Negligence Flashcards
Primia Face case for negligence
1) duty
2) breach of duty
3) actual and proximate causation and
4) damages
what are the steps for duty to determine?
1) was it a foreseeable P (almost always)
2) what is the standard of care
who are duties of care owed to?
only foreseeable P’s.
- Most likely foreseeable
Foreseeable P’s as matter of law
1) rescuers
2) viable fetuses
who is an unforeseeable P
people not within the FORESEEABLE ZONE OF DANGER.
-measured at time of the negligent conduct
Standards of care analyze
1) determine what std applies
2) determine what the std is
what is the reasonable person std?
reasonable person under the circumstances
Does IQ go into reasonable person std
NO
Does defendants PHYSICAL characteristics taken into consideration?
YES.
What is the disabled defendant?
If D is AWARE of their disability, they are supposed to act as a REASONABLE PERSON WITH it would act
-Ex: blind person not drive
What is the children standard?
Child of LIKE age, intelligence and experience
-subjective standard
What is the X/C for the children standard?
where the child is engaged in an ADULT ACTIVITY, the reasonable person std applies.
What is the professional standard for a professional?
A reasonable professional in the same or similar communities
What is the standard of care for a specialist?
a reasonable specialist in national community.
What is the standard of care for Common Carriers and Innkeepers?
liability for even SLIGHT negligence
- P MUST be a passenger or guest for slight negligence to apply though
What are the steps for Owner-Occupier Standards?
1) make sure D is owner/occupier or in “privity” of one
2) Determine if injury occurred on or off land
3) assuming it is ON the land
- Undiscovered trespasser has no duty.
Off-land exam tip
anytime you see an alternative that assigns a status to an injured party, that happened off land, get rid of
(ex: trespasser b/c it occurred off land)
The owner/occupier status for activities
ordinary negligence and P’s status is irrelevant , std is reasonable persons std
Dangerous condition for status for owner/occupier
P’s status is relevant for dangerous conditions
duty owed to DISCOVERED trespasser
1) ARTIFICIAL condition (something a person has put on land that nature would not) (ex: fence, wall)
2) involving a risk of SERIOUS injury
3) O/O KNOWS OF
- anticipated trespasser fails under this
how are anticipated trespassers treated?
like known trespasser
duty owned to licensee
1) dangerous conditions
2) O/O KNOWS OF
- no words of limitation, can be natural, artificial
who is a licensee
on land for their own benefit and not owners benefit.
- including social guests
what is a social guest
a licensee
who is an invitee
on the land for the O/O purpose
ex: business, public invitees
standard of care for invitees
1) dangerous conditions
2) O/O knows of OR
3) should have known of
- o/o must make REASONABLE INSPECTION of the property for the benefit of the invitees
What does Illinois do for distinctions of o/o
all treated the same, reasonable person std for all
How can an O/O discharge their duty?
duties may be discharged either by
1) warning of OR
2) making safe the dangerous condition
- on bar will be warning otherwise person was not injured.
2) very obvious dangerous conditions: no liability
Does an O/O have to make warning or make safe a dangerous condition for a VERY OBVIOUS dangerous condition?
NO
Attractive nuisance doctrine
does a child need to be able to show that the dangerous condition attracted them on the land?
NO. BS. do not need to be attracted onto land because of it.
Test of statutorily standard to apply
1) P must fall w/i PROTECTED CLASS and
2) statute must be DESIGNED TO PREVENT THIS KIND OF INJURY
what happens if stautorily standard does not apply?
just use the reasonable person std.
effects of non-compliance with an applicable statute
negligence per se
what does negligence per se mean?
there is a CONCLUSIVE PRESUMPTION of negligent conduct on the defendant’s part.
-duty and breach established
what does negligence per se NOT mean?
does not mean the D is liable for negligence. still must prove actual and proximate causation and damages.
what are the X/C for statutory standard to apply
1) Compliance would be MORE DANGEROUS
2) compliance would be IMPOSSIBLE
Effect of compliance with an applicable statute
although a statutory std can be introduced by D, this WILL NOT necessarily establish due care IF THE CIRCUMSTANCES REQUIRE MORE
- Ex: driving 45mph which is speed limit but during a blizzard
- Defendants argument
negligent infliction of emotional distress
1) negligence
2) extreme out outrageous conduct
3) PHYSICAL damages
4) P must be within “TARGET ZONE” of D’s negligent conduct
contrast IIED and Negligent Infliction of emotional distress
IIED does not require PHYSICAL damage like negligent does
when can P recover under negligent infliction of emotional distress?
when P is
1) close relative and
2) perceived the injury
What is the general rule for duty to act
Generally there is NO affirmative duty to act
X/C for no affirmative duty to act
1) Special Relationship b/w parties
2) Duty to control 3rd parties
3) assumption of duty to act by acting
4) P’s peril due to D’s conduct
Special Relationship b/w parties duty
family members, employer/ employee, common carriers, innkeepers have a duty to act.
duty to control 3rd persons
1) right and ABILITY to control
( employers/employees, parents/kids)
2) know or SHOULD have known its required.
how to determine if there has been a breach?
by w/e or not the D has met the std of care.
When does “res ipsa loquitur” apply?
when P does NOT have enough solid evidence to establish negligent conduct on D’s part.
the probability inference test for “res ipsa loquitur”
1) inference of negligence: this usually would not happen unless someone was negligent
2) Negligence attributable to D: showing the instrumentality causing the injury was w/i the defendants exclusive control
3) P not contributory negligent
What does it mean if p established res ipsa loqcuitor
P just survives directed verdict. Does not win. Up to Jury to accept or reject the inference.
What are the two sub parts for causation
1) actual causation
2) proximate causation
What are the 3 tests to determine actual causation
1) but for test (most basic and used)
2) substantial factor test
3) alternative causes test
what is the but for test
“but for” the defendants negligent conduct, would P’s injury occur?
Generally what happens when but for test and is negative?
usually no liability for D, but must go on to
2) substantial factor test or
3) Alternative causes test
what is the substantial factor test for actual causation
D’s conduct was a substantial factor in causing injury
when do you use the substantial factor test
when 2 or more people caused the injury
what is the alternative causes test for actual causation
2 or more negligent D’s uncertainty as to which one caused injury
what does it mean for the alternative factors test/
the burden shifts to the D’s to show which one caused it. If they cannot succeed then BOTH are held liable.
what is proximate causation?
AKA legal causation. It is a way for the jury to let a NEGLIGENT D WHO ACTUALLY caused an injury off based on unforeseeable
what is a direct cause case for proximate causation?
uninterrupted chain of events b/w negligent act and injury
what is INdirect cause case for proximate causation
b/w negligent act and injury there is an INTERVENING force which combines with prior act to cause injury
if the result was foreseeable should the D be liable under proximate cause
YES
if the result was unforeseeable should the D be liable under proximate cause?
NO
what is the exception for when a result is foreseeable for proximate causation
1) an INDIRECT cause case, if the
2) intervening force was an
3) UNFORESEEABLE intentional tort Or
4) crime, D will NOT
be liable even though the result was foreseeable.
What is the egg-shell P?
it is only necessary that one be able to foresee an INJURY not the EXTENT of the injury
(take P as you get them)
does a P need damages for negligence cause
YES must prove actual damages
Defenses for negligence (3)
1) Contributory negligence
2) comparative negligence
3) assumption of risk
what are the two types of contributory negligence?
1) contributory negligence/implied assumption of the risk
2) unknowing contributory negligence
what to look for when both contriubtory negligence and implied assumption of the risk are BOTH available
P
1) unreasonably
2) voluntary takes on the
3) known risk
X/C to implied assumption to the risk (2)
1) no other viable alternative
2) EMERGENCY (either P’s or another)
what is the effect of contributory negligence is state has it?
ANY contributory negligence is a COMPLETE BAR to recover
- CANNOT recover anything if even a tiny bit negligent
what is the effect of comparative negligence
comparative negligence REDUCES the recovery in a comparative negligence state
what is partial comparative negligence?
no recover if one was MORE negligent than the other party
- Ex: if P was 49% negligent, D was 51% can recover 2 percent
- If P was 51 % and D was 51% cannot recover anything
what is pure comparative negligence
can recover whatever part that was not negligent
Ex: P was 90 % and D was 10 % p can recover 10 percent
Is Illinois a pure or partial comparative negligent state?
partial
what do you assume on the bar for type of state for negligence defenses?
assume pure comparative negligence unless told otherwise.
what is the last clear chance doctrine?
in contributory negligent P successfully contends that after their negligence, D still have last clear chance to avoid accident and thus contributory negligence should be disregarded as a defense.
when does last chance doctrine come in?
1) P’s argument
2) contributory negligent state
who brings a last clear chance defense?
P only because it is a contributory negligent state
generally what is strict liability
D causes P injury W/O ANY fault on the D’s part
what is the duty for strict liability?
an ABSOLUTE duty to make safe (thus breach if not safe)
generally what are the 3 areas where strict liability can be used?
1) WILD DANGEROUS animals
2) abnormally dangerous activities
3) Products liability (has both strict liability and negligence theories)
elements for strict liability to apply
1) absolute duty to make safe
2) the dangerous aspect of the activity was the ACTUAL and PROXIMATE cause of P’s injury and
3) damages
is there strict liability for domestic pets?
NO
what is the x/c for strict liability for domestic pets
1 free bite rule
- if D has knowledge that particular animals dangerous propensities that are not common to species
are farm animals wild animals
NO
- either are bulls are bees.
can P recover from injuries they received from running away from the wild animals?
Yes
for contributory negligence state for strict liability what if the P did NOT KNOW of the risk
plaintiff recovers everything this is no defense
for a contributory negligence state for strict liability what if the P DID KNOW of the risk
complete defense, P gets NOTHING
what needs to be established for products liability to apply?
any COMMERCIAL SUPPLIER
what are the two ways to bring a products liability action?
1) negligence or
2) strict liability
what is the first requirement for products liability whether it is by negligence or strict liability
the defect causing the injury must have existed at the time the product left THAT defendant’s control
how to find that the product was defected when it left defendants control for products liability?
there is an inference that the defect existed when it left any of the given D’s control if since that time the product has moved through NORMAL CHANNELS of distribution
how to determine if apply a negligence or strict liability for products liability
look at the call of the question, it will tell you
for negligence for products liability what do you look at?
focus on D’s conduct
what are some possibilities for negligence of products liability
1) negligent DESIGN
2) negligent MANUFACTURE
3) negligent WARNINGS
4) negligent INSPECTIONS
who can be a P for products liability
anyone who is w/i FORESEEABLE ZONE OF RISK, including bystanders
who can be a defendant under products liability for negligence theory?
Manufactures: ALMOST ALWAYS
Retailers/Wholesalers: ALMOST NEVER
when can a retailer or wholesaler be liable under products liability for negligence?
when one is on notice and not reasonable care
do you look at D’s conduct for strict liability for products liability?
NO
strict liability test:
an “unreasonably dangerous condition”
for strict liability to apply must the harm result from the kind of danger to be anticipated from the dangerous activity or animal
YES (including harm caused from running from the PERCEIVED danger)
- strict liability does not apply when the injury is caused by something other than the dangerous aspect of the activity (ex: dynamite truck but blows a tire and hits something but does not explode)
will a D be held liable under products liability for dangers not foreseeable at the time of marketing?
NO
who can be a defendant in products liability under strict liability?
EVERYONE
- Indemnification (up the chain) applies
Does products liability for strict liability apply to services?
NO. Even where the product is provided incident to a service (ex: blood during an operation) there is no strict liability. Can sue on negligence
can a P recover under products liability for strict liability for only economic damages?
NO. Physical injury or property injury must be shown.
what is the effect of disclaimers for products liability for both negligence and strict liability
disclaimers are IRRELEVANT
generally are warnings good for products liability defense?
Yes generally.
What is the feasible alternatives approach for products liability
if one could have cured a defect for a minor amount of money relative to the risk involved they SHOULD have done so AND a warning will not save them
when a warning be fine if the defect could have been solved for a minor amount of money under products liability
NO
Nuisance test
substantial, unreasonable interference with one’s USE AND ENJOYMENT of land
who can bring a nuisance claim
P must have either possession or the right to IMMEDIATE POSSESSION
what is the standard for nuisance?
the conduct must be objectionable to an AVERAGE person. In short is the reasonable person std.
what does nuisance require when courts look at it
“balancing of competing interests”
can a P come into a nuisance and maintain a lawsuit
YES
what is the difference b/w nuisance and trespass to land
trespass there is an interference by PHYSICAL invasion
- nuisance there is an interference with the use or enjoyment of land.
elements for a products liability case under STRICT LIABILITY
1) D is a COMMERCIAL SUPPLIER
2) D produced or sold a DEFECTIVE PRODUCT
3) defective product was the ACTUAL and PROXIMATE CAUSE of the P’s injury and
4) p suffered DAMAGES
different types of claims under a products liability case
1) intent
2) negligence
3) strict liability
4) implied warranties of merchantability and fitness for a particular purpose and
5) representation theories (express warranty and misrepresentation)
under a products liability case for negligence, are economic damages enough
NO
- need physical damages
when to grant a D motion for directed verdict?
when P has not proved duty, breach, causation and damages
for negligent hiring does the employee need to be acting w/i scope of employment?
NO.
- do not need to be w/i scope for negligent hiring, but has to be w/i scope of employment for vicarious liability
what is the rule for non-delegable duty to make place safe if open it up to public
NON-DELEGABLE DUTY to make place safe, if open land to public
strict liability of wild animals
associate damages associated with animal (damages must result from the strict liability)
is feeling from strict liabiltiy the type of harm associated with it
YES.
- fleeing from the extreme dangerous activity will result from the damages
firefighter rule
police officers and firefighters are generally treated as licensees rather and invitees. They cannot recover from a landowner’s failure to inspect or repair dangerous conditions that are inherent risk of their law enforcement or firefighting activity
GR: for negligent infliction of emotional distress
1) P must suffer PHYSICAL DAMAGES
2) within the foreseeable zone of danger
- with duty, breach etc
x/c for negligent infliction of emotional distress where P is not w/i zone of danger
still need physical damages but P can recover IF
1) they are CLOSE RELATIVE AND
2) perceived the injury ( more than saw, can hear is fine)
does IL follow the x/c for negligent infliction of emotional distress where P is not w/i zone of danger
no. must always be w.i zone of danger, even if close relative
for products liability under strict liability what is the general rule for warnings
GR: adequate warnings will INSULATE from liability
x/c for when general warnings will insulate for products liability under strict liability
when one could have cured the defect for a minor amount of money relative to the risk involved he/she should have done it AND A WARNING WILL NOT SAVE THEM
are rescuers foreseeable P
YES, owe a duty of reasonable person to all foreseeable P
strict liability for wild animals escape
Owner strictly liable for wild animals if foreseeable if they escape
strict liability for products design
for design defects: P must usually show reasonable alternative design
- less dangerous alternative
breach in products liability in negligence (P must show 2 things)
1) negligent conduct by D
2) supply of DEFECTIVE product
- Res Ipsa liquor, presumes duty and breach
Landowner owes duty to whom off premises
adjudicate to premises to take due precautions to protect them from dangerous conditions
recovery for person can get for wrongful death
for wrongful death cases, recovery allowed up to amount of what decedent recovered
eggshell skull P
a successful P in tort action is entitled to be compensated for ALL of her damages, regardless of w/e they were foreseeable (ie: tortfeasor takes his victim as he finds her)
what can a successful P in tort entitled to be compensated for
for ALL damages, REGARDLESS of whether they were foreseeable (tortfeasor takes P has he finds them)
-when D’s negligence causes an aggravation of the P’s existing physical OR MENTAL illness, the D is liable for the damages caused by the aggravation
elements for negligent emotional distress
A duty to avoid negligent infliction of emotional distress may be breached when the D creates a foreseeable risk of physical injury to the P. P must establish 2 requirements
1) P must be within foreseeable zone of danger from physical injury
2) P must suffer PHYSICAL symptoms from the distress caused by danger
x/c 1) close relationship
(2) perceived the event
- not apply in IL
informed consent of doctors
doctors owe their patients to provide with enough information about risks of a proposed course of treatment or surgical procedure to enable patient to make an “informed consent” to the treatment
- If an undisclosed risk was serious enough that a reasonable person in the patients position would have withheld consent to the treatment, the health care provider has breached the duty
- BUT MUST STILL HAVE DAMAGES
- however, absence of consent may constitute battery
- HOWEVER, a nondisclosure of the RISKS is a breach of duty
