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Torts > Negligence > Flashcards

Negligence Flashcards

1
Q

Elements of Negligence

A
  1. Duty
  2. Breach
  3. Causation — actual and proximate
  4. Damages
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2
Q

To whom is a duty owed?

A

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

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3
Q

Plaintiffs who are foreseeable as a matter of law

A
  1. Rescuers

2. Viable fetuses

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4
Q

What duty is owed?

A

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

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5
Q

Special Duty of Care:

Children

A
  • Majority Rule:* The degree of care that a reasonable child of like age, intelligence, and experience would exercise in the same or similar circumstances.
  • X:* Adult activities = adult standard of care
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6
Q

Special Duty of Care:

Professionals

A

The knowledge and skill of an ordinary member of that profession in good standing

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7
Q

Owners and Occupiers:

Types of plaintiffs

A
  1. Undiscovered trespasser
  2. Discovered trespasser
  3. Licensee
  4. Invitee
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8
Q

Owners and Occupiers:

Duty of Care to Undiscovered Trespassers

A
  • Activities on land:* No duty

* Static conditions on land:* No duty

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9
Q

Owners and Occupiers:

Duty of Care to Discovered Trespassers

A
  • Activities on land:* Reasonable care
  • Static conditions on land:* No duty (exception = conditions that are artificial, highly dangerous, concealed, and known to owner—i.e., man-made death traps)
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10
Q

Owners and Occupiers:

Duty of Care to Licensees

A
  • Activities on land:* Reasonable care
  • Static conditions on land:* Duty to warn or make safe an unreasonably dangerous condition that is concealed + known to owner
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11
Q

Owners and Occupiers:

licensee vs. invitee

A
  • Licensee:* one who comes onto land with the owner’s permission for his/her own purposes (includes social guests)
  • Invitee:* one who comes on property who is held open to the public at large (don’t have to plan to engage in a business transaction)
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12
Q

Owners and Occupiers:

Duty of Care to Invitees

A
  • Activities on land:* Reasonable care
  • Static conditions on land:* Duty to use reasonable care in keeping the property reasonably safe (includes a duty to inspect)
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13
Q

When is reasonable care replaced with a statutory duty (negligence per se)?

A

Class of person, class of risk

P must show (1) he is within the class of persons the statute was designed to protect; and (2) the statute was designed to protect against the type or harm/risk that P suffered.

Excuse: Compliance would have been more dangerous or was impossible under the circumstances

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14
Q

Is there an affirmative duty to act?

A

No, subject to three exceptions:

  1. D put the P in peril
  2. Special relationship (close family, innkeeper/common carrier, invitee/invitor, DOCTOR DOES NOT A HAVE SPECIAL DUTY TO ACT)
  3. Duty to control 3d person where D has actual ability and authority to control
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15
Q

Negligent Infliction of Emotional Distress:

General Rule

A

Plaintiff must show:

1) P was in the zone of danger (from the negligent conduct)
2) Physical symptoms from the distress

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16
Q

Negligent Infliction of Emotional Distress:

Bystanders

A

A bystander can recover for NIED caused by seeing the D negligently injure someone else if the bystander:

1) Was at scene and personally observed or perceived the event
2) Had a close relationship with the victim
3) Physical symptoms (most states, modern trend drops this requirement)

17
Q

Proving Breach of Duty

A

Must point to specific conduct

  1. Can offer evidence of custom (but not conclusive)
  2. Res ipsa loquitur
18
Q

Res ipsa loquitur

A

Allows trier of fact to infer a breach of duty based on the fact that an injury occurred (but jury doesn’t have to find in favor of P)

P must show:

  1. the event was one that does not normally occur in the absence of negligence
  2. Any negligence would be attributable to the D (ask: Did D have exclusive control of the instrumentality?)
19
Q

Causation:

Alternatives to the but-for test

A
  • Substantial Factor* - use with multiple Ds WHO ARE ALL NEGLIGENT and commingled causes (“joint causes”)
  • Alternative Causes/BOP shift* - Use with multiple Ds WHO ARE ALL NEGLIGENT and an uncertain cause (“Doctrine of Summers v. Tice”). If Ds can’t exonerate themselves, there’s J&S liability.
20
Q

Proximate Cause:

Definition

A

D is only liable for those harms that are within the risk of his activity

21
Q

Proximate Cause:

Direct vs. Indirect

A
  • Direct Cause:* If result was foreseeable —> PC
  • Indirect Cause:* D’s act is followed by some other act.
  • Ask: Was the intervening act foreseeable?
  • Ask: Was the ultimate result foreseeable?
22
Q

Proximate Cause:

General rules for Indirect Cause Cases

A

If both act + result were foreseeable —> PC

If neither act + result was foreseeable —> No PC

There is generally liability for:

  1. Subsequent medical malpractice
  2. Negligent rescue efforts
  3. Reaction forces
  4. Subsequent diseases or accidents
  5. Negligence of a third party (if D can anticipate)
  6. Criminal conduct (if D can anticipate)
  7. Act of God (if foreseeable—e.g., weather forecast)
23
Q

Condition vs. Superseding cause

A

An intervening force is superseding if it is:

(i) independent of the original act;
(ii) adequate of itself to bring about the result; and
(iii) not reasonably foreseeable.

24
Q

Eggshell Skull Rule

A

D is liable for full extent of damages he causes, even if the extent was unforeseeable (eggshell skull P)

25
Q

Contributory Negligence

Definition, Effect, Ameliorating Doctrines

A
  • Definition:* A P’s failure to use the relevant degree of care for his own safety.
  • Effect:* Absolute bar to recovery
  • Last Clear Chance Doctrine:* P can recover if D had last clear chance to avoid accident and failed to do so
26
Q

Assumption of the Risk:

General Rule

A

P is completely barred (subject to public policy exceptions)

27
Q

Assumption of the Risk:

Implied

A
  1. P must have knowledge of risk
  2. P voluntarily encountered the risk

Encounter is not voluntary if:

  1. P has no available alternative
  2. P is acting in situation involving force, fraud, or emergency
28
Q

Pure Comparative Negligence

A

P will always recover something, even if P is the predominant/majority negligent actor in the case.

For multi-state, this is default position unless question specifies otherwise

29
Q

Modified (Partial) Comparative Negligence

A

P will recover something unless P is >49% or >50% negligent; after that, P is barred from recovery

30
Q

Strict Liability:

Prima Facie Case

A

(1) 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 the P’s injury; and
(3) The P suffered damage to person or property

31
Q

Strict Liability:

Extent of Liability

A

(1) Liable only to foreseeable plaintiffs
(2) Harm must result from the normally dangerous propensity of the condition or thing involved
(3) Contributory negligence won’t cut off liability unless it was “knowing”

32
Q

Strict Liability:

Animals

A
  • Trespassing animals* = SL for reasonably foreseeable harm caused by trespassing animals (other than household pets)
  • For personal injury* (invitees and licensees)
  • Domestic animals* - SL if D knows of animal’s dangerous propensity
  • Wild animals* - SL
  • X = Trespassers* (have to prove negligence)
33
Q

Strict Liability:

Abnormally Dangerous Activities (test)

A

Two-Part Test for “Abnormally Dangerous”:

(1) Activity creates a foreseeable risk of serious harm, even when reasonable care is exercised; and
(2) The activity is not a matter of common usage in the community.

34
Q

Negligence: Products (prima facie case)

A
  1. negligent conduct of D leading to
  2. supplying of defective product
  3. physical injury/property damage required (no economic damages)
35
Q

Strict Liability:

Products (prima facie case)

A

1) D is a merchant seller
2) Product must be defective (manufacturing or design)
3) Defect existed when it left D’s hands
4) P made foreseeable (not intended) use of product

36
Q

Products Strict Liability:

“Defect”

A

This element replaces the breach of duty element in negligence. Two types:

Manufacturing — Show product anomaly

Design defect — Show reasonable alternative design

37
Q

Affirmative defenses to a strict products liability suit

A
  1. Assumption of the risk will bar recovery
  2. Contributory negligence will not bar recovery
  3. Comparative fault might reduce recovery in some jurisdictions
38
Q

SL Products Hints

A

when theory is negligence, usually let retailer off the hook

adequate warning system usually insulates D

if product use is incidental to performance of a service, SL is unavailable

Torts (3 decks)

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