Negligence

Question 1

3 types of neg questions:

Answer 1

1) negligence - regular (duty, breach, causation, damages)
2) neg per se
3) res ipsa loquitor

Question 2

negligence - duty; duty to whom

Answer 2

duty - if it’s a regular or lay person – act as a reasoanbly prudent person under the circ owed to
FORESEEABLE plaintiffs;

Question 3

duties of entering into someone’s prop - unknown trespasser

Answer 3

don’t know they came onto the land

– there is no duty to warn to unknown trespasser

Question 4

known trespasser

Answer 4

duty to warn of KNOWN

dangers

Question 5

licensee

Answer 5

someone comes on to your property if it’s a personal relationship or social
thing (duty to warn of KNOWN dangers)

Question 6

invitee

Answer 6

business people; customer in the mall; publics,
shopping center; commercial or business setting – duty to warn of dangers, inspect and make
safe)

Question 7

diff people have diff levels of duty

Answer 7

parent has to exercise reasonable care in supervising the kid to prevent harm if the parent
knew or should have known that they need to control the child or there is a necessity to control the
child. It means in plain english: goody two shoes or devil kids – if the parent knows or should know
the kid is going to knock out stuff, then parent has a duty to keep the kid in control ——–how will
you know it’s devil child? the facts will tell you which type of child

Question 8

generally the duty to aid

Answer 8

there is no duty to come to anyone’s rescue

EXCEPT if you TRY to help someone, you owe REASONABLE care

Question 9

Special relationship

Answer 9

duty to come to aid; this is your common carriers (bus, train, etc); teacherstudent;
employer-employee; inkeeper-guest (hotel)

Question 10

Child

Answer 10

duty to act like other children of the same age (five year old has to act like the similar kids
his age and experience);

Question 11

Professional

Answer 11

duty of a professional is to act like other professionals with the same standard of
care; have same experience background and training with other similar pros

____note, kids and
professionals are both more narrow

Question 12

Neg – BREACH -

Answer 12

didn’t follow; breached duty

Question 13

CAUSATION:

Answer 13

2 types: actual cause (but for test; but for the def’s action, no harm would have happened);

proximate cause (whether it was foreseeable)

–Need both actual cause and proximate cause.

Question 14

when they are testing you about proximate cause

Answer 14

look for a very specific answer and keep an eye

out on facts. –look for subsequent things happening after the original neg act

Question 15

Intervening cause

Answer 15

forseeable (orig def pays 100%) –any other neg act that occurs after my own,
it’s foreseeable (like doc cuts off the wrong leg)

Question 16

superseding

Answer 16

• unforeseeable (cuts off def’s liab)
  a) act of god
  b) intentional tort
  c) crime,
  or anything the fact pattern tells you is unforeseeable (normally does not occur in these
  circumstances – so it cuts off my liab so that I am responsible for the broken leg but not for the
  subsequent injuries if I hit you with a car)

Question 17

DAMAGES

Answer 17

actual, physical harm is REQUIRED

Question 18

NEG per SE

Answer 18

1) must be a violation of a statute
2) the person injured must be part of class of person the stat was designed to protect
3) injury is the type that the stat was trying to prevent

**any answer choice that has to do with reasonable care, foreseeable, but for, those choices are
for neg not for negligence per se, so ignore those

Question 19

RES IPSA LOQUITOR

Answer 19

def: whatever occurs normally does not occur without negligence; The D
was in exclusive control of the instrumentality.

What it looks like on the question – can a jury infer negligence? you’re doing a res ipsa q if you
see at bottom of the hypo,one or both parties making motion for directed verdict, summary
judgment; failure to state a claim – making a motion to kick the case out to not get to a jury; could
a jury infer negligence? LOOK for a MOTION! Go back and think, is it possible that X could be
negligent? IF answer is yes, then look for answer that jury could conclude

Question 20

Neg – look for
Neg per se – look for
Res ipsa – look for

Answer 20

(1) damages
(2) statute ordinance
(3) motion and inference

Question 21

Pure Comparative

Answer 21

you’ll recover, but damage reduced by your % of fault.

Question 22

Modified/modern comparative

Answer 22

P will recover but damages will be reduced BUT if they are more
than 50% responsible, that cuts it off and you get nothing

Question 23

contributory neg

Answer 23

Generally, if P was just 1% responsible, they get zero. Don’t infer, they will tell
you if contributory neg applies in that jurisdiction.
——–but if last clear chance: if D had a last clear chance to avoid the accident, and didn’t, then P
can recover. ————-don’t pick last clear chance unless talking about contributory.

Question 24

Assumption of the risk

Answer 24

P must have (1) knowledge of and (2) appreciate the danger and proceed anyway.

Never pick the answer of assumption of risk, unless they ask you about a defense – they
will be talking about the defense in the facts; never pick it if they don’t talk about it in the facts.

Question 25

Joint and Several Liab

Answer 25

two or more D causing injury to P, but we don’t know who did what.

P can recover 100% of damages from any one defendant; so it can be one def. even if two or
more people did it and we don’t know who did what.

Question 26

Vicarious liab

Answer 26

an employer is going to be liable for the negligent acts of their employees as long
as the employee was acting under the scope of employment.

Question 27

Employer is NOT liable for

Answer 27

intentional torts.

Question 28

What if employer hires an independent contractor

Answer 28

the employer is generally not liable for the acts of independent contractors, except two situations:
1) if the work being done by contractor is abnormally dangerous; (2) if the work that indep contr.
was doing a nondelegable duty (any work done for the benefit or safety of the public at large).

Question 29

Contribution

Answer 29

(if one person is writing the check for a fault that is shared by all) the name of the suit that
one D goes after another D (in a joint and several liab situation) is contribution. I can seek
contribution from my co-defendants. Both of us are negligent, so I can seek contrib from my
codefendant.

Question 30

Indemnification:

Answer 30

(vicarious liab situation) (I’m writing a check but I didn’t do anything wrong – you
come after co for the neg acts of the employee). Party writing the check did nothing wrong, seeks
indemnification from the person who did the wrong/was responsible (employer goes after
employee).