Negligence Flashcards
1
Q
What is Negligence?
A
A duty to conform to a standard of conduct that is breached by the defendant and the breach is the actual and proximate cause of plaintiff’s damages.
2
Q
What is the general rule as it pertains to a Duty to Act?
A
The general rule is that there is no duty to act
3
Q
What are the two “contractual” exceptions to the general “no duty to act” rule?
A
1) Nonfeasance (the failure to act where action is required), and 2) Misfeasance (willful inappropriate action)
4
Q
Under nonfeasance, there is no liability beyond:
A
Those in privity (contact or mutual interest between parties)
5
Q
Under misfeasance, there is liability for:
A
Lack of due care
6
Q
Under exceptions to the general “no duty to act” rule, what is “Assumption of the Duty to Act by Acting”?
A
One who gratuitously acts for another is under a duty to 1) act like an ordinary prudent person, and 2) continue the assistance
7
Q
Under “Assumption of the Duty to Act by Acting”, if one assumes any duty it could be that others (who might have aided) didn’t go because:
A
Of the person assuming the duty
8
Q
Under exceptions to the general “no duty to act’ rule, what is the “Good Samaritan” statute?
A
A statute that exempts healthcare professionals who (voluntarily) help another in an emergency from liability for (ordinary) negligence.
9
Q
Does the “Good Samaritan Statute” impose an affirmative duty to act?
A
No
10
Q
Under exceptions to the general “no duty to act” rule, what is “Creation of Peril”?
A
One who negligently places another in a position of peril is under a duty to use reasonable care to assist.
11
Q
What are the three categories of Special Relationships that create a Specific Duty to Act?
A
1) Parent/child and spouse 2) Common Carrier/innkeeper 3) School/student
12
Q
Under Special Relationships - Parent/Child and Spouse, a duty to protect against injury arises when what two conditions are present?
A
1) Knowledge of the need to act, and 2) reasonable likelihood of success
13
Q
What duty does a Common Carrier/Innkeeper owe to guests and passengers?
A
To use reasonable care to protect them
14
Q
What duty do schools owe to students?
A
To protect students within the boundaries of the school
15
Q
Are only foreseeable plaintiff’s owed a duty of care?
A
Yes
16
Q
Are plaintiff’s (generally) clearly foreseeable?
A
Yes
17
Q
When do third parties becomes plaintiff’s?
A
When they have been injured by a breach of duty to another party
18
Q
Must third parties (to be foreseeable plaintiff’s) be in the Zone of Danger when injured?
A
Yes
Note: Cardozo’s Zone of Danger only applies to third parties.
19
Q
Are rescuers always foreseeable plaintiff’s? Why?
A
Yes. “Danger invites rescue”
20
Q
Do rescuers ever “assume the risk”?
A
No
21
Q
What are the two Standards of Care? What is the General Standard of Care?
A
General and Specific. General standard is that of a reasonable prudent person.
22
Q
Under the General Standard of Care, are physical characteristics taken into account?
A
Yes
23
Q
Under the General Standard of Care, are mental characteristics taken into account?
A
No
24
Q
Under Specific Standards of Care, may Custom and Usage be used to establish a standard of care?
A
Yes
25
Can Custom and Usage control whether certain conduct amounted to negligence?
No
26
In Emergency Situations, under Specific Standards of Care, what duty does a person have?
To act as a reasonable person would under the same or similar circumstances
27
Will an Emergency Situation be considered if it is of defendant's own making?
No
28
What Specific Standard of Care are Children held to?
A child of like age, education, intelligence and experience.
29
If engaged in adult actives, is a child required to exercise an adult standard of care?
Yes
30
Until what age is the Child Standard of Care applicable?
17
31
What Specific Standard of Care are Professionals held to?
They are required to possess the knowledge and skill of a member of the profession in good standing in the same (or similar) locales.
32
For Professionals, does a National Board certification set the standard of care to a national standard?
Yes
33
For Professionals, will Specialists be held to a higher Specific Standard of Care for Professionals?
Yes
34
For Professionals, with regard to a doctor, what is informed consent?
A doctor has a duty to disclose risks of treatment to allow a patient to make an informed consent.
35
What are the two types of Automobile Guest Statutes?
1) Passenger does not pay for a ride 2) Passenger pays for a ride
36
When a passenger does not pay for a ride, what duty is owed?
Driver must warn of known, non-obvious defects
37
When a passenger pays for a ride, what duty is owed?
Driver must warn of known, non-obvious defects (and) make reasonable inspections for dangerous conditions
38
What is the standard in automobile "guest statute states"?
To non-paying passengers, a driver is only liable for reckless tortious conduct.
39
What affirmative duty do Common Carriers and Innkeepers have with regard to passengers and guests?
Affirmative duty to use reasonable care to 1) aid or assist passengers and guests 2) to prevent injury to them from third parties
40
What level of care must be exercised by Common Carriers and Innkeepers?
"Great" care. Common carriers and innkeepers are held liable for the slightest negligence.
41
Can Common Carriers and Innkeepers be held liable for even the slightest negligence?
Yes
42
What is a Bailment?
When one person (bailor) delivers personal property to another person (bailee).
43
What are the two types of bailment performed by Bailor's?
Bailor’s perform 1) Gratuitous bailment 2) Bailment for hire
44
What is the duty under gratuitous bailment?
Bailor has a duty to inform bailee of dangerous defects to chattel that the he knows
45
What is the duty under bailment for hire?
Bailor has a duty to inform bailee of dangerous defects to chattel that the he knows (or) should know
46
What are the three Standards of Care of a Bailee?
Sole benefit of bailor (bailee need only exercise slight care) 2) Sole benefit of bailee (bailee must exercise great care) 3) Mutual benefit (bailee need only exercise reasonable care)
47
Under the Specific Standard of Care - Control of Third Persons - are parents vicariously liable for the torts of their minor children?
No, unless a statute provides otherwise
48
Under Control of Third Person's - What are the three AAA's that create an affirmative duty to control a third person?
1) Ability to control 2) Authority to control 3) Awareness that the person needs to be controlled
49
Under the Specific Standard of Care - Owners and Occupiers of Land, what duty is owed by the landowner for "natural conditions on land"? What is the exception?
Generally, a landowner owes no duty to protect one outside his premises from natural conditions. Exception - a landowner has a duty to take reasonable precautions for known defective trees.
50
Under the Specific Standard of Care - Owners and Occupiers of Land, what duty is owed by the landowner for "artificial conditions on land"? What are the two exceptions?
Generally, there is no duty owed for artificial conditions. Exceptions: 1) Damages caused by unreasonably dangerous artificial conditions, and 2) to protect persons passing by the property
51
Under the Specific Standard of Care - Owners and Occupiers of Land, what are the two duties owed for "activities on land"?
Owner or occupier of land has a duty to 1) exercise reasonable care with respect to his own activities on the land, and 2) control the conduct of others on his property so as to avoid unreasonable risk of harm to those outside property.
52
Under the Specific Standard of Care - Owners and Occupiers of Land, what is a trespasser?
One who has no right to be on the land and comes onto the land with no permission or privilege.
53
Under the Specific Standard of Care - Owners and Occupiers of Land, for "on premise injuries", what duty is owed to an Unknown Trespasser?
No duty is owed to an unknown, undiscovered trespasser.
54
Under the Specific Standard of Care - Owners and Occupiers of Land, for "on premise injuries", what duty is owed to a Discovered (or Anticipated) Trespasser? What is the exception?
A duty to warn of (or make safe) non-obvious (hidden), dangerous, artificial conditions. Exception: No duty for natural conditions.
55
With regard to a Known or Anticipated Trespasser, what is the difference between a natural and artificial condition?
A natural condition is a rock formation or a lake. Artificial is junk, swimming pool, gravel pit, embers in a fire pit, trench.
56
Under the Specific Standard of Care - Owners and Occupiers of Land, what is an Easement?
Where the landowner has granted a right to allow someone to use and/or enter onto their property (often the power company, water company).
57
Under the Specific Standard of Care - Owners and Occupiers of Land, what care must a holder of an Easement use toward a trespasser?
Reasonable care not to harm a trespasser.
58
Under the Specific Standard of Care - Owners and Occupiers of Land, with regard to Children Trespassers, what is the Attractive Nuisance Doctrine?
The landowner has a duty to exercise reasonable care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property.
59
Under the Attractive Nuisance Doctrine, what are the four elements the plaintiff must show?
1) The owner knows (or should know) that there is a dangerous condition present on the land that is likely to cause serious injury 2) the owner knows (or should know) that children are likely to trespass 3) the child was unable to appreciate the risk 4) the burden on the owner to remedy was slight compared to the magnitude of the risk to the child (or) the remedy would have had minimal impact on owners normal operations.
60
Under the Specific Standard of Care - Owners and Occupiers of Land, what is a Licensee?
A social guest. One who enters on the land with the landowners' permission, express or implied, for her own purpose or business.
61
Under the Specific Standard of Care - Owners and Occupiers of Land, what duty is owed to a Licensee?
Duty to warn (or make safe) dangerous conditions that the owner knows.
62
Under the Specific Standard of Care - Owners and Occupiers of Land, with regard to the duty owed to a Licensee, is there a duty to inspect or repair?
No, owner need not inspect for defects or repair known defects.
63
Under the Specific Standard of Care - Owners and Occupiers of Land, what is an Invitee?
A business guest. One who enters on the land with the landowner's permission (express or implied) for the landowner's benefit.
64
Under the Specific Standard of Care - Owners and Occupiers of Land, what are the two types of Invitee?
1) Business Invitee 2) Public Invitee
65
Under the Specific Standard of Care - Owners and Occupiers of Land, what is a Business Invitee?
Purpose is connected with business or other interest of landowner.
66
Under the Specific Standard of Care - Owners and Occupiers of Land, what is a Public Invitee?
A customer. Those who enter as members of the public for purpose which is held open to the public.
67
Under the Specific Standard of Care - Owners and Occupiers of Land, what duty is owed to an Invitee?
To warn of (or make safe) dangerous conditions that the owner knows (or) should know.
68
Under the Specific Standard of Care - Owners and Occupiers of Land, with regard to the duty owed to an Invitee, is there a duty to inspect? To repair?
There is a duty to inspect, but not to repair. It is enough that the landowner warn the invitee of dangerous defects found during inspection. He need not repair them.
Note: “Should know” only places a duty upon the owner to make reasonable inspections to discover dangerous conditions, but not necessarily to repair them.
69
Under the Specific Standard of Care - Owners and Occupiers of Land, what are the two "special Invitee situations"?
An invitee may also be one who 1) serves some purpose of the possessor, or 2) comes under normal circumstances during business hours
70
Under the Specific Standard of Care - Owners and Occupiers of Land, what is the Firefighter's rule?
Police and Firefighter's are considered Licensees, not Invitee's, because of public policy, assumption of risk with regard to the nature of their profession, and worker’s compensations provisions.
71
Under the Specific Standard of Care - Owners and Occupiers of Land, when may a person lose their status as an Invitee?
If they exceed the scope of the invitation and enter a portion of land where the invitation is not extended. In this case, they are either a Licensee or a Trespasser.
72
Under the Specific Standard of Care - Owners and Occupiers of Land, what standard of care is owed by a Lessee of land?
A general duty to maintain the premises
73
Under the Specific Standard of Care - Owners and Occupiers of Land, what standard of care is owed by a Lessor of land?
A duty to warn of existing defects of which he is aware (or has reason to know), and which the lessee is not likely to discover.
74
Under the Specific Standard of Care - Owners and Occupiers of Land, what standard of care is owed by a Vendor of Realty?
To disclose to vendee concealed, unreasonable dangerous conditions of which the vendor knows (or has reason to know), and which the vendee is not likely to discover.
75
There are two Standards of Care - General and Specific. The General Standard is that of a Reasonable Prudent Person. There are nine Specific Standards of Care. What are they?
1) Custom and Usage 2) Emergency Situations 3) Children 4) Professionals 5) Automobile Guest Statutes 6) Common Carriers and Innkeepers 7) Bailments 8) Control of Third Persons 9) Owners and Occupiers of Land
76
Concisely, please list the ascending duty owed to a Trespasser, Licensee, and Invitee:
Unknown Trespasser - No duty. Known or Anticipated Trespasser- Duty to warn (or make safe) dangerous, non-obvious (hidden), artificial conditions. Licensee - Duty to warn (or make safe) only dangerous conditions landowner knows. Invitee (Business or Public) - Duty to warn (or make safe) dangerous conditions landowner knows (or) should have known - creates a duty to inspect.
77
What is Negligence Per Se?
A statute specific duty that replaces the more general common law duty of due care.
78
What are the four elements of Negligence Per Se?
1) The statute provides for a criminal penalty 2) clearly defines a standard of conduct 3) was designed to prevent the type of harm suffered by plaintiff, and 4) the plaintiff is within the class of persons meant to protected by the statute
79
In Negligence Per Se, what does the violation of a criminal statute that clearly defines a standard of conduct establish?
Duty and Breach. The criminal statute establishes a statute specific Duty. The violation of the criminal statute establishes Breach.
80
In Negligence Per Se, is compliance with a statute enough to establish reasonable care per se?
No, but it may be evidence of due care.
81
What are the two "rebutting presumptions" of Negligence Per Se?
1) Adequate Excuse 2) Sudden Emergency
Note: Negligence per se is the presumption of negligence. A “rebutting presumption” is one where the defendant can rebut the presumption of negligence in order to escape liability.
82
Within Negligence Per Se, what is "Adequate Excuse"?
Where 1) compliance with the statute would have caused more danger than did violating the statute, or 2) compliance was beyond the control of the defendant
83
What are the three elements of Negligent Infliction of Emotional Distress (NIED)?
1) The defendant must have acted negligently 2) the plaintiff was within the "target zone" or "zone of danger", and 3) the plaintiff has (must have) suffered some physical manifestation of the emotional distress (there needs to be some physical manifestation of emotional distress).
84
If plaintiff was a bystander, what are the three exceptions to the "target zone" requirement?
1) Plaintiff and injured person are closely related 2) plaintiff was present at scene of injury 3) plaintiff observed or "perceived" the event.
85
What are the five elements of Bystander NIED?
1) The defendant must have acted negligently 2) the bystander and injured person are closely related 3) the bystander was present at the scene of the injury 4) has observed or "perceived" the event, and 5) the bystander has suffered some physical manifestation of emotional distress.
86
Within NIED, what are the two exceptions to the requirement of "physical injury"?
1) erroneous reporting of a relatives death 2) mishandling of a relaitive's corpse
87
What is Breach?
When the defendant's conduct falls short of the required standard of care.
88
Does injury alone (to the plaintiff) prove Breach?
No, there must be a fact discussion
89
With regard to Breach, what are the two things a "fact discussion" should include:
1) Whether the defendant did something that a reasonable person would not have done (or) 2) did not do something a reasonable person would have done.
90
What does Res Ipsa Loquitur mean?
"The thing speaks for itself"
Note: Perhaps helpfully interpreted as “The thing speaks for itself, and that is to say, the thing speaks for itself in that it wouldn’t have happened unless someone was negligent. I don’t know who exactly was negligent, and I don’t need to, but I can assure you that someone almost certainly was.”
91
What is Res Ipsa Loquitur?
A type of accident that would not normally occur unless someone was negligent
92
What are the three elements of Res Ipsa Loquitur?
1) The accident was the type that would not normally occur unless someone was negligent 2) the instrumentality causing the injury was in the defendants sole control 3) the plaintiff did not contribute to (or otherwise cause) their injury.
93
What is Actual Cause?
"But-for" cause. Cause in fact.
94
Within Actual Cause, when there is more than one cause of an injury, or where there are multiple parties that may have caused the injury, to what are these causes referred?
1) Multiple Insufficient Causes 2) Multiple Sufficient Causes 3) Multiple Parties - Only One Caused the Harm
95
Within Actual Cause, will the "But-for" test work for Multiple Insufficient causes?
Yes
96
Within Actual Cause, will the "But-for" test work for Multiple Sufficient causes?
No
97
Within Actual Cause, what test is applied to Multiple Sufficient causes instead of the "But-for" test?
Substantial Factor test
98
Within Actual Cause, what if the harm was caused by Multiple Parties where only one of the parties caused the harm but nobody knows which one?
Alternative Causation is applied
99
Within Actual Cause - Multiple Parties, what is Alternative Causation?
The burden of proof shifts to the defendants. Any defendant is fully liable (or is liable for proportional amount equal to market share) unless he can prove he was not the cause.
100
What is Proximate Cause?
Foreseeability. Scope of Liability. Legal cause.
101
What are the two types of Proximate Cause?
1) Direct 2) Indirect
102
Within Proximate Cause, what is a Direct Cause?
When there is no intervening act by a third-party (or act of God) between the defendant's act and the plaintiff's injury.
103
Within Proximate Cause, are all Direct Causes automatically Proximate Causes?
Yes, all direct causes are proximate causes
104
Within Proximate Cause - Direct Cause, what is required for liability?
The harm was foreseeable
105
Within Proximate Cause, what is a Indirect Cause?
When there is an intervening act by a third-party (or act of God) between the defendant's act and the plaintiff's injury
106
Within Proximate Cause - Indirect Cause, what is required for liability?
The intervening act was foreseeable
107
Within Proximate Cause - Indirect Cause, what are the two types of intervening acts?
1) Dependent 2) Independent
108
Within Proximate Cause - Indirect Cause, what is a Dependent Intervening Act?
Natural and normal reactions created by the defendant's negligent act
Expanded: An act whose very occurrence was dependent upon, and flowed from, the negligent act. Medical malpractice is a dependent intervening act, in that the opportunity for the malpractice would not have arisen without the negligent act and harming someone, naturally, would put them in a position to require medical care and expose them to the risk of negligent medical care.
However, an intentional tort by a third person, or a crime, is not an dependent intervening act because the intent to harm by a third party could not be foreseen and will break the causal chain.
In the scenario above, instead of negligent medical care, suppose the defendant was intentionally injected with poison by a nurse. It was not, and simply could not, be foreseeable that this act would occur. It is simply to remote a possibility and is therefore not considered dependent, but rather “independent” of the original negligent act. This scenario is, therefore, considered an independent intervening act. Independent, in this context, meaning “not reasonable foreseeable”.
109
Within Proximate Cause - Indirect Cause, is a Dependent Intervening Act foreseeable?
Yes, the reactions created (dependent upon) the defendant's negligent act are almost always foreseeable
110
Within Proximate Cause - Indirect Cause - Dependent Intervening Act, what are the six foreseeable reactions created by (dependent upon) defendant’s negligent act?
1) Medical malpractice 2) Subsequent accident 3) Subsequent disease 4) Negligence of Rescuers 5) Escape forces 6) Effort toProtect Person or Property
111
Within Proximate Cause - Indirect Cause, what is an Independent Intervening Act?
Forces that operate on defendant's negligent act but are not natural responses or reactions (are independent from) the defendant's negligent act.
112
Within Proximate Cause - Indirect Cause, are Independent Intervening Acts generally unforeseeable?
They are generally unforeseeable, but not always
113
Within Proximate Cause - Indirect Cause, what two Independent Intervening Acts would be foreseeable?
1) Negligent acts of 3rd parties 2) predictable weather conditions (storms, floods).
114
Within Proximate Cause - Indirect Cause, what three Independent Intervening Acts would be unforeseeable
1) Intentional torts of third persons 2) Criminal acts of third persons 3) non-predictable weather (earthquakes - maybe lightening).
115
Within Damages - Principles of Compensation, what is the purpose of compensation?
To restore plaintiff to pre-injury status as far as possible
116
Within Damages - Principles of Compensation, what is the only remedy at the juries' disposal to make the plaintiff whole?
Money
117
Within Damages - Principles of Compensation, must all past, present and future damages be included in one lump sum award, based on one verdict, in one lawsuit?
Yes
118
Within Damages - Principles of Compensation, is judicial review of jury verdict amounts relatively limited?
Yes
119
Within Damages based on Negligence, where the injury is only economic, can the plaintiff recover?
No, in Negligence there must be an actual, physical injury to person or property
120
Within Damages based on Personal Injury, what are the two types of Damages?
1) Special 2) General
121
Within Damages based on Personal Injury, what are the two types of Special Damages?
1) Medical Expenses 2) Economic losses
122
Within Damages based on Personal Injury, what are the three types of Economic Losses?
1) Lost earnings 2) Impaired future earnings 3) Permanent disability (or disfigurement)
123
Within Damages based on Personal Injury, what are General Damages?
Pain and Suffering - non economic losses
124
Within Damages based on Personal Injury, what are "Avoidable Consequences"?
The plaintiff has a duty to mitigate damages (and) defendant will not be liable for damage that could have been avoided
125
Within Damages based on Physical Harm to Property, what is the liability for "Damage" and "Destruction"?
Damage - Cost of repair
| Destruction - fair market value at time of destruction
126
Within Damages - Punitive and Exemplary Damages, what type of conduct is necessary for most jurisdictions to allow Punitive and Exemplary damages?
Conduct that is willful and wanton, reckless or malicious
127
Within Damages, what two economic losses are non-recoverable?
1) Interest from date of damage in personal injury action 2) Attorneys fees.
128
Within Damages, what is the Collateral Source Rule?
Damages will not be reduced because plaintiff received benefits from other sources
129
Within Damages, what are the two types of Judicial Control?
1) Remittitur 2) Additur
130
Within Damages - Judicial Control, what is Remittitur?
Award is so excessive as to "shock the conscience"
131
Within Damages - Judicial Control - Remittitur, what options may be given to the defendant when the award is excessive?
Given choice of lesser award or new trial
132
Within Damages - Judicial Control, what is Additur?
The opposite of Remittitur. When an award is so grossly inadequate it represents a miscarriage of justice.
133
Within Damages - Judicial Control -Additur, what options may be given to the defendant when the award is inadequate?
Given choice of greater award or new trial
134
Within Damages, what are the two types of legislative control?
1) Tort reform 2) Caps on liability
135
Within Defenses, what is Contributory Negligence?
When plaintiff is a contributing cause to his injuries, it will be a complete bar to recovery.
136
Within Defenses, to what level of certainty must the defendant prove that the plaintiff was contributorily negligent?
Must prove by a preponderance of the evidence (more likely than not).
137
Within Defenses - Contributory Negligence, if the plaintiff was negligent, will the defendant be liable and may the plaintiff recover?
No and No
138
Within Defenses, what are the standards for Contributory Negligence?
Same as for ordinary negligence
139
Within Defenses - Contributory Negligence, is Contributory Negligence per se allowed?
Yes, however, may not be used against those in a "protected class" if class is based on incapacity.
140
Within Defenses - Contributory Negligence, an exception is the Last Clear Chance Doctrine. What is it?
Plaintiff's contributory negligence will not be a bar to recovery (and defendant will be liable) if plaintiff can say that the defendant had the "Last Clear Chance" to avoid the injury and did not.
141
Within Defenses - Contributory Negligence, what are the two elements of the Last Clear Chance Doctrine?
1) Defendant's negligent act occurs after plaintiff's contributory act, and 2) defendant could have avoided the accident with due care
142
Is the "Last Clear Chance" doctrine applicable in comparative negligence jurisdictions?
No
143
What is Comparative Negligence?
When plaintiff is a contributing cause to his injuries, plaintiff's recovery will be reduced in proportion to plaintiff's fault.
144
What is occurring in Comparative Negligence?
We are comparing different degrees of fault to determine the plaintiff's degree of fault, then reducing the plaintiff's recovery.
145
Is Comparative Negligence now used in virtually all states?
Yes, because it allows the plaintiff to still recover.
146
What are the two types of Comparative Negligence?
1) Pure 2) Partial
147
What is Pure Comparative Negligence?
Plaintiff will recover no matter what his percentage of fault is, even if plaintiff's negligence exceeds that of defendant's. Used in 1/3 of states, including CA.
148
What is Partial Comparative Negligence?
Plaintiff cannot recover if their degree of fault exceeds a certain threshold. Different threshold tests are used in different jurisdictions:
1. Less Serious
2. No More Serious
3. Multiple Defendants - Combined Comparison
149
What is "Less Serious" Partial Comparative Negligence?
Less than defendant’s fault. If the plaintiff's degree of fault is 49% or less, the plaintiff can recover.
150
What is "No More Serious" Partial Comparative Negligence?
Equal to or less than defendant’s fault. We look to see if the plaintiff's degree of fault is no more serious than the defendant. If the plaintiff's degree of fault is greater than 50%, the plaintiff cannot recover.
151
What is the Multiple Defendant's Approach to Partial Comparative Negligence?
If plaintiff's degree of fault is "less serious" (less than) or "no more serious" (equal to or less than) the combined fault of (all) defendant's, the plaintiff will recover
152
Will Comparative Negligence reduce punitive damages?
No
153
Within Defenses, what are the three elements of Assumption of Risk?
1) Plaintiff must have known of the magnitude of the risk (subjective test) 2) voluntarily assumed the risk, and 3) alternatives were available
154
Within Defenses - Assumption of Risk, what is the result of Assumption of Risk?
Total bar to recovery
155
Within Defenses - Assumption of Risk, do rescuers ever voluntarily "assume the risk"?
No
156
Within Defenses - Assumption of Risk, can a plaintiff assume the risk either expressly or impliedly?
Yes, either or both
Expanded:
Assumption of risk provides an even stronger potential defense to a negligence claim. A plaintiff is barred from relief if he assumed the risk of harm arising from the defendant’s actions.[26] There are two categories of this defense: implied and expressed assumption of risk.
Implied: An implied assumption of risk arises when a plaintiff’s actions or inactions imply consent to be subject to known dangers. This is commonly used to defend negligence claims involving sporting events or activities, where the plaintiff’s attendance or participation implies an assumption of the involved dangers. For example, a person who sits at a baseball game assumes the risk of being hit by a foul ball
Express: An expressed assumption of risk arises when a plaintiff implicitly relieves the defendant of any duty to protect the plaintiff from harm. A liability waiver may be viewed as an expressed assumption of risk. In City of Santa Barbara v.Superior Court, the family of a girl who died while swimming at a summer camp sued, while the defendant produced a waiver signed by the parents. The court held that even when a recreational facility obtains valid, signed liability waivers from customers, they can still be held liable for injuries if there is evidence of gross negligence or an extreme failure to exercise an ordinary standard of care. Therefore, even an expressed assumption of risk may not provide an adequate defense for gross negligence.[29]
157
Within Defenses - Assumption of Risk, what are the limits of the exculpatory clause/disclaimer forms?
Certain disclaimer forms will not be upheld by courts due to public policy
What is an exculpatory clause: A key tool of risk management is the exculpatory agreement - a generic term which can refer to a provision in a contract, the back of a receipt or invoice, or simply a statement posted in a prominent location, in which one of two things is stipulated:
(1) One party is relieved of any blame or liability arising from negligence or wrongdoing regarding a particular activity, and/or (2) One party (usually the one that drafted the agreement) is freed of all liability arising out of performance of that contract.
158
Within Defenses, under the traditional view of Intrafamily Immunity, one family member could not sue another in tort for:
Personal Injury
Expanded: The point of intrafamily immunity under the common law was to prevent situations where members of an immediate family would end up on opposite sides of a court case. Intrafamily immunity covers immunity between spouses and between parents and children.
159
Within Defenses - Immunity, have nearly all states abolished both husband-wife and parent-child immunity?
Yes
160
Within Defenses - Immunity, for the few states that embrace intrafamily Immunity, what are the five limitations?
No Immunity for 1) property damage 2) intentional torts 3) negligence not occurring within "ambit" of family relationship 4) Immunity only applies to husband-wife/parent-child 5) tort immunity is waived to the extent there is insurance coverage
161
Within Defense - Immunity, have the majority of states eliminated charitable immunities?
Yes
Expanded: The root of the charitable immunity lies in the common law as well. The rationale was that the budgets of charitable organizations were made up of donations and that, if charitable organizations had to pay tort claims, the money that people donated would not be put toward the purpose they had intended it for.
Today, most jurisdictions have eliminated the charitable immunity, reasoning that the need to compensate victims of torts committed by charities outweighed the need to protect the intent of charitable donors.
162
Within Defenses - Immunity, for federal government immunity will still attach to what torts?
Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, liable and slander, misrepresentation and deceit, and interference with contractual rights.
163
Within Defenses - Immunity, most states and local governments have waived:
Their immunity to the same extent as the federal government
164
Within Defenses, Immunity - Public Officers carrying out official duties are immune from tort liability for discretionary acts done without:
Malice or improper purpose
165
What are the four defenses to Negligence?
1) Contributory Negligence 2) Comparative Negligence 3) Assumption of Risk 4) Immunity
166
What is Governmental Immunity?
The origin of governmental immunity lies in the common law where state and federal governments had sovereign immunity that insulated them from liability. However, many jurisdictions today have done away with governmental immunity.
167
The defense of Immunity has been eliminated in all but some jurisdictions. None the less, what are the three categories of immunity?
1) Intrafamily 2) Charitable 3) Governmental
