Negligence

Question 1

prima facie case for negligence

Answer 1

(i) A duty on the part of the defendant to conform to a specific standard of conduct for protection of plaintiff against and unreasonable risk of injury;
(ii) A breach of that duty by the defendant;
(iii) The breach is the actual and proximate cause of plaintiff’s injury; and
(iv) Damage.

Question 2

Duty of care is owed to all

Answer 2

foreseeable plaintiffs

Question 3

Majority view on foreseeable/unforeseeable plaintiffs

Answer 3

Foreseeable Zone of Danger (Cardozo View): P2 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 located in the foreseeable zone of danger.

Question 4

A rescuer is a ___________ where defendant negligently put himself or a third person in peril.

Answer 4

foreseeable plaintiff

Question 5

No duty is owed to __________ trespassers.

Answer 5

undiscovered

Question 6

Duty owed to discovered or anticipated trespassers

Answer 6

The landowner must:

(i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm, and
(ii) use reasonable care in the exercise of “active operations” on the property

Question 7

To establish the attractive nuisance doctrine’s applicability, the plaintiff must show:

Answer 7

(i) a dangerous condition on the land that the owner is or should be aware of,
(ii) the owner knows or should know children frequent the vicinity of the condition,
(iii) the condition is likely to cause injury, and
(iv) the expense of remedying the situation is slight compared with the magnitude of the risk

Question 8

licensee

Answer 8

one who enters onto the land with the possessor’s permission for her own purpose or business, rather than for the possessor’s benefit

Question 9

duty owed to licensees by owner

Answer 9

(i) warn of or make safe dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that th3e licensee is unlikely to discover, and (ii) exercise reasonable care in conduct of “active operations” on the property.

Question 10

Social guests are considered

Answer 10

licensees

Question 11

invitees

Answer 11

enter onto the land is response to an invitation by the landowner (i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public)

Question 12

duty owed to invitees

Answer 12

same duty as owed to licensees plus a duty to make reasonable inspections

Question 13

two requirements for negligent infliction of emotional distress

Answer 13

(i) plaintiff must be within the “zone of danger”; and

(ii) the plaintiff must suffer physical symptoms from the distress

Question 14

bystander not in zone of danger seeing injury to another (negligent infliction of emotional distress)

Answer 14

A bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another can recover damages for her own distress as long as (i) the plaintiff and the person injured by the defendant are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event. Many of the states also drop the requirement of physical symptoms in this situation.

Question 15

special relationship between plaintiff and defendant

Answer 15

The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant’s negligence has great potential to cause emotional distress (e.g., doctor’s misdiagnosis that patient has terminal illness). May states drop the requirement of physical symptoms in this situation as well.

Question 16

The doctrine of res ipsa loquitur requires plaintiff to show that

Answer 16

(i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and (ii) the negligence is attributable to defendant (i.e., this type of accident ordinarily happens because of the negligence of someone in defendant’s position)

Question 17

Where res ipsa loquitur is established, plaintiff has

Answer 17

made a prima facie case and no directed verdict may be given for the defendant

Question 18

Deny defendant’s motion for directed verdict (negligence) if

Answer 18

plaintiff has established res ipsa loquitur or presented some other evidence of breach of duty (such as defendant’s violation of a statute)

Question 19

Grant defendant’s motion for directed verdict if

Answer 19

plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty

Question 20

Plaintiff’s motion for directed verdict in negligence should always be denied except

Answer 20

in the rare case where plaintiff has established negligence per se through violation of an applicable statute and there are no issues of proximate cause.

Question 21

“But For” Test for actual cause (causation in fact)

Answer 21

Act or omission is the cause in fact of an injury when the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury

Question 22

Joint Causes–Substantial Factor Test for actual cause

Answer 22

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury

Question 23

Alternative Causes Approach for actual cause

Answer 23

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause

Question 24

Last Clear Chance Doctrine—An Exception to Contributory Negligence

Answer 24

Permits plaintiff to recover despite her contributory negligence. The person with the last clear chance to avoid an accident who fails to do so is liable for negligence. Only applicable in contributory negligence jurisdictions.

Question 25

assumption of risk

Answer 25

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant’s act. Plaintiff must have (i) known of the risk and (ii) voluntarily proceeded in the face of the risk.

Question 26

professional’s standard of care

Answer 26

a person who is a professional is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing

Question 27

In an indirect cause case,

Answer 27

an intervening force comes into motion after the time of the defendant’s negligent act and combines with it to cause the injury to the plaintiff. If the defendant’s negligence created a foreseeable risk that an intervening force would contribute to the plaintiff’s harm, the defendant is liable for the harm caused.

Question 28

All of the circumstances will be considered when evaluating the conduct of the rescuer, including

Answer 28

the excitement of the accident and the speedy response of the rescuer.

Question 29

A rescuer is a foreseeable plaintiff as long as

Answer 29

the rescue is not reckless; hence, the defendant is liable if he negligently puts himself in peril and the plaintiff is injured attempting a rescue.

Question 30

A plaintiff may take extraordinary risks when attempting a rescue without being considered

Answer 30

contributorily negligent.

Question 31

A common example of a nondelegable duty is

Answer 31

the duty of a business to keep its premises and instrumentalities safe for its customers.