Page 21 Flashcards
Who are the people that are considered emergency rescuers under the firefighters’ rule?
- EMTs
- police officers
- lifeguards
- publicly employed professional risk takers
Why does the firefighters rule not apply for negligence that happens after the rescue or undisclosed/unanticipated dangerous conditions on the property?
Because a rescuer is a licensee, so the possessor has a duty to warn of concealed dangers
Does the firefighters rule apply to private citizens that help in an emergency?
No
Does the firefighters rule apply to rescuers that are off duty?
No
Does the firefighters rule apply to risks that are not inherent in the job?
No
If you get bitten by a dog while fighting a fire, is that injury included in the firefighters rule?
No, because that wouldn’t be a risk that was inherent in the job
If a licensee or trespasser is discovered by the landowner in a position of peril, what must the landowner do?
Use ORDINARY care to avoid injuring him
What is a privileged entrant?
Even with no express or implied invitation, certain people are privileged to enter:
- cops
- firefighters
- census takers
- private people under necessity
They are classified as licensees or invitees depending on their purpose
What is the recreational use immunity?
Landlords have immunity from nonpaying users of their land that do recreational activities on it with their tacit approval, and are only liable for gross negligence or willful/wanton conduct
What are things that are included in recreation for the recreational use immunity?
Fishing, hunting, motorcycling, snowmobiling, outdoor activities, etc.
Does the possessor have a duty of care to keep the premises safe for entry or give warning for recreational use immunity?
No, but if the user has paid to enter or was expressly invited, then he does
What is the rationale behind the recreational use immunity?
The law wants to encourage landowners to open their land for the public’s use
If the location of an injury isn’t on property that is being used for recreation, but on property that was a means to get to the recreational property, does the recreational use immunity apply?
No
If someone is on the land for a purpose other than recreation and gets injured there, does it matter that his purpose wasn’t recreation in order for the recreational use immunity to apply?
No, as long as he was engaged in recreational pursuits that were permitted on the land
What are the two different approaches to the status of people on land?
Status approach and unitary standard approach
What is the unitary standard approach?
Uses a generalized reasonable person standard regardless of an entrant’s status
What is the test for the unitary standard approach?
Whether the occupier has acted as a reasonable person in the management of his property in view of the likelihood of injury to others
What is the rationale behind the unitary standard approach?
A man’s life/limb isn’t any less worthy of protection just because he is a trespasser
What is the duty owed under the unitary standard approach to people outside the land?
No duty for natural conditions on the land, even if the possessor knows it creates a serious risk of harm. There is a recognized duty for artificial conditions or activities
What are the factors that influence a duty in the unitary standard approach?
- Plaintiff’s status
- foreseeability of harm
- relationship between the defendant’s conduct and plaintiff’s injury
- moral blameworthiness of the defendant’s conduct
- availability of insurance
What is the exception to the unitary standard approach?
Trees in urban areas (duty of reasonable care to make sure trees on the property don’t pose unreasonable risks to people outside the land).
What is causation for negligence?
Must prove actual cause and proximate causation
What is actual causation’s other name?
Cause in fact
What is actual causation?
Plaintiff’s injury is a direct result of defendant’s conduct
If someone would have been injured regardless of the defendant’s act, is he the cause in fact?
No, so he wouldn’t be liable
What are the legal tests that can be used to show actual causation?
- but-for test
- substantial factor test
- Summers v Tice test
- market share liability
What is the majority approach to actual causation?
The but-for test
What is the but-for test?
Plaintiff must prove by preponderance of the evidence that but for the defendant’s act, he wouldn’t have suffered the damage
When is the “but-for” test most useful?
When there’s only one cause of injury
If you take people out on your boat, don’t give them a life jacket, and they drown, under the “but-for” test would you be the actual cause of death?
Yes, if they wouldn’t have drown “but-for” you not giving them life jackets
If there are multiple tortfeasors, what are the different ways to deal with the causation in negligence for that?
- successive liability
- concurrent liability
- jointly engaged tortfeasors
- substantial factor test
What is successive liability in negligence?
Successive independent acts of negligence that contribute to the plaintiff’s injuries
How does successive liability relate to the “but-for” test for causation for negligence?
If an injury comes from multiple defendants acting independently, each defendant is the “but -or” cause unless a particular one can show that his conduct caused only identified injury
If you negligently pull out in front of someone who slams into you, and another who wasn’t watching slams into that person, who are the “but for” causes of the injuries?
Both are liable
What is concurrent liability?
If injury comes from more than one defendant, and the conduct of each defendant taken alone would not have been enough to cause injury, each is regarded as the “but for” cause
If there’s a collision of two cars that injures a pedestrian and both drivers are negligent, who can the pedestrian recover from?
Either or both for any injuries
What are jointly engaged tortfeasors?
When injury is inflicted by one of many defendants that are jointly engaged in negligent conduct, each is liable even though only one actually inflicted injury
If there is an illegal drag race that results in an injured bystander, who is liable?
Every participant even though only one injured the person
What is the substantial factor test?
When two or more defendants cause injury, but each person’s acts taken alone would have been enough to cause the injury
What does the P have to prove for the substantial factor test?
That the defendant’s act was a substantial/material factor that caused the injury
When is the substantial factor test especially good?
For cases that have more than one cause
If someone starts a fire on the right side of your house and another person starts one on the left, and your house is destroyed, which causation test should be used to figure out liability?
The “but for” test doesn’t work because the plaintiff can prove the injury would’ve happened even if he hadn’t acted, so the substantial factor test is the best.
What is the “Summers v Tice” test for proximate cause for negligence?
The plaintiff has the initial burden to establish that both defendants breached a duty of care, then the burden is on the tortfeasors to prove that they were not the ones that injured the plaintiff
When is the “Summers v Tice” test especially applicable?
When there’s more than one D and you don’t know who is responsible
If a defendant can show he wasn’t the one that injured the plaintiff under the Summers v Tice test, what happens?
He is absolved from liability
If both of the defendants can’t show that they weren’t the ones that injured the plaintiff under the Summers v Tice test, what happens?
They are held joint and severally liable
What is the firefighter’s rule?
This bars recovery for most injuries against the negligent creator of an emergency the rescuer is responding to but doesn’t bar recovery for negligence that happens after the rescuer reaches the scene or for undisclosed and unanticipated dangerous conditions on the property
