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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

Negligence

A

To establish a prima facie case for negligence, the following elements must be proved:

  1. Duty
  2. Breach
  3. Causation
    1. Factual
    2. Proximate
  4. Damages
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2
Q

Duty

A
  • A general duty of care is imposed when a person engages in an activity. He is under a legal duty to act as an ordinary, prudent, reasonable person.
    • General Rule: owe a duty of care to foreseeable P’s
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3
Q

Premise Liability

A
  1. Unknown Trespasser- no standard of care. Except once owner has knowledge of trespassing owe a duty to exercise reasonable care
  2. Known Trespasser- includes anticipated trespassers
  3. artificial conditions
  4. highly dangerous conditions
  5. conditions concealed from trespasser
  6. conditions that possessor had knowledge of
  7. Licensee- social guest, no economic benefit (FL ELIMINATED)
  8. conditions concealed
  9. conditions possessor knew about in advance
  10. Invitee- commercial purposes or prop held out at large to public
    1. conditions concealed
    2. conditions possessor knew about in advance or could reasonable discover

Defenses
- Attractive Nuisance Doctrine- for child trespasser

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4
Q

Negligence Per Se

A

SEPERATE COA FROM NEGLIGENCE SO ANALiZE BOTH
using a criminal statute as standard of care. IF D violated the statute then D breached his duty
1. P member of a class of persons that the statute seeks to protect
2. P needs to show injury which occurred is in the class of risks in which the statute seeks to prevent
3. Statute is clear as to the standard of conduct expected and from who and when

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5
Q

Negligent Infliction of Emotional Distress

A
  1. D negligent act places P in a zone of physical danger
  2. P has subsequent physical manifestations of distress

Bystandar

  1. Close family member (spouse, parent, child)
  2. P saw it happen or was physically present at the scene
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6
Q

Breach of Duty

A

When the D’s conduct falls short of that level required by the applicable standard of care owed to the P, they have breached their duty.
- can be something did or failed to do

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7
Q

Res Ipsa Loquitur

A

A particular injury occurred and tends to establish a breach of a duty owed. Where the facts are such as to strongly indicate that P’s injuries resulted from D’s negligence, the trier of fact may be permitted to infer D’s liability. P is required to show:

1. Inference of Negligence: have to establish the accident causing the injury is the type 						that would not normally occur unless someone was negligent.
2. Negligence is Attributable to D: Accident of this type was in control of the D
3. P free from negligence: P did not contribute to the accident or occurrence - Res Ipsa only applies when 1 party is in SOLE CUSTODY of the instrumentality that caused P’s injury. Doesn’t apply when multiple D’s and any one of them could have done it
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8
Q

Causation

A

Need both Actual and proximate cause

Actual- actual injury.
1. But for test- but for D breach P would be uninjured today

Proximate cause- D liable for injuries that directly flow from the D’s actions. Limited to those that are foreseeable

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9
Q

Intervening/Indirect Cause

A

if foreseeable owe damages

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10
Q

Superseding Cause

A

unforeseeable event which cuts off D liability

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11
Q

Punitive Damages

A

Get if wanton, willful, reckless or malicious conduct. FL restricts to the greater of 3X compensatory awarded to each claimant or sum of $500,000.

There are caps placed on amount can receive for punitive damages but intoxication or intentional harm no cap exists

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12
Q

Comparative Neglgience

A

P at fault for portion of injury

cannot recover if P more than 50% at fault

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13
Q

Pure Comparative

A

FL Follows
P can recover damages no matter how great their % of fault is, but damages reduced by portion of their fault.

If P is shown to be intoxicated and assessed at more than 50% of fault P will not recover anything

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14
Q

Contributory Negligence

A

P cannot recover if found in anyway negligent in causing accident

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15
Q

Economic Loss

A

medical expenses and wage loss

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16
Q

Strict Liability

A

SEPERATE COA FROM NEGLIGENCE SO ANALYIZE BOTH

To establish a prima facie case for strict liability, the following elements must be shown:

  1. The nature of D’s activity imposes an absolute duty to make safe.
  2. The dangerous aspect of the activity is the actual and proximate cause of P’s injury and
  3. P suffered damage to person or property

Types:

  1. Cases P injured by Animal
  2. Abnormally dangerous activity
  3. Product Liability

Mention Standing
- that is a person has the ability to sue under that theory. They are a user or a foreseeable user.

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17
Q

Product Liability

A

Products liability is the generic phrase used to describe the liability of a supplier of a product to one injured by the product.

Theories of Liability

	I. Intent
	II. Negligence
	III. Strict Liability 
	IV. Implies Warranties of merchantability and fitness for a particular purpose
	V. Representation Theories
18
Q

Vicarious Liability/Respondeant Superior

A

Liability that is derivatively imposed.

Respondeat Superior
Employee/Employer- An employer will be vicariously liable for tortious acts committed by her employee if the tortious acts occur within the scope of employment.
- it is generally held that intentional conduct by employees is not within the scope of employment.
Independent Contractor/ Hiring party- GR not liable except
The contractor is engaged in inherently dangerous activities
Public Policy consideration for nondelgable duties. (I.e. the duty of a business to keep its premise safe for customers)

Car Owner/Car Driver- not liable except when driver doing an errand for owner
Parent/Child- not liable. In Fl may be liable for actual damages in theft

GR: parent not responsible for kids intentional torts
Exception: when a parent knows or has reason to know of Childs dangerous propensities and fails to exercise reasonable care
Negligence Hiring: employer knew or should have known employee’s background which indicates dangerous or untrustworthy character. NOT presumed negligent if did background check and nothing came up

Tavernkeepers
common law- no liability of vendors to vendees
FL has dramshop act that places liability of vendors if
1. Knowingly sell to minor
2.knowingly sell to alcoholic
3. If knew or should have known of likely injuries patrons conduct could occur

19
Q

Defemation

A
  1. D made a defamatory statement(adversely effects reputation)
  2. that Specifically identifies P or a reasonable person would recognize is about P
  3. must be a publication of the statement (a communication (read or heard) to a TP who understood it)
  4. damages to the reputation of the P
    libel- written- damages presumed
    slander- spoken- need to show special damages
  • if the subject matter is of public concern then add 2 additional elements
    1. P must prove falsity of statement and
    2. P must show some degree of fault- meaning statement made in bad faith
20
Q

Invasion of Privacy

A
  1. appropriation- D used P name or image for commercial purpose
  2. Intrusion- invasion of P’s seclusion that would be highly offensive to a reasonable person
  3. False light- wide spread dissemination of a material falsehood about P
  4. Disclosure- wide spread dissemination of confidential information
21
Q

Assumption of the Risk

A
  1. knowledge of the risk
  2. P assumes the risk and engages in activity anyway

(think like a liability waiver)

22
Q

Parental Immunity

A

For a minor who is no emancipated

liability is limited to the extent of parent’s applicable liability insurance

23
Q

Good Samaritan Law

A

FL Has.
An initial tortfeasor will be liable for a P’s injuries caused by the P’s rescuer resulting from the tortfeasor harming the P.
A rescuer is only liable for his or her own negligent conduct

24
Q

Defenses to Defamation

A
  1. Consent
  2. Truth
  3. Privilege
    a. absolute- communication between spouses or officers of the government
    b. qualified- person invoking must have a reasonable good faith basis for making the statement.
25
Q

Negligent Hiring

A

a prospective employer can reasonably check on references of a prospective employee to discover any relevant information about employee

Usually add with vicarious liability

26
Q

Products Liability, Breach of Warranty of Merchantability

and Breach of Warranty Fitness of Particular Purpose

A

Implied Warranty of Merchantability: when a merchant who deal in a certain kinds of goods sells such goods, there is an implied warranty that they are merchantable. Meaning of good quality and are generally acceptable among those who deal in similar goods

Implied Warranty of Fitness for Particular Purpose: When seller knows or has reason to know
The particular purpose for which the goods are required and
The buyer is relying on the seller’s skill or judgment to select or furnish suitable goods

27
Q

Sovereign Immunity

A

protects the state of Florida from civil liability when its engaged in certain discretionary functions. To a limited extent the state and its agencies has waived its sovereign immunity to certain tort liability

28
Q

Malicious Prosecution

A

charges placed against P with no PC
proceedings terminated in favor of P
D acted in bad faith
and P suffered damages

29
Q

Med Mal Claim

A
  • conduct a pre-suit investigation (have another dr investigate the facts- must prove the health care profession acted like a professional in similar standing according to the similar community standard and acted like a prudent professional would)
  • if there is a COA, file notice of intent to sue to all involved parties within 90 days before filing the lawsuit
  • at end of 90 days D must deliver to P
    1. rejection
    2. offer to settle or
    3. offer to admit liability and seek arbitration for damages

P then has 50 days to accept or reject an offer to admit liability

Medical Negligence

  1. Duty
  2. Breach of level of care, skill and treatment that reasonable prudent health care providers consider acceptable and appropriate
  3. Health care provider caused injury (actual and proximate)
  4. Damages
30
Q

Joint and Several Liability

A

(abolished in FL)- an injured person may sue for and recover full amount of recoverable damages from any jointly and severally liable person.

can seek indemnification
-Comparative Contribution- where joint and several liability exists, it permits P to recover entire judgment from any tortfeasor.
Indemnification: involves shifting entire loss between or among tortfeasors

FL- abolished joint and several liability. So D can only pay percentage of fault

31
Q

Intentional Misrepresentation (Fraud/Deceit)

A

P must establish
Misrepresentation made by D
Scienter (intent/knowledge of wrongdoing)
Intent to induce P’s reliance on misrepresentation
Causation (actual reliance on misrepresentation)
Justifiable reliance by P on the misrepresentation and
Damages

32
Q

Sovereign Immunity

A

Proctes the state of FL from civil liability when its engaged in certain discretionary functions. To a limited extent the state and its agencies have waives its sovereign immunity to certain tort liability

33
Q

Unforseeable P

A

This is when a D breach a duty to one P and also causes injury to a 2nd P to whom a foreseeable risk of injury may or may not have been created at time of original negligence Act
Solution:
a. Cardozo View (majority): The 2nd P can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances (I.e. she located in the zone of danger)

b. Andrews View: 2nd P may establish the existence of a duty extended from the D to her by showing the the D breached a duty owed to P1. Meaning D owes a duty of care to anyone who suffered injuries as a proximate result of his breach of duty to someone.
34
Q

Products Liability Based on Intent

A

A D will be liable to anyone injured by an unsafe product if the D intended the consequences or knew that they were substantially certain to occur. (Liability on this theory is not very common)

35
Q

Products Liability, Liability Based on Negligence

A

To establish a prima facie case for negligence in a products liability case, the following must be proved:

	1. Existence of a legal duty owed by D to that particular P
	- anyone who supplies a product to another owes a duty of case, including a 				casual seller
	2. Breach of that duty (negligent conduct leading to supplying of defective 				    product)
	3. Actual and proximate cause
	4. Damages
36
Q

Products Liability, Liability based on Strict Tort Liability

A

To establish a prima facie case in products liability based on strict liability, the following must be proved:

	1. D is a Commercial Supplier/Merchant (someone who routinely deals in 				    goods of this type)
		1. Casual seller- only occasionally deals with goods
		2. Service providers (I.e. massage person whose oil hurts you)
		3. Commercial lessor-rental car company
		4. Parties of the distribution chain- every part in the chain can be strictly 					    liable

	2. The D produced or sold a defective product
	1. Manufacturing defect- differs from all the others that came off the same 				    assembly line in a way that makes it more dangerous than consumers would 				    expect ( 1 in a million that goes bad).
	- if it departs from its intended design
	- safety precautions are irrelevant

	2. Design Defect- risks associated with its design outweigh the benefits of its 				    design so that a reasonable person would not have placed in market.
		- P has to show hypothetical, alternative design
			1. Safer than version marketed
			2. Economically feasible
			3. Practical.
  • if a design defect would render the product ineffective the it is considered unreasonable (I.e. making a knife less sharp)
    • in FL -risk utility is a negligence standard. They have abolished risk utility. They use a consumer expectation approach. Which is the the design defect was dangerous beyond the expectation of the ordinary customer
      1. Information Defect/warning
        1. hidden risks products must have warnings
        2. warnings must be adequate
          • warnings must be clear, concise and conspicuous
        3. product must not have been altered - things traveled in ordinary channels presumed unaltered.
        4. P must make foreseeable use of product at time of injury

if injury would still have occurred even with warning label then cannot sue for failure to provide such warning
P must show manufacturer failed to adequately warn of non obvious inherent risk of the product

- in FL -rebuttable presumption that a product is defective If it didn’t comply with federal or state safety codes. In addition no seller of food can be held liable based on gaining weight or a health consequence

** A dealer that buys from a reputable manufacturer with no reason to anticipate the product is dangerous need make only cursory inspection of the goods to avoid liability for manufacturing defects

		3. The defective product was the actual and proximate cause of the P’s 					injury and

Injury resulted from condition of product
Condition existed when product left D’s hands
Condition renders product unreasonably dangerous for its use
Use foreseeable to D
Misuse reasonably foreseeable

		4. The P suffered damages - Seller/maufacturer is not strictly liable if buyer makes substantial improvements to product.
37
Q

Products Liability Representation Theories

A

Express Warranty: arises where seller or supplier makes any affirmation of fact or promise to the buyer relating to the goods that becomes part of the basis of the bargain
Misrepresentation of Fact: may arise when a representation by the seller about a product induces reliance by the buyer.

38
Q

Defenses to Strict Liability

A

Comparative Responsibility (reasonable person standard)

	- where P is a portion of fault for injury
	- P will receive percentage of fault

Standing: in strict liability cases, mention standing. This is that a person has the ability to sue under that theory. If not a foreseeable user or a user of product P does not have standing to sue.

39
Q

Negligent Misrepresentation

A

Misrepresentation made by D in a business or professional capacity
Breach of duty toward particular P
Causation
Justifiable reliance by P upon the misrepresentation and
Damages

40
Q

Dangerous Instrumentality Doctrine (FL SPECIFIC)

A

imposes liability up to $100,000 upon an automobile owner for damages that the automobile causes when someone else is using it

Torts (2 decks)

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