Negligence Torts

Question 1

Negligence

Answer 1

The failure to exercise the care that a reasonable person in that situation would exercise and acting in a way that breaches the duty to prevent foreseeable risks of harm to others (i.e., what would a reasonable person have done under the circumstances?)

Question 2

Elements of Negligence

Answer 2

(1) duty; (2) breach; (3) causation; and (damages)

Question 3

Learned Hand Test

Answer 3

B < P * L

B = Burden
P = Probability
L = Gravity of Loss

Question 4

Duty

Answer 4

A duty of care is owed to all foreseeable persons who may be injured by the defendants failure to follow a reasonable standard of care (generally, NO affirmative duty to act)

Question 5

Foreseeability of Harm

Answer 5

Duty of care owed to plaintiff only if plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct (Palsgraf)

Question 6

Rescuers

Answer 6

A person who comes to the aid of another is a foreseeable plaintiff

Question 7

Standard of Care

Answer 7

Reasonably Prudent Person Under the Circumstances - a person is presumed to have average mental abilities and knowledge, particular physical characteristics are taken into account (e.g., blindness)

Question 8

Standard of Care for Experts

Answer 8

Experts with special skills are held to a higher standard, the expert must have the knowledge and skill of a member in good standing in similar communities (national standard)

Question 9

Standard of Care for Children

Answer 9

A standard of care of a reasonable child of similar age, intelligence, and experience, however, children engaged in adult activities are held to the same standard as adults

Question 10

Negligence per se

Answer 10

A statute (criminal law or regulatory) that imposes a particular duty for the protection or benefit of others, (1) the plaintiff must be in the class of people intended to protected, (2) the accident must be the type of harm that the statute was intended to protect against, and (3) the harm must be caused by a violation of that statute

Question 11

Res Ipsa Loquitor

Answer 11

(1) type of accident that does not normally occur in the absence of negligence; (2) caused by an instrumentality within the exclusive control of the defendant; and (3) plaintiff was not at fault

Question 12

Breach

Answer 12

Failure to conform to the applicable standard

Question 13

But-for Test

Answer 13

Plaintiff must show that the injury would not have occurred “but-for” the defendant’s negligence

Question 14

Causation for Multiple Tortfeasors

Answer 14

Substantial Factor Test - was the defendant’s conduct a substantial factor in causing the plaintiff’s harm?

Question 15

Joint and Several Liability

Answer 15

When the tortious acts of two or more defendants are each a factual cause of an individual injury to the plaintiff, joint and several liability applies and each defendant is potentially liable for the whole harm

Question 16

Proximate Cause

Answer 16

Defendant is liable for all foreseeable harmful results that are normal incidents and within the increased risks of defendant’s act

Question 17

Trespassers

Answer 17

If the trespasser is undiscovered there is no duty, if the trespasser is anticipated/discovered there is a duty to warn and make safe known conditions if they are not obvious and highly dangerous

Question 18

Child Trespassers

Answer 18

Duty to warn if there is a dangerous artificial condition on land owners knows or should know when children frequent the area and the condition is likely to cause injury

Question 19

Licensees

Answer 19

Duty to warn and make safe non-obvious dangerous conditions

Question 20

Invitees

Answer 20

Duty to make reasonable inspections and warn or make safe non-obvious dangerous conditions

Question 21

Lessors

Answer 21

Duty to warn of existing defects not likely discoverable by reasonable inspection

Question 22

Damages

Answer 22

There must be an actual injury

Question 23

Negligent Infliction of Emotional Distress

Answer 23

Plaintiff can recover from a defendant whose negligence creates a foreseeable risk of physical injury to the plaintiff if the defendant’s action causes a threat of physical impact that causes emotional distress

Question 24

Bystander Cases of NIED

Answer 24

Bystanders can recover if they are closely related to the victim, were present on the scene, and personally observed the incident