Negligence Flashcards
For negligence, what plaintiffs are foreseeable as a matter of law?
- rescuers
* viable fetuses
In negligence, to whom is a duty owed?
All people who are foreseeable victims of your failure to make precautions
In negligence, how much care must a person exercise?
The amount of care that would be taken by a reasonably prudent person under the same or similar circumstances.
In what ways do a particular defendant’s characteristics affect the reasonable person standard?
- defendant expected to use his superior skill or expertise for plaintiff’s benefit
- defendant’s physical disabilities attributed to reasonable person
- reasonable person is a fixed constant
In negligence, who owes special duties?
- Children
- Professionals
- Land owners and occupiers
Under the majority rule, what duties do children owe?
A child must exercise the degree of care that a reasonable child of like age, intelligence, and experience would exercise under the circumstances. Children under 4 cannot commit negligence.
Under the traditional (minority) rule, what duties do children owe?
Rule of sevens:
• 0-7 = incapable of negligence
• 7-13 = rebuttable presumption of incapable of negligence
• 14+ = rebuttable presumption of capability of negligence
In negligence, when is a child held to the adult standard of duty?
When he is engaged in adult activity.
In negligence, to what standard are professionals held?
They must possess and exercise the knowledge and skill of an ordinary member of the profession in good standing.
In negligence, how does a plaintiff show medical malpractice?
By showing the doctor did not explain risks and alternatives.
In negligence, what must a plaintiff prove in addition to malpractice?
Causation. (Plaintiff must show a reasonable likelihood of winning but-for the malpractice.)
What are the two sources of injuries making an owner or occupier of land liable?
- conduct of an activity, or
* encounter with a static condition
What are the possible statuses of plaintiffs who enter land?
- undiscovered trespasser
- discovered trespasser
- licensee
- invitee
What duties does a land owner/occupier owe to people who enter the land regarding conditions on the land?
- Undiscovered trespasser: no duty
- Discovered trespasser: warn or correct conditions that are artificial, highly dangerous, concealed, and known
- Licensee: warn or correct conditions that are concealed and known
- Invitee: warn or correct conditions that are concealed and either known or could be learned of by reasonable inspection
What duty is owed to a child trespasser?
reasonable care
usually when defendant aware of kid and child cannot appreciate danger
What duty does a defendant owe to an entrant to land who is injured by an open and obvious condition?
No duty
What is the test for negligence per se?
The statute protects (satisfy both): • class of the person, and • class of the risk
What are the exceptions to negligence per se?
- compliance with the statute is more dangerous than violating it
- compliance is impossible under the circumstances
Does an affirmative duty to rescue exist?
No
What are the exceptions to the “no duty to rescue” rule?
(1) defendant put plaintiff in peril
(2) relationships (close family, common carrier or innkeeper, invitor-invitee)
(3) duty to control third persons (must have actual ability and authority)
When does a duty to avoid negligent infliction of emotional distress arise?
- Zone of danger rule: (1) defendant exposes plaintiff to physical risk and (2) plaintiff later suffers physical manifestations from the distress
- Bystander recovery rule: (1) a bystander at the scene (2) who had a close relationship with the victim (3) and had physical manifestations from the distress (modern trend removes manifestations requirement)
In what situations have courts liberalized the negligent infliction of emotional distress rule?
When defendant’s negligence creates a great likelihood of severe emotional distress. (e.g., false reports of relative’s death, mishandling of relative’s corpse, false report of fatal disease by doctor)
What is the general rule for breach of duty in negligence?
Plaintiff must point to specific conduct by the defendant.
In negligence, how does evidence of custom affect proving breach of duty?
The evidence is always admissible, but never conclusive.
What is the test for res ipsa loquitur?
(1) the event is one that does not normally occur in the absence of negligence
(2) any negligence would be attributable to ∆
Res ipsa loqiutur is a substitute for what element of a negligence claim?
Proof of breach
What is the effect of res ipsa loquitur?
Plaintiff gets to the jury, though the jury can reject the res ipsa conclusion.
In negligence, what are the tests for cause in fact, and when are they used?
- but-for (ordinary cases)
- substantial factor (multiple defendants and commingled cause)
- burden shifting (multiple defendants and unknown cause)
In negligence, what is the effect of the proximate cause element?
It limits defendant’s liability to harms that were within the risk of his activity.
Regarding proximate cause, what is a direct cause?
When nothing happens between defendant’s action and plaintiff’s injury.
Regarding proximate cause, when will defendant be liable for direct cause?
When the result of the negligent conduct is foreseeable.
Regarding proximate cause, what is indirect cause?
When defendant acts, then someone/something else acts, then plaintiff is hurt.
For proximate cause, in what situations will plaintiff always win or lose for indirect cause?
- When the intervening cause is foreseeable and the result is foreseeable, plaintiff will always win.
- When the intervening cause is unforeseeable and the result is unforeseeable, plaintiff will always lose.
Regarding proximate cause, in which situations will an intervening cause almost never cut off liability, even if the defendant didn’t anticipate them?
- subsequent medical malpractice
- negligent rescue
- reaction forces
- subsequent diseases or accidents
Regarding proximate cause, what intervening forces, if anticipated by the defendant, will not cut off liability?
- negligence of a third party
- criminal conduct
- acts of God
What are the elements of a typical personal injury award?
- past and future medical expenses
- past and future lost income
- pain and suffering
What is the eggshell skull plaintiff rule?
A defendant is liable for the full extent of the damage he causes, even if the extent was unforeseeable.
List the defenses to negligence.
- contributory negligence
- assumption of the risk
- comparative negligence
Define comparative negligence, its effect, and ameliorating doctrines.
- Definition: plaintiff failed to use the relevant degree of care for his own safety
- Effect: plaintiff loses and recovers nothing
- Ameliorative doctrine: last clear chance rule (plaintiff recovers despite negligence as long as the defendant had the last clear chance to avoid the injury)
Define express assumption of the risk, its consequence, and its exception.
- definition: Plaintiff knows of danger and says he will take his chances
- consequence: completely bars plaintiff’s recovery
- exception: when application violates public policy
State the test for implied assumption of the risk, the situations that destroy the assumption, and the consequence.
- Test: (1) plaintiff has knowledge of the risk, and (2) the encounter was voluntary
- things that destroy the assumption: (1) absence of an alternative destroys voluntariness; (2) emergency situations destroy voluntariness
- consequence: traditionally a complete bar to recovery, now changed with comparative negligence
What are the two types of comparative negligence?
- pure = plaintiff always recovers, even if he was the majority negligent actor
- modified = plaintiff cannot recover if his fault is 50%-51% or higher
What is the effect of comparative negligence on other affirmative defenses?
It supplants all of them except express assumption of the risk.
