Negligence & Negligence Defenses Flashcards

Question

Reasonable Prudent Person: Custom (Trimarco v. Klein)

Answer 1

(Trimarco v. Klein) Weird shower glass case 1. A party is liable for negligence when a custom or accepted practice is coupled with proof that such custom or accepted practice was ignored and that this departure was the proximate cause of one’s injuries. 2. custom is not conclusive but it still has a role; suggests it may not be too costly.

Answer 2

a. If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actor’s resulting conduct is that of the reasonably careful person. The standard of care applicable to a person acting in the fact of unforeseen, sudden, and unexpected peril, not of his own making, is the "reasonable person" in an emergency

Answer 3

1. An act by a reasonable person that is considered negligent when done under normal circumstances is not per se negligent if performed by a reasonable person during an emergency in which he is suddenly faced with certain danger. 2. The standard of care applicable to a person acting tin the face of unforeseen, sudden, and unexpected peril, not of his own making, is the "reasonable person in an emergency." 3. Not a necessity defense; it's whether he violated the reasonable person standard and if no then he does not have to pay for damages. Note: there is a general agreement that if the actor's negligence creates an emergency, the emergency doctrine does not apply.

Answer 4

(a) The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability. (b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor. (c) An actor’s mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.

Answer 5

The mental illness of the actor is usually not taken into account when evaluating the reasonableness of the conduct. In certain states, unless it is a sudden strike of insanity, which the individual could not have predicted. Not all types of insanity vitiate responsibility for a negligent tort. The question of liability in every case must depend upon the kind and nature of the insanity.

Answer 6

the effect of the mental illness or mental hallucination must be such as to: 1. affect the person's ability to understand and appreciate the duty which rests upon him to drive his car with ordinary care, or 2. It must affect his ability to control his act in an ordinarily prudent manner 3. there must be an absence of notice or forewarning.

Answer 7

1. A disabled individual is not negligent if he takes the same precautions an ordinary reasonable person afflicted with the same disability would take under the same circumstances. 2. Duty of Care is a question is for the judge NOT the Jury.

Answer 8

(Breunig v. American Family Ins. Co.) 1. Insanity may be a defense to liability for negligence if an individual is suddenly overcome without forewarning by a mental disability or disorder that makes him incapable of conforming his conduct to the standards of a reasonable man under like circumstances. 2. Big difference between physical and mental disabilities. The policy basis of holding a permanently insane person liable for his tort is: a. Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; b. to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and c. the fear an insanity defense would lead to false claims of insanity to avoid liability

Answer 9

Summer v. Steinman If one consents to work with a mentally incapacitated person and knowns they have violent tendencies, when injured they cannot bring forth a negligence claim as no duty was breached.

Answer 10

a. (a) A child’s conduct is negligent if it does not conform to that of a reasonably careful person of | b. the same age, intelligence, and experience, except as provided in Subsection (b) or (c). c. (b) A child less than five years of age is incapable of negligence. d. (c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

Answer 11

Forgetfulness does not negate negligence - when distracted attention makes it reasonable to forget, it is not negligence. Judges decide the duty, and juries decide the breach Voluntary intoxication cannot take into account

Answer 12

1. An adult standard of care should be applied to a minor engaging in an inherently dangerous activity, such as the operation of a powerful motorized vehicle. Snowmobile accident case

Answer 13

The reasonable person standard within a particular profession is an objective standard and does not vary based on an individual’s personal training and experience within that profession. See Heath v. Swift Wings, Inc

Answer 14

Accountants, Architects, Engineers, Attorneys, designers of group health insurance, doctors, dentists, and veterinarians. Pharmacists (minority view) Not professional: Clergy, teachers, pharmacists (majority view).

Answer 15

1. If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.

Answer 16

1. Individuals within a particular profession are under a duty to act with the same standard of care as would an ordinary, rational member of that profession.

Answer 17

Ordinarily when an attorney engages in the practice of the law and contracts to prosecute an action on behalf of her client, she impliedly represents that: 1. she posses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess; 2. She will exert her best judgement in the protection of the litigation entrusted to her; and 3. She will exercise reasonable and ordinary care and diligence in the use of her skill and in the application of her knowledge to her client's cause.

Answer 18

1. General Rule a. Custom is relevant to determining the standard of car but not dispositive i. In the majority of states, the reasonable person standard applies. Custom is relevant to that determination but not dispositive. b. Malpractice - custom is dispositive as a shield i. In majority of states, compliance with custom = no breach of duty in the context of malpractice. c. Juries put more weight on custom - pro industry d. If a doctor can convince them that they did what an ordinary doctor would do, then it should work Note: Custom is not treated as conclusive but it still has a role.

Answer 19

1. Before a doctor can be held liable for malpractice, he must have done something in his treatment of the patient that the recognized standard of good medical practice in the community in which he is practicing forbids in such cases, or he must have neglected to do something that such a standard requires. 2. The standard care in a professional malpractice case must be established by expert testimony unless it is something within the knowledge and experience of lay jurors.

Answer 20

1. (1) A physician has a fiduciary duty to disclose all material personal interests that may influence her professional judgment before securing a patient’s informed consent to medical treatment. 2. (2) Once cells leave a patient’s body, they are no longer that patient’s property.

Answer 21

1. Failure to provide appropriate standard of care a. injury result because of negligent care b. client would have recovered/been successful BUT FOR negligent care 2. Lack of informed consent a. failure to disclose material risk b. P would have made different decisions if properly informed. c. that other decision would have avoided injury that resulted. 3. Battery a. Failure to consent at all

Answer 22

A reasonable person acts with reference to the average circumstance and is not liable for accidental happenings outside those average circumstances.

Answer 23

The person with Superior qualities or superior knowledge and experience would be liable for not using them to avert an accident. This differs from specialized training and personal experience Substandard judgment, knowledge ,and skills: below average,e usually ignored - learners or beginners Tort does not guarantee outcome: the professional is only liable for negligence. Professionals who meet the standard of care are not liable for errors in judgment that result in bad results for their clients.

Answer 24

1. Is plaintiff a member of the statute's "protected class?" 2. Was the incident among those that the statute was intended to prevent? 3. Is it appropriate to impose liability on the Defendant? / Did defendant violate the statute without any excuse? a. IF YES to ALL then: i. P makes out prima facie case for duty and breach without having to establish that D's conduct flunks the reasonable person/ ordinary care test. b. IF NO to ANY then: i. P cannot rely on negligence per se, but might still be able to introduce the violation as evidence suggesting that D failed to conform to the common law's ordinary care standard (Ordinary reasonable prudent person)

Answer 25

Violations of a statute

Answer 26

Similar to custom, they are relevant evidence but not conclusive. Compliance with the statute = statute as a shield - often admissible, not conclusive, due care may require more Noncompliance with the statute = statute as a sword to establish duty = admissible, conclusive under certain conditions ("Negligence Per Se")

Answer 27

1. An omission, or failure to perform an act required by statute, constitutes negligence per se. 2. Once the conditions of negligence per se are met, State courts take 3 approaches a. Majority approach - conclusive of breach b. Minority 1 - rebuttable presumption of breach c. Minority 2: relevant, but no presumption. d. Even less weight; like noncompliance with custom 3. Regardless of the approach, the statutory violation will not always equal breach or negligence per se. Only if conditions of negligence per se are met.

Answer 28

a. The presumption that a violation of a statute constitutes a prima facie case of negligence may be rebutted by offering an adequate excuse under the circumstances of the case. b. The above is an example of First minority approach where there is a rebuttable presumption of breach - yes they violated the statue but acting reasonably despite the statute.

Answer 29

a. An individual approaching a railroad track in a private car is not required to stop, get out of the car, and look for oncoming trains before crossing the track if doing so is not customary and may ultimately be more dangerous.

Answer 30

a. An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. i. Protect against the type of accident the actor's conduct causes ii. Victim within the class of persons the statute is designed to protect iii. Appropriate to impose tort liability on the defendant/ defendant has no excuse.

Answer 31

a. An actor’s violation of a statute is excused and not negligence if: i. (a) the violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation; ii. (b)the actor exercises reasonable care in attempting to comply with the statute; iii. (c) the actor neither knows nor should know of the factual circumstances that render the statute applicable; iv. (d) the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or v. (e) the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.

Answer 32

a. (a) An actor’s compliance with a pertinent statute, while evidence of non-negligence, does not preclude a finding that the actor is negligent under § 3 for failing to adopt precautions in addition to those mandated by the statute. b. (b) If an actor’s adoption of a precaution would require the actor to violate a statute, the actor cannot be found negligent for failing to adopt that precaution.

Answer 33

Does criminal statute automatically impose a common law duty? Is there sufficient notice for everyone covered by statute? Would the creation of a tort create "ruinous liability" without fault?/ Is liability disproportionate to the offense? Did violation of statute cause injury?

Answer 34

It allows the P to take a shortcut to prove what the reasonable person would have done by reference to the statute that proves duty. When you violate the statute, that's the breach. Judge decide what is the purpose of the law to protect. Mandatory report laws are not tort law.

Answer 35

a. An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless a court determines that one of the affirmative duties provided in §§ 38-44 is applicable. b. Default Rule: one person owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Need a special relationship to impose any kind of duty. Why? i. Extension of the rescue doctrine ii. Assumes people could make things worse. iii. Invites only those who have the necessary skills to get involved. iv. Prevents a lot of false positives - getting involved when they don’t need to. v. Law disfavors meddlers/busybody

Answer 36

Universities do not have a duty to regulate the private lives of their students.

Answer 37

a. When a statute requires an actor to act for the protection of another, the court may rely on the statute to decide that an affirmative duty exists and to determine the scope of the duty. b. Example: Municipal ordinance requires landlords to provide and maintain locks on all rental properties. Tenant is robbed when there is no lock. c. Similar to negligence per se, but used to create affirmative duty

Answer 38

1. A party may be under a legal duty to rescue a person who is helpless or in a situation of peril when the party is an invitor of the person, or when an injury results from use of an instrumentality under the control of the party. 2. A duty to rescue may be owed - i.e., a duty to take positive or affirmative steps -- where defendant controls the instrumentality causing the injury. 3. Affirmative duty when someone is owned by a machine under strict control of the defendant. Store was in the best place to stop the aggravation of the injury.

Answer 39

a. When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm. b. Example: Actor non-negligently causes injury to another person. Person who has been harmed asks the actor to use his cell phone to call 911. He refuses. c. There is a continuing risk of harm; actor has duty to exercise reasonable care to prevent or minimize harm.

Answer 40

1. In determining whether a duty is to be imposed, courts must engage in a rather complex analysis that weighs and balances several, related factors, including the nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and the relationships between or among, the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution. 2. If a spouse has actual knowledge or a special reason to know of the likelihood of his or her spouse engaging in sexual abuse against a particular person, the spouse has a duty to prevent or warn of the abuse.

Answer 41

a. (a) An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship. b. (b) Special relationships giving rise to the duty provided in Subsection (a) include: i. (1) a common carrier with its passengers, ii. (2) an innkeeper with its guests, iii. (3) a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises, iv. (4) an employer with its employees who, while at work, are: 1. (a) in imminent danger; or 2. (b) injured or ill and thereby rendered helpless, v. (5) a school with its students, vi. (6) a landlord with its tenants, and vii. (7) a custodian with those in its custody, if: 1. (a) the custodian is required by law to take custody or voluntarily takes custody of the other; and 2. (b) the custodian has a superior ability to protect the other.

Answer 42

1. When a therapist learns from his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger.

Answer 43

a. (a) An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship. b. (b) Special relationships giving rise to the duty provided in Subsection (a) include: i. (1) a parent with dependent children, ii. (2) a custodian with those in its custody, iii. (3) an employer with employees when the employment facilitates the employee’s causing harm to third parties, and iv. (4) a mental-health professional with patients.

Answer 44

A duty to rescue may be owed - i.e., a duty to take positive or affirmative steps - where the defendant controls the instrumentality causing the injury. Duty to warn: Public policy considerations Foreseeability of harm The spouse of a child Molester may have a duty to take reasonable steps to prevent or warn of the molestation. When a therapist learns form his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger. Affirmative duty based on statutory provisions imposing obligations to protect another is similar to negligence per se, but it is used to create an affirmative duty. Reasonable duty within the scope of the relationship

Answer 45

1. The areas of the law in which duty is of vital concern lie beyond the core of wrongful acts causing physical harm. There are three areas, the subject matter of this chapter, in which a duty of care is central in establishing liability. a. (1)The, often wrongful, act of a third party or a natural event has caused physical harm to plaintiff that defendant has failed to take affirmative steps to prevent or ameliorate; b. (2)The negligent act causes non-physical harm, i.e., emotional distress or pure economic loss; and c. (3)The negligent act causes losses in birth or conception where the traditional categorizations of personhood are incapable of bestowing a cause of action. This third area demonstrates that technological advances and social change may give rise to new interests that may be protected by negligence.

Answer 46

In general, promise alone and its breach, will only sustain a breach of contract action; no tort action can be maintained.

Answer 47

i. One is that a public utility or common carrier that has undertaken the duty of serving the public becomes liable in tort when it fails to do so, whether or not it has made a contract. ii. Another is that a defendant who makes a contract without the intention to perform is regarded as committing a form of misrepresentation or fraud for which a tort action of deceit will lie. iii. Promises or undertakings may form the foundation of a special relationship sufficient to impose a duty of care in negligence to take affirmative action to protect a person from harm.

Answer 48

When the defendant misperforms the contract, the possibility of recovery in tort is greatly augmented a. In the US extended to any type of contract b. the question may arise whether the defendant has gone so far in his performance, as distinguished from mere preparation for it, as to have undertaken a tort duty.

Answer 49

A plaintiff who lacks privity of contract with a defendant may not sue the defendant based on negligent performance of a contract made between the defendant and a third party.

Answer 50

1. A manufacturer of articles that are not inherently dangerous but that may become dangerous when improperly constructed owes a duty of care to anyone beyond the purchaser who might foreseeably use the articles, when it is reasonable to expect no further tests will be performed. 2. A manufacturer owes a duty of care to users beyond the original purchaser if the manufacturer knowns the product: a. Is reasonably likely to create a danger if it's negligently manufactured b. Will be used by people other than the original purchaser and without additional testing

Answer 51

1. (1) A contract to supply services to a city is generally not for the benefit of individual residents such that a resident may sue for the contract’s breach. 2. (2) An individual may not be liable for negligence based on an omission if the failure to act itself does not constitute the commission of a wrong or advance harm. Generally there's no liability for utility companies Some courts have found utility companies liable. If the P can prove either that they specifically were a thrid party beneficiary to the contract between the utility company and the government organization they have contracted with or some courts have interpreted the role of utility of companies as having public duty right.

Answer 52

Liability rested soley in contract and which could not extend beyond those in privity. The privitiy limitation lasts longer with regard to those who preform services.

Answer 53

Conditions: 1. How to gague reasonableness of the duty of care? a. Location: Urban v. rural b. Use: commercial and non-commercial c. Customary Practice d. Artificial v. natural conditions

Answer 54

1. In terms of attention to his roadside trees, a landowner must take reasonable care to prevent an unreasonable risk of harm.

Answer 55

Activities 1. Old common rules distinguish between Static and Active Conditions (more liability for static) a. Exception of knowledge of the risk (notice)

Answer 56

1. An owner of a ballpark must take reasonable precautions for the protection of the public outside the park.

Answer 57

a. (a) The possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land. Pe b. (b) For natural conditions on land that pose a risk of physical harm to persons or property not on the land, the possessor of the land i. (1) has a duty of reasonable care if the land is commercial; otherwise ii. (2) has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious. c. (c) Unless Subsection (b) applies, a possessor of land adjacent to a public walkway has no duty under this Chapter with regard to a risk posed by the condition of the walkway to pedestrians or others if the land possessor did not create the risk.

Answer 58

What: Someone who enters your land without consent or privilege (ask if flagrant or not) Who: Customer who refuses to leave after closing time or anyone who intentionally, physically invades your property Duty: No duty unless aware of presence; minimal warning on latent dangers. (If flagrant, no willful or wanton actions).

Answer 59

To trespassers, the duty is not one generally to exercise reasonable care. A duty does arise but it is limited - it is based on "common human conduct to avert injury to others from means which can be controlled." This required some knowledge of the trespassers presence. This did not encompass any duty to take measures to make the track safe against the arrival of trespassers.

Answer 60

1. A railroad company owes a duty to a trespasser on its tracks only after the company has actual notice of the trespasser’s presence on the tracks.

Answer 61

a. (a) The only duty a land possessor owes to flagrant trespassers is the duty not to act in an intentional, willful, or wanton manner to cause physical harm. b. (b) Notwithstanding Subsection (a), a land possessor has a duty to flagrant trespassers to exercise reasonable care if the trespasser reasonably appears to be imperiled and i. (1) helpless; or ii. (2) unable to protect him- or herself.

Answer 62

a. (1) entry that results in the commission of a crime directed at the land possessor or the land possessor’s family, guests, or property; b. (2) entry for the purpose of committing such a crime, even if it is not accomplished; c. (3) entry for another illegal or improper purpose; d. (4) entry despite efforts by the land possessor to prevent trespass and specifically to prevent entrance by the plaintiff; e. (5) the extent of effort by the plaintiff to defeat the exclusion efforts of the land possessor, including such acts as ignoring no-trespassing signs and defeating gates, fences, or locks; f. (6) repeated trespasses by the plaintiff, especially in defiance of communication by the land possessor seeking to bar such entries; and g. (7) entry that results in damage to the land possessor’s person, family, or property.

Answer 63

1. A principal reason for this is society’s interest in protecting children from serious injury. Restatement of Torts § 339 - Attractive Nuisance - “Artificial Conditions Highly Dangerous to Trespassing Children.” 3. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if a. (a)the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and b. (b)the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and c. (c)the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and d. (d)the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and e. (e)the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Answer 64

Most of legal devices have imposed on landowners the duty to exercise a higher standards of care towards children. Attractive nuisance is a dangerous condition on a landowner's property that may particularly attract children onto the land and pose a risk to their safety. Treat trespassing children the same as an invitee, must exercise reasonable care to eliminate potential dangers or provide adequate warning.

Answer 65

Who: Someone who enters with permission but who goes for their own purpose What: Social guest; friends; family; neighbors dropping by; unsolicited door-to-door salesman, first responders Duty: Avoiding willful/reckless harm; warning of dangerous conditions (esp. latent ones) Licensees don't get the full duty of care, but the landowner still have a duty to give a warning.

Answer 66

1. Towards an invitee, the owner of the premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. [C] There may be circumstances by which this duty is extended to include the responsibility to protect the invitee from criminal attacks by third parties. 2. To be an invitee, a person must enter someone else’s premises for an activity or business purpose that benefits the premises owner.

Answer 67

Who: Someone who enters with permission in furtherance of land possessor's business What: Customers, contractors, Service personnel, employees, mail delivery Duty: Full duty of care to keep premises reasonably safe The rule is generally that the landowner need to protect an invitee.

Answer 68

1. The writer cannot subscribe to the theory that a regular customer of long standing is not an invitee to use toilet facilities required by law to be provided by the owner of a restaurant, simply because the customer had not actually made a purchase on the particular occasion of his injury, prior to his injury. 2. An invitee is an individual who is invited onto the premises as a member of the general public in furtherance of the premises owner’s business.

Answer 69

1. A landowner is subject to liability to another as an invitee only for injury the invitee sustained while on the land in the scope of the invitation. If the invitee goes outside of the area of his invitation, they become a trespasser or licensee, depending on whether he goes there without consent of the possessor or with such consent. If they have consent they are a licensee, not a trespasser.

Answer 70

a. which provides that a possessor of land owes a duty of reasonable care to entrants on the land with regard to natural and artificial conditions, among other things.

Answer 71

1. On the other hand, both fire and police officers have generally been held to enter under a bare license conferred by the law, and so to be no more than licensees. This means, however, that if defendant knows they are present, he must warn them of known dangers which they are unlikely to discover. 2. provides for a unified duty owed to entrants, it eliminates the need to classify separately the status of firefighters, police officers, and other professional rescuers. Most jurisdictions that limit the possessor’s liability to rescuers do so on grounds other than the rescuer’s status on the land. One approach is that, since professional rescuers, and their workers compensation payments are paid by the tax payers, it would be inappropriate to hold tax payers liable for injuries suffered by the rescuers, thereby charging the tax payer twice. Persons privileged to enter irrespective of landowner's consent. There's no liability to first responders for dangers that are inherent and foreseeable on the job.

Answer 72

Who: Someone who hasn't entered your property, but is affected by activities conducted on it. What: Anyone who is affected by activities Duty: Varies; some states don't recognize a duty to "take home" exposure claimants. Artificial condition, urban areas

Answer 73

1. The proper test to be applied for determining the liability of a landowner is whether in the management of his property he has acted as a reasonable man given the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may have some bearing on the question of the landowner’s liability, this status alone is not determinative

Answer 74

1. A landlord is under no obligation to repair or remedy a defective condition on the leased premises known to both the landlord and the tenant. 2. No liability upon the landlord, either to the tenant or to others entering the land, Except in the six grounds set forth: a. (1) the dangerous condition is known to the landlord and the lessee does not know or has no reason to know of it; b. (2) the condition is dangerous to others outside the property; c. (3) the property is leased for admission of the public; d. (4) the landlord retains control over parts of the property and the lessee is entitled to use those areas; e. (5) the landlord contracts to make repairs; or f. (6) the landlord is negligent in making repairs. The first four exceptions are inapplicable to this case.

Answer 75

General rule: no obligation to repair a damaged property if it was previously known Assumption: temporary transfer or ownership and with that goes liability

Answer 76

1. A landlord must exercise ordinary care toward his tenant and others on the leased premises with the tenant’s permission. 2. Public policy - no liability rule should be replaced with negligence? a. Growing recognition of implied warranty of liability - landlord owes you certain duties and you have the right to a livable, safe place to live. It's implied even if not explicitly stated. b. Lease is really an ordinary contract. 3. New Rule: a. Landlord owes his tenant or anyone on the premises with the tenant's consent a duty to exercise ordinary care. This duty is based on the "implied warranty of habitability." b. A person lawfully on the premises who is injured as a result of landlord's negligence in maintaining the premises is entitled to recover under general negligence principles.

Answer 77

For obviously dangerous activities, you don't actually have to have a warning. For non-obvious dangers, or what the law calls a latent danger/ hidden danger, that presents non-obvious risks. You have to have at least minimal warning.

Answer 78

You are going to be the invitee.

Answer 79

i. What a reasonable person would do under the circumstances ii. Cost-benefit analysis ("the Hand formula") iii. Custom - relative not determinative factor iv. Statutes (Negligence Per Se/ evidence for failing to conform to the common law's ordinary care standard) 1. Actual evidence of a breach depends on 3 factors

Answer 80

i. Showing of evidence/ proof ii. Plaintiffs use two steps 1. Identify a particular precaution that could have been taken and prove they did not take it. a. Demonstrating they should have made a different decision altogether. b. i.e. making enough pressure on an incision 2. Prove that a reasonable person would have taken the precaution/ wouldn't have acted like the Defendant. Establish the precaution means a reasonable person would have done it and prove it by the preponderance of the evidence a. preponderance of the evidence i. More likely than not that there was a breach of duty (51%)

Answer 81

i. Direct evidence (Rare) 1. Witness saw someone drop a banana told the store about the banana, no one did anything, Plaintiff slipped an hour later. ii. Circumstantial Evidence (typical) 1. Plaintiff offers indirect evidence form which jury can infer negligence iii. Res Ipsa Loquitur ("the thing speaks for itself") 1. Under Defendant's control and no other plausible explanation for injury

Answer 82

Plaintiff offers indirect evidence form which jury can infer negligence

Answer 83

Slip and Fall Cases: i. Goddard v. Boston & Maine R.R. 1. To maintain a claim of negligence for breach of a duty of care, the plaintiff must prove that the defendant was actually negligent. 2. needs stronger evidence to prove the railroad company breached their duty ii. Anjou v. Boston Elevated Ry. 1. A railroad company negligently breaches its duty of care by not keeping its platforms free of debris. 2. had a blackened banana peel - no testimony or direct evidence but there was testimony about the banana peel. Had been there long enough to remove it. iii. Joye v. Great Atlantic & Pacific Tea Co. 1. A store owner owes its customers a duty of care in keeping the store reasonably safe and the burden is on the customer to show that that duty is breached. 2. Can't tell how long it was there - somewhere in between. 3. Circumstantial evidence that the floor had been swept and no evidence to tell when the peel was there. 4. Claimed they should have ruled for the defendant due to lack of sufficient evidence. Issue is getting to the jury - needs to prove duty and sufficient evidence to move forward. 5. Constructive notice is a legal decision that person should have known as a reasonable ordinary person. a. The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Knowledge may be shown by circumstantial evidence “which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.” [C] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. iv. Ortega v. Kmart Corp. 1. In a slip and fall case, the plaintiff may demonstrate that the storekeeper had constructive notice of the dangerous condition in question if he can show that the area had not been inspected within a reasonable period of time such that an employee exercising due care would have discovered and corrected the condition. 2. No evidence a. Allows them to rely solely on the owner's failure to inspect the premise - Cali law b. Plaintiff has the burden of producing evidence - needs to last for a sufficient amount of time. c. Can meet it through constructive notice if the area has not been inspected in a reasonable amount of time. d. Good example how the burden of proof and evidence work together. v. Jasko v. F.W. Woolworth Co. 1. A storeowner’s notice of a dangerous condition causing a slip and fall injury need not be proved if the dangerous condition is inherent in the storeowner’s business. 2. Unable to show food had been dropped long enough, was able to show the condition created a dangerous condition in the first place. 3. Selling pizza on wax paper while standing proves they will drop it on the floor. No matter how much they clean the floor they still fall. vi. H.E. Butt Grocery Co. v. Resendez 1. A display of produce for customer sampling does not, by itself, constitute an unreasonable risk of harm to customers supporting negligence liability. 2. How fact sensitive they are - that's what makes the case

Answer 84

i. What can plaintiff prove using circumstantial evidence? 1. Prove somebody dropped something 2. Long time has passes without cleaning 3. Infer constructive knowledge (when no inspection made) 4. Defendant failed to remove dangerous condition

Answer 85

is a legal decision that person should have known as a reasonable ordinary person. a. The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Knowledge may be shown by circumstantial evidence “which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.” [C] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations.

Answer 86

Future business owner could take advanced notice to avoid liability and satisfy the standard of care.

Answer 87

meet conditions allows you to go to a jury without evidence - speaks to breach

Answer 88

1. The fact finder may infer that the defendant has been negligent when the accident causing the plaintiff's harm is the type of accident that ordinarily happens as a result of negligence by a class of actors which the defendant is the relevant member

Answer 89

The instrumentality inflicting the harm is under the exclusive control of the defendant. b. Only in certain jurisdictions whether the defendant has exclusive or superior access to information about the incident (see note 6 pg 271 for these jurisdictions).

Answer 90

It has sometimes been said that the basis of res ipsa loquitur is the defendant’s superior knowledge, or ability to obtain evidence, as to just what has occurred; or in other words, that the purpose of the rule is to “smoke out” evidence that the defendant has or can get, and the plaintiff cannot.

Answer 91

a. Kind of accident that only occurs if someone in D's position breaches a duty of care to someone in P's position. b. Any potential cause of the injury other than the defendant's negligence can be eliminated by the evidence. i. Done by showing the thing that caused the injury was in the exclusive control of the D or it's agents. ii. Cannot show this, P should be able to show that control was so great that it was more likely than not to cause the injury.

Answer 92

Varries by jurisdiction (Trial Practice) 1. It permits an inference of negligence but does not demand one 2. Raises a presumption of negligence that the defendant must rebut (otherwise defendant found liable) 3. Raises a presumption of negligence and shifts the burden of proof to the defendant to prove his negligence did not cause the injury (someone else caused the injury. If not successful, loses).

Answer 93

General experience, common knowledge, common sense of community, expert testimony.

Answer 94

1. If injury of a type that does not typically occur without negligence does occur, negligence is presumed from the mere fact of the occurrence.

Answer 95

a. For a defendant to be liable under res ipsa loquitur, the plaintiff must prove that the instrument that caused the accident was under exclusive control of the defendant and that if the defendant was using ordinary care, the accident would not have occurred.

Answer 96

a. An inference of negligence is permitted only when (1) the event is of a kind that ordinarily does not occur in the absence of negligence, (2) other responsible causes are sufficiently eliminated by the evidence, and (3) the inferred negligence is within the scope of the defendant’s duty to the plaintiff.

Answer 97

1. In the context of a medical malpractice lawsuit based upon a foreign object being left inside the body, res ipsa loquitur is applicable only if the object is unintentionally left in a patient following an operative procedure. Without Res Ipsa Loquitor, a patient who received permanent injuries of serious character, obviously the result of someone's negligence would be entirely unable to revoer unless the doctors and nurses and attendants voluntarily chose to disclose the identity of the negligent person and the facts establishing liability.

Answer 98

1. Although the mere fact of an occurrence of an accident is an inference of negligence, it is not conclusive and a jury still must make a determination on the most probable evidence. Just bc jury could infer negligence doesn't mean they're gonna get all the way there.

Answer 99

1. Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27. 2. Ask the counterfactual: Would injury have occurred if defendant had taken the appropriate precaution?

Answer 100

i. "but for" Defendant's breach. Would plaintiff have been injured? ii. If but for Defendant's breach, plaintiff would not have been injured --> Causation 1. If D's breach needs to happen for P to be injured, it is a cause of P's injury iii. If but for Defendant's breach. Plaintiff would have been injured --> no causation 1. If P's injury was going to happen anyway, regardless of whether D was careless, D's breach is not a cause of the injury Note: P must prove D's breach probably (more likely than not) needed to happen for P to be injured.

Answer 101

i. It is fundamental that negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought. It need not, of course, be the sole cause. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm.

Answer 102

1. Where the negligence of the defendant greatly increases the chance of an accident, the mere possibility that the accident might have happened absent the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. When a defendant's negligent conduct increases the likelihood of harm ("greatly multiples the chances of the accident"), the fact that it might have happened even in the absence of negligent conduct is not enough to breach the cause-and-effect sequence.

Answer 103

1. A negligence action requires proof of four elements: (1) existence of a duty; (2) breach of the duty; (3) causation; and (4) damages. If the plaintiff fails to offer proof of one of these elements, the action in negligence fails and summary judgment in favor of the defendant is proper. [C] The causation element requires proof of both cause in fact and proximate cause. 2. Where cause in fact of an accident cannot be proven, speculation is not sufficient to defeat a motion for summary judgment. 3. Causation requires that link must be made, through the evidence and the inferences that can be drawn from the evidence, between the negligent conduct and the injury. Mere speculation is not enough. The link must be made, through the evidence and the inferences that can be drawn from the evidence, between the negligent conduct and the injury. Mere speculation is not enough. Possibility, not actual evidence.

Answer 104

1. It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence. it is not enough for P to prove that the negligent conduct might have caused the harm. P must prove that the neligent conduct more likely than not was the cause of the harm.

Answer 105

1. Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.

Answer 106

1. Someone who negligently starts a fire may be liable if the fire damages a property in combination with a fire of unknown origin, and either fire would have damaged the property independently of the other, if the negligently started fire was a material factor in the destruction.

Answer 107

Neither act alone would cause the injury - each of the tortfeasors is liable for the full amount. Either act could have alone caused the injury (each act alone is a sufficient actor) - each of the tortfeasors is liable for the full amount.

Answer 108

Shifting the burden of proof to Defendant, if three conditions are met: 1. there are two (or more) defendants, acting independently; 2. Both (or all) possible tortfeasors before the courts; 3. Fault of only one defendant was necessary for P's injury, but which one is unknown. each defendant must disprove that their carelessness was a cause of P's injury or actual causation is preseummed.

Answer 109

1. It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury. 2. Under the doctrine of alternative liability, two independent tortfeasors may be held jointly liable if it is impossible to tell which one caused the plaintiff's injuries, and the burden of proof will shift to the defendants to either absolve themselves of liability or apportion the damages between them.

Answer 110

1. If multiple manufacturers of fungible goods are named as defendants in a negligence action and it cannot be determined which manufacturer caused the precise harm complained of, the manufacturers will be held proportionately liable in accordance with their market share in the market of the good that caused the injury. 2. Not all states adopted this approach - Cali and 5 other states adopted this. a. New York b. Washington c. Florida d. Wisconsin e. Michigan

Answer 111

The burden will shift to each D to prove that it did not manufacture the design to which the P was exposed. D who cannot do that are going to be held liable Damages are going to be apportioned to the market share of Ds.

Answer 112

1. If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.

Answer 113

1. (a) Subject to Subsection (b), the plaintiff has the burden to prove that the defendant’s tortious conduct was a factual cause of the plaintiff's harm. 2. (b) When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them caused the plaintiff's harm, but the plaintiff cannot reasonably be expected to prove which. actor or actors caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants.

Answer 114

Was P's injury directly caused by D's breach? Directly means no intervening events/remote in time or space.

Answer 115

a. A negligent actor can be held liable for all damages his negligent act caused, even if not reasonably foreseeable.

Answer 116

a. It is a general principle that every person is liable for the consequences of his own acts. He is thus liable in damages for the proximate results of his own acts, but not for remote damages.

Answer 117

Was P's injury a reasonably foreseeable consequence of D's breach?

Answer 118

a. A defendant is only liable for the consequences flowing from his negligent act that are foreseeable to a reasonable person at the time of the negligent act.

Answer 119

a. If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense. b. In a negligence action, a defendant may be liable for disregarding a small risk if that risk has potentially massive consequences.

Answer 120

a. Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong. b. The case established the principle that negligence is only actionable if it directly involves a foreseeable risk of harm to the person claiming injury. c. Cardoza = question of duty d. Andrew = a question of proximate cause

Answer 121

1. An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious. 2. Third restatement uses a scope of liability terminology, but courts tend to use phrase "proximate cause." to determine proximate cause, the question is whether P's injury is among those that render d's conduct careless.

Answer 122

1. When an actor’s tortious conduct causes harm to a person that, because of a preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person. Eggshell Plaintiff Not all jurisdiction agree with the coverage of mental conditions

Answer 123

1. A defendant takes the plaintiff as he finds him, including the weakness and susceptibility to injury that he already had. 2. Type of harm is unexceptional 3. 3rd restatement applies rule to both physical or mental conditions 4. Not all jurisdictions agree with coverage of mental conditions. 5. Sequence of the analysis: a. Must show it caused the condition - but for test b. Then proximate cause, should the D be liable for the occurrence (all harm) c. You take a P as you find them

Answer 124

1. When a force of nature or an independent act is also a factual cause of harm, an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious. a. These issues are general for the fact finder (jury) to resolve.

Answer 125

The acts of a third person that intervenes between the defendant's negligent conduct and P's injury will interrupt the causal link if the conduct is extraordinary, foreseeable, and independent ( in this case, D will NOT be liable), but not if it is a foreseeable consequence, flowing naturally from the situation created by the conduct (then D will be liable)

Answer 126

1. An intervening act between the defendant’s negligence and the plaintiff’s injuries will not break the causal connection and cut off liability if the intervening act was reasonably foreseeable.

Answer 127

1. A criminal act of a third party that causes harm in concurrence with a negligent act is generally not a reasonably foreseeable consequence of the negligent act.

Answer 128

Proximate cause: it's a lot more focused on logic, fairness, policy, and practicality proximate in space or time. modern law is based on foreseeability for proximate cause but need to know both. Fire Cases: Courts vary in where they draw the line. No uniformity in applying "first building" test. But do draw a line. Multiple Tortfeasors --> Jury split liability

Answer 129

Cut off causal chain

Answer 130

the actor is liable, even for the result of an extraordinary force of nature, if the risks of that force of nature were risks against which the actor should have taken adequate caution.

Answer 131

No it doesn't. The "but for" test requires that the occurrence be "necessary" in order for the harm to take place. If it is merely "sufficient," then the occurrence is usually held not to have been a "but for" cause of the harm. For example, suppose X shoots Q in the heart. X intends to kill Q, but unknown to X, Q died of a stroke a half hour earlier. X's conduct is then "sufficent" but not "necessary" to kill is not a but for cause of Q's death. Of course, the "but for" test is not always used. Other approaches can be more inclusive.

Answer 132

is when somebody was going to die anyways but D's negligence speeds it up.

Answer 133

The traditional view of causation holds that a negligent party is only responsible if a jury concluded that is more likely than not that a negligent party caused the harm suffered by the plaintiff. In this case, Thomas had only a 40% chance of survival even if diagnosed and treated properly. Thus, under the traditional rule, it cannot be said that "but for" Dr. Dennis's negligence, it is more likely than not that Thomas would have died.

Answer 134

Damages can be awarded for a definite physical injury stemming from emotional distress, even though there was no physical impact from the negligence act.

Answer 135

1. An ordinary person would have suffered such a reaction 2. proximate cause between the physical reaction and D's negligence.

Answer 136

a. A defendant’s liability for emotional distress caused to a plaintiff largely depends upon whether the harm was reasonably foreseeable, and foreseeability can be evaluated by considering factors such as whether a plaintiff was located near the scene of an accident as opposed to some distance from it, whether the shock alleged by the plaintiff resulted from his sensory and contemporaneous observance of the accident, and whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. b. We determine the reasonable foreseeability of harm (and hence duty) to a bystander based on the following three factors: i. Proximity to the scene ii. Contemporaneous observance caused the emotional harm; and iii. Relationship between the victim and the bystander 1. Need to have a close relationship if you are the bystander

Answer 137

a. A plaintiff may not recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if she was not an eyewitness to the act that caused the injury.

Answer 138

1. Impact Rule a. Recovery for emotional distress only if there was physical contact/harm from D’s Negligence 2. Zone of Danger Rule a. Recovery if in the “zone of danger” – emotional distress due to personal fear of impact.

Answer 139

1. Dillion Standard a. Guidelines for determining if emotional distress to bystander was “foreseeable”: i. Proximity to scene ii. Shock caused by contemporaneous observance iii. Close relationship between victim and bystander 2. Thing Rule a. Strict rule for bystander liability Requires: i. Presence at scene ii. Emotional distress greater than stanger would have iii. Family/marital relationship

Answer 140

1. Physical manifestation of fright required? See Daley v. LaCroix

Answer 141

i. An actor who negligently causes sudden serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who: 1. (a) perceives the event contemporaneously, and 2. (b) is a close family member of the person suffering the bodily injury.

Answer 142

General Rule: cannot be recovered under negligence could be recovered through "economic torts" which are intentional tort: 1. deceit 2. injurious falsehood 3. Inference with contract and interference with economic opportunity.

Answer 143

If Plaintiff establishes a prima facie case and Defendant has no complete defenses, Plaintiff is usually entitled to money damages from Defendant. Injunctions sometimes available (e.g., nuisances)

Answer 144

if you find that D's negligence caused P's injury, you must then determine an amount of money damages you find will fairly and adequately compensate P for all the physical and financial harm she sustained as a result. The amount you award today must compensate P completely for damages sustained from the time of the harm up to today, as well as damages P will sustain in the future.

Answer 145

Nominal Compensatory Punitive

Answer 146

Definition: Token amount ($1) for a tort without any loss Rule for Case: An award of compensatory damages for permanent personal injury is not excessive where it reasonably relates to the nature and extent of the injuries, the victim’s age, present and future economic losses and costs, and awards made in comparable cases.

Answer 147

Economic Losses: future lost - counterfactual based, in part, on expert evidence, discount to present value past expenses - collateral source rule: D not entitled to present evidence that P will recieve compensation from another source, including insurance. (Many states have modified) Non-economic losses: e.g., pain and suffering

Answer 148

Money paid as compensation for the harm Plaintiff has suffered at the hands of Defendant

Answer 149

Money paid as punishment for egregious mistreatment, or to deter further wrongdoing

Answer 150

a. An award of punitive damages requires evidence that the defendant proceeded intentionally after knowing that the act was naturally and likely to cause injury.

Answer 151

A punitive-damages award is not impermissibly excessive merely because the ratio between compensatory and punitive damages exceeds single digits.

Answer 152

1. Punitive Damages are Rare - awarded in ~ 5% of all verdicts. Factfinder doesn't have to award, even in conduct meets standards

Answer 153

Availability: 1. Intentional Torts a. often, but not always, available (probably no in Vosberg) b. Probably most often awarded for "business torts" (e.g. fraud) rather than personal injury 2. Negligence a. P who proves only carelessness is ineligible for punitive damages (no willfulness or wantonness) b. But eligible if P can prove carelessness that rises to the level of wantonness

Answer 154

Acted with intent to harm, wantonness, or such conscious indifference to teh consequences of his actions that malice may be inferred. Many states: punitive damages against employers for employee conduct only if ratified by management.

Answer 155

Usual view: Punishment and deterrence. Law & Econ View: Prevent Deterrence acts that: 1. are not likely to warrant criminal prosecution, despite criminal dimension, 2. are difficult to detect (e.g., fraud) 3. Cause minor injuries, so no individual P has incentive to sue otherwise; violence is cheaper, and/or 4. Call for low compensatory damages, so Ds can treat damages like price where they pay and offend again.

Answer 156

"grossly excessive" punitive damages violate Defendant's Due Process rights; assessed by 1. Reprehensibility of D's acts 2. Ratio of punitive damages to compensatory 3. Civil, criminal penalties for similar acts . a. State Farm v. Campbell: "Few awards exceeding a single digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." Jury may not punish the defendant for harms to non-parties (Due process - violation), but the P can introduce evidence of harm to nonparties to show risk to the general public and, therefore, reprehensibility of the D's conduct.

Answer 157

1. If Plaintiff’s conduct contributes to the proximate/legal cause of their injury then there is a total bar on recovery for the Plaintiff. 2. Exception: Last Clear Chance Doctrine

Answer 158

When a plaintiff fails to use ordinary care in avoiding an obstruction caused by a defendant, the plaintiff may not recover damages from the defendant.

Answer 159

1. First, the law could completely bar plaintiff’s claim. This approach, called contributory negligence, was taken by the court in Butterfield. 2. Second, the law could completely ignore plaintiff’s culpable conduct. This is the approach taken under most Worker Compensation Acts and No-Fault Automobile Accident Reparation Systems. 3. Third, the law could adopt one of the first two options as a general rule and then set up other rules making exceptions for designated situations. This is what the common law later did—generally adopting option 1, but allowing exceptions to it. 4. Fourth, the law could compare plaintiff’s fault with that of defendant and reduce plaintiff’s damages according to the measure of fault. This approach, usually called comparative negligence or comparative fault, has been expressly adopted in one form or another for some actions in 46 states, by statute or judicial decision. (Comparative negligence is treated in more detail after the next principal case.) Contributory negligence continues to be a complete bar to recovery in only four states (Alabama, Maryland, Virginia, North Carolina) and the District of Columbia.

Answer 160

i. Definition: Apportionment of damages based on fault of parties.

Answer 161

Even if contributorily negligent, a plaintiff may recover, but only if the plaintiff’s negligence is less than the defendant’s negligence.

Answer 162

1. Contributory Negligence a. Alabama, Maryland, North Carolina, Virginia, and District of Columbia continue to apply the common law doctrine that contributory negligence is a complete bar to recovery. 2. Most have adopted Comparative Negligence

Answer 163

1. Mechanics of Apportionment 2. Burden of Proof 3. Multiple Parties 4. Immunity 5. Relationship to Contribution

Answer 164

1. Pure Apportionment 2. Modified Apportionment (Plaintiff “Not as Great as 49%”). 3. Modified Apportionment (Plaintiff “Not Greater than 49%”). No matter how responsible P is, even if they're 99% responsible, they're going to be able to recover even that small amount from defendnat.

Answer 165

About ten jurisdictions (e.g., Arizona, California, New York, and Washington) and several federal statutes (e.g., FELA, Jones Act) have adopted the pure comparative negligence approach. In those jurisdictions, the plaintiff’s recovery is reduced by the percentage fault attributable to the plaintiff. Recovery in ration to fault (no matter the ratio)

Answer 166

a. About a dozen jurisdictions (e.g., Arkansas, Colorado, Nebraska, and Tennessee) have adopted a modified form of comparative negligence in which the plaintiff’s recovery is reduced by the percentage of fault attributable to the plaintiff as long as the plaintiff’s fault is “not as great as” the defendant’s. b. If the plaintiff’s fault is equal to or greater than the defendant’s, the plaintiff is completely barred from recovery. i. Maine’s statute authorizes the jury to reduce the damages to “such extent as the jury thinks just and equitable having regard to the claimant’s share in the responsibility for the damage,” without actually requiring that it be proportional. Thus, the jury may reduce the amount of damages by more than the percentage of fault attributable to the plaintiff. No recovery unless P's fault is "not as great as the defendants" - I.e. the defendant's fault is greater - P is responsible for 49% or less of the total damages.

Answer 167

a. About twenty jurisdictions (e.g., Connecticut, New Jersey, Texas, and Wisconsin) have adopted a modified form of comparative negligence in which the plaintiff’s recovery is reduced by the percentage of fault attributable to the plaintiff as long as the plaintiff’s fault is “not greater than” the fault of the defendant’s. b. If the plaintiff’s fault is greater than the defendant’s, the plaintiff is completely barred from recovery. i. The two modified forms of comparative negligence produce a different result only in the 50/50 case. c. No recovery unless plaintiff's fault is "not as great as the defendants" - I.e., the defendant's fault is greater -- the Plaintiff is responsible for 49% or less of the total damages. OR d. No recovery unless plaintiff's fault is "not greater than defendants" - plaintiff is responsible for 50% or less of the total damages. No recovery unless P's fault is "not greater than defendants" - P is responsible for 50% or less of the total damages.

Answer 168

Burden of proof - the D needs to prove P's conduct was negligent; the application of contributory negligence is a question of negligence (breach of duty) and thus the Jury determines if there is indeed negligence on behalf of P. Factual Causation - concurrent conduct situation - was P's conduct the substantial factor that brought upon the injury/ damages? Using proximate causation to assess when a complete bar on recovery is appropriate - finding bar to recovery only for injuries/damages that were foreseeable from the P's negligence.

Answer 169

only applies to state with contributory negligence saves P from the bar of the P's contributory negligence if P can show that the negligent D had the last clear chance to avoid the accident. The P became helpless at that point, despite their own negligence.

Answer 170

P needs to be less at fault than all the Ds combined. Not less at fault than each D. Different jurisdictions have different theory (against each or against all)

Answer 171

it's on D. P was negligent and it was the proximate cause of the injuries.

Answer 172

The P's duty to take precautions to avoid harms it is failure to take precautions. Going to be considered negligence

Answer 173

Doctrine of avoidable consequences. P does have a duty to avoid further harm, if they could have, by reasonable conduct.

Answer 174

1. Express 2. Implied

Answer 175

1. Express: complete waiver of liability (Seigneur v. National Fitness Institute, Inc.) a. An exculpatory clause is unenforceable as against public policy when the bargaining powers of the parties are substantially unequal or where the contract involves an essential public service. Terms of contract must unabiguous; exculpatory clauses can't be against public policy: a. usually arises in circumstances involving essential public services. b. Courts will look at the totality of the circumstances, including whether the conduct at issues subject to public regulation or a matter of practiced necessity; whether D holds itself out to the public (at least those who meet certain requirement); whether P has no ability to protect self against negligence (e.g., paying more); whethere P is under control of D.

Answer 176

1. Implied: diminished recovery to Plaintiff. 2. General Standards (Rush v. Commercial Rlty Co.) a. Assumption of risk will not be implied and will not bar recovery where the plaintiff did not voluntarily assume the risk. For risks P had actual knowledge of/were self-evident; P voluntarily assumed risks; and conduct causing injury was within scope of risk assumed.

Answer 177

i. Plaintiff voluntarily enters into a relation with defendant, which he knows to involve some risk. ii. Plaintiff knows that defendant’s activity, or a condition created by him, involves some danger, but quite reasonably concludes that he can safely encounter it and proceeds. iii. Plaintiff, fully aware of an unreasonable risk, voluntarily proceeds to encounter it. iv. Plaintiff, appreciated the magnitude of the risk. 1. Ex: having spent half an hour in an above ground swimming pool, knows that the water is only three feet deep, dives into it, and is injured when her head strikes the bottom.

Answer 178

1. When permitted by contract law, substantive law governing the claim, and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for future harm bars the plaintiff's recovery from that person for the harm. Unlike a plaintiffs negligence, a valid contractual limitation on liability does not provide an occasion for the factfinder to assign a percentage of responsibility to any party or other person

Answer 179

Use Tunkl Factors: 1. It concerns a business of a type generally thought suitable for public regulation 2. The party seeking exculpation is engagede in preforming a service of great importance to the public, which is often a matter of practical necessity for some member of the public; 3. The party holds himself out as willing to preform this service for any member of the public who seeks it, or at least any member coming within certain established standards; 4. As a result of the essential nature of the services, in the economic setting of the transaction, the party invoking exculpation possess a decisive advantage of bargaining strength against any member of the public who seeks his services. 5. In exercising a superior bargaining power, the party confront the public with a standardized adhesion contract or exculpation, and makes no provision whereby a purchaser may pay additional fees and obtain protection against negligence; 6. As a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Answer 180

Whenever we talk about public policy, that is the way of specific cultures with a unique sense of societal expectations are going to end up treating these different topic differently. Whether the risk that injured P fell within the unambiguous scope of the terms of the agreement. Prove voluntary: direct evidence, circumstantial evidence; witnesses.

Answer 181

Procedural time limit that bars claims (non substantive bar on claim)

Answer 182

Generally at onset of injury

Answer 183

An exception to the general rule, finding that claims accrue when injury is or should have been discovered (for claims like foreign objects in the body, medical malpractice cases)

Answer 184

Period (during minority, insanity, incompetence) when statue of repose are barred. Limits time period during which cause of action can accrue 1. protect the defendant 2. substantive

Answer 185

avoids liability in tort under all circumstances

Answer 186

An employee who is injured on the job cannot file a poor claim against the employer or company employees, even if they were negligent.

Answer 187

Spousal immunity - largely abolished - created bc women could not sue on their own. Parental Immunity - Generally exists for negligent parental supervision not for intentional, willful, wanton acts or acts outside scope of parenting duties.

Answer 188

largely abrogated entirely; minority have limited it Fill in the gaps of the welfare state and provide services that the government won't

Answer 189

Abrogated through state tort claims acts with limits

Answer 190

Immune from suit except for waiver; waiver in FCTA - with 13 excerptions including: 1. Discretionary functions (Discretionary and based on public policy considerations to further social, economic, or political goals) 2. Many intentional torts 3. Military combat activities or incident to military service

Answer 191

Immunity for certain public officers acting within scope of employment (except, e.g., 1983 claims) ppl can sue any public officers violate the constitution rights or state law.