Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Torts > Negligence > Flashcards

Negligence Flashcards

0
Q

For negligence, what plaintiffs are foreseeable as a matter of law?

A
  • rescuers

* viable fetuses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
1
Q

In negligence, to whom is a duty owed?

A

All people who are foreseeable victims of your failure to make precautions

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

In negligence, how much care must a person exercise?

A

The amount of care that would be taken by a reasonably prudent person under the same or similar circumstances.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

In what ways do a particular defendant’s characteristics affect the reasonable person standard?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

In negligence, who owes special duties?

A
  • Children
  • Professionals
  • Land owners and occupiers
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Under the majority rule, what duties do children owe?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Under the traditional (minority) rule, what duties do children owe?

A

Rule of sevens:
• 0-7 = incapable of negligence
• 7-13 = rebuttable presumption of incapable of negligence
• 14+ = rebuttable presumption of capability of negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

In negligence, when is a child held to the adult standard of duty?

A

When he is engaged in adult activity.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

In negligence, to what standard are professionals held?

A

They must possess and exercise the knowledge and skill of an ordinary member of the profession in good standing.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

In negligence, how does a plaintiff show medical malpractice?

A

By showing the doctor did not explain risks and alternatives.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

In negligence, what must a plaintiff prove in addition to malpractice?

A

Causation. (Plaintiff must show a reasonable likelihood of winning but-for the malpractice.)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What are the two sources of injuries making an owner or occupier of land liable?

A
  • conduct of an activity, or

* encounter with a static condition

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are the possible statuses of plaintiffs who enter land?

A
  • undiscovered trespasser
  • discovered trespasser
  • licensee
  • invitee
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What duties does a land owner/occupier owe to people who enter the land regarding conditions on the land?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What duty is owed to a child trespasser?

A

reasonable care

usually when defendant aware of kid and child cannot appreciate danger

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What duty does a defendant owe to an entrant to land who is injured by an open and obvious condition?

A

No duty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is the test for negligence per se?

A 
The statute protects (satisfy both):
• class of the person, and
• class of the risk
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What are the exceptions to negligence per se?

A
  • compliance with the statute is more dangerous than violating it
  • compliance is impossible under the circumstances
18
Q

Does an affirmative duty to rescue exist?

A

No

19
Q

What are the exceptions to the “no duty to rescue” rule?

A

(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)

20
Q

When does a duty to avoid negligent infliction of emotional distress arise?

A
  • 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)
21
Q

In what situations have courts liberalized the negligent infliction of emotional distress rule?

A

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)

22
Q

What is the general rule for breach of duty in negligence?

A

Plaintiff must point to specific conduct by the defendant.

23
Q

In negligence, how does evidence of custom affect proving breach of duty?

A

The evidence is always admissible, but never conclusive.

24
Q

What is the test for res ipsa loquitur?

A

(1) the event is one that does not normally occur in the absence of negligence
(2) any negligence would be attributable to ∆

25
Q

Res ipsa loqiutur is a substitute for what element of a negligence claim?

A

Proof of breach

26
Q

What is the effect of res ipsa loquitur?

A

Plaintiff gets to the jury, though the jury can reject the res ipsa conclusion.

27
Q

In negligence, what are the tests for cause in fact, and when are they used?

A
  • but-for (ordinary cases)
  • substantial factor (multiple defendants and commingled cause)
  • burden shifting (multiple defendants and unknown cause)
28
Q

In negligence, what is the effect of the proximate cause element?

A

It limits defendant’s liability to harms that were within the risk of his activity.

29
Q

Regarding proximate cause, what is a direct cause?

A

When nothing happens between defendant’s action and plaintiff’s injury.

30
Q

Regarding proximate cause, when will defendant be liable for direct cause?

A

When the result of the negligent conduct is foreseeable.

31
Q

Regarding proximate cause, what is indirect cause?

A

When defendant acts, then someone/something else acts, then plaintiff is hurt.

32
Q

For proximate cause, in what situations will plaintiff always win or lose for indirect cause?

A
  • 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.
33
Q

Regarding proximate cause, in which situations will an intervening cause almost never cut off liability, even if the defendant didn’t anticipate them?

A
  • subsequent medical malpractice
  • negligent rescue
  • reaction forces
  • subsequent diseases or accidents
34
Q

Regarding proximate cause, what intervening forces, if anticipated by the defendant, will not cut off liability?

A
  • negligence of a third party
  • criminal conduct
  • acts of God
35
Q

What are the elements of a typical personal injury award?

A
  • past and future medical expenses
  • past and future lost income
  • pain and suffering
36
Q

What is the eggshell skull plaintiff rule?

A

A defendant is liable for the full extent of the damage he causes, even if the extent was unforeseeable.

37
Q

List the defenses to negligence.

A
  • contributory negligence
  • assumption of the risk
  • comparative negligence
38
Q

Define comparative negligence, its effect, and ameliorating doctrines.

A
  • 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)
39
Q

Define express assumption of the risk, its consequence, and its exception.

A
  • definition: Plaintiff knows of danger and says he will take his chances
  • consequence: completely bars plaintiff’s recovery
  • exception: when application violates public policy
40
Q

State the test for implied assumption of the risk, the situations that destroy the assumption, and the consequence.

A
  • 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
41
Q

What are the two types of comparative negligence?

A
  • pure = plaintiff always recovers, even if he was the majority negligent actor
  • modified = plaintiff cannot recover if his fault is 50%-51% or higher
42
Q

What is the effect of comparative negligence on other affirmative defenses?

A

It supplants all of them except express assumption of the risk.

Torts (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions