Page 27 Flashcards
Negligent entrustment only applies when what?
The defendant has failed to show care in selecting a bailee
What is the mental state for negligent entrustment?
Knows or should know that the bailee is likely to cause harm to others
If you’ve used reasonable care to select a bailee, can you avoid being charged with negligent entrustment?
Yes, so you wouldn’t be liable for any harm inflicted by the bailee outside of your presence
What are the two different views for negligent entrustment?
- traditional view: no liability
- modern view: the bailor of a car owes a duty to control erratic driving by another when it happens in his presence
If someone is driving you in your own car to the doctor, and they are driving negligently, do you have a duty to control their driving?
Yes, and this even extends to when you get out of the car, because you were negligent in allowing him to drive your car since you knew he had been driving recklessly
Are parents liable for the torts of their children?
Usually no, unless certain situations apply
What are the situations that make a parent liable for the torts of their child?
- negligent supervision
- control/warn about child’s known dangerous tendencies
- didn’t prevent child’s use of inherently dangerous instrumentalities that were foreseeable
- negligent entrustment
What is the duty of a tavern keeper with regard to a land occupier?
Must exercise the duties required of land occupiers to business visitors on the premises
If you’re a tavernkeeper and you know a patron can get belligerent and dangerous when drunk, what is your duty?
Must exercise due care to prevent him from injuring others or their property on the premises, or at least warn others of the danger
Can social hosts that serve alcohol be liable for actions of the people they’ve served to?
Generally no, unless they serve alcohol to a minor that becomes drunk and injures someone in a traffic accident when the host knew the minor would be driving after drinking
What are the four possible theories to find an employer liable for the employee’s negligence?
- employers have a duty of due care to control employee’s conduct in their presence
- negligent hiring: liable for employees’ willful/criminal actions if they should’ve been reasonably foreseen
- negligent supervision: if an employer knows about dangerous behavior of employees, duty to supervise with reasonable care
- respondeat superior
What do affirmative defenses to negligence do?
Put the burden of proof on the defendant and can only be raised after the plaintiff has established a prima facie case
What are the affirmative defenses to negligence?
- contributory negligence
- assumption of the risk
- comparative immunities
What is contributory negligence?
Conduct by the plaintiff that falls below the standard of conduct he should conform to for his own protection, which legally contributes to his harm
How much fault is necessary for contributory negligence?
Any fault no matter how slight
Is contributory negligence a complete or partial bar to recovery?
Complete
What is the standard of care for contributory negligence?
Reasonable person that includes mental capacity
Contributory negligence only applies to what form of torts?
Negligence (not intentional torts, recklessness, or SL)
Which affirmative defense has almost every state adopted for negligence?
Comparative
Contributory negligence doesn’t apply to what kind of conduct?
Willful, wanton, or reckless, because they are so unreasonable that courts say they are not a defense
What is the protected plaintiff exception to contributory negligence?
If the defendant’s conduct violates a statute that protects the plaintiff, then his negligence is not a bar to recovery
What is the mitigation of damages rule for contributory negligence?
Victims have a responsibility to mitigate their injuries by reasonable efforts and expenses
Where does the burden of proof lie for the mitigation of damages rule to contributory negligence?
The burden is on the defendant to prove the plaintiff failed to do so
If someone hits you in the nose, what does the mitigation of damages rule say you have to do?
You must act reasonably to mitigate/stop the bleeding, and defendant’s liability is limited to damages that couldn’t reasonably be mitigated
Can one person’s contributory negligence be imputed to another?
No, regardless of the relationship
What is negligent entrustment?
The owner of the car is directly liable for negligence by allowing a person to drive when he reasonably should’ve realized the risk of harm to others
