NEGLIGENCE

Question 1

Negligence Prima Facie Case Elements

Answer 1

Duty, breach, Causation, Damages

Question 2

general DUTY of care

Answer 2

act as an ordinary, prudent, reasonable person to foreseeable plaintiffs

Question 3

unforeseeable plaintiffs problem

Answer 3

1. defendant owes a duty to anyone who suffers injuries as a proximate result of a breach to someone
2. zone of danger: must be within the zone of danger

Question 4

rescuers

Answer 4

foreseeable plaintiff as long as rescue is not reckless

Question 5

prenatal injuries

Answer 5

1. wrongful life action not recognized
2. wrongful birth and wrongful pregnancy recognized: failure to diagnose defect or failure to properly perform contraceptive procedure

Question 6

Intended beneficiaries of economic transactions

Answer 6

third party for whom economic benefit a legal or business transaction is made is owed a duty of care if the defendant could reasonably foresee harm to that party if the transaction is done negligently.

Question 7

standard of care- reasonable person

Answer 7

same physical characteristics as the defendant, average mental ability, same knowledge as average member of community

Question 8

particular standard- professionals

Answer 8

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

Question 9

particular standard- children

Answer 9

child of like age, education, intelligence and experience.
children under 5 have NO liability
children engaged in adult activities conform to same standard of care as adult engaged in same activity

Question 10

Bailment

Answer 10

sole benefit of bailor: liable only for gross negligence
sole benefit of bailee: liable even for slight negligence
mutual benefit: ordinary due care
sole benefit of bailee: no duty regarding unknown defects
bailment for hire: duty to inform the bailee of defects known to him or of which he would have known by the exercise of reasonable diligence

Question 11

standard of care- emergency situations

Answer 11

act as reasonable person in same emergency

Question 12

standard of care owners and occupiers of land- duty to those off land

Answer 12

no duty to protect against natural conditions
no duty for artificial conditions UNLESS: unreasonably dangerous condition; duty to take due precautions to protect persons passing by from dangerous conditions

Question 13

standard of care owners and occupiers of land- duty to trespassers

Answer 13

1. NO duty to unknown trespassers
2. Duty to known trespassers to warn or make safe artificial conditions that involve risk of death or serious bodily harm
3. anticipated trespassers are treated with the same duty owed to discovered trespassers

Question 14

attractive nuisance doctrine

Answer 14

plaintiff MUST show: there is a dangerous condition on the land which the owners should be aware of; the owner knows or should know that young persons frequent the area around the dangerous condition; the condition is likely to case injury; and the expense of remedying the situation is slight compared with the magnitude of the risk.

Question 15

duty to Licensee- person who enters the land with permission for her own purpose or business- not for the landowners benefit

Answer 15

a duty to warn of or make sage a dangerous condition known to the owner or the occupier that creates an unreasonable risk of harm

• no duty to inspect
• exercise reasonable care in active operations
• social guests are considered licensees

Question 16

Duty to Invitee- person who enters the premises in response to an invitation from the land owner

• members of the public- land is held open to the public
• enter for a purpose connected with the business or other interests of the landowner (customers, employees, etc.)

Answer 16

• person entering for the purpose of the possess is treated as an invitee
• under normal circumstances during working hours is an invitee
• person loses their invitation if they exceed the scope of the invitation.
  Duty same as owed to licensees PLUS a duty to make reasonable inspections- warning may suffice (wet floor sign) and a duty to warn does not exist when the danger is obvious. (determined by all of the surrounding circumstances)

Question 17

duties of lessors of realty

Answer 17

liability a matter of operation and control, when the land is leased, the lessee has the duty.

• lessor to warn lessee of existing defects
• liability for unreasonably dangerous conditions where the lessor reserves the right to enter the property
• if lessor negligently repairs something the volunteered to repair- liability
• liability for unreasonably dangerous conditions existing at the time possession is transferred is the space is intended for public use by the lessee.

Question 18

negligence per se

Answer 18

duty imposed by statute replaces duty of ordinary care
- creates a conclusive presumption of duty and breach of that duty
- compliance does not necessarily establish due care
1. person must be of the class statute is intended to protect
2. harm must be the type of harm the statute was designed to protect against.
Violation may be excused where:
1. compliance would cause more harm than non-compliance
2. compliance is beyond defendant’s control

Question 19

NIED

Answer 19

Plaintiff must:

1. Be within the zone of danger
2. suffer physical symptoms from the distress

Question 20

NIED- Bystander not within zone of danger

Answer 20

1. the plaintiff and the person injured are closely related
2. the plaintiff was present and
3. the plaintiff personally observed or perceived the event.

Question 21

NIED- special relationship between Plaintiff and Defendant

Answer 21

possible liability for directly causing the plaintiff severe emotional distress when a duty arises from the relationship between the plaintiff and the defendant

Question 22

AFFIRMATIVE DUTY to act

Answer 22

No affirmative duty to act UNLESS:

1. chooses to act for the benefit of another, then under a duty to act as a reasonably prudent person and continue the assistance
2. duty to use reasonable care to aid or assist person when own conduct is reason person is in peril
3. special relationship between parties (parent- child)- may be liable for failure to act.

Question 23

Nonfeasance

Answer 23

No duty

Question 24

misfeasance

Answer 24

failure to perform with due care contractual obligations owed to one may violate duty

Question 25

DUTY to prevent harm from third persons

Answer 25

No duty generally- affirmative duty might be imposed if it appears that the defendant had the actual ability and Authority to control the third person’s actions.

Question 26

BREACH

Answer 26

1. custom or usage may be introduced to establish standard of care

Question 27

Breach- res Ipsa Loquitor

Answer 27

Must establish:

1. accident causing injuries is the type that would not normally occur unless someone was negligent
2. evidence connecting defendant with the negligence in order to support a finding of liability.
   - no directed verdict for defendant

Question 28

CAUSATION- actual causation

Answer 28

But for test- injury would not have happened but for the act or omission on the part of the defendant

• applies to concurrent causes: none of the facts standing alone would have been sufficient, but for any of the acts the injury would not have occurred.
• Joint causes -substantial factor test: several causes commingle and any one alone would have been sufficient, it is sufficient if defendant’s actions was a substantial factor in causing the injury.
• alternative causes approach: burden shifts to defendant to show that they could not have been the one to cause the injury when it is impossible to determine which of more than one defendant caused an injury. (applies to enterprise liability cases)

Question 29

CAUSATION- proximate cause (legal causation)

Answer 29

conduct must be a proximate cause of the injury in addition to being the actual cause.

• a limitation of liability and deals with non-liability for unforeseeable or unusual consequences of ones act.
  1. defendant is liable for all harmful results that are the normal incidents of and within the increased risks caused by his acts. (foreseeablity)

Question 30

CAUSATION- proximate cause: direct cause cases

Answer 30

direct cause case is one where the facts present an uninterrupted chain of events from the time of the negligent act to the time of the injury.

• defendant liable for foreseeable harmful results- unusual manner and timing is irrelevant if the foreseeable harm occurs.
• defendant is not liable is the conduct creates a risk of harm, but an entirely different and totally unforeseeable type of harm occurs.

Question 31

CAUSATION- proximate cause: indirect cause cases

Answer 31

indirect cause: one that came into motion after the time of the negligent act and combined with the negligent act cause injury to the plaintiff.

• common foreseeable intervening forces: foreseeable harmful response or reaction from an intervening force or created a foreseeable risk that an intervening would harm plaintiff- liability exists. (subsequent med mal, negligence of rescuers, efforts to protect person or property, reaction forces, subsequent disease, subsequent accident.
• independent intervening forces: may be foreseeable where D’s negligence increased the risk that these forces would cause harm to the plaintiff. (negligent acts of third persons [neg of third persons where act of defendant created the foreseeable risk], criminal acts and intentional torts of third persons [neg creates a foreseeable risk that third person would commit a crime], acts of God[ does not cut off liability if foreseeable]
• where the intervening force is an unforeseeable crime or an intentional tort of a third party, it will be deemed a “superseding force” (breaks the causal connection between the act and the injury) and D will not be liable.
• extent or severity of the harm being unforeseeable does not relieve the D of liability (eggshell-skull plaintiff rule)

Question 32

DAMAGES

Answer 32

actual harm and injury.

• economic and non-economic damages
• emotion distress damages
• property damages- reasonable cost of repairs
• punitive damages where conduct was wanton, willful, reckless or malicious
• duty to mitigate

Question 33

DEFENSES- contributory negligence

Answer 33

• extraordinary risks taken to attempt rescue- NOT CN
• remaining in danger- CN
• statutory violation- CN (not a defense where D negligence arose from violation of a statute designed to protect class of plaintiffs from their own incapacity and lack of judgment)
• damages reduced if duty to mitigate not properly done
• not a defense against Intentional Torts
• last clear chance: person with the last clear chance to avoid an accident who fails to do so is liable for negligence.
• will be imputed where the plaintiff and the negligent person stand in such a relationship to each other that the courts find it proper to charge plaintiff with that person’s negligence.

Question 34

DEFENSES- assumption of risk

Answer 34

• assumption of risk: either expressly or impliedly plaintiff must have known of the risk and voluntarily assumed it.

Question 35

DEFENSES- comparative negligence

Answer 35

plaintiff’s negligence weighed against that of the defendant and reduces plaintiff’s damages accordingly.

• partial: plaintiff’s recovery is barred if 50 % or more negligent.
• pure: recovery no matter how great the plaintiff’s negligence is. The amount that the plaintiff can recover is reduced by the percentage they are at fault. (100,000- plaintiff is 90% at fault and Defendant is 10%, plaintiff can still recover 10k.)