Negligence - Duty & Breach

Question 1

Define: Negligence Per Se

Answer 1

When an act is negligent because it violates a statute

Question 2

In a negligence per se case, what determines the reasonable standard of care?

Answer 2

The standard set forth in the statute

Question 3

What does a jury decide in a negligence per se case?

Answer 3

If the actor violated the statute, and whether the negligence had a casual relationship to the harm suffered.

Question 4

Who decides what hazards the statute is trying to protect against and the class of persons the statute is designed to protect? The judge or the jury?

Answer 4

The judge.

Question 5

What is a major factor of negligence per se? (Hint: In regards to the harm and who suffers the harm)

Answer 5

Whether the harm is the kind the statute was enacted to prevent, and whether the person suffering the harm is the class of person the statute was enacted to prevent.

Question 6

Does failure to obtain a license constitute negligence per se?

Answer 6

No.

Question 7

What are the 5 excuses to not have negligence per se?

Answer 7

1- the actor is incapacitated
2- he neither knows nor should know of the rule
3- he is unable after reasonable diligence or care to comply
4- there is an emergency that is not because of his own misconduct
5- following the rule would involve a greater risk of harm to the actor or others

Question 8

What are the “foundation facts” in a res ipsa case?

Answer 8

1- the accident ordinarily wouldn’t happen without negligence
2- the defendant had “exclusive control” over anything that caused the accident.
3- the event must not have been due to any voluntary action or contribution on the part of the plaintiff

Question 9

What is the reasonable patient standard?

Answer 9

What a reasonable patient would have needed to know in order to make an informed medical decision.

Question 10

What is the reasonable doctor standard?

Answer 10

What a reasonable doctor feels they have to disclose to a patient (what they typically tell patients)

Question 11

What is res ipsa loquitur?

Answer 11

The principle that the occurrence of an accident implies negligence.

Question 12

What is a duty?

Answer 12

A legal obligation owed by the defendant to the plaintiff.

Question 13

What is the default rule for duty?

Answer 13

There is a general duty to exercise reasonable care toward foreseeable plaintiffs.

Question 14

Who has the burden to prove the duty?

Answer 14

The plaintiff.

Question 15

Define misfeasance:

Answer 15

Defendant acts or fails to act and causes harm to the plaintiff.

Question 16

Define nonfeasance:

Answer 16

Defendant fails to take positive steps to benefit plaintiff or to protect plaintiff from harm caused by others.

Question 17

What three factors determine if duty exists?

Answer 17

1- Relationship between the parties
2- Reasonable foreseeability of harm to the person injured
3- public policy concerns

Question 18

What duty to protect or aid does a piece of land open to the public owe to its patrons?

Answer 18

It must protect them against unreasonable harm, and it must offer them first aid if it knows they are ill or injured and to care for them until they can be cared for by others. (Taco Bell case)

Question 19

What happens in a rescue situation where a person renders aid, but, in doing so, enhances the plaintiffs injuries?

Answer 19

All states have “Good Samaritan” statutes that provide immunity to those rendering assistance in an emergency (the immunity may be limited if the intervener is a medical practitioner, firefighter, police officer, etc.)

Question 20

What duty do special relationships between second and third parties have?

Answer 20

An actor in a special relationship with another owes the duty of reasonable care with regard to risks that arise within the scope of the relationship.

Question 21

What are some common second-party relationships?

Answer 21

A common carrier and its passengers; an innkeeper and its guests; an employer with respect to employees who are in imminent danger or are helpless.

Question 22

What are some common third-party relationships?

Answer 22

A parent and a child; employer and employee with respect to harm within the scope of the employment relationship; a mental health professional and patients.

Question 23

What are exceptions to the limited duty to rescue rule?

Answer 23

If the defendant created the peril, the defendant volunteered to rescue, defendant controls the instrumentality that causes the harm (an escalator), or there is a special relationship between the defendant and the plaintiff.

Question 24

What do “Good Samaritan” statutes do?

Answer 24

They reduce the duty of care owed by health care providers when they are rendering assistance at the scene of an emergency outside their regular practice. Incentivizes helping people in need.

Question 25

Can a plaintiff recover for a purely economic loss?

Answer 25

No- recovery cannot be for purely economic damages.

Question 26

What is the “zone of danger” rule? (Including elements)

Answer 26

A plaintiff can recover for emotional distress damages if they were in danger of physical impact, reasonably fear for their own safety, AND suffer serious emotional distress because of that fear.

Question 27

What is the “impact rule”?

Answer 27

There is no recovery for emotional distress without physical impact as a result of the defendant’s negligent act.

Question 28

What are the three elements of the “Dillon rule”?

Answer 28

1- Whether plaintiff was near the scene of the accident or if they were at a distance
2- Whether they directly viewed it or if they just heard about it
3- Whether the plaintiff and the victim were closely related

Question 29

Can a person recover for negligent infliction of emotional distress if they are hypersensitive to the fear they experience?

Answer 29

No- unless the negligent actor knows they are hyper-sensitive and does not take more reasonable care.

Question 30

When can an unborn child be considered a “person” for the purposes of wrongful death statutes?

Answer 30

Once they have reached the stage of viability.

Question 31

What is a prenatal injury, and can you recover damages for it?

Answer 31

An injury caused by negligent action before a child is born. All jurisdictions now recognize a duty owed to unborn children, as long as the fetus is viable at the time of injury.

Question 32

What does a wrongful life claim entail?

Answer 32

When a negligent action causes one to continue with a pregnancy or birth that they would have avoided if not for the negligence. (Think of the pregnant woman with measles case)

Question 33

In a wrongful birth case, what do the majority and minority of jurisdictions hold in regards to duty owed to the parents?

Answer 33

The majority of jurisdictions hold there IS duty owed to the parents. Minority say no duty owed.

Question 34

In a wrongful life case, what do the majority and minority of jurisdictions hold in regards to duty owed to the child?

Answer 34

The majority of jurisdictions hold there is NO duty owed to the child. Minority say there is a duty owed.

Question 35

In a wrongful pregnancy case, what do the majority and minority of jurisdictions hold in regards to duty owed to the parents?

Answer 35

The majority of jurisdictions hold there IS duty owed to the parents. Minority say there is no duty owed.

Question 36

What are the five elements required to satisfy a duty of reasonable care owed to potential trespassing children? (Attractive nuisance theory)

Answer 36

1) The possessor must know or have reason to know children might trespass
2) The condition is such that the possessor knows it could cause serious bodily harm to children
3) The children do not realize the issue is dangerous because of their age
4) The cost of warning children is slight compared to the risk to children involved, and
5) The possessor fails to reasonably eliminate the danger or otherwise protect the children.

Question 37

What duty does a landowner owe to licensees?

Answer 37

A landowner owes a duty to licensees to warn of or make safe known artificial or natural conditions if non-obvious and dangerous.

Question 38

What duty does a landowner owe to a trespasser?

Answer 38

Generally, a landowner owes no duty of reasonable care to a trespasser.

Question 39

What duty does a landowner owe to an invitee?

Answer 39

A landowner owes a full duty of reasonable care to an invitee. (Including known dangers and dangers that could be learned by inspection)

Question 40

What makes someone an invitee over a licensee?

Answer 40

A licensee becomes an invitee when there is an expectation for mutual benefit between the parties (usually in terms of business), or if the land is being opened to the public.

Question 41

What is a licensee?

Answer 41

A licensee is one who is allowed to enter the home but not for any business reasons, usually meaning a social guest.

Question 42

What does a landowner typically owe to any person off the premises?

Answer 42

Typically they owe no duty.

Question 43

What are the exceptions to no duty owed to any person off the premises?

Answer 43

If you live in an urban area, if trees fall off your property onto another property, or if there are artificial conditions or activities.

Question 44

What are the two exceptions to a landowner owing no duty to a trespasser?

Answer 44

If the trespasser is a known trespasser, and children.

Question 45

What is a “known” trespasser?

Answer 45

The landowner knew they were there, or there is a constant trespasser that the landowner knows will be coming.

Question 46

Does a judge or jury typically decide if conduct was reasonable?

Answer 46

Jury.

Question 47

How does the Hand formula to determine if a duty of care was owed?

Answer 47

If the product of probability of injury (P) x gravity of loss (L) is greater than the burden it would cost to take precautions (B), you have a duty of reasonable care.
P x L > B

Question 48

Can a person use a justification of “using their best judgment” to say they were reasonable?

Answer 48

No- they are held to a standard simply of what was the reasonable thing to do. If they lacked knowledge of something they should have known, they will be held negligent.

Question 49

If a person has skills or knowledge greater than the reasonable person, will that be factored into the determination of whether they acted reasonably or not?

Answer 49

Yes- those skills or knowledge can be determined to decide if they were negligent or not.

Question 50

Is an act that is normally negligence still negligence in an emergency situation?

Answer 50

Not necessarily, as long as the person is still reasonable in their emergency situation. (Think of the taxi driver after an armed man jumped into his taxi on a crowded street in NYC)

Question 51

Is one liable for negligence if they violate a custom or widely accepted practice?

Answer 51

Likely, yes- if they should know due to custom or accepted practices and choose to ignore it, which results in injuries to the plaintiff, they are liable for negligence. However, the violation will be used as evidence of negligence as opposed to conclusory proof of negligence.

Question 52

Does negligence focus more on behavior or intent?

Answer 52

Behavior.

Question 53

Is a reasonable person charged with knowing qualities, habits, and customs of humans/children?

Answer 53

Yes, adults are charged with knowing customs and habits of how other humans act. Some examples are giving children extra or greater care, and knowing teenagers are prone to reckless behavior.

Question 54

Do people with disabilities need to have a higher standard of care?

Answer 54

No- they are not held to a higher standard of care. Instead, they are required to take the precautions a reasonable person with their same disability would take.

Question 55

If someone suffers a sudden incapacitation (like a heart attack) while driving and causes an accident, are they liable for negligence? Would this be different if they suffer from narcolepsy?

Answer 55

Likely not, but it depends on how foreseeable it was that they would suffer the injury. It would be different if they have narcolepsy because that is probably more foreseeable.

Question 56

Is an actor’s mental or emotional disability weighed when conducting a reasonable person test?

Answer 56

Usually not, they are held to the same reasonableness standard as any other person with no such disability.

Question 57

If a minor is engaged in an activity that is normally for adults (such as driving) and cause an accident, will they be held to the same standard as someone their own age or to an adult?

Answer 57

They will be held to the standard of an adult if they are doing an activity reserved for adults due to the danger or the skills required.

Question 58

What standard are children held to?

Answer 58

They are held to be the standard of the reasonable person at their age and intelligence level. If they are under 5, they are not liable for negligence no matter the circumstance.

Question 59

What do the minority of jurisdictions say about duty owed to people on your land? (Invitee/Trespasser/Licensee)

Answer 59

The minority of jurisdictions reject the categories, and say there is a duty of reasonable care owed to everyone on your land.

Question 60

What are the three jurisdictional views on acts of negligence per se, and which is the majority view?

Answer 60

1: The act(s) is conclusory evidence of negligence if it is unexcused (majority)
2: The act(s) is a presumption of negligence, but the violator is free to rebut the presumption by showing they were reasonable in the circumstances (very similar to jurisdictional view #1)
3: The act(s) is evidence of negligence that the court will consider when determining negligence, but they are not compelled to find the actor negligent if they violated a statute.