Negligence Flashcards
What is Negligence?
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.
What is the general rule as it pertains to a Duty to Act?
The general rule is that there is no duty to act
What are the two “contractual” exceptions to the general “no duty to act” rule?
1) Nonfeasance (the failure to act where action is required), and 2) Misfeasance (willful inappropriate action)
Under nonfeasance, there is no liability beyond:
Those in privity (contact or mutual interest between parties)
Under misfeasance, there is liability for:
Lack of due care
Under exceptions to the general “no duty to act” rule, what is “Assumption of the Duty to Act by Acting”?
One who gratuitously acts for another is under a duty to 1) act like an ordinary prudent person, and 2) continue the assistance
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:
Of the person assuming the duty
Under exceptions to the general “no duty to act’ rule, what is the “Good Samaritan” statute?
A statute that exempts healthcare professionals who (voluntarily) help another in an emergency from liability for (ordinary) negligence.
Does the “Good Samaritan Statute” impose an affirmative duty to act?
No
Under exceptions to the general “no duty to act” rule, what is “Creation of Peril”?
One who negligently places another in a position of peril is under a duty to use reasonable care to assist.
What are the three categories of Special Relationships that create a Specific Duty to Act?
1) Parent/child and spouse 2) Common Carrier/innkeeper 3) School/student
Under Special Relationships - Parent/Child and Spouse, a duty to protect against injury arises when what two conditions are present?
1) Knowledge of the need to act, and 2) reasonable likelihood of success
What duty does a Common Carrier/Innkeeper owe to guests and passengers?
To use reasonable care to protect them
What duty do schools owe to students?
To protect students within the boundaries of the school
Are only foreseeable plaintiff’s owed a duty of care?
Yes
Are plaintiff’s (generally) clearly foreseeable?
Yes
When do third parties becomes plaintiff’s?
When they have been injured by a breach of duty to another party
Must third parties (to be foreseeable plaintiff’s) be in the Zone of Danger when injured?
Yes
Note: Cardozo’s Zone of Danger only applies to third parties.
Are rescuers always foreseeable plaintiff’s? Why?
Yes. “Danger invites rescue”
Do rescuers ever “assume the risk”?
No
What are the two Standards of Care? What is the General Standard of Care?
General and Specific. General standard is that of a reasonable prudent person.
Under the General Standard of Care, are physical characteristics taken into account?
Yes
Under the General Standard of Care, are mental characteristics taken into account?
No
Under Specific Standards of Care, may Custom and Usage be used to establish a standard of care?
Yes
Can Custom and Usage control whether certain conduct amounted to negligence?
No
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
Will an Emergency Situation be considered if it is of defendant’s own making?
No
What Specific Standard of Care are Children held to?
A child of like age, education, intelligence and experience.
If engaged in adult actives, is a child required to exercise an adult standard of care?
Yes
Until what age is the Child Standard of Care applicable?
17
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.
For Professionals, does a National Board certification set the standard of care to a national standard?
Yes
For Professionals, will Specialists be held to a higher Specific Standard of Care for Professionals?
Yes
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.
What are the two types of Automobile Guest Statutes?
1) Passenger does not pay for a ride 2) Passenger pays for a ride
When a passenger does not pay for a ride, what duty is owed?
Driver must warn of known, non-obvious defects
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
What is the standard in automobile “guest statute states”?
To non-paying passengers, a driver is only liable for reckless tortious conduct.
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
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.
Can Common Carriers and Innkeepers be held liable for even the slightest negligence?
Yes
What is a Bailment?
When one person (bailor) delivers personal property to another person (bailee).
What are the two types of bailment performed by Bailor’s?
Bailor’s perform 1) Gratuitous bailment 2) Bailment for hire
What is the duty under gratuitous bailment?
Bailor has a duty to inform bailee of dangerous defects to chattel that the he knows
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
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)
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
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
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.
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
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
Under the Specific Standard of Care - Owners and Occupiers of Land, what are the two types of Invitee?
1) Business Invitee 2) Public Invitee
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.
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.