Torts (MBE, MCQ) Flashcards
How many types of negligence are there?
Three: negligence, negligence per se, res ipsa
How would you know which type of negligence they are talking about?
Because of the elements called into question!!
What are the elements of negligence?
(1) duty; (2) breach; (3) causation; (4) damages
Who do you owe a duty to?
Only to foreseeable plaintiffs
Who is a foreseeable plaintiff?
Those in the zone of danger of your potential action (i.e. if Grossman shoots a bowling ball in class, all the students are such, but not the Dean who got hit in the head b/c the ball went up the AC vents to his office)
How do you need to act if you owe a duty?
Standard of care (SOC): Reasonable person standard
SOC if you are a professional?
Like “similar professionals in the community w/similar/same training (note community NOT state)
SOC if you are a child?
Like other children of “same age and maturity”
Is there an exception to Child’s SOC?
Yes, when the child is engaged in adult-like activity
SOC of a parent?
Duty to prevent the child from committing harm when parent “knew or should have known” that the child is likely to cause harm
How would the parent know that they have a DOC from their children (fact pattern tell you)?
There is a duty if you have a “devil” child and there is an accident BUT no duty if the fact pattern child is a “tame, exemplar” kid
Is there a duty to aid others/to rescue?
NO!! You DO NOT have to come to anyone’s aid
Is there an exception to the duty to aid?
Yes. No care WILL always apply UNLESS the facts mention a special relationship (i.e. parent-child; in-keeper guests- like hotel-guest; a common carrier-if you are in a bus?)
What happens if you come to someone’s aid and start rendering care?
Although there is no duty to aid, if you begin to render aid you OWE a duty to act reasonably in such care
Do you owe a duty to someone entering your property (home)?
It depends… I know…
Duty owed to known trespassers/licensee (social guest)?
Yes, to warn about KNOWN dangers to the landowner (if you don’t know of any, you’re Gucci)
Duty owed to an unknown trespasser?
None, no duty owed
Duty owed to an invitee (business/commercial)?
Yes, to “warn, clean-up & make safe.”
Think of a banana peel in Publix
Define (2) breach
Failure to comply w/SOC
Define (3) causation
There MUST be:
(a) actual cause - but-for test (but-for tortfeasor’s actions X would not have happened); and
(b) proximate cause - foreseeability (it must have been foreseeable that D’s actions would lead to an accident)
What happens when the hypo gives you multiple subsequent injuries?
ONLY when the question asks if D would be liable for V’s subsequent injuries (crashed in the ambulance and such), you look at whether such actions were:
(1) intervening cause - separate acts that did not cut off liability b/c they are a consequence of the original injury
- - > think eye patch hypo
(2) superseding cause – ONLY unforeseeable events; thus liability would be cut off
- - > ONLY includes: (a) acts of God; (b) intentional torts; (c) criminal acts; (d) anything fact pattern tells you is unforeseeable
Hint: if facts don’t say unforeseeable –> foreseeable and D is liable!!
Define (4) damages
No injury = no negligence. Physical harm is required to meet it.
Contributory negligence
IF P is even 1% liable = NO recovery (P gets 0)
Exception to contributory negligence
Last clear chance
P can recover everything (even if P was negligent IF D had the “last clear chance” to avoid the accident and DID NOT.
