In order to prevail in a **legal malpractice action**, what must a **π prove**?
1. Attorney deviated from custom
And
2. Had the deviation not occurred, π would have won the underlying action.
79
What burden must a **π satisfy** in proving **breach of duty**?
Plaintiff has the burden to prove every element by the preponderance of the evidence.
80
What is the **preponderance** of the **evidence** **standard**?
More likely than not: \> 50 % likelihood.
81
What two **types** of **evidence** can show a **breach of duty**?
1. Direct evidence: eye-witness or a video tape of the accident
2. Circumstantial evidence: Evidence from which one can draw a reasonable inference
82
What is a **slip-and-fall** case?
∆ was negligent for failing to discover or remedy the dangerous condition. Can only be shown by circumstantial evidence.
83
Define **Res ipsa loquitur**
The thing speaks for itself
84
When is **res ipsa loquitur** **applicable**?
Arises when π cannot identify exactly what the ∆ did that was wrong; however, the event could only occur through ∆'s negligence.
85
What are the **elements** of **res ipsa loquitur**?
1. The injury is typically the result of negligence
2. ∆ is probably the responsible party and has adequate control over the harm causing instrumentality
And
3. The π did not contribute to the injury
86
What is the **only area** **res** **ipsa** **loquitor** is **applicable**?
Torts: proving breach of duty in a negligence action.
87
What does the **element** of **cause-in-fact tie** together?
Ties the ∆'s breach of duty to the π's injury.
88
What is the default **test** to **prove** the element of **cause-in-fact**?
But for the ∆'s negligence, the π would not have been injured. There is a \> 50% chance their exclusive negligence of ∆ caused the harm.
89
What are the four areas where **cause-in-fact** is **not** **evaluated** through the **but-for cause test**?
1. Multiple causes
2. Loss of chance
3. Alternative liability
and
4. Market liability
90
When there are **multiple causes** contributing to a π's injury, what **test** is used to to prove the element of **cause in fact**?
Substantial Factor Test: ∆ is liable if their negligence was a substantial factor in the π's injury.
91
When do you have to use the **substantial factor** **test** to prove the element of **cause in fact**?
When there are multiple ∆'s and any of them would have brought about the entire harm.
92
When does **joint** and **several liability** **apply**?
π can sue any ∆ for entire loss if:
1. Multiple ∆'s negligence
2. Are substantial factors
And
3. π's injury is indivisible.
93
If **joint** and **several liability** **applies**, then a **π can sue** who?
Sue one or both ∆ and collect the entire loss from either.
94
When one ∆1 is sued for full amount when another ∆2 is joint and severally liable, what can the ∆1 do?
∆1 can sue the other ∆2 for contribution
95
When **loss of chance applies**, what are a **π's damages**?
The loss of X% chance of survival if not but for ∆ negligence?
96
When does **loss** **of chance apply**?
Not a default rule, it must be integrated specifically by statute.
97
When does the **alternative liability theory** apply to prove cause-in-fact?
1. Every ∆ must be negligent (act unreasonably)
2. All negligent ∆'s are being sued together
3. Not a large number of ∆'s
98
What happens if **alternative liability theory applies** to prove cause-in-fact against ∆'s at issue?
Burden shifts to ∆ to show that they were not the cause. If a defendant cannot do so, then they will be jointly and severally liable.
99
**When** does **market share liability** apply to prove cause-in-fact?
Plaintiff can sue those who are likely responsible based upon their percent of the market if:
1. π's injury involves a generic product
2. π cannot show which of a large group of negligent defendants is responsible.
100
How are **damages** assessed when **market share liability** applies?
Plaintiff can sue those who are likely responsible based upon their percent of their market share (e.g. A business with 10% of market share pays 10% of injury damages)
101
What does **proximate** **cause** ask?
Is there a reason to limit the extent of liability due to
1. Unforeseeable extent of harm
2. Unforeseeable type of harm
Or
3. Unforeseeable manner of harm
102
If the **extent** of the **harm** was **unforeseeable**, what is ∆'s **liability**?
It does not matter that the π has suffered more harm than one would foresee. ∆ is responsible for the full extent of harm provided it is proper type of harm.
103
What is the **eggshell** **skull** rule?
∆ is responsible for the full extent of harm caused by his conduct even if an average person would not be similarly affected.
104
What is ∆'s liability if the **manner** of the **harm** was **unforeseeable**?
If there was a superseding cause, then there is no liability for the ∆.
105
What is a **superseding cause**?
A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. A superseding cause relieves the a ∆ of any liability.
106
When is an **intervening** **cause** superseding?
When it is highly unforeseeable, freakish, bizarre, and highly culpable.
107
When can **subsequent** **negligent** conduct be a **superseding** **cause**?
Generally will not cut off original ∆'s liability; however, it will cut off the extended consequences if it is freakish, unexpected, and bizarre.
108
What must **π** **prove** in order to **receive damages**?
An actual harm
109
What **type** of **damages** recoverable in **negligence** actions?
Recoverable: Personal injury and property damages
Not Recoverable: Nominal damages and punitive damages
110
What **type** of **damages** are awarded in **negligence actions**?
Compensatory damages: damages designed to return the π to π's pre-injury position.
111
In order to recover **compensatory** damages in a negligence claim, the **damages** **must** be?
1. Reasonably foreseeable
2. Reasonably certain
And
3. Not avoidable
112
How does the fact that the **π** got **compensated** from a **third-party impact** **damage** awards?
Collateral Source Rule: The fact that the plaintiff is getting compensated from a third party source (insurance, union contract etc.) does not alleviate ∆'s obligation to pay.
113
When can **punitive damages** be awarded for **negligent conduct**?
Never recoverable for negligent conduct. ∆ has to be more culpable than negligent.
1. ∆ must be least reckless: thereby consciously disregarding a high probability of harm
Or
2. Malicious or willfully cause harm.
114
When is the **wealth** of the **∆** **relevant**?
When giving punitive damages in order to punish ∆.
115
What is the **relationship** between **punitive** and **compensatory** damages?
Courts suggest that there should be some relationship between compensatory damages and punitive damages.
Punitive damages in excess of 10x compensatory damages are suspect.
116
What are the **defenses** to **negligence**?
1. Contributory Negligence
2. Comparative Fault
3. Assumption of Risk
4. Avoidable Consequences
117
What must be **proven** for the defense of **contributory negligence** and **comparative fault**?
π's conduct fell below the relevant standard of care and the failure contributed to the π's injury.
118
On the MBE, which is the **default**:
Contributory negligence v. Comparative fault
Assume in a pure comparative fault jurisdiction in which joint and several liability applies.
119
What is the legal **impact** of a **π's negligence** in a **contributory negligence** jurisdiction?
Any fault \> 0% on the part of the π will bar recovery.
120
What is the legal **impact** of the **π's** **negligence** in a **pure comparative fault** jurisdiction?
The π's recovery is reduced based upon the percentage of the π's fault.
If the π is 40% at fault, then can recover 60% from ∆. In pure comparative fault the π is allowed to recover no matter the percentage of their fault.
121
What is the legal **impact** of a π's **negligence** in **modified comparative fault** jurisdiction?
π's fault ≥ 50%: then π is barred from recovery.
π's fault ≤ 50%: the π's recovery is reduced based upon the % of the π's fault.
122
What is the legal impact of a π's **negligence** in a **comparative fault jurisdiction** when there are **multiple ∆**'s?
∆'s are still joint and severally liable for the reduced percentage of fault.
123
**When** does an **express assumption** of the **risk** exist?
π through written or oral words relieves the ∆ of their responsibility to act non-negligent towards the ∆.
124
When does **express** **assumption** of risk **typical** **arise**?
Written waivers in recreational activities and sports.
125
What is the **consequence** of a **valid express assumption** on a tort action?
It bars recovery
126
What are the **elements** of a valid **express assumptions of risk** that will bar recovery?
1. Express assumption language is clear
2. ∆'s conduct is no more culpable than negligence (cannot be intentional)
3. Waiver is not void against public policy
127
When has a π **impliedly assume** the **risk**?
1. π had knowledge of the danger
2. π appreciated the nature of the danger
And
3. π voluntarily chose to expose himself to that risk
128
From what **point of view** is **assumption** of the risk **evaluated**: subjective or objective?
Subjective focus on the mind of the plaintiff.
129
Where the π is a **professional rescuer** and is **injured** in doing her job, what is the **liability** for **∆** creating need for π?
π may not sue the ∆ who creates the need for them to do their job. A fireman cannot sue a firestarter.
130
What is a π's **duty** to **avoid consequences**?
A π has an obligation to take reasonable step after being injured not to increase the injury.
131
What is the impact of a π **not avoiding consequences**?
∆ is not liable for further damages caused by π's failure to avoid consequences.
132
What **∆'s liability** for a **rescuer** who rescues ∆ from a situation of ∆'s own negligence
∆ has an independent duty of care toward rescuer even if unforeseeable
133
Differentiate
Contribution v. Indemnification
**Contribution**: equitable apportionment, or sharing, among ∆.
**Indemnification**: shifts the entire loss from the party who was found liable to the actual wrongdoer who was primarily responsible for the harm.
134
Whether a ∆ has **breached** his **duty** to the plaintiff is a question of fact to be **determined** by **who**?
The trier of fact
135
When does **automobile vicarious liability** apply?
The owner of an automobile is liable for the negligent acts of his agents of members of his family when using the auto for family purposes.
136
When a **π** is **injured** in an accident, **π** has an **obligation** to do what?
Mitigate his damages. This includes taking all reasonable steps to limit the adverse consequences of the accident.
137
Doctrine of **avoidable consequences** only applies to **bar recovery** from?
The ∆ for damages that were avoidable to π
138
What **duty** owed by a store owner to a **patron** who **only** wishes to use the **bathroom**?
That of invitee. Duty to:
1. inspect the premises for non-obvious, unknown dangers
And
2. Warn the invitees of the dangers that make safe
139
What **duty** is owed to **invitees**?
1. Inspect the premises for non-obvious, unknown dangers
And
2. Warn the invitees of the dangers that make safe
140
What are the **elements** of **negligence per se**?
1. There is a statute
2. The injury of π is the type that the statute was intended to prevent
3. The π is a member of the class intended to be protected by the statute
4. ∆'s violation of the statute is not excused
141
What is the **impact** of **proximate cause**?
Creates a limitation on liability in defined circumstances; unforeseeable:
1. Type of harm
And
2. Manner of harm
142
How are ∆'s **liable** to **rescuers**?
For all volunteer rescuers, ∆ is liable for:
1. Injuries to rescuer
And
2. Injuries the rescuer causes during negligent rescue
143
Can **rescuers** be **superseding causes**?
No, because they are always foreseeable.
144
What is the **hierarchy** of **elements** to knock out in a **negligence** action question?
1. Breach of Duty
2. Causation
3. Proximate cause
4. Damages
5. Defenses
145
In a **joint venture**, if one of the **partners** is **negligent**, what is the **liability** of the **other partner**?
If one is negligent, the other will be found to be as well
