Negligence Flashcards
Duty: General Standard
Duty to act as a reasonably prudent person (RPP) under the circumstances
**Must specify duty
Duty: 5 issues
- custom: evidence of a duty
- children: like age/experience for 5-18, UNLESS adult activity
- Adults with Disabilities: RPP with that diagnosis (except mental illness)
- Common Carrier: higher standard of conduct expected of them
- Foreseeable Plaintiff
Special Duty: Statute
Civil: conclusively establishes duty/breach
Criminal:
-class of persons
-class at risk
Effect: negligence per se
Special Duty: Omission
GR; no duty
- special relationship (school; common carrier)
- instrumentality under D’s control
- statutory
- creation of peril
- voluntary undertaking (cannot leave worse off)
Special Duty: Landowner: outside land
No duty as to natural conditions
Artificial: duty to inspect
Special Duty: Landowner: Trespasser
undiscovered: no duty
discovered: post warnings of known danger
Landowner: attractive nuisance doctrine
Artificial condition creates an unreasonable risk to youth, and utility is slight compared to risk
- artificial condition
- know about trespassers
- unreasonable risk
- child cannot appreciate risk
- utility vs risk (balance)
**No injury needed (can get injunction)
Special Duty: Landowner: Licensee and Invitee
Licensee: warn or make safe (known dangers)
Invitee: highest duty; must make reasonable inspection; warn of all known dangers or those discoverable by inspection
Special Duty: Lessor
Lessor has a duty and can be held liable along with the possessor tenant
NIED
Duty to avoid causing distress to another
Duty breached when D creates a foreseeable risk of physical injury through impact or threat of impact
NIED: to recover
Must be injured, except:
- erroneous reporting of relative’s death
- mishandling of corpse
NIED: Bystander
- close relationship
- bystander present at scene
- P observed or perceived the injury
Breach
What was the specific wrongful behavior?
- direct: failure to meet standard
- circumstantial
- violation of a statute
- res ipsa loquitur
Breach: Res Ipsa Loquitur
- accident does not normally occur absent negligence
- more likely than not that D was responsible (D is in control)
- P did not contribute to his injury
Effect: goes to jury
Actual Cause
“But for”
- concurrent liability: separate negligence actions occur
- joint tortfeasors: several Ds jointly engaged in negligent conduct–each is liable as agents
- successive tortfeasors: act independently, cause single indivisible injury
Substantial Factor
-several causes; any one alone sufficient
Alternate Causes
- two acts but only one cause
- unknown who caused
- burden shifts
Proximate Cause
GR: D is liable for all foreseeable harmful results of his conduct
-cuts off liability when results are unforeseeable, even though D is the but for cause
Proximate Cause: direct
uninterrupted chain of events
Proximate Cause: Indirect: Dependent intervening
Foreseeable:
- rescue
- reaction
- checking
- escape
- subsequent injury
Unforeseeable:
-gross negligence
Proximate Cause: Indirect: Independent
Foreseeable
- arguably foreseeable (God, animals, 3P negligence)
- ONLY IF D’s conduct increased the scope of the risk
Unforeseeable
- not within the scope of risk
- criminal/intentional torts
Proximate Cause: Foreseeable Plaintiff
Duty issue
-where D breaches a duty of care to one P and causes injury to a second–must be in geographic zone of danger
Proximate Cause: Eggshell Plaintiff
PC issue
- take the P as you find him
- D is liable even if damages more severe than in an average person
Damages
Avoidable Consequences Rule
-P must act reasonably to mitigate
Collateral Source Rule
-Insurance not admissible at trial
Damage: Issues
Joint and several liability
- each liable for entire
- may sure either or both
Contribution
-each tortfeasor pays proportionate share
Indemnity
-one secondarily liable is entitled to indemnification
Satisfaction
-full recovery from one joint tortfeasor prevents recovery from any other
Release
- CL release one, release all
- ML contra
Defenses: Comparative Negligence
Compare negligence of P and D and apportion
Types:
pure: P recovers even if 95% at fault
partial: P recovers only if his negligence is equal or less than D’s
Defenses: Contributory Negligence
Failure to use relevant degree of care for his own safety (complete bar to recovery)
Last Clear Chance
Exception to contributory
-effect: CN will not bar recovery
Raised by P: D must have been ABLE, but FAILED to avoid harming P
Assumption of the Risk
- Knowledge (appreciation of danger)
- Voluntarily encounters
effect=complete bar to recovery
***Rescuers NEVER assume the risk
