Negligence

Question 1

what are the elements for prima facie case of negligence?

Answer 1

1 duty on the part of defendant to conform to a specific standard of conduct for protection against an unreasonable risk of injury
2 a breach of that duty by defendant
3 the breach is the actual and proximate cause to the plaintiffs injury
4 damages

Question 2

what is the duty of care

Answer 2

owed to all foreseeable plaintiffs. if the defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff

Question 3

foreseeable plaintiff

Answer 3

someone who is in the zone of danger (cardozo). some states say it is anyone who suffers injuries proximately caused by the defendant’s negligence.

Question 4

examples of foreseeable plaintiff

Answer 4

rescuers - danger invites rescue
prenatal injuries - viable fetus “wrongful birth or pregnancy action”
intended beneficiaries or economic transactions

Question 5

Basic standard of care

Answer 5

the reasonable person standard is an objective standard. a defendant’s mental deficiencies, and inexperience does not count. but the reasonable person is considered to have the same physical characteristics as defendant. a defendant who has knowledge or experience superior to that of an average person is required to exercise such experience.

Question 6

Professionals

Answer 6

A professional or someone with special occupational skills is required to possess knowledge and skill of a member of the profession or occupation in good standing

Question 7

duty to disclose risks of treatment

Answer 7

a doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. a doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patients position would have withheld consent on learning of the risk.

Question 8

Children

Answer 8

held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. Children engaged in potentially dangerous adult activities may be required to conform to an adult standard of care.

Question 9

Common carriers and innkeepers

Answer 9

held to a very high degree of care (liable for even slight degree of negligence) plaintiff must be passenger or a guest

Question 10

automobile driver to guest

Answer 10

a guest in an automobile is owed a duty of ordinary care. in the few guest statute states, one is liable to nonpaying passengers only for reckless tortuous conduct.

Question 11

Bailment duties

Answer 11

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title.

Question 12

duties owed by bailee

Answer 12

depends on the benefits of the bailment. 1) for sole benefit of the bailor bailment, there is a low standard of care, 20 for a sole benefit of the bailee, high standard of care, 3) for a mutual benefit - ordinary standard of care

Question 13

duties owed by bailor

Answer 13

the bailor must inform the bailee of known, dangerous defects in the chattel. for a bailment for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware.

Question 14

Emergency situations

Answer 14

a defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to considered, however, if it is of the defendant’s own making.

Question 15

owners and occupiers of land

Answer 15

the extent of the liability of owners and or occupiers of land (and those in privity with the owner/occupier) depends on where the injury occurred and on the status of the plaintiff.

Question 16

duty of possessor to those off premises

Answer 16

there is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty of unreasonably dangerous artificial conditions or structures abutting adjacent land.

Question 17

trees

Answer 17

in urban areas, the owner/occupier is liable for damage caused off the premises by trees on the premises (falling branches)

Question 18

duty of possessor to those on premises

Answer 18

depends on status as trespasser, licensee, or invitee some jurisdictions do not distinct between licensee and invitee

Question 19

Duty owed to trespassers

Answer 19

none if undiscovered
if discovered -
1 warn of or make safe concelaed, unsafe, artificial conditions known to the landowner involving risk of death or bodily harm, and
2 use reasonable care in the exercise of active operations

Question 20

attractive nuisance doctrine

Answer 20

duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on his property.
4 reqs
1. a dangerous condition on the land that the owner know or should be aware of
2. the owner knows or should know children frequent the vicinity of the condition
3. the condition is likely to cause injury (child cant appreciate risk)
4. the expense of remedying the situation is slight

Question 21

duty owed to licensees

Answer 21

a licensee is one who enters onto the land with the possessors permission for her own purpose or business rather than for the possessors benefit.

Question 22

Duty to licencees (2) (social guests)

Answer 22

1) warn of or make safe dangerous conditions natural or artificial known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover, and
2) exercise reasonable care in the conduct of active operations on the property.
No duty to inspect or repair

Question 23

duty owed to invitees

Answer 23

enter on land in response to invitation by landowner
same duties as to licensees and the duty to make reasonable inspections to discover nonobvious dangerous conditions and thereafter make them safe. one will lose this status if exceed scope

Question 24

Duties of lessor and lessee of realty

Answer 24

lessee has general duty to maintain the premises. the lessor must warn of existing defects of which he is aware or has reason to know and which he knows the lessee is not likely to discover on a reasonable inspection. if lessor covenants to repair, he is liable for unreasonably dangerous conditions.

Question 25

Statutory standard of care

Answer 25

a clearly stated specific duty imposed by a statute providing for criminal penalties including fines may replace the more general common law duty of care if 1. the plaintiff is within the protected class and 2 the statute was designed to prevent the type of harm suffered by the p

Question 26

negligence per se

Answer 26

establishes a conclusive presumption of duty and breach of duty.

Question 27

duty regarding negligent infliction of emotional distress

Answer 27

breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff must be 1) within the zone of danger; and 2) the plaintiff must suffer physical symptoms from the distress.

Question 28

bystander not in a zone of danger seeing injury to another

Answer 28

can recover if 1) closely related 2) plaintiff was present at the scene of the injury 3) the plaintiff personally observed or perceived the event.

Question 29

Exceptions to the Affirmative duties to act:

Answer 29

1. once defendant undertakes to aid someone he must do so with reasonable care
2. has duty to assist someone he has negligently or innocently placed in peril.
3. special relationship between parties
4. duty to prevent a third person from injuring another.

Question 30

breach of duty

Answer 30

where defendants conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. whether the duty of care is breached in an individual case is a question for the trier of fact.

Question 31

theories to proof breach

Answer 31

1. custom or usage
2. violation of statute
3. res ipsa loquitor

Question 32

res ipsa loquitor

Answer 32

1. the accident causing the injury is a typr that would not normally occure unles someone was negligent
2. the negligence is attributable to defendant through evidence defendant had control of instrumentality

Question 33

res ipsa and directed verdict

Answer 33

1. deny defendants motion for directed verdict if plaintiff has estabilshed res ipsa
2. grant defendants motionif plaintiff has failed to establish res ipsa

Question 34

Causation

Answer 34

plaintiff must show both actual cause and proximate cause

Question 35

actual cause

Answer 35

it must be the cause in fact of the injury

Question 36

but for test

Answer 36

act or ommission is the cause in fact of an injury when the injury would not have occurred but for the act.

Question 37

joint causes

Answer 37

Substantial Factor - where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant’s conduct is the cause in fact if it was a substantial factor in causing the injury.

Question 38

Alternative causes approach

Answer 38

this test applies when there are two acts, only one of which causes injury, but it is not known which one. the burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.

Question 39

Proximate Cause

Answer 39

a defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. this is the foreseeability test.

Question 40

in direct cause cases

Answer 40

uninterrupted chain of events from the negligent act to plaintiff’s injury, defendant is liable for all foreseeable harmful results, regardless of the unusual manner in which they arise or the unusual timing of cause and effect.

Question 41

in indirect cause cases

Answer 41

an affirmative intervening force comes into motion after defendant’s negligent act and combines with it to cause plaintiff’s injury.

Question 42

foreseeable results, cause by foreseeable intervening forces - defendant liable

Answer 42

defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm plaintiff.

Question 43

common foreseeable intervening forces

Answer 43

1. normal responses or reactions medical malpractice
2. negligence of rescuers
3. efforts to protect the person or property of oneself or another,
4. injuries caused by another reacting to defendant’s actions
5. subsequent diseases caused by a weakened condition
6. subsequent accident substantially caused by the original injury

Question 44

independant intervening forces

Answer 44

1. negligent acts of third persons
2. crimes and intentional torts of third persons
3. acts of god

Question 45

foreseeable results caused by unforeseeable intervening forces

Answer 45

defendant is usually liable.

Question 46

superseding causes

Answer 46

intervening forces that produce unforeseeable results i.e. results not within the risk of defendant’s negligence break the causal chain making defendant not liable

Question 47

eggshell-skull plaintiff. defendant takes the plaintiff as he finds him

Answer 47

defendant is liable for all damages including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.

Question 48

Damages

Answer 48

nominal not available, can recover economic, non economic, and emotional distress if suffered physical injury.

Question 49

property damage

Answer 49

cost of repair but if damaged fair market value at the time it was destroyed

Question 50

Punitive damage

Answer 50

not available in negligence cases

Question 51

nonrecoverable items

Answer 51

1. interest from the date of damage in a personal injury action
2. attorneys fees

Question 52

duty to mitigate

Answer 52

plaintiff has a duty to take reasonable steps to mitigate damages

Question 53

collateral source rule

Answer 53

damages not reduced just because plaintiff received benefits from other sources

Question 54

defenses- contributory negligence

Answer 54

negligence on the part of the plaintiff that contributes towards her injuries

• defense to negligence per se unless person was in a protected class
• no defense to an intentional tort

Question 55

exception to contributory negligence

Answer 55

last clear chance - permits plaintiff to recover even if she was negligent. under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for neglience

Question 56

helpless peril

Answer 56

in many states, where the plaintiff is in helpless peril, defendant will be liable if he knew oe should have known of plaintiff’s predicament.

Question 57

inattentive peril

Answer 57

plaintiff could have extricated herself if attentive defendant must have actually known of plaintiff’s predicament.

Question 58

imputed contributory negligence

Answer 58

generally, the contributory negligence of a third party will be imputed to a plaintiff and bar her claim only when the realtionship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third persons negligence not including husband and wife, parent and child, and automobile owner and driver.

Question 59

Assumption of risk

Answer 59

1. plaintiff must have known of the risk
2. voluntarily proceeded in the face of the risk
   - not a defense to intentional torts

Question 60

comparative negligence

Answer 60

contributory negligence is not a complete bar of recovery. Rather, the trier of fact wieghs plaintiff’s negligence and reduces damages accordingly asume pure for the exam.

Question 61

Duty owed to users of recreational land

Answer 61

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user unless the landowner willfully or maliciously failed to guard against or warn of a dangerous condition or activity.