Pre-Midterm

Question 1

2 Types of Negligent Infliction of Emotional Distress

Answer 1

Direct and Bystander

Question 2

What is the traditional “impact” rule? Minority

Answer 2

The traditional rule for direct NIED is the “impact” rule, requiring a plaintiff to have experienced physical impact in order to recover for NIED.

MINORITY

Question 3

What is the modern rule for direct NIED?

Answer 3

“Risk of Impact” -The modern rule for NIED requires the plaintiff exhibit a physical manifestation of severe emotional distress and be within the zone of danger in order to recover under NIED

MAJORITY

Question 4

What are the two rules under bystander NIED?

Answer 4

“Zone of danger” rule and “Dillon v. Legg Rule

Question 5

What are the elements of the “zone of danger rule”?

MAJORITY RULE

Answer 5

1. Plaintiff must contemporaneously perceive
2. A severe injury
3. Of an immediate family member
4. And be within close enough proximity
5. So as to fear for his or her own life

Question 6

What are the elements of the Dillon v. Legg rule?

MINORITY RULE

Answer 6

1. Distress must be reasonably foreseeable
2. Plaintiff must be near the scene of the accident
3. P must have sensory and contemporaneous observation of the accident
4. And be in a special relationship with the victim

Question 7

What is the traditional view of landowner liability?

Answer 7

Premises liability was traditionally determined by a trichotomy which determines liability based on the status of trespasser, licensee, or invitee.

Question 8

What is a landowner’s duty to a trespasser?

Answer 8

Generally, a landowner owes no duty to a trespasser. However, there are three exceptions. A landowner may owe a duty to warn when she knows that there is frequent trespassing, when she discovers a trespasser, and for child trespassers.

Question 9

What is a licensee and what duties does a landowner owe to a licensee?

Answer 9

1. A licensee has consent to be on the landowner’s property as a social guest and not for a business purpose.
2. A landowner has a duty to warn licensees of known dangers.
3. No duty to warn of obvious dangers or inspect or repair.

Question 10

What is an invitee and what is a landowner’s duty to an invitee?

Answer 10

1. And invitee has consent to be on the landowner’s property for a business purpose.
2. A landowner has a duty to reasonably inspect, warn of known and obvious dangers, and make the premises safe for invitees.

Question 11

What are the elements of attractive nuisance?

Answer 11

In order to establish liability under the attractive nuisance, it must be 1) foreseeable that a child may trespass, 2) there must be an unreasonable risk of harm caused by an artificial condition, 3) it must be foreseeable that a child of that age might fail to overlook or fail to appreciate the risk, and 4) the burden of avoiding the risk is reasonable.

Question 12

What are the elements of strict liability?

Answer 12

1) the nature of the D’s activity imposed an absolute duty to make safe
2) the dangerous aspect of the activity is the actual and proximate cause of the harm
3) the P suffered damage

Question 13

What are the elements of strict liability for ultra hazardous activity?

Answer 13

1. A high degree of risk of serious harm to others
2. Risk cannot be eliminated by the exercise of reasonable care
3. Activity is not common or appropriate for the place in which it is carried on
4. Danger outweighs the activity’s value to the community

Question 14

What are the limitations on strict liability?

Answer 14

1. Only applies to foreseeable plaintiffs

2. Damage must arise from the activity’s normally dangerous propensities

Question 15

What is the rule for strict liability for injury caused by wild animals?

Answer 15

A D will be held strictly liable for injuries caused by wild animals so long as the plaintiff did nothing consciously to provoke the animal and so long as the injury is consistent with the animal’s dangerous propensities.

Question 16

What is the rule for strict liability for injury caused by domestic animals?

Answer 16

A D will not generally be held strictly liable for injuries caused by domestic animals unless the D knew or should have known of the animal’s dangerous propensities.

Otherwise, negligence may apply.

Question 17

What are the 2 exceptions for strict liability for animals?

Answer 17

Zoos and parks

Question 18

What are the types of vicarious liability?

Answer 18

1. Respondent superior
2. Joint enterprise
3. Automobile owner and driver

Question 19

What is vicarious liability?

Answer 19

Vicarious liability imposes liability on a third person who is held responsible for a tortfeasor’s actions based upon a special relationship. The types of special relationships include family relationships, employment relationships, and joint ventures.

Question 20

What is respondeat superior and what are the elements?

Answer 20

Respondeat superior imposes liability on an employer for the torts committed by an employee, regardless of fault. The employer will be held liable when:

1) the tortfeasor was acting within the scope of the employment
2) the action was furthering the benefit of the employer

Question 21

What are the limitations of respondeat superior?

Answer 21

Frolic and detour:
Traditionally- employer is only liable if accident occurred while returning to business from frolic
Modern- employer is liable if detour is reasonably foreseeable
Employer gen. not liable for intent. torts unless it furthers the business
Commuting to work is generally outside the scope of employment

Question 22

What is the rule for independent contractors under respondeat superior doctrine?

Answer 22

Employers are generally not liable for torts committed by independent contractors unless: NUN

1) non-delegable duty
2) ultra hazardous
3) negligent hiring

Question 23

What is joint enterprise and what are the elements?

Answer 23

All members of a joint enterprise are vicariously liable for the torts of one another where: MAC

1) there is mutuality of control
2) members are acting in agreement
3) there is a common pecuniary purpose

Question 24

Automobile owner and driver liability

Answer 24

Majority: auto owner is NOT vicariously liable for conduct of another person who drives the car
Minority: car owner liable for tortious conduct, torts committed by household family members, negligent parents

Question 25

What is proximate cause?

Answer 25

Proximate cause is the element of negligence which determines whether the the type and extent of the injuries were reasonably related to the breach of the duty of care.

Question 26

What is an intervening cause?

Answer 26

A force that comes into play after the tortious conduct causing injury and does not necessarily break the chain of causation that would bar a P from establishing prox cause

Question 27

What is a superseding cause?

Answer 27

The type of intervening force which breaks the chain of proximate causation between D’s negligence and P’s harm and thus absolves the D of legal responsibility

Question 28

Rescue Doctrine

Answer 28

Justice Cardozo famously said, “danger invites rescue.” Rescue is a foreseeable response to a D’s act and will generally not be considering superseding unless the rescue was grossly negligent. D may be liable to person being rescued and rescuer.

Question 29

What is the foreseeability test with regard to intervening cause?

Answer 29

Generally courts use a foreseeability test to determine whether a particular cause is intervening.

1) if D should have foreseen the possibility of the occurrence
2) whether the kind of harm was foreseeable

Question 30

Foreseeable intervening causes

Answer 30

The negligence of third persons may be an intervening force that is sufficiently foreseeable and will not relieve D of liability

Question 31

Foreseeable negligence

Answer 31

The negligence of third persons may similarly be an intervening force that is sufficiently foreseeable and will not relieve D of liability

Question 32

Criminal conduct or intentional torts

Answer 32

Criminal conduct or intentional torts may be foreseeable and not superseding
—But most courts are likely to find this as superseding

Question 33

Aggravation of injury from med. mal.

Answer 33

D is liable for the following medical malpractice that may occur from being treated for the injury that D caused

—unless the malpractice was gross negligence

Question 34

Unforeseeable intervention, foreseeable result

Answer 34

If an intervention is neither foreseeable or normal, but leads to the same type of harm as that which was threatened by D’s negligence, the intervention is usually NOT superseding

Question 35

Unforeseeable intervention, unforeseeable results

Answer 35

If an intervention was not foreseeable or normal, and it produced results which are not of the same general nature as those that made D’s conduct negligent, the intervention will probably be superseding