Negligence

Question 1

A duty of care is owed to all . . .

Answer 1

foreseeable plaintiffs

Question 2

Where a defendant breaches a duty to one plaintiff, but ends up also hurting another person . . .

Answer 2

the other person can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances; i.e. that she was in the foreseeable zone of danger. Cardozo opinion; scales.

Question 3

Are rescuers a foreseeable plaintiff?

Answer 3

yes

Question 4

Firefighters Rule

Answer 4

firefighters and police officers are barred from recovering for injuries caused by the risks of a rescue.

Question 5

A duty of care is owed to what kind of fetuses?

Answer 5

viable

Question 6

What kind of action can be brought against a doctor who failed to diagnose a congenital defect in a fetus?

Answer 6

wrongful birth or wrongful pregnancy.

Question 7

What is the basic standard of care owed by all?

Answer 7

to behave as a reasonably prudent person would; i.e. reasonable person standard.

Question 8

Are mental deficiencies taken into consideration for determining whether they acted negligently?

Answer 8

No. Stupidity is no excuse.

Question 9

A professional is required to possess . . .

Answer 9

the knowledge and skill of a member of that profession in good standing.

Question 10

What standard are doctors held to?

Answer 10

national standard

Question 11

What special duty do doctors have?

Answer 11

to disclose the risks of treatment to enable a person to give an informed consent.

Question 12

Children are held to what standard?

Answer 12

that of a child of like age, education, intelligence, and experience.

Question 13

When are children treated as adults for negligence purposes?

Answer 13

when the child is involved in an adult activity.

Question 14

Common carriers and innkeepers are held to what standard?

Answer 14

a very high one. They are liable for slight negligence.

Question 15

What level of care does a driver owe his passenger?

Answer 15

ordinary care

Question 16

What kind of duty does a landowner owe to those off the premises?

Answer 16

to perform artificial acts on the land reasonably.

Question 17

If the owner of land liable for damage caused off the premises by trees, such as falling branches?

Answer 17

yes

Question 18

What level of care does a landowner owe to those on the premises?

Answer 18

generally, he owes a duty of ordinary care.

Question 19

What level of care does a landowner owe to undiscovered trespassers?

Answer 19

nothing

Question 20

What level of care does a landowner owe to discovered or anticipated trespassers?

Answer 20

a duty to warn or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm.

Question 21

To establish the applicability of the attractive nuisance doctrine, what must be shown?

Answer 21

the plaintiff must show 1) a dangerous condition on the land that the owner is or should be aware of; 2) the owner knows or should know children frequent the vicinity of the condition; 3) the condition is likely to cause injury; and 4) the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 22

What duty is owed to licensees?

Answer 22

the possessor must warn of or make safe dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. He must also exercise reasonable care in the conduct of active operations on the property.

Question 23

What duty is owed to invitees?

Answer 23

the same as for licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and thereafter, make them safe.

Question 24

Does a landowner owe a duty to those allowed to use the land for recreational purposes?

Answer 24

only where the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Question 25

The lessee of realty has a general duty to . . .

Answer 25

maintain the premises.

Question 26

When does one have an affirmative duty to act?

Answer 26

where the defendant 1) assumes the duty by acting; 2) places another person in peril; and 3) there is a special relationship between the parties.

Question 27

Is there a duty to prevent a third person from harming another?

Answer 27

Only where the defendant 1) has the ability and authority to control the person’s actions; and 2) knows or should know of when the control is needed.

Question 28

Violation of a statutory duty of care establishes what?

Answer 28

negligence per se

Question 29

Res ipsa loquitor is used to do what?

Answer 29

to establish a prima facie case of negligence

Question 30

What must a plaintiff show in order to successfully claim res ipsa loquitor?

Answer 30

1) the accident causing the injury is a type that would not normally occur unless someone was negligent; and 2) the negligence is attributable to the defendant.

Question 31

Where res ipsa loquitor has been successfully established, can a defendant successfully make a motion for a directed verdict?

Answer 31

no

Question 32

For liability to attach, the plaintiff must establish both . . .

Answer 32

cause in fact and proximate cause

Question 33

When is the but for test used to establish cause in fact?

Answer 33

when several acts, each of which is insufficient by itself to cause the injury, combine to cause the injury.

Question 34

When is the substantial factor test applied to establish cause in fact?

Answer 34

where several causes bring about an injury, and any one alone would be sufficient to cause the injury, the defendant’s conduct is the cause in fact of the injury if it was a substantial factor in causing the injury. Fires.

Question 35

When is the alternative causes approach test used to establish cause in fact?

Answer 35

when there are two acts, only one of which causes injury, but it is not known which one. Nurses/surgery

Question 36

Whether something is the proximate cause of a plaintiff’s harm is determined by whether the harm was . . .

Answer 36

foreseeable

Question 37

When should a motion for summary judgment be granted?

Answer 37

when there is no issue of foreseeability for the jury.

Question 38

Negligence requires what kind of damage?

Answer 38

actual damages. Where there is no actual damage, there is no negligence.

Question 39

Eggshell Plaintiff Rule

Answer 39

the defendant takes the plaintiff as he finds him.

Question 40

How are damages measured in the case of damage to property?

Answer 40

the measure of damage is the reasonable cost of repair or, if the property is nearly destroyed, the fair market value of the property at the time of the incident.

Question 41

When can punitive damages be awarded?

Answer 41

where the defendant’s conduct was wanton and willful, reckless or malicious.

Question 42

Is there a duty to mitigate?

Answer 42

yes, in all tort cases there is a duty to attempt to mitigate one’s damages.

Question 43

Collateral Source Rule

Answer 43

damages are not reduced just because the plaintiff received benefits from other sources.

Question 44

Contributory Negligence

Answer 44

where the plaintiff contributes to their own harm in any amount, they are barred from recovering from the defendant.

Question 45

Last Clear Chance Doctrine

Answer 45

a plaintiff’s response to the contributory negligence doctrine, where a plaintiff has one last clear chance to avoid an accident but fails to do so, they are liable for negligence.

Question 46

Imputed Contributory Negligence

Answer 46

the contributory negligence of a third party will be imputed to a plaintiff only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s negligence.

Question 47

Implied Assumption of Risk

Answer 47

a plaintiff will be barred from recovery if she 1) knew of the risk of harm; and 2) nonetheless carried on in the face of the harm.

Question 48

Express Assumption of Risk

Answer 48

a plaintiff will be barred from recovery if she 1) knew of the risk of harm; and 2) made an express statement that they were going to proceed in the face of the harm.

Question 49

Partial Comparative Negligence

Answer 49

the plaintiff will recover whatever percentage at fault the defendant was, so long as the plaintiff was not more than 50 percent at fault.

Question 50

Partial Comparative Negligence (mult. defendants)

Answer 50

the plaintiff can recover the combined fault of the defendants.

Question 51

Pure Comparative Negligence

Answer 51

the plaintiff’s damages are offset by the defendant’s damages.

Question 52

Can a defendant in a comparative negligence case recover from the plaintiff?

Answer 52

yes, so long as the defendant is not more than 50 percent at fault in a partial comparative negligence jurisdiction.

Question 53

One who negligently causes an initial injury to another is also liable for a second injury that is the _____________________ of the first injury.

Answer 53

natural consequence

Question 54

What is the result of a person offering gratuitous assistance to someone in peril, and then abandoning the assistance without causing the victim more pain or injury?

Answer 54

the person abandoning the assistance will not be found liable because he did not leave the victim in a worse position than he found her.