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Torts - Mid-Term Law School Review > Negligence - Duty > Flashcards

Negligence - Duty Flashcards

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1
Q

Define Negligence

Negligence

A

A duty to conform to a standard of conduct that is breached by the defendant and the breach is the actual and proximate cause of plaintiff’s damages.

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2
Q

Within Negligence, is there a duty to act?

Negligence

A

No, the general rule is that there is no duty to act.

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3
Q

Are there exceptions to the “no duty to act” rule?

Negligence

A

Yes, where there are special relationships and under certain circumstances.

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4
Q

What relationships or circumstances create an exception to the “no duty to act” rule?
Negligence

A
  1. Contractual Relationships (Nurse/Patient, etc.)
  2. Assumption of Duty to Act by Acting
  3. Creation of Peril
  4. Special Relationships
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5
Q

What happens when one assumes a duty by acting where there is otherwise no duty to act?
Negligence

A

Assumption of Duty to Act While Acting

  1. One who gratuitously acts for another is then under a duty to continue the assistance.
  2. This is because, if one assumes a duty, it could be that others who may have aided didn’t go because of the person assuming the duty.
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6
Q

What special relationships may require a duty to act?

Negligence

A

Parent/Child, Spouse
Common Carrier/Innkeeper
School/Student

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7
Q

When must a Parent/Spouse assume a duty to act?

Negligence

A
  1. Knows of the need to act;

2. Reasonable likely to succeed.

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8
Q

What is the duty to act by Common Carriers/Innkeepers?

Negligence

A

Duty to use reasonable care to protect passengers or guests.

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9
Q

What is the duty to act by Schools?

Negligence

A

Duty to protect students within boundaries of school/university.

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10
Q

What is a “creation of peril” duty to act?

Negligence

A

When one negligently places another in a position of peril, they are under a duty to use reasonable care to
assist.

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11
Q

Is there a statute that encourages healthcare workers and to assist where there is otherwise is no duty to act?
Negligence

A

Yes, the “Good Samaritan” statute.

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12
Q

Does the “Good Samaritan” statute impose a duty to act?

Negligence

A

No, it only exempts healthcare professionals who voluntarily help another in an emergency from liability under ordinary negligence.

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13
Q

Who is owed a duty of care?

Negligence

A

Only foreseeable plaintiffs are owed a duty of care.

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14
Q

Are plaintiff’s generally clearly foreseeable?

Negligence

A

Yes, plaintiff’s are generally clearly foreseeable.

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15
Q

Is a third party ever a foreseeable plaintiff?

Negligence

A

Yes, when the breach of duty to one person causes injury to a third party.

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16
Q

Are all third parties foreseeable plaintiff’s?

Negligence

A

No, only those within the foreseeable “Zone of Danger” (Cardozo).

Note* Cardozo’s Zone of Danger applies only to third parties.

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17
Q

Are rescuers foreseeable plaintiff’s?

Negligence

A

Rescuer’s are ALWAYS foreseeable plaintiffs because “Danger invites Rescue.” Rescuer’s never assume the risk.

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18
Q

What are the two standards of care in negligence?

Negligence

A
  1. General Standard

2. Specific Standard

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19
Q

How is the general standard of care determined?

Negligence

A

By the reasonable prudent person test.

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20
Q

Under the general standard of care, are physical characteristics taken into account?
Negligence

A

Yes, under the general standard of care, physical characteristics are taken into account.

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21
Q

Under the general standard of care, are mental characteristics taken into account? Negligence

A

No, under the general standard of care, mental characteristics are not taken into account?

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22
Q

How is a Specific Standard of Care determined?

Negligence

A

In many ways depending on the specific situation:

  1. Custom and Usage
  2. Emergency Situations
  3. Children (heavily tested)
  4. Professionals
  5. Automobile Guest Statutes
  6. Common Carriers and Innkeepers
  7. Bailments
  8. Control of Third Persons (heavily tested)
  9. Owners and Occupiers of Land (not on midterm)
23
Q

Can Custom or Usage be used to determine a specific standard of care?
Negligence

A

Yes, it may be used to establish a standard of care.

24
Q

Can Custom or Usage be used to determine whether conduct amounted to negligence?
Negligence

A

No, custom and usage DOES NOT control question as to whether conduct amounted to negligence.

25
Q

What is the specific standard of care in Emergency Situations?
Negligence

A

To act as a reasonable person under the SAME emergency conditions.

26
Q

Will an emergency be considered if of defendant’s own making?
Negligence

A

No, an emergency will not be considered if of defendant’s own making.

27
Q

What is the specific standard of care for Children?

Negligence

A

Define: Children are held to the standard of a child of like: Age, Education, Intelligence and Experience (AEIE)

28
Q

What is the specific standard of care if a child is engaged in adult activities?
Negligence

A

The child is required to conform to an adult standard of care.

Note: On the essay, if it’s a child engaged in adult activities, discuss child standard of care first, then adult standard of care.

29
Q

How old can a child be measured against the child standard of care?
Negligence

A

Child standard is up to, and including, are 17.

30
Q

What is the specific standard of care for Professionals?

Negligence

A

Professionals are required to possess the knowledge and skill of a member of their profession in good standing in the same or similar localities.

31
Q

Will professionals who are specialists in their field be held to an even higher specific standard of care?
Negligence

A

Yes, specialists will be held to a higher degree of care.

32
Q

As part of the specific standard of care for Professionals, are Doctor’s required to provide informed consent?
Negligence

A

Yes, a doctor has a duty to disclose risks of treatment to allow patient to make an informed consent.

33
Q

What are the different circumstances where the specific standard of care for an Automobile Guest Statute might be applied?
Negligence

A
  1. Passenger does not pay for ride

2. Passenger pays for ride

34
Q

When a passenger does not pay for a ride, what duty is owed by the driver?
Negligence

A
  1. The driver must warn of known, non-obvious, defects.

2. The driver must drive with reasonable care.

35
Q

When a passenger pays for a ride, what duty is owed by the driver?
Negligence

A

Same as for a non-paying passenger with one exception):
1. Warning of known defects (as for a non-paying passenger)
2 Driving with reasonable care (as for a non-paying passenger)
3. The driver must ALSO make reasonable inspections for dangerous conditions.

36
Q

What is a (State) Specific Automobile Guest Statute?

Negligence

A

In certain states, one is only liable to nonpaying passengers for reckless, tortious conduct.

37
Q

Unless otherwise noted on the exam, should we assume the Automobile Guest Statute does not apply?
Negligence

A

Yes, unless otherwise noted on the exam, assume the automobile guest statutes do not apply.

38
Q

What is the specific standard of care for Common Carriers and Innkeepers?
Negligence

A
  1. An affirmative duty to use reasonable care to aid or assist passengers and guests.
  2. An affirmative duty to prevent injuries from third parties.
  3. Required to exercise GREAT care to protect against the slightest negligence.
39
Q

Does a Common Carrier/Innkeeper have an affirmative duty to use reasonable care to aid or assist passengers and guests?
Negligence

A

Yes

40
Q

Does a Common Carrier/Innkeeper have an affirmative duty to prevent injuries from third parties?
Negligence

A

Yes

41
Q

Is a Common Carrier/Innkeeper required to exercise great care to protect against the slightest negligence?
Negligence

A

Yes

42
Q

Define Bailments

Negligence

A

A bailment is created when one person (bailor) delivers personal property to another person (bailee).

43
Q

What is a bailor?

Negligence

A

A person who delivers personal property.

44
Q

What is a bailee?

Negligence

A

A person who receives personal property?

45
Q

What are the two types of bailors?

Negligence

A

Unpaid and Paid
Unpaid - Gratuitous Bailment
Paid - Bailment for hire

46
Q

What duty does a gratuitous bailor have?

Negligence

A

To inform of dangerous defects in chattel that he knows.

*Think of neighbor lending lawn mower with faulty blade example.

47
Q

What duty does a bailor-for-hire have?

Negligence

A

To inform of dangerous defects in chattel that he knows OR should know.
*Think of neighbor lending lawn mower with faulty blade example.

48
Q

What is the specific standard of care of a bailee when for the sole benefit of the bailor?
Negligence

A

When for the sole benefit of the bailor - need only exercise slight care.

49
Q

What is the specific standard of care of a bailee when for the sole benefit of the bailee?
Negligence

A

When for the sole benefit of the bailee - must exercise great care.

50
Q

What is the specific standard of care of a bailee when for mutual benefit?
Negligence

A

When for mutual benefit - bailee must exercise only reasonable care.

51
Q

What is the specific standard of care for Control of a Third Person (usually children)?
Negligence

A

An affirmative duty will be imposed to control a third person under certain circumstances.

52
Q

Under what circumstances would a duty to control a third person be imposed?
Negligence

A

When one has AAA:

  1. The ability to control
  2. The authority to control
  3. The awareness that the person needs to be controlled.
53
Q

Are parents vicariously liable for the torts of their minor children?
Negligence

A

No, parents are not vicariously liable. However, an affirmative duty may be imposed (AAA).

Torts - Mid-Term Law School Review (5 decks)

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