Negligence Flashcards
Neg (definition)
Failure to exercise reasonable care, under the circumstances, to prevent harm to oneself or to others.
Duty (definition)
Duty to exercise reasonable care, under the circumstances, to prevent harm to oneself or to others Affirmative: imposed by special relationship between Π and Δ
SOC
Reasonable (not perfect) Higher knowledge = higher standard Emergency: Δ free of fault + acted as a RPP would have in the same circumstances Rescue of Δ: danger invites rescue thus Δ’s Neg may be proximate cause of Π’s (rescuer) injury
Duty by parent
Aware of child’s dangerous behavior + opportunity to control + failed to exercise RC
Duty to T
If T is reasonably identifiable by threat
Duty by Landowner
CL: 1. Trespasser: no duty but no willful harm 2. License (enters w/express or implied consent from Δ): Make safe dangers Δ knows or should have known 3. Invitee (possessor receives econ benefit): Make safe dangers known or take affirmative steps to discover CA: Owed to any land entrant, to discover, inspect , repair, and warn 1. Δ LOCO: Leased, Owned, Controlled, Occupied 2. Known or should have known about the risks 3. Δ was Neg in the use or maintenance 4. Breach + Causation (Actual + Proximate) + Damages NO duty if danger is open, obvious and perceivable by Π
Breach
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IIED
- Δ’s conduct was outrageous and intolerable that it offends against the generally accepted standards of decency and morality OR reckless Π would suffer e.d. 2. Harm + Causation + Damages
NIED (direct)
- Δ was Neg 2. Π suffered e.d. 3. Harm + Causation + Damages
NIED (bystander)
- Δ Neg caused the injury 2. Π was present and had contemporaneous awareness that victim was being harmed (close kinship only) 3. Harm + Causation + Damages
Neg per se
Statute designed to protect THAT CLASS from THAT TYPE OF INJURY
Res Ipsa Loquitur
Duty & Breach are implied 1. Result would not have occurred but for the breach of this ∆’s duty (negligence) 2. Instrumentality that caused the injury was in exclusive control of the ∆ 3. No CoN by Π
Vic Liability
Agt always liable for his own Neg P is VL regardless if P forbade conduct or took reasonable steps to prevent it: 1. A caused the harm 2. A is an agent (not indep contractor) of P (if indep contractor then P liable if P autho the result OR P owed a duty to Π to have A perform OR A engaged in ultra hazardous activity 3. Harm occurred w/in A’s course of employment. Deviation is w/in scope. Frolic is not (acted at least in part by desire to benefit the P’s interest - time, space limits)
SL
Applied in cases of abnormally dangerous activity: 1. Anything likely to escape & cause harm (eg: wild animals or domesticated if known propensities) 2. Non-natural use of land 3. Breach + Causation (Actual + Proximate) + Damages
SL Defenses
Defenses: CCAR (CoN & Comp only if Π unreasonably subjected himself to unreasonable risk of harm), AssumpRisk
Causation
Actual (test:but for or A Substantial factor) + Proximate + No supersedeing intervening force (if unFS intervening act = cuts off liability) Eggshell Π: take it as you find him (no in e.d.) Prior injury: only liable for increased injury
Compensatory Damages
Econ + Non-Econ collected by Π himself Econ: 1. Must have suffered PI as well 2. Med: Past reasonably necessary, Future reasonably certain 3. Wage: Past actual, Future reasonably certain to lose 4. Earning Capacity: Reasonable value of the loss (no work history required) 5. PP: Loss of use (reasonable rental value), Destruction (use FMV) Non-Econ: E.D. Loss of enjoyment of life & P&S awarded as one Loss of Consortium: 1. The loss of love, cccaaps s&m (companionship, comfort, care, affection, assistance, protection, society, and moral support); and 2. The loss of the enjoyment of sexual relations or the ability to have children
Survival Cause of Action
Econ + Non-Econ collected by estate (After injury and before death) Econ (judgment dies with Π) 1. Med: Past reasonably necessary, Future reasonably certain 2. Wage: Past actual, Future reasonably certain to lose 3. Earning Capacity: Reasonable value of the loss (no work history required) Non-Econ * NOT recoverable: guilt, grief, sorrow, mental anguish, decedent’s P&S
Punitive Damages
BOP CCE: MOF (Malice, Oppression, Fraud)
WD Damages
Econ & Non-Econ collected by heirs Econ: 1. Future econ damages reduced to PCV 2. Burial, household services 3. Future Wage loss: reasonably certain used to support family reduced by what would have been spent by spouse or decedent on himself Non-Econ: * NOT recoverable: guilt, grief, sorrow, mental anguish, decedent’s P&S Loss of Consortium: 1. The loss of love, cccaaps s&m (companionship, comfort, care, affection, assistance, protection, society, and moral support); and 2. The loss of the enjoyment of sexual relations or the ability to have children Measured/Reduced: Quality AND Quantity of the relationship
Affirmative Defenses
Argument: (not a defense) No DBCD 1. CCLeARM CoN: CL, bars recovery if Π is 1% liab Comp: 1. Partial: Π recovers only if Δ is >50% liab 2. Pure (CA): Π’s recovery is reduced by Δ’s % of liab, even if 1% Assumption of Risk: Express or implied 1. Π must have been aware of the risk and understood the risk + voluntarily participated 2. No AR if violation of Public Policy or reckless or gross Neg by Δ
Trespass to Land
- Π LOCO (leased, Owned, Controlled, Occupied) the property 2. Δ intentional, reckless, or Neg entry (Or constructive entry) 3. w/out consent 4. Causation + Damages
False Imprisonment
The unlawful application of physical, or psychological, force to restraint an individual’s personal liberty, or freedom, within a bounded area, without consent, in an unreasonable manner for an unreasonable time. If Π is unaware, Π must show he was harmed by the FI
Trespass / Conversion of Chattel
T: Intentional interference of use or possession of the chattel of another w/out consent (pay for rental value during interference) C: Intentional and substantial interference by taking exercising dominion, control, or destroying the chattel (forced sale)
Nuisance
Private: obstructs the use & enjoyment of property 1. Π LOCO 2. Δ by acting or failing to act caused a condition which obstructs the free use of property, is harmful to the health, indecent or offensive 3. A RPP would be annoyed 4. Serious harm outweighs the social benefit 5. Causation + Damages Public: obstructs the use & enjoyment of property 1. Π LOCO 2 Affects a substantial number of people 3. Serious harm outweighs the social benefit 5. Causation + Damages
Prod: Neg - Man & Des
MIRSIRD Duty: Δ Man, Inst, Repair, Sold, Inspect, Rent, Design the Prod Breach: Neg failed to MIDSIRD Harm Causation: A substantial factor (Δ materially contrib to Π’s injury. Not a subs fac if same would have occurred w/out conduct) Damages
Prod: Neg - Warning
Duty: Δ M S D 1. Δ kORshk Prod was dangerous or likely to be dangerous when used in an intended or misused in a FS manner by a reasonable FS user 2. Δ kORshk users would not be aware of the danger Breach: Neg failed to warn Harm Causation: A substantial factor (Δ materially contrib to Π’s injury. Not a subs fac if same would have occurred w/out conduct) Damages
Prod: SL - Man
Duty: Δ M S D Breach: Prod contained manuf def when it left Δ’s possession. Prod contains a def when it differs from the manuf’s design OR other typical units in the same prod line Harm Causation: A substantial factor (Δ materially contrib to Π’s injury. Not a subs fac if same would have occurred w/out conduct) Damages
Prod: SL - Design
Duty: Δ M S D Breach: 1. Prod did not perform as an ordinary consumer would have expected it to perform when used or misued in a FS manner 2. (if ConsumerReasExpect not sufficient) Benefits of the design outweigh the risk inherent in such design (shift BOP to Δ: gravity of potential harm from prod, likelihood of harm, feasible safer alternative, cost + disadvantages of new design) Harm Causation: A substantial factor (Δ materially contrib to Π’s injury. Not a subs fac if same would have occurred w/out conduct) Damages
Prod: SL - Warning
Duty: Δ M S D Breach: 1. Prod had a potential risk known or knowable (given scientific knowledge generally known) at the time of MDis 2. That potential risk presented a substantial danger when used in an intended or misused in a FS manner 3. Ordinary consumer woul dnot have recognized the potential risk 4. Δ failed to warn Harm Causation: A substantial factor (Δ materially contrib to Π’s injury. Not a subs fac if same would have occurred w/out conduct) Damages
Prod: SL - Warning Prod contains allergens
Duty: Δ M S D + substantial numer of people are allergic to an ingredient in prod + danger of ingredient is not known generally known or if known, consumer would not reasonably expect to find in the product Breach: 1. Δ knew or should have known of ingredient’s presence 2. Δ failed to provide sufficient warning Harm Causation: A substantial factor (Δ materially contrib to Π’s injury. Not a subs fac if same would have occurred w/out conduct) Damages
Defamation Per Se (PuP/PuC)
- Δ made a statement to (Publication): (a) T and T reasonably understood that statement was about Π & that it was defamatory 2. False statement: statement about criminality, unchastity, imputes loathsome disease 3. Π proves malice by CCE (a) Knowledge: Δ knew statements were false (or serious doubts) AND (b) Reckless disregard of the truth. Failure to investigate when obvious reason to doubt 4. Damages: (a) Actual: property, business, trade, profession, or occupation, reputation, shame, hurt feelings (b) OR Presumed OR (Punitive)
Defamation Per Quod (PuP/PuC)
(Need more facts to infer defamation) 1. Δ made a statement to (Publication): (a) T and T reasonably understood that statement was about Π 2. Because of the facts & circumstances known to T, it tends to injure Π occupation or expose Π to hatred, ridicule, or shame, or discourage association w/Π 3. False statement: statement about criminality, unchastity, imputes loathsome disease 4. Causation: A Substantial factor 5. Π proves malice by CCE (a) Knowledge: Δ knew statements were false (or serious doubts) AND (b) Reckless disregard of the truth. Failure to investigate when obvious reason to doubt 6. Damages: Actual (property, business, trade, profession, or occupation, reputation, shame, hurt feelings) OR (Punitive)
Defamation Per Se (PriP/PuC)
- Δ made a statement to (Publication): (a) T and T reasonably understood that statement was about Π & that it was defamatory 2. False statement: statement about criminality, unchastity, imputes loathsome disease 3. Δ failed to reasonably determine the truth or falsity of the statement 4. Damages: (a) Actual: property, business, trade, profession, or occupation, reputation, shame, hurt feelings (b) OR Presumed OR (Punitive)
Defamation Per Quod (PriP/PuC)
(Need more facts to infer defamation) 1. Δ made a statement to (Publication): (a) T and T reasonably understood that statement was about Π 2. Because of the facts & circumstances known to T, it tends to injure Π occupation or expose Π to hatred, ridicule, or shame, or discourage association w/Π 3. False statement: statement about criminality, unchastity, imputes loathsome disease 4. Δ failed to reasonably determine the truth or falsity of the statement 5. Causation: A Substantial factor 6. Damages: Actual (property, business, trade, profession, or occupation, reputation, shame, hurt feelings) OR (Punitive)
Defamation Per Se (PriP/PriC)
- Δ made a statement to (Publication): (a) T and T reasonably understood that statement was about Π & that it was defamatory 2. Δ failed to reasonably determine the truth or falsity of the statement 3. Damages: (a) Actual: property, business, trade, profession, or occupation, reputation, shame, hurt feelings (b) OR Presumed OR (Punitive)
Defamation Per Quod (PriP/PriC)
(Need more facts to infer defamation) 1. Δ made a statement to (Publication): (a) T and T reasonably understood that statement was about Π 2. Because of the facts & circumstances known to T, it tends to injure Π occupation or expose Π to hatred, ridicule, or shame, or discourage association w/Π 3. Δ failed to reasonably determine the truth or falsity of the statement 4. Causation: A Substantial factor 5. Damages: Actual (property, business, trade, profession, or occupation, reputation, shame, hurt feelings) OR (Punitive)
Fact vs Opinion
Fact can be proved true or false Opinion may be a statement of fact if it suggests a fact exists (analyze the context)
Defamation Defenses
- Truth 2. Consent 3. Privilege: (a) Absolute: legislative, judicial, police during duty (b) Qualified (Lost if made w/malice): Statement made in defense of speaker’s interest, reports judicial proceedings
Disclosure of Private Facts
Offensiveness + Newsworthiness 1. Δ knew or acted w/reckless disregard of the fact, that a reasonable person in Π’s position would consider the publication highly offensive 2. Private info was not of legitimate public concern or did not have substantial connection to a matter of legitimate public concern
False Light
- True facts 2. Publication creates false light & would be HIGHLY offensive to a RP 3. Δ knew or acted recklessly or Neg in determining truth or false impression 4. Harmed + Substantial factor
