Negligence

Question 1

Elements of Negligence

Answer 1

1. Duty
2. Breach
3. Causation
4. Damages
5. Defenses

Question 2

Duty

Answer 2

Obligation to conform to a specific standard of conduct to protect P from unreasonable risk of injury

Question 3

Who is owed a duty?

Answer 3

All foreseeable victims (unforeseeable = no duty); Cardoza majority view: “was P in zone of danger”; Andrews minority view- “duty to all”

Question 4

What is the default standard of care?

Answer 4

“Reasonably prudent person, acting under similar circumstances” (Objective)
Strict application unless: 1. Def. has superior knowlege about a matter relevant to the case or 2. physical characteristics of Def. where they are relevant (blind, short, wheelchair)

Question 5

What is standard of care for child?

Answer 5

under 4 incapable of negligence; “Child owes care of hypothetical child of similar age, intelligence, acting under similar circumstances.” (Subjective)
Ex. Child engaged in adult activity use RPP.

Question 6

What is the standard of care for Professional?

Answer 6

“The care that would be given by an average member of that profession engaged in similar professional services.” National standard.

Question 7

What is the duty owed to an undiscovered trespasser?

Answer 7

No duty regarding dangerous condition (unforeseeable)

Question 8

What is the duty owed to a known/anticipated trespasser?

Answer 8

Possessor must protect only from conditions that meet 4 part test “all known manmade deathtraps on land”

Question 9

What is licensee?

Answer 9

Person that comes on land w/permission of possessor, but do not confer economic benefit on possessor

Question 10

What is the duty owed to a licensee?

Answer 10

Possessor owes licensee a duty to protect from conditions that are concealed from licensee and known in advance by possessor (i.e. “all known traps on land.”)

Question 11

What is an invitee?

Answer 11

Person that comes on land w/permission and confers an economic benefit on possessor, OR entering property which is open to public at large

Question 12

What is duty owed to invitee?

Answer 12

Possessor owes invitee duty to protect from conditions that are concealed from licensee and either known in advance or could have been discovered via reasonable inspection (i.e. “All reasonably known traps on land.”)

Question 13

Negligence per se (statutory SOC)

Answer 13

replaces RPP standard by borrowing substantive commands from criminal statute. Allowed to borrow if P can satisfy “class of person/class of risk test”

1. P is member of class of person that the statute is trying to protect; AND
2. Type of injury is in class of risks the statute is trying to prevent

Question 14

What are exceptions to Negligence per se?

Answer 14

If under the circumstances:

1. obeying the statute would have been more dangerous;
2. compliance was impossible (heart attack)

Question 15

When is there a duty to act affirmatively?

Answer 15

No duty to “act/rescue” or do things you do not want to do;
Exceptions: Def. undertakes a duty; a pre-existing relations (K, fiduciary, ad hoc friends); if Def. caused the peril, must try to rescue in manner that is reasonable under the circumstances

Question 16

Elements of Negligence Infliction of Emotional Distress

Answer 16

Requires Def. to behave negligently (does not touch P, but requires physical manifestations of injury (cf IID, which is damage)

Question 17

When can Negligent Infliction of Emotional Distress Occur?

Answer 17

1. Near miss: Def’s negligence places P in the “physical zone of danger” resulting in distress.
2. Bystander: P witnesses negligent injury to close family member (must be near in time and space);
3. Relationship: P and Def. are not strangers and carelessness is highly foreseeable (false biopsy diagnosis) (different than IIED: intent. v. carelessness)

Question 18

Breach (Def.)

Answer 18

Fact (identity the wrongful conduct) + Reason why the Def’s conducy breached the standard of care

Question 19

Res Ipsa Loquitar

Answer 19

Applies when P lacks information and can’t identity what Def. did wrong:

1. Result normally associated with negligence of some kinds; AND
2. Normally due to negligence of someone in Def.’s position (or Def. in exclusive possession)

Question 20

Factual Causation

Answer 20

P establishes linkage between breach and injury suffered

Question 21

“But For” Test

Answer 21

Test for factual causation when there is one cause; but for the breach, P would be uninjured today.”

Question 22

Substantial Factor test

Answer 22

Test for factual causation when 2 actions merge- was Def’s breach capable of causing injury by itself? If so, joint and severable liablity applied.

Question 23

Alternate Causes Approach

Answer 23

This test for factual causation applies when there are two acts, only one of which causes injury, but it is no known which one. The burden of proof shifts to defendants, and each must show his negligence is not the actual cause (Summers v. Tice)

Question 24

Minority Affirmative Defenses to Negligence

Answer 24

1. Contributory negligence
2. Assumption of risk- voluntary assumption of known risk
3. Last clear chance- if negligence amoung both parties and one had the “last clear chance” to avoid injury, they are liable.

Question 25

Comparitive Negligence

Answer 25

Def. can show P failed to exercise proper care for his own safety (failed to act as RPP) Pure: based strictly on %. If P is assessed with majority of fault (90%), they can still recover 10% Modified/Partial: P's fault up to 50% = reduction of recover. Fault over 50% is absolute bar.

Question 26

Elements of Attractive Nuisance

Answer 26

1. There is an artificial condition on the land, 2. The land occupier knew or should have known that children were on the land. 3. The burden on protecting children from the risk of harm outweighs the utility of maintaining the artificial condition, and 4. it was unlikely that children would appreciate the risk posed by the artificial condition.