negligence

Question 1

negligence elements

Answer 1

duty, breach, causation, damages

Question 2

negligence - duty

2 questions

Answer 2

1. To whom is a duty owed

2. How much care must be exercised

Question 3

negligence - duty

To whom is a duty owed?

Answer 3

1. All people who are foreseeable victims of your failure to take precautions.
2. As a matter of law, rescuers and viable fetuses are foreseeable plaintiffs.

Question 4

negligence - duty

How much care must be exercised

Answer 4

1. Amount of care that would be taken by a RPP under the same or similar circumstances.
   D’s superior skill or expertise must be used for P’s benefit.
   D’s physical disabilities are attributed to RPP.
   RPP standard is a fixed constant in negligence law.

Question 5

negligence - duty

special duty standards for children

Answer 5

majority rule: A child must exercise the degree of care of a reasonable child of like age, intelligence and experience.
minority rule (rule of 7s):
0-7 - incapable of negligence
7-13 - rebuttable presumption that child is incapable of negligence
14yo and older - rebuttable presumption that child is capable of negligence
Adult activities: A child engaged in an adult activity is held to the adult standard.

Question 6

negligence - duty

special duty standards for professionals

Answer 6

A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.

Question 7

negligence - duty

special duty standards for owners/occupiers of land

Answer 7

Variables - source of the injury and status of the P
Source of injury: conduct of activity or encounter w/static condition
Status of P: undiscovered trespasser, discovered trespasser, licensee (guest, friend), invitee
Undiscovered trespasser - no duty
conduct of activity - RPP unless undiscovered trespasser
discovered trespasser/static condition - artificial, highly dangerous, concealed condition known to the owner/occupier
licensee/static condition - concealed condition known to owner/occupier
invitee/static condition - concealed condition known to owner/occupier or learned about by reasonable inspection (duty to inspect)

Question 8

negligence - duty
special duty standards for owners/occupiers of land
In a static condition, how can the owner/occupier satisfy the legal condition.

Answer 8

1. Go to the condition and make it safe

2. Give a warning

Question 9

negligence - duty
special duty standards for owners/occupiers of land
What is the standard and doctrine used for child trespassers?

Answer 9

1. RPP standard

2. Attractive nuisance doctrine

Question 10

negligence - duty

attractive nuisance

Answer 10

A possessor of land is liable if 4 conditions are met:

1. An artificial dangerous condition exists
2. Possessor knows or should know that children are likely to trespass
3. Child herself, b/c of age or immaturity fails to realize the risk or appreciate the danger involved
4. Utility to maintain the condition is slight compared to the risk involved

Question 11

negligence - duty
special duty standards for owners/occupiers of land
What happens if the condition is open and obvious?

Answer 11

Entrant will almost always lose.

Question 12

negligence - duty

negligence per se

Answer 12

An unexcused violation of a statute is presumptively an act of negligence IF

1) P is in the class of persons the statute was designed to protect AND
2) The harm is of the type the statute was designed to prevent (Class of persons, class of risk)
exceptions: Compliance w/statute is more dangerous than violating the statute or impossible under the circumstances.

Question 13

negligence - duty

duty to act

Answer 13

1. General rule: No duty to act
2. Exceptions
   a. If you put P in peril, you have a duty to prevent the peril.
   b. For certain relationships (close family, common carrier and innkeepers, invitor/invitee)
   c. Duty to control 3rd persons IF you have i) actual ability and ii) authority to control.

Question 14

negligence - duty

Negligent infliction of emotional distress

Answer 14

1. General Rule: no duty
2. Exception: If you are exposed to physical risk by D’s negligence, and then you suffer physical manifestations from your physical distress, you have a NIED claim
   a. Zone of Danger (near miss)
   P wins only if he was in the Zone of Danger
   b. Bystander recovery
   P wins if P was at the scene of the accident AND if she had a close relationship w/person in the accident

Question 15

negligence - breach

Answer 15

GR: P must point to specific conduct for breach of duty

Question 16

negligence - breach

proving conduct

Answer 16

custom - Always admissible, never conclusive (reasonable based on custom)
res ipsa loquitur - 1) the event did not result from P’s voluntary act 2) the event is one that does not normally occur in the absence of negligence, and 3) the event was caused by something under D’s exclusive control.

Question 17

negligence - breach

custom

Answer 17

custom - Always admissible, never conclusive (reasonable based on custom)

Question 18

negligence - breach

res ipsa loquitur

Answer 18

res ipsa loquitur - 1) the event did not result from P’s voluntary act 2) the event is one that does not normally occur in the absence of negligence, and 3) the event was caused by something under D’s exclusive control.

Question 19

negligence - causation

Answer 19

1. Cause in fact

2. Proximate cause

Question 20

negligence - causation - cause in fact

Answer 20

1. But-for test (but for D’s conduct, the injury would not have occurred)
2. Substantial factor (multiple D’s and a co-mingled cause)
3. Burden shifting (multiple D’s and an unknown cause)

Question 21

negligence - causation - proximate cause

Answer 21

legal responsibility

A person is liable for those harms within the risk of his activity.

Question 22

negligence - causation - fact patterns

Answer 22

Direct cause fact patterns - If D’s negligent conduct is foreseeable, D is liable
Indirect cause fact patterns -
1. If the foreseeable intervening cause leads to a foreseeable outcome, D is liable (P wins)
2. If the unforeseeable intervening cause leads to a unforeseeable outcome, D is not liable (P loses)
3. Intervening causes where D will almost always be liable (always foreseeable) - subsequent medical malpractice, negligent rescue, reaction forces, subsequent accidents or diseases
4. Intervening causes where D will not cut off liability IF D can anticipate the intervening cause (if foreseeable) - 3rd party negligence, criminal conduct, acts of God

Question 23

negligence - damages

and elements of personal injury award

Answer 23

Damages must be proven as part of the prima facie negligence case.
Elements of a typical personal injury award: 1) past & future medical expenses, 2) past & future lost income, and 3) P’s pain and suffering

Question 24

negligence - damages

eggshell skull plaintiff

Answer 24

D is liable for the full extent of the damages he causes, even if the extent was unforeseeable.
(You take P as you found P.)

Question 25

negligence - defenses

Answer 25

1. Contributory negligence
2. Assumption of risk
3. Comparative negligence

Question 26

negligence - defenses

contributory negligence

Answer 26

P’s failure to use the relevant degree of care for his own safety.
Consequence: P recovers nothing. Absolute bar to recovery UNLESS
Last clear chance: P can recover despite negligence if D had the last clear chance to avoid the accident.

Question 27

negligence - defenses

assumption of risk

Answer 27

Express and Implied
Express (expressly stated): Absolute bar to recovery unless a public policy exception.
Implied (knowing and voluntary encounter with the risk): Usually a bar to recovery UNLESS
1. Absence of an alternative destroys voluntariness.
2. Emergency situations destroy voluntariness.

Question 28

negligence - defenses

comparative negligence

Answer 28

Reduces recovery instead of absolute bar
Pure CN and Modified CN
Pure CN - P always recovers something (even if she is the majority negligent actor in the case)
Modified CN - P recovery is proportionally reduced to a threshold (49% or 50%), then it is a bar to recovery
Where it exists, comparative negligence supplants all other affirmative defenses except express AoR