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Tort > Negligence > Flashcards

Negligence Flashcards

1
Q

What four elements does the P need to prove to recover for a negligence claim?

A
  1. D owed him a duty of care
  2. Breached that duty
  3. Caused the harm to P
  4. Damages
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2
Q

To whom do you owe a duty of care?

A

You owe a duty to all reasonably foreseeable victims

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3
Q

Who is an unforeseeable victim?

A

A person outside the zone of danger. Practically this means you owe a duty to those near you

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4
Q

When will a duty require you to control the acts of a third party?

A
  1. Where the person has authority
  2. The person has the ability to control the third-party
  3. The person knows or should have known that they need to exercise such control
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5
Q

What standard of care does a person owe?

A

The same standard that a reasonably prudent person, acting under similar circumstances would owe.

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6
Q

The reasonable person standard will apply automatically unless what?

A

One of the six special duty standards apply

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7
Q

Broadly speaking, what are the six special duty standards?

A
  1. Negligence claims against children
  2. Professional negligence claims
  3. Premises liability claims
  4. Statutory standard of care (negligence per se)
  5. Duty to act affirmatively
  6. Negligent infliction of emotional distress
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8
Q

The negligence claims against children what are the three rules?

A
  1. A child under the age of five is not liable for negligence
  2. Children over five must behave like the hypothetical child of similar age, intelligence, and experience, acting under similar circumstances
  3. Children who engage in adult adult activities will be held to the reasonable person standard
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9
Q

What is the standard for all professional negligence cases?

A

They must act as the AVERAGE members of the same profession, meaning exercising the skill and knowledge normally possessed by members of the same profession

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10
Q

How can the professional standard of care be proven in a claim?

A

It will require an expert witness to demonstrate cost more than the profession

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11
Q

For premises liability (negligence) what is the duty you are an unknown trespasser?

A

You are no duty because they are not a foreseeable victim

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12
Q

For premises liability (negligence) what duty standard do you owe the known trespasser?

A
  1. The possessor must’ve known about the condition in advance
  2. Condition is man-made
  3. Highly dangerous inflicting severe harm or death and
  4. Concealed or hidden to the trespasser
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13
Q

Who counts as a known trespasser?

A

Those who you know and could anticipate coming onto the land (this could include a pattern of trespassing in the past).

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14
Q

What is the duty standard you owe to a licensee?

A
  1. You must protect them from concealed conditions

2. Know about in advance

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15
Q

Who is a licensee for the purposes of premises liability?

A

This person enters onto the property with permission but not to confer and economic benefit on you (e.g. social guest or sales person)

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16
Q

For the purposes of premises liability who is an invitee?

A

They enter the land with your permission and to confirm economic benefit on the possessor (e.g. museums or supermarkets)

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17
Q

What duty standard do you owe to an invitee?

A
  1. You must protect them from concealed conditions
  2. The condition is known about in advance
  3. Or could have been discovered from a reasonable inspection
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18
Q

Other than for unknown tress passes, is there another way to satisfy your duty of care?

A

For no interest passes, licenses, or invitees you can satisfy your duty by doing either of the following:

  1. repairing/ remedying the hazard
  2. Providing a warning
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19
Q

What is the test for trust passing children when it comes to premises liability?

A

Apply the attractive nuisance doctrine

Possesses must:

  1. Exercise reasonable prudence to protect against tress pass in children
  2. From being harmed by artificial conditions on the land
  3. Note that warnings are insufficient
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20
Q

Which two classes of persons are not permitted to see you under normal premises liability rules?

A

Firefighters and police officers because injuries are an inherent risk of the job

21
Q

Supremacist liability is there a defence of voluntary assumption of the risk?

A

Only if the plaintiff knew of the risk AND voluntarily assumed

22
Q

What is the three part test for negligence per se?

A
  1. Plaintiff must show that the standards set out in the statute are clearly defined
  2. Plaintiff must be in the class of persons that the statute is designed to protect
  3. The accident is in the class of risk that the statute is designed to prevent
23
Q

For negligence per se, does the plaintiff need to suffer physical injury from a violation of the statute In order to succeed against the defendant?

A

No, any type of damages will suffice

24
Q

When the tests for negligence per se are met what does this prove?

A

It is conclusive of the issue of breach, But the plaintiff still needs to show causation and damages

25
Q

What are the two exceptions for negligence per se?

A
  1. Where compliance with the statute would have been more dangerous than non compliance
  2. Impossibility
26
Q

Will a plaintiffs case be thrown out of court if they fail to meet the negligence per se standard?

A

No, they can still litigate the case under the reasonably prudent person test

27
Q

Is there a duty to act affirmatively?

A

There is no good Samaritan role. However if you choose to act, then you have a duty to do so as a reasonably prudent person

28
Q

What are the two exceptions, requiring an affirmative duty to act?

A
  1. The defendant caused the peril

2. A pre-existing relationship (E.g.train company and ticket holder)

29
Q

What is the difference between negligent infliction of emotional stress and intentional infliction of emotional distress?

A

For negligent infliction of emotional distress it requires a careless act rather than an outrageous act

30
Q

Broadly what are the three types of cases you might see on the exam dealing with negligent infliction of emotional distress?

A
  1. Near miss cases
  2. Bystanders
  3. Business relationships
31
Q

For near miss cases, when can a plaintiff recover if a defendant acts negligently, causing an accident, but does not physically harm the plaintiff?

A
  1. The plaintive was in the zone of physical danger created by the defendants careless conduct
  2. The plaintiff had a PHYSICAL manifestation from their distress (e.g. heart attack or rashes)
32
Q

If you witness harm to a victim as a bystander when can you recover from the D for your emotional distress?

A
  1. You must be a close family member of the third-party (spouses and parent/child only)
  2. You must see the accident unfold
33
Q

What might count as a business relationship where it would be reasonably foreseeable for the P to suffer emotional distress as a result of the defendants carelessness?

A
  • medical relationships
  • accountants
  • client/attorney
  • funeral parlour
34
Q

For a breach of duty, what do you have to show to rely on res ipsa loquitur?

A
  1. The accident that occurred is normally associated with negligence
  2. The defendant had sole control over the preaching object (need NOT show defendant had actual possession)
35
Q

If the plaintiff can prove res ipsa loquitor, what is the result?

A

The jury cannot Give a directed verdict for the defendant. It does NOT create a presumption of negligence

36
Q

What are the three tests for factual causation?

A
  1. The But For test
  2. The substantial factor test
  3. Alternative causes test
37
Q

When will the but for test apply?

A

This test will apply to CONCURRENT cases, with several acts combined to cause the plaintiff’s injury but none of the acts alone would have been sufficient

38
Q

When will the substantial factor test to be used and what is the test?

A

Where there are multiple defendants and mingles cases.

If both defendants’ actions were a substantial factor in causing the plaintiff’s harm then the two defendants will be held jointly liable

39
Q

What is the alternative cause test and when will it apply?

A

This occurs where there is one cause of harm but you can’t show which of the two or more defendants are to blame. If applied the court shift the burden of proof on to the defendants to show that they are not liable And if they fail to meet the burden of proof they will be held jointly liable

40
Q

Proximate causation means what?

A

The defendant will not be liable for unforeseeable and unusual consequences of their actions

41
Q

What are the four precedent cases where chain of causation will not be broken?

A
  1. Intervening medical negligence
  2. intervening negligent rescue
  3. Protection or reaction forces
  4. Subsequent disease or harm
42
Q

Will a D be liable for a dependent intervening force or an independent intervening force?

A

Totally depends on whether they are foreseeable. Remember that D won’t be liable for unforeseeable events that break the chain of causation

43
Q

Which independent intervening forces could break the chain of causation?

A

Acts of god

Intentional torts

Criminal acts of a third person

44
Q

What is the egg shell skull principle?

A

Once the P established duty, breach and causation then the D is liable for all harm suffered. The rule is that the D must take their victim as they find them

45
Q

In a negligence action, what type of damages can the P recover?

A
  • economic damages (e.g. future loss of earnings or medical costs)
  • non-economic damages, such as pain and suffering
  • any other damages the P can prove (so no presumed damages)
46
Q

Which contributory standard is generally applied in most states?

A

Pure comparative negligence, allowing the P to recover whatever percentage the D is liable for, irrespective of their own % of fault

47
Q

What does a modified jurisdiction mean?

A

If P is more than 50% at fault, they can not recover from the D.

48
Q

What is the contributory negligence standard?

A

No recovery for a contributorily negligent plaintiff, unless:

  1. Last chance doctrine applies
  2. D’s conduct is more egregious than P’s
49
Q

What does it mean if your conduct is reckless and wanton?

A

Where the person has the last opportunity to avoid harm, but fails to do so.

Tort (6 decks)

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