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

1
Q

Duty: General Standard

A

Duty to act as a reasonably prudent person (RPP) under the circumstances

**Must specify duty

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

Duty: 5 issues

A
  1. custom: evidence of a duty
  2. children: like age/experience for 5-18, UNLESS adult activity
  3. Adults with Disabilities: RPP with that diagnosis (except mental illness)
  4. Common Carrier: higher standard of conduct expected of them
  5. Foreseeable Plaintiff
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Special Duty: Statute

A

Civil: conclusively establishes duty/breach
Criminal:
-class of persons
-class at risk

Effect: negligence per se

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

Special Duty: Omission

A

GR; no duty

  • special relationship (school; common carrier)
  • instrumentality under D’s control
  • statutory
  • creation of peril
  • voluntary undertaking (cannot leave worse off)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Special Duty: Landowner: outside land

A

No duty as to natural conditions

Artificial: duty to inspect

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

Special Duty: Landowner: Trespasser

A

undiscovered: no duty
discovered: post warnings of known danger

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

Landowner: attractive nuisance doctrine

A

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)

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

Special Duty: Landowner: Licensee and Invitee

A

Licensee: warn or make safe (known dangers)

Invitee: highest duty; must make reasonable inspection; warn of all known dangers or those discoverable by inspection

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

Special Duty: Lessor

A

Lessor has a duty and can be held liable along with the possessor tenant

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

NIED

A

Duty to avoid causing distress to another

Duty breached when D creates a foreseeable risk of physical injury through impact or threat of impact

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

NIED: to recover

A

Must be injured, except:

  • erroneous reporting of relative’s death
  • mishandling of corpse
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

NIED: Bystander

A
  • close relationship
  • bystander present at scene
  • P observed or perceived the injury
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Breach

A

What was the specific wrongful behavior?

  1. direct: failure to meet standard
  2. circumstantial
  3. violation of a statute
  4. res ipsa loquitur
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Breach: Res Ipsa Loquitur

A
  • 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

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

Actual Cause

A

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

Proximate Cause

A

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

17
Q

Proximate Cause: direct

A

uninterrupted chain of events

18
Q

Proximate Cause: Indirect: Dependent intervening

A

Foreseeable:

  • rescue
  • reaction
  • checking
  • escape
  • subsequent injury

Unforeseeable:
-gross negligence

19
Q

Proximate Cause: Indirect: Independent

A

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
20
Q

Proximate Cause: Foreseeable Plaintiff

A

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

21
Q

Proximate Cause: Eggshell Plaintiff

A

PC issue

  • take the P as you find him
  • D is liable even if damages more severe than in an average person
22
Q

Damages

A

Avoidable Consequences Rule
-P must act reasonably to mitigate

Collateral Source Rule
-Insurance not admissible at trial

23
Q

Damage: Issues

A

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
24
Q

Defenses: Comparative Negligence

A

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

25
Q

Defenses: Contributory Negligence

A

Failure to use relevant degree of care for his own safety (complete bar to recovery)

26
Q

Last Clear Chance

A

Exception to contributory
-effect: CN will not bar recovery

Raised by P: D must have been ABLE, but FAILED to avoid harming P

27
Q

Assumption of the Risk

A
  1. Knowledge (appreciation of danger)
  2. Voluntarily encounters

effect=complete bar to recovery

***Rescuers NEVER assume the risk

Torts (8 decks)

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