Negligence

Question 1

Negligence Per Se (For Violation of a Statute)

Answer 1

For a violation of a statute by a defendant to have any legal effect:

(1) the statute or ordinance must be a criminal statute;
(2) the plaintiff must be a member of the class of persons intended to be protected by the statute; and
(3) the claimed harm must be the type of harm intended to be protected against by the statute.

Question 2

A Finding of Negligence Per Se

Answer 2

A finding of negligence per se results in the rebuttable presumption of breach of duty but it is not a separate cause of action. Continue to discuss all five elements of negligence.

Question 3

Duty

Answer 3

State that the defendant had a duty to act reasonably and why he breached that duty.

Question 4

Actual Cause

Answer 4

Causation is usually the “but for” test. The only time it is not the but for test is when there are true concurrent causes ans either alone is sufficient as a cause, in which case you use the substantial factor test.

Question 5

Proximate Cause

Answer 5

Stop the action just before the harm occurs. If the person who was harmed was not someone you would normally have expected to be harmed, or the type of harm was different, there may be an issue of proximate cause.

Question 6

Harm

Answer 6

Typically one line of “so and so was harmed because X”

Question 7

Duty of and Owner of Land

Answer 7

Explain what the person on the land is, and then explain the duty.

Question 8

Duty to Passerbys

Answer 8

No duty to anyone outside the premises, except:

(1) to protect from unreasonably dangerous conditions abutting adjacent land
(2) to protect persons passing by from artificial conditions

Question 9

Invitee

Answer 9

Someone who is in a store to buy something until they exit the property.

Question 10

Duty to Invitee

Answer 10

Owner can be held liable to invitee if he or she:

(1) knows, or by exercise of reaosnable care, should have discovered, the condition and should realize that it poses an unreasonable risk of harm to invitees; and
(2) should expect that the invitees will not discover or realize the danger, or will fail to protect themselves against it; and
(3) fails to exercise reasonable care to protect them against teh danger

Question 11

Licensee

Answer 11

A person on the property for social reasons

Question 12

Duty to Licensees

Answer 12

An owner can be held liable to a licensee if he or she:

(1) knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to the licensees, and should expect that the licensees will not discover or realize the danger; and
(2) fails to exercise reasonable care to make the condition safe or to warn the licensees of the condition and the risk involved; and
(3) the licensees do not know or have reason to know of the condition or the risk involved.

Question 13

Known Trespassers

Answer 13

Usually known if the owner places “no trespassing” signs.

Question 14

Duty to Known Trespassers

Answer 14

There is a duty to warn of known, maintained, artificial conditions if it is likely to cause death or serious bodily harm, is not likely to be discovered by the trespassers, and the owner has failed to exercise reasonable care to warn trespassers of the condition or risk involved

Question 15

Duty to Unknown Trespassers

Answer 15

No duty but for the duty not to cause willful harm against them.

Question 16

Duty Involving Attractive Nuisances

Answer 16

Plaintiff must show:

(1) there is a dangerous condition present on the land of which the owner is or should be aware;
(2) the owner knows the young persons frequent the vicinity of the dangerous condition;
(3) the condition is likely to cause injury because of the child’s inability to appreciate the risk; and
(4) the expense of remedying the situation is slight compared with the magnitude of the risk.