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1L Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

Neg (definition)

A

Failure to exercise reasonable care, under the circumstances, to prevent harm to oneself or to others.

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2
Q

Duty (definition)

A

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

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3
Q

SOC

A

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

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4
Q

Duty by parent

A

Aware of child’s dangerous behavior + opportunity to control + failed to exercise RC

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5
Q

Duty to T

A

If T is reasonably identifiable by threat

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6
Q

Duty by Landowner

A

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

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7
Q

Breach

A

B<probability></probability>

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8
Q

IIED

A
  1. 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
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9
Q

NIED (direct)

A
  1. Δ was Neg 2. Π suffered e.d. 3. Harm + Causation + Damages
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10
Q

NIED (bystander)

A
  1. 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
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11
Q

Neg per se

A

Statute designed to protect THAT CLASS from THAT TYPE OF INJURY

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12
Q

Res Ipsa Loquitur

A

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

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13
Q

Vic Liability

A

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)

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14
Q

SL

A

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

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15
Q

SL Defenses

A

Defenses: CCAR (CoN & Comp only if Π unreasonably subjected himself to unreasonable risk of harm), AssumpRisk

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16
Q

Causation

A

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

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17
Q

Compensatory Damages

A

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

18
Q

Survival Cause of Action

A

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

19
Q

Punitive Damages

A

BOP CCE: MOF (Malice, Oppression, Fraud)

20
Q

WD Damages

A

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

21
Q

Affirmative Defenses

A

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

22
Q

Trespass to Land

A
  1. 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
23
Q

False Imprisonment

A

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

24
Q

Trespass / Conversion of Chattel

A

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)

25
Q

Nuisance

A

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

26
Q

Prod: Neg - Man & Des

A

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

27
Q

Prod: Neg - Warning

A

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

28
Q

Prod: SL - Man

A

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

29
Q

Prod: SL - Design

A

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

30
Q

Prod: SL - Warning

A

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

31
Q

Prod: SL - Warning Prod contains allergens

A

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

32
Q

Defamation Per Se (PuP/PuC)

A
  1. 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)
33
Q

Defamation Per Quod (PuP/PuC)

A

(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)

34
Q

Defamation Per Se (PriP/PuC)

A
  1. 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)
35
Q

Defamation Per Quod (PriP/PuC)

A

(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)

36
Q

Defamation Per Se (PriP/PriC)

A
  1. 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)
37
Q

Defamation Per Quod (PriP/PriC)

A

(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)

38
Q

Fact vs Opinion

A

Fact can be proved true or false Opinion may be a statement of fact if it suggests a fact exists (analyze the context)

39
Q

Defamation Defenses

A
  1. 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
40
Q

Disclosure of Private Facts

A

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

41
Q

False Light

A
  1. 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

1L Torts (1 decks)

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