Negligence Flashcards
3 types of neg questions:
1) negligence - regular (duty, breach, causation, damages)
2) neg per se
3) res ipsa loquitor
negligence - duty; duty to whom
duty - if it’s a regular or lay person – act as a reasoanbly prudent person under the circ owed to
FORESEEABLE plaintiffs;
duties of entering into someone’s prop - unknown trespasser
don’t know they came onto the land
– there is no duty to warn to unknown trespasser
known trespasser
duty to warn of KNOWN
dangers
licensee
someone comes on to your property if it’s a personal relationship or social
thing (duty to warn of KNOWN dangers)
invitee
business people; customer in the mall; publics,
shopping center; commercial or business setting – duty to warn of dangers, inspect and make
safe)
diff people have diff levels of duty
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
generally the duty to aid
there is no duty to come to anyone’s rescue
EXCEPT if you TRY to help someone, you owe REASONABLE care
Special relationship
duty to come to aid; this is your common carriers (bus, train, etc); teacherstudent;
employer-employee; inkeeper-guest (hotel)
Child
duty to act like other children of the same age (five year old has to act like the similar kids
his age and experience);
Professional
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
Neg – BREACH -
didn’t follow; breached duty
CAUSATION:
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.
when they are testing you about proximate cause
look for a very specific answer and keep an eye
out on facts. –look for subsequent things happening after the original neg act
Intervening cause
forseeable (orig def pays 100%) –any other neg act that occurs after my own,
it’s foreseeable (like doc cuts off the wrong leg)
superseding
- 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)
DAMAGES
actual, physical harm is REQUIRED
NEG per SE
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
RES IPSA LOQUITOR
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
Neg – look for
Neg per se – look for
Res ipsa – look for
(1) damages
(2) statute ordinance
(3) motion and inference
Pure Comparative
you’ll recover, but damage reduced by your % of fault.
Modified/modern comparative
P will recover but damages will be reduced BUT if they are more
than 50% responsible, that cuts it off and you get nothing
contributory neg
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.
Assumption of the risk
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.
Joint and Several Liab
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.
Vicarious liab
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.
Employer is NOT liable for
intentional torts.
What if employer hires an independent contractor
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).
Contribution
(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.
Indemnification:
(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).
