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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

Prima facie case of negligence includes:

A

Duty, breach, actual and proximate cause, and damages.

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2
Q

Duty of care owed to:

A

ALL foreseeable plaintiffs

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3
Q

Duty of care for Rescuers

A

Foreseeable P if D negligently put himself or a 3rd party in peril

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4
Q

Firefighters Rule

A

barred (includes police officers) from recovering injuries caused by risks of rescue

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5
Q

Prenatal Injuries. - Duty of Care

A

Owed to viable fetus

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6
Q

Intended beneficiaries of economic transactions

A

foreseeable P if legal/business transaction was for the 3rd party’s economic benefit

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7
Q

RPP

A

Objective standard of care where one is measured against what the average person would. do.

  • mental deficiencies and inexperience are. NOT taken into account
  • physical characteristics are but the D is expected to act accordingly (ex: what a blind person would do)
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8
Q

Professional Standard of Care

A

Person with SPECIAL occupational skills required to possess skill & knowledge of member of the profession or occupation in. good standing.

Doctors –> national standard of care

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9
Q

Doctors - duty to disclose

A

Duty to disclose risks of treatment such that patient may. give informed consent.

If undisclosed risk serious enough that RP. in. patient’s position would’ve withheld consent on learning the risk – breach of duty.

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10
Q

Child standard of care

A

Child of like age, education, intelligence, and experience.
Unless: engaged in potentially dangerous adult activities, then held to adult standard of care.

Under 5yrs – no capacity for negligence.

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11
Q

Common Carriers and Innkeepers Duty of Care

A

P must be passenger or guest. High degree of care

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12
Q

Duty of Care for Automobile Driver to Guest

A

Duty of ordinary care

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13
Q

Duties owed to Bailee

A

Sole benefit of the bailor –> low standard of care
Mutual benefit –> ordinary standard of care
Sole benefit fo the bailee–> high standard of care

*Bailee transferred possession of chattel but not title

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14
Q

Duties owed by Bailor

A

Sole benefit of the bailee –> bailor MUST inform bailee of known, dangerous defects in the chattel

Bailment for hire –> bailor MUST inform bailee of chattel defects of which he is or should be aware

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15
Q

Duty of care in emergency situations

A

D must act as RP under same emergency conditions.

If emergency is the fault of D, then emergency NOT considered.

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16
Q

Duty of Owner/Occupier of Land to those Off Premises

A

NO duty to protest against natural conditions on the premises
Duty to. protect against unreasonably dangerous conditions abutting adjacent land

(duty to protect against off the premise damage caused by on the premise trees)

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17
Q

Duty of Owner/Occupier to Trespassers

A

Discovered/anticipated –> MUST warn or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm and use reasonable care in exercise of active operations

No duty for natural conditionals or less dangerous artificial conditions

NO DUTY FOR UNDISCOVERED TRESPASSERS!

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18
Q

Attractive Nuisance Doctrine

A

Landowner has duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on the property.

P must show: (1) dangerous condition on the land that owner is/should be aware of; (2)owner knows or should know children frequent the vicinity of the condition; (3) condition likely to cause injury; and (4) expense of remedying situation is slight compared with severity of risk

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19
Q

Duty to Licensees

A

Licensee – enters land with possessor’s permission for her own purpose or business

Landowner has duty to warn or make safe all dangerous conditions known to the owner that create unreasonable risk of harm and are not likely to be. discovered by licensee

NO duty to inspect or repair

*social guests!

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20
Q

Duty to Invitees

A

Invitee – enters land in response to invitation by landowner (for a purpose connected with the business of the landowner or as members of the public for a purpose for which. the land is held open to the public)

Duty to (1) warn or make safe all dangerous conditions known to the owner that create unreasonable risk of harm and are not likely to be. discovered by invitee AND (2) make reasonable inspections to discover non obvious dangerous conditions, THEN make safe (warning will suffice)

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21
Q

Duties of Lessor and Lessee of Realty

A

Lessor – must warn of existing defects of which he is aware or has reason to know and which he knows the lessee is unlikely to discover on reasonable inspection

Lessee – general duty to maintain the premises

Tips:
Tenant guests may recover from lessor
But tenant guest may recover from lessee as owner/occupier of premises

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22
Q

Duties owed to users of recreational land

A

Landowner permitting general public to use land for recreational purposes without charging a fee is NOT liable for injuries suffered by the user UNLESS landowner willfully and maliciously failed to guard against or warn of dangerous conditions

23
Q

Duty of vendor of realty

A

vendor must disclose concealed, unreasonable dangerous conditions of which the vendor knows or has reason to know and the vendee is unlikely to discover upon reasonable inspection.

24
Q

Violation of Statutory Standard of Care

A

Prove (1) plaintiff within protected class and (2) statute designed to prevent the type of harm that P suffered

Unexcused – Negligence per se (duty and breach)

25
Q

Excuse for statutory violation

A

Compliance would cause more danger than violation or compliance beyond D’s control

26
Q

Duty RE Negligent Infliction of Emotional Distress

A

Breached when D creates foreseeable risk of physical al injury to P.

P must (1) be within the zone of danger and (2) suffer physical symptoms from distress

ZOD –> distress caused by threat of physical impact

27
Q

Bystander requirement

A

P may recover if (1) P and person injured by D are close related; (2) P was present at scene of injury; and (3) P personally observed or perceived the event

28
Q

Special relationship b/w P and D

A

D may be liable for directly causing severe MA when duty arises from relationship b/w D & P

Ex: misdiagnosis of Dr. that patient has terminal illness; mortuary’s negligent cremation of deceased

29
Q

General Duty to Act

A

There is NONE absent an exception

30
Q

Assumption of duty by acting

A

One assumes duty to act by acting (ex: D starts to help someone, D must do it as a RPP)

31
Q

Peril due to D’s conduct

A

D has duty to assist someone he negligently or innocently placed in danger.

32
Q

Duties where there is a Special relationship b/w parties

A

may create duty to act. (ex: parent-child; common carriers; innkeepers; shopkeepers or others that gather public for profit owe duty of RPP)

33
Q

Duty to prevent harm to 3rd parties

A

Generally NO duty to prevent 3rd party from injuring someone.

Affirmative duty imposed if D has actual ability and authority to control the person’s actions and D knows/should know the person is likely to commit acts that require exercise of D’s control.

34
Q

Custom or Usage (BOD breach of duty)

A

Used to establish standard of care but does NOT control Q of whether certain conduct amounts to negligence.

ex: certain behavior is customary in an industry, ct may still find entire industry acting negligently

35
Q

Violation of a statute (BOD)

A

May be used to prove D owed duty and breach said duty to P.

Causation and damages must still be shown for negligence cause of action by P

36
Q

RIL

A

Very occurrence of event tends to establish a breach of duty.

P must show: (1) accident causing injury is a type that wouldn’t normally occur absent another’s negligence; and (2) negligence attributable to D

*instrumentality causing injury in exclusive control of D – satisfies (2)

P MUST establish freedom from fault.
P receives “inference” of negligence.

37
Q

Impact of RIL

A

If P made prima facie case, NO DV may be granted for D.
But, P can still lose if inference of negligence is rejected by judge/jury.

TIP:
P’s DV motion should ALWAYS be denied except where negligence per se shown and no issue of proximate cause

38
Q

Causation in Fact: 3 Tets

A

But For –> injury wouldn’t have occurred but for the D’s act or omission

Substantial Factor –> several causes bring about injury and any one alone would be been sufficient to cause injury; D’s conduct is cause in fact IF it was a SUBSTANTIAL FACTOR in causing the injury

Alternative Causes –. 2 acts, only 1 causes injury, but unknown which one. BOP on Ds to show his negligence is not the actual cause.

39
Q

Proximate cause doctrine

A 
Limitation of liability for Ds
Deal with (non)liability for unforeseeable or unusual consequences of D's acts

D generally liable for all harmful results that are normal incidents of and w/in increased risk caused by D’s acts. foreseeability test

40
Q

Liability in Direct Cause Cases

A

Uninterrupted chain of events from negligent act to P’s injury, D liable for all foreseeable harmful results.

Unusual manner in which they arose or unusual timing of cases and effect are irrelevant!

D NOT liable for unforeseeable harmful results NoT within the risk created by D’s negligence.

41
Q

Liability in Indirect Cause Cases

A

Affirmative intervening force comes into motion AFTER D’s negligent act and combines to cause P’s injury.

42
Q

Foreseeable Results Caused by Foreseeable Intervening Forces

A

D liable where negligence caused foreseeable harmful response or reaction from dependent intervening force or created foreseeable risk that an independent intervening force would harm P

43
Q

common foreseeable intervening forces

A
  • subsequent medical malpractice
  • negligence of rescuers
  • efforts to protect person/property of oneself or another
  • injuries caused by another reacting to D’s actions
  • subsequent diseases caused by weakened condition
  • subsequent accident substantially caused by original injury
44
Q

independent intervening forces

A
  • negligent acts of 3rd parties
  • crimes and intentional torts of 3rd parties
  • acts of God

*may be foreseeable IF D’s negligence increased risk of harm from these forces

45
Q

Foreseeable Results Caused by Unforeseeable Intervening Forces

A

D liable where negligence increased risk of foreseeable harmful result & that result is ultimately produced by unforeseeable intervening force

*NOT applicable for crimes or intentional torts of 3rd party

46
Q

Unforeseeable Results Caused by Foreseeable Intervening Forces

A

D NOT liable

47
Q

Unforeseeable Results Caused by Unforeseeable Intervening Forces

A

D NOT liable

*forces deemed superseding which break causal connection b/w D’s initial negligent act and P’s ultimate injury

48
Q

Unforeseeable Extent or Severity of Harm

A

D takes P as he finds them!

Liable for all damages including aggravation of an existing condition, even if extent or severity of damages was unforeseeable.

Ex: (P with blood clot condition bleeding out and limb amputated because of it…still liable even if D’s negligence cause injury from car accident that then caused the bleeding out)

49
Q

Personal Injury Damages

A

P compensated for all both economic and noneconomic

Foreseeability of extent of harm generally doesn’t matter

also may recover for any emotional distress

50
Q

Property Damage

A

measure of damages is reasonable cost of repair of, if property is nearly destroyed, it’s the fair market value at the time of the accident.

No emotional distress damages

51
Q

Punitive Damages

A

Generally NOT available for negligence cases.

P may recover IF D’s conduct was willful and wanton, reckless, or malicious

52
Q

Nonrecoverable items

A

include interest from date of damage in PI action; attorney’s fees

53
Q

Duty to mitigate

A

ALL cases, P has duty to take reasonable steps to mitigate damages

54
Q

Collateral Source Rule

A

Damages NOT reduced just because P received benefits from other sources (ex: insurance coverage)

Torts (14 decks)

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