Negligence

Question 1

Exceptions to reasonably prudent person standard

Answer 1

1. Children: under 5, no liability. over 5 expected to exercise care of kid of similar age with similar experience, and similar intelligence
2. premises liability (covered in another card)
3. Malpractice litigation
4. Negligence per se
5. Duty to act affirmatively: none. But if you undertake an activity, must be reasonably prudent
6. NIED

Question 2

Premises Liability standards

Answer 2

1. Unknown trespasser: no duty; unforeseeable P
2. Discovered/Anticipated T: P knows or should have known about trespassers:
   a. must be an artificial condition
   b. Condition must be highly dangerous
   c. Condition must be concealed form T; hidden danger
   d. Possessor must have prior knowledge
3. Licensee: enters prop with consent of possessor but confers no economic benefit, e.g., social guest:
   a. danger is concealed from licensee
   b. danger must be known in advance by possessor (protect against all known traps (manmade or artificial)
4. Invitee: ppl who enter land with permission and confer economic benefit or prop is open to the public generally
   a. condition is concealed from invitee
   b. condition must be known about or should have been known about by possessor with a reasonable inspection (possessor must protect invitee from all knowable traps on land)

Question 3

Test for negligence per se

Answer 3

1. P is member of protected class

2. Injury is on sought to be prevented by statute

Question 4

Scenarios for recovery for NEID

Answer 4

1. Near miss cases
2. Bystander cases
3. Relationship cases

Question 5

Define near miss cases

Answer 5

D. negligently places P in zone of danger and that’s why P is upset

Question 6

Define bystander cases

Answer 6

P had a ringside seat to seeing loved one get seriously injured. P must be a close family member and be present at the time of injury

Question 7

Define relationship cases

Answer 7

P and D in a business relationship and careless performance will cause distress. ex: doc tells P he has aids and he doesn’t

Question 8

Magic sentences of breach

Answer 8

1. ID what D did wrong: “P will allege that the breach here was [insert facts].”
2. Give a reason why it was wrong: “This is unreasonable because [give reason].”

Question 9

Causation substantive test and exceptions

Answer 9

But for test. we imagine a but for world
Merged cases: Substantial factor test. If D’s destructive actions merge and each would have caused damage to P, they merge and both Ds are liable
Unascertainable cause: No way to prove which of D’s actions caused damage, we shift burden to D to show why it was not cause

Question 10

Proximate cause questions

Answer 10

If little time elapses between breach and injury, then injury is almost always foreseeable
Intervening acts:
1. Intervening med negligence: D liable
2. Intervening negligent rescue: D liable
3. Intervening protection or reaction: D liable
4. Subsequent disease: D liable

Question 11

Affirmative defenses

Answer 11

1. contributory negligence
2. implied assumption of risk
   minority positions
   Modern position: comparative negligence
   pure and modified/partial (if P is more than 50% at fault then no recovery