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Question 1

The burden of avoidance for breach in negligence can also include what types of things?

Answer 1

Intangible things like loss of freedom

Question 2

What does it mean to look beyond the Learned Hand test?

Answer 2

Can look at the social value or utility of the behavior, and if the benefit to society is very great, it’s likely the defendant did not breach a duty

Question 3

What is an example of looking beyond the test for breach for negligence?

Answer 3

Driving is dangerous, but socially useful

Question 4

What is the extension to the Learned Hand formula?

Answer 4

If there is no reasonable safety precaution that could completely avoid harm, and alternatives would only reduce the risk, the formula changes to PL without safety precaution - PL with safety precaution > B

Question 5

In the extension to the Learned Hand formula, D’s failure to take the precaution would be unreasonable if what?

Answer 5

The risk prevented by it outweighs the burden of preventing it

Question 6

If there is a 10% risk of causing $100,000 in damages without a precaution, and a 1% risk with the precaution, what must defendant do to avoid being negligent?

Answer 6

Since the burden of taking the precaution is less than $9000, he must take it to avoid being negligent

Question 7

Breach issues are usually decided by who, except in what situation?

Answer 7

Jury, unless a motion for summary judgment occurs, and the court says no reasonable jury could find in favor of the nonmoving party, so they create a mini rule about what conduct is reasonable/unreasonable in different situations

Question 8

Can insanity or stupidity be defenses to negligence?

Answer 8

No, because the mental ability standard is that of the average person

Question 9

What is negligence per se?

Answer 9

When a criminal statute is used to set the standard of care because the reasonable person is law abiding, so someone that violates the law is per se unreasonable

Question 10

Negligence per se allows a more specific standard to replace what?

Answer 10

A general one

Question 11

Who decides if negligence per se applies?

Answer 11

The judge by looking at:

• the type of harm
• if the plaintiff was in a protected class
• if his violation was excused

Question 12

If a judge decides that a statute shouldn’t be adopted for negligence per se, what happens to the case?

Answer 12

It will proceed under the reasonably prudent person standard of care

Question 13

What are the three elements of a negligence per se breach analysis?

Answer 13

• type of harm
• protected plaintiffs or class
• plaintiff’s violation was not excused

Question 14

What does type of harm mean for negligence per se?

Answer 14

The statute was designed to protect against the type of harm the plaintiff suffered

Question 15

If a law says all animals on boats have to be in separate pens to avoid diseases, when a wave washes animals in the same pen overboard, is that negligence per se?

Answer 15

No, because the type of harm was disease, not getting washed overboard

Question 16

What is important for the statute itself for negligence per se?

Answer 16

It must be clear and unambiguous about what the conduct/duty is that is required, by whom, and about what is a breach

Question 17

Do violations of licensing statutes establish negligence per se?

Answer 17

Not usually

Question 18

What is involved in the “protected plaintiffs or class” for negligence per se?

Answer 18

It has to relate to the class of persons designed to be protected by the statute, and the plaintiff must be included in that

Question 19

What does it mean that the plaintiff’s violation cannot be excused for negligence per se to apply?

Answer 19

Sometimes plaintiffs are excused from violating a statute because something that was not their fault got in the way, if this applies, then negligence per se is not relevant

Question 20

What are typical excuses that could make it so that negligence per se was not applicable?

Answer 20

Something like having your headlights suddenly go out

Question 21

Who decides if an excuse is appropriate for negligence per se?

Answer 21

The judge, and if so, there’s no liability

Question 22

What are the four exceptions to negligence per se?

Answer 22

• if it is more dangerous to comply with the law than to violate it, you are excused
• if compliance is impossible
• emergency situations
• children

Question 23

What is an example of when impossibility would apply as exception to negligence per se?

Answer 23

If the minimum speed is 40 km, but because of a breakdown you can’t drive that fast, so compliance with the statute is excused

Question 24

How does an emergency act as an exception to negligence per se?

Answer 24

Any violations are excused and the reasonable person standard in that situation is applied

Question 25

How can the child standard be an exception to negligence per se?

Answer 25

It isn’t invoked against children that are engaging in children’s activities

Question 26

Once a breach of the statute has been decided, for negligence per se, the plaintiff must still prove what?

Answer 26

The other elements of negligence

Question 27

Custom can be evidence of the standard of care owed, but it isn’t what?

Answer 27

Conclusive because sometimes even the customer is negligent

Question 28

If you want to discuss that the defendant failed to comply with the custom of the community, you have to prove what?

Answer 28

• that the custom was developed to avoid that type of harm
• the custom was widespread and well-defined
• D was a member of the community so should’ve had knowledge of the custom

Question 29

What are the two major categories that are held to a higher or lower standard of care?

Answer 29

Common carrier/innkeepers and public utilities

Question 30

What is a common carrier?

Answer 30

Anyone that transports the public for money and is in the general business of doing it

Question 31

What is the standard of care for common carriers?

Answer 31

They have a duty to avoid harm to passengers by exercising the highest degree of vigilance, care, and precaution, or the utmost caution characteristic of very careful prudent people

Question 32

Why is it important for common carriers to foresee and guard against danger?

Answer 32

Public-policy wants the public to be transported safely

Question 33

Must you make a living off of transporting other people in order to be considered a common carrier?

Answer 33

No, you just have to make a profit, so carpool for money counts

Question 34

Are common carriers liable for the acts of their employees or agents?

Answer 34

Yes, but not for the acts of other passengers

Question 35

Common carriers must always choose the course of action least likely to do what?

Answer 35

Expose passengers to harm

Question 36

Common carriers have an affirmative duty to what?

Answer 36

Aid passengers when they become sick or are attacked by robbers

Question 37

What are Guest Statutes?

Answer 37

A reduction in the duty of care owed by the driver of a vehicle to a guest in the car where there is no liability for injuries unless the driver’s conduct was grossly negligent or reckless

Question 38

What is meant by a guest in a car?

Answer 38

A nonpaying passenger

Question 39

If some payment has been made that motivated the driver to furnish a ride, the person in the vehicle is thought of as what?

Answer 39

A passenger and can recover for ordinary negligence

Question 40

If you agree to share expenses for a ride, that often makes you what status in the vehicle?

Answer 40

Passenger, not a guest, so guest statute doesn’t apply

Question 41

When does the common carrier duty end?

Answer 41

Once the common carrier has finished providing service

Question 42

What is the duty of care for public utilities?

Answer 42

Because the products/services can be dangerous, a duty to take every reasonable precaution suggested by experience/prudence in order to avoid injury to the public is necessary

Question 43

The greater the risk of serious danger, the more onerous the what?

Answer 43

Burden that a reasonable person is expected to accept