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Torts > Negligence and Defenses > Flashcards

Negligence and Defenses Flashcards

1
Q

Negligence Prima Facie Case

A

Defendant’s conduct imposes an unreasonable risk upon another, which results in injury to that other person. Plaintiff must prove the following elements: duty, breach, cause-in-fact, proximate cause, and actual damage.

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2
Q

Duty of Care

A

Under the majority view (Cardozo), a duty of care is only owed to foreseeable plaintiffs. Under the minority view (Andrews), there is a general duty owed to everyone in the world.

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3
Q

Standard of Care

A

A reasonable person under the similar experience and circumstances, unless a special duty applies.

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4
Q

Special Duty Categories -ABCCPOVE

A 
Affirmative Duties to Act
Bailment Duties
Children
Common Carriers and Innkeepers
Professionals
Owners/Occupiers of Land
Violation of a statute
Emergency Situations
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5
Q

Affirmative Duties to Act

A

Generally no duty to act unless:

  1. Special Relationship-Such as a business or landowner holding premises open to the public, or landlords and tenants, or other special relationships;
  2. Caused the danger;
  3. Volunteer Assistance-Once begun, must proceed with reasonable care.
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6
Q

Professionals

A

Required to possess the the knowledge and skill of an average member of the profession in good standing.

Medical specialists are held to a national standard of care. A dr. has a duty to disclose risks of treatment to enable a patient to give informed consent.

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7
Q

Children

A

Children are held to the standard of a child of the same age, intelligence, and experience under similar circumstances. Kids under 4 lack capacity.

Exception-Children engaged in adult activities will be held to an adult standard of car. Usually “licensed” activities.

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8
Q

Common Carriers and Innkeepers

A

Held to a very high degree of care, but the P must be a passenger or guest.

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9
Q

Bailment Duties

A

In a bailment relationship the bailor transfers to the bailee possession of the chattel, but not title.

Bailor Duties: For a gratuitous bailment, the bailor must inform bailee of known dangerous defects in the chattel. For a bailment for hire, the bailor must inform bailee of chattel defects of which he is or should be aware.

Bailee Duties: Standard of care depends on who benefits from the bailment: 1. if sole benefit is to the bailor, the bailee owes a low standard of care: 2. if the sole benefit is to the bailee, the bailee owes a higher standard; and 3. if mutual benefit (bailment for hire), ordinary standard of care.

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10
Q

Emergency Situations

A

There is a duty to act like a reasonable person under the same emergency circumstances. (but not considered if D made the emergency)

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11
Q

Owners/Occupiers of Land General Rule and Checklist

A

The extent of the liability of owners and occupiers of land depends on where the injury occurred and the status of the P. D must be the occupier of the land. If someone is occupying the land, the D is the tenant. If nobody else is occupying the land, then the owner is the D.

Occupier’s Duty Owed to those OFF Premises-NA
-Natural Conditions, Artificial Conditions
Occupier’s Duty Owed to those On the Premises-LIT
-Licensee, Invitee, Trespasser
Attractive Nuisance

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12
Q

Natural Conditions (Owners/Occupiers of Land)

A

An occupier has no duty to maintain natural conditions to prevent harm to persons or property off the premises, except in urban areas where there is a duty of reasonable care to prevent unreasonable risk of harm to highway users and adjacent land from trees on the property.

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13
Q

Artificial Conditions (Owners/Occupiers of Land)

A

An occupier has an affirmative duty to maintain unreasonably dangerous artificial conditions or structures abutting adjacent land to keep them from causing injuries off the premises. One must also carry on activities on property so as to avoid unreasonable risk of harm to others outside the property.

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14
Q

Fireman’s Rule

A

Firefighters and police entering the premises to assist the occupier get classified as licensees and their protection against injuries is limited accordingly.

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15
Q

Licensee (Owners/Occupiers of Land)

A

A licensee is one who enters the land w/the landowner’s permission, for her own purpose or business, rather than for the landowner’s benefit.

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16
Q

Duties Owed to Licensee (Owners/Occupiers of Land)

A

Occupiers have a duty to:

  1. Warn of known dangerous conditions that create an unreasonable rick of harm to the licensee and that the licensee is unlikely to discover; and
  2. To exercise reasonable care in the conduct of “active operations” on the property.

No duty to inspect for defects nor to repair known defect

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17
Q

Invitee (Owners/Occupiers of Land)

A

An invitee is a person who enters onto the premises in response to an invitation by the landowner for a purpose connected with the business of the landowner, or persons who enter as members of the public for purpose for which the land is held open to the public.

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18
Q

Duties Owed to Invitees (Owners/Occupiers of Land)

A

Landowner owes an invitee a general duty to use reasonable care in keeping the property reasonably safe for the benefit of the invitee. This includes all of the duties owed to licensees, plus a duty to make reasonable inspections to discover dangerous conditions and make them safe.

a. A warning may suffice for the duty to make dangerous conditions safe.
b. A duty to warn usually doesn’t exist where the dangerous condition is so obvious that the invitee should reasonably have been aware of it.

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19
Q

Duties Owed to Invitees Exception (Owners/Occupiers of Land)

A

Exception-Users of Recreational Land:
If an owner or occupier of open land permits the public to use the land for recreational purposes w/out charging a fee, the landowner is not liable for injuries suffered by a recreational user unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

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20
Q

Trespassers (Owners/Occupiers of Land)

A

A trespasser is one who enters the land w/out permission or privilege.

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21
Q

Duty to Unknown Trespassers (Owners/Occupiers of Land)

A

There is no duty to unknown trespassers.

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22
Q

Duty to Known or Anticipated Trespassers (Owners/Occupiers of Land)

A

Owner Must:

  1. Warn of, or make safe concealed, unsafe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm; and
  2. Use reasonable care in the exercise of active operations on the property.

Child trespassers treated more generously.

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23
Q

Attractive Nuisance Doctrine (Owners/Occupiers of Land)

A

A landowner must exercise reasonable care to avoid foreseeable injury to trespassing children caused by artificial conditions if:

  1. A dangerous condition existed on the land;
  2. The owner knew or should have known that children frequent the area;
  3. The condition is likely to cause injury to such children; and
  4. The expense to remedy the condition is slight compared to the magnitude of the risk
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24
Q

Duties of Lessors of Realty

A

Generally lessors have no duty to protect tenants. But lessors must:
1. warn tenants of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover; 2. if lessor covenants to repair, he is liable for unreasonably dangerous conditions, and 3. if lessor volunteers to repair, he must not do so negligently.

LL may be liable if if guest of tenant is injured on premises.

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25
Q

Duties of Lessees/Tenants:

A

Lessees have a general duty to maintain the premises. The potential liability of the lessor for dangerous conditions on the premises doesn’t relieve the tenant, as occupier of the land, of liability for injuries to third persons from the dangerous conditions w/in the tenant’s control.

26
Q

Violations of a Statute

A

If there is a statute at issue, begin w/these standards first, and then do a reasonable person standard or another standard if the statute isn’t met.

27
Q

Standards for violation of a statutory standard of care

A

A statute’s specific duty may replace the general standard if:

  1. The statute provides for a criminal penalty;
  2. The statute clearly defines the standard of conduct;
  3. The statute was designed to protect a person/class like the P; and
  4. The statute was designed to prevent the type of harm suffered by the P.
28
Q

Excuse for violation of a statute

A

A violation of some statutes may be excused where compliance would cause more danger than a violation, or where compliance would be beyond defendant’s control.

29
Q

Duty for NIED

A

D has a duty not to negligently inflict emotional distress on the P by creating a foreseeable risk of physical injury to the P. P must:

  1. be w/in the zone of danger; and
  2. Suffer physical symptoms from the distress.
30
Q

Special Situations for NIED

A

A bystander outside the zone of danger of physical injury who sees the D negligently injuring another can recover damages for her own distress as long as:

  1. The P and the victim injured by D are closely related:
  2. The P was present at the scene of the injury; and
  3. The P personally observed or perceived the event.

OR

D may be liable for directly causing the P severe emotional distress that leads to physical symptoms when a duty arises from the relationship between the P and D, such that D’s negligence has great potential to cause emotional distress (i.e. dr misdiagnose terminal illness)

31
Q

Breach of Duty

A

A breach of duty generally occurs when the D’s conduct falls short of the applicable standard of care owed to the P.

Courts often use a balancing test to determine if the risk is unreasonable such that the risk outweighs the utility of the act.

32
Q

Proving Breach

A
  1. Objective Standard (Balancing Test): That D failed to do that which a reasonable person would have done under the circumstances.
  2. Custom or Usage: Departure from industry custom or common usage is evidence of breach, but not conclusive.
  3. Violation of a statute (see Duties of Care)
  4. Res Ipsa Loquitur
33
Q

Res Ipsa Loquitur

A

Jury may infer D was negligent even though there is no direct evidence to the effect if the following are met:

  1. That the accident was a type that would not normally occur unless someone was negligent
  2. That the negligence is attributable to the defendant (shown by evidence of control); and
  3. That the accident was not due to P’s voluntary actions.

Cannot use to receive a directed verdict.

34
Q

Actual Causation (Cause in Fact)

A

D’s conduct must be a cause in fact of the injury.

D doesn’t cause, his conduct does. Also events have infinite causes, but D’s conduct must be a cause.

35
Q

But For Test (Actual Causation)

A

P must prove that but for the D’s negligent conduct, the P’s injury would not have occurred.

36
Q

Joint causes-Substantial Factor Test (Actual Causation)

A

Where several causes bring about an injury, and any one alone would have been sufficient to cause the injury, D’s conduct is the cause in fact if it was a substantial factor in causing the P’s injury.

37
Q

Alternative Causes Approach (Actual Causation)

A

When there are two or more tortfeasors and the harm could have only been caused by one of them, but it is unknown which tortfeasor caused the injury, the burden of proof shifts to the D’s and each must show that his negligence was not the actual cause. If any D cannot prove non-causation, he is liable.

38
Q

Proximate Cuasation

A

D’s conduct must also be the proximate cause of the injury. Generally, a D is liable for all harmful results that were reasonably foreseeable as a result of his negligent conduct.

39
Q

Direct Cause (Proximate Causation)

A

Where there is an uninterrupted chain of events from the negligent act to P’s injury, the D is liable for all foreseeable harmful results, regardless of unusual manner or timing.

40
Q

Liability in Indirect Cause Cases

A

Caused by Dependent Intervening forces or Independent Intervening Forces

41
Q

Dependent Intervening Forces

A

D is liable for all dependent intervening forces. Examples: Eggshell Skull Plaintiff, Mechanism Rule, Subsequent Medical Malpractice, Subsequent Accident substantially caused by original injury, negligent rescuer, subsequent diseases caused by a weakened condition.

42
Q

Independent Intervening Forces

A

D is generally not liable for independent intervening (superseding) forces that are not a natural response or reaction to the situation created by the D’s conduct. Examples: Suicide, acts of god, crimes and intentional torts of 3rd parties, negligence of 3rd parties.

43
Q

Negligence Damages

A

Damages must be proven not presumed.

44
Q

Nominal Damages

A

When P’s cause of action is complete w/out proof of actual damages, and then wins the case, the court may award a trivial sum of money to the P.

45
Q

Compensatory Damages

A

Damages awarded as compensation for harm sustained by the P, not to punish the wrongdoer. The idea is to restore P to pre-injury condition.

46
Q

Compensatory Damages for Harms to Property

A

Conversion-FMV
Trespass-measure of diminution in the land’s value caused by the invasion, plus the value of the P’s loss of use of the land. (rental value)

47
Q

Compensatory Damages for Personal Injuries

A

P should be compensated for all his damages (past present and future) both economic and non-economic damages (such as pain and suffering).
Pecuniary: Medical expenses, past earnings
Non-pecuniary: Loss of consortium, pain and suffering, loss of enjoyment of life.

48
Q

Punitive Damages

A

Punitive damages are aimed at deterrence and retribution. Generally, punitive damages are available if the D’s conduct was wanton and willful. Ratio is usually 10 to 1.

49
Q

Duty to Mitigate Damages

A

P has a duty to take reasonable steps to mitigate damages.

50
Q

Collateral Source Rule

A

Damages are not reduced just because P received benefits from other sources (e.g. health insurance).

51
Q

One Satisfaction Rule

A

P cannot collect more than the total amount of damages from the defendant(s).

52
Q

Contributory Negligence (Defenses to Negligence)

A

This is negligence on the part of the P that contributes to P’s injuries. At common law, any legally relevant negligence of the P would bar recovery completely. Not a defense to intentional torts. Modernly two exceptions:

  1. Last Clear Chance: Permits the P to recover despite his contributory neg. if he can prove that the D had the last clear chance to avoid the accident.
  2. Willful and wanton: P’s negligence will be ignored if the D’s conduct was willful and wanton.
53
Q

Imputed Contributory Negligence (Defenses to Negligence)

A

A 3rd party’s neg. will be imputed to the P only when the relationship b/w the 3rd party and the P is such that a court could find the P vicariously liable for the 3rd party’s neg.

  1. Can be imputed for employer/employee, partner, or joint venture relationships
  2. Negligence won’t be imputed for husbands/wives, parent/child, car owner and driver.
54
Q

Assumption of the Risk (Defenses to Negligence)

A

The P may be denied recovery if she assumed the risk of any damage caused by the D’s act. P must have:

  1. known of the risk, and
  2. voluntarily proceeded despite the risk.

Can be implied if an average person would clearly appreciate the risk. Can be assumed by express agreement.

55
Q

Failure to avoid Consequences (Defenses to Negligence)

A

Pre-accident conduct by the victim that didn’t cause the accident but that was a cause of some (perhaps all) injuries or damages.

56
Q

Failure to Mitigate Damages (Defenses to Negligence)

A

Post-Accident conduct that made the injury worse and which the P could have avoided.

57
Q

Comparative Negligence (Defenses to Negligence)

A

In comparative negligence jurisdictions, P’s contributory negligence is not a complete bar to recovery. The last clear chance rule not used in these jurisdictions.

58
Q

Pure Comparative Negligence (Defenses to Negligence)

A

(Majority Rule/MBE)

P may recover regardless of his percentage of fault.

59
Q

Modified 51% Comparative Negligence (Defenses to Negligence)

A

P may recover if his neg. is equal to but not greater than that of the D.

60
Q

Modified 50% Comparative Neg (Defenses to Negligence)

A

P may not recover if his neg is found to be EQUAL to that of D.

Torts (11 decks)

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