Quiz 9 Content (Test 2) Flashcards
Tort of Negligence: Facet 1A
a) existence of a duty of care owed by Δ to π (always determined by a judge, legal issue)
- every person has to act as a reasonably prudent person would under the circumstances
- special duties of care: parent & child, doctor & patient, innkeeper & guest, employer & employees, school & students, landlord & tenants, public biz & customers
- landowner’s duty of care
b) breach of duty, by unreasonable behavior of Δ (jury decision b/c factual, look at factors [don’t have to prove all]; probability that harm would occur, seriousness of resulting harm, cost of taking precautions to reduce risk)
c) actual cause, causation in fact (“but for” test, did the injury occur bc of Δ’s conduct, or would it have occurred anyway?, but could go on forever, not fair to pin all chain of events on Δ
d) proximate cause (limits but for test to injuries that were foreseeable from Δ’s conduct)
e) an actual injury/loss/harm (must prove)
negligence
when a person who has a duty to act reasonably acts carelessly & causes injury to another
landowner’s duty of care
- if you own land, you owe duties to people who come onto your land, depends on why π was there in the 1st place
- trespasser: no duty, unless a property owner should know that children may trespass, if a harmful condition exists, duty to protect kids by fixing/making inaccessible
- licensee: someone you invited to house, social guest, exception: duty to warn of any known dangers which the licensee is unlikely to discover
- invitee: public biz guests, owed highest duty, duty to warn of unknown dangers & inspect premises, erect safeguards if necessary
when do you have a duty to save someone in peril?
you don’t, unless this duty is created by the Δ’s control over the situation that gave rise to the injury, & the π’s vulnerability to the harm
superseding event
something that intervenes after Δ’s negligent act which causes additional damages
Tort of Negligence: Facet 1B
- special negligence statutes (must prove all mere first!!)
- res ipsa loquitur
- negligence per se
- gross negligence
- vicarious negligence
- employer negligence
res ipsa loquitur
- event causing damage is one that ordinarily does not occur in the absence of negligence (“speaks for itself”)
- π must prove: event is a kind that doesn’t normally occur in the absence of negligence,
Δs (often >1) had exclusive control over the instrumentality that caused the harm, event was not due to the fault of the π, all the evidence that explains the incident is more readily available to the Δs rather than the π, π always has to show injury
negligence per se
- state statute clearly sets out the expected standard of conduct, and a Δ who violates this statute is automatically considered to have breached their duty as a matter of law
- must prove causation & injury
- ex: serving alc to <21
gross negligence
- more serious forms of negligent conduct
- π must establish all the elements of mere negligence 1st
- π must establish that the Δ acted in reckless disregard of, or w/ a lack of substantial concern for the rights of others
- if you prove this one, can get punitive damages (no P damages for mere neg)
vicarious negligence
- unique form of negligence which permits another person/co other than the Δ to be held responsible for the negligent conduct
- ex: employers can also be liable for employee conduct (gives π more $ w/ lawsuit, “deep pockets”)
employer negligence
- actions/omissions by employers that lead to property damage, loss, theft, illness, injury, wrongful death
- workplace negligent hiring
- negligent retention
- negligent training & supervision
- failure to provide property safety equipment
- refusal to eliminate an imminent danger
- failure to maintain/repair tools & heavy equipment used to perform work
Tort of Negligence: Facet 2
states recognize ONE of these 2:
1) contributory negligence = (4 states, VA), π was also at fault, causing their own injuries, π gets nothing in lawsuit
2) comparative negligence:
PURE = looks at how much fault the π & Δ have, if π has X% fault, that percentage is subtracted from $ reward (Ex: π is found to be at 40% fault for crash, so awarded $60k instead of $100k)
MODIFIED = same as pure up until 50%, if π is >50% at fault, π gets nothing
3) assumption of risk (Δ must prove π had knowledge/should’ve known of the risk, π fully understood the specific risks, π voluntarily assumed the risk by placing themselves in the zone of danger… can only assume risks naturally associated w/ activity)
4) exculpatory agreements (agreements not to sue in tort), sign saying you can’t sue for personal injury, but CAN sue if injury unassociated w/ activity, courts dislike & will ignore if personal injury
5) SoL = 2 years
6) ResJ
Tort of Negligence: Facet 3
CPE
what is the ladder of fault?
Intentional (lots of fault)
Reckless/gross negligence (some fault)
Negligence (fault)
Strict liability (no fault)
