Torts - Negligence

Question 1

Negligence Elements

Answer 1

(1) Duty
(2) Breach
(3) Actual Cause
(4) Proximate Cause
(5) Harm

Question 2

Duties List

Answer 2

(1) Ordinary
(2) Landowner/Possesser
(3) Attractive Nuisance
(4) to Rescuer
(5) in Emergency
(6) Statutory Duty
(7) Firefighter/Common Carrier
(8) Custom

Question 3

Ordinary Duty

Answer 3

Duty to foreseeable plaintiffs to act as an ordinary, prudent, reasonable person in that situation.

Question 4

Cardozo/Andrews (foreseeable plaintiff)

Answer 4

Cardozo:
- Foreseeable plaintiffs are in the ZONE of danger of the negligent act

Andrews:
- Anyone who suffers harm proximately caused by plaintiff’s negligence - is it too attenuated?

Question 5

Foreseeability of Criminal Act

Answer 5

No duty to foresee a criminal act unless breach of duty itself foreseeably increases the risk of the criminal act occurring (then duty exists and is adequately foreseeable).

Question 6

Possessors of Land

Answer 6

NO duty to protect someone outside the premises from either natural or artificial conditions on the land, except:

Natural conditions exception–trees.

Question 7

Invitee Status

Answer 7

An invitee is on the premises for the business purpose of the owner or possessor.

Question 8

Invitee Duty

Answer 8

Inspect, discover, and make safe if owner or possessor:

(1) KNOWS or SHOULD HAVE discovered the condition and realize its dangerous;

(2) Should expect that the invitee will not discover or realize the danger or will fail to protect themselves against it.

Question 9

Licensee Status

Answer 9

A licensee is on the premises for their own purpose – e.g., a social guest, patron of a store.

Question 10

Licensee Duty

Answer 10

Duty to a licensee to repair and protect against if the owner or possessor:

(1) KNOWS OR HAS REASON TO KNOW of the dangerous condition and should expect that the licensees will not discover or realize the danger;

(2) fails to exercise reasonable care MAKE SAFE OR WARN and

(3) the licensees do not know or have reason to know of the condition or the risk involved.

Question 11

Trespasser Status

Answer 11

A trespasser is on the property without consent of the owner/possessor.

Question 12

Duty to Known Trespassers

Answer 12

The duty toward known trespassers is to adequately warn of non-obvious, dangerous artificial conditions maintained by defendant.

Question 13

Duty to Unknown Trespassers

Answer 13

The duty to unknown trespassers is limited to not engaging in wanton or willful harmful conduct.

Question 14

Attractive Nuisance

Answer 14

duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children IF:
(1) landowner KNOWS OR SHOULD HAVE KNOWN of dangerous condition,
(2) landowner knows children are frequenting the area,
(3) dangerous condition is likely to cause harm, and
(4) expense of remedy is slight compared to level of risk.

Question 15

Firefighters Rule

Answer 15

The firefighters’ rule bars firefighters and police officers and other first responders, on public policy or assumption of risk grounds, from recovering for injuries caused by the special risks of doing their job or effecting a rescue.

Question 16

Common Carriers

Answer 16

Common carriers, such as airlines and similar modes of travel, have a HEIGHTENED DUTY to use the highest degree of care to aid and assist their passengers – there is no strict liability.

Question 17

Rescuee

Answer 17

A rescuee is liable to a rescuer who is injured in the course of the rescue if the rescuee’s own negligence put them in the position of requiring a rescue

Question 18

Custom

Answer 18

Custom or usage in an industry or trade may be introduced as evidence of a duty or lack of duty.

Question 19

Duty - NIED

Answer 19

Generally, there is no duty to prevent emotional distress unless there is physical harm. Plaintiff must usually
(1) be within the zone of danger from the negligence and
(2) suffer physical symptoms from the emotional distress.

Question 20

Duty - NIED Exceptions

Answer 20

(a) closely related and present, saw the injury;

(b) special relationship between plaintiff and defendant, so that the negligence has great potential to cause emotional distress (such as physician and patient); and

(c) where defendant mishandles a relative’s corpse or

(d) erroneously states that a relative has died.

Question 21

Res Ipsa Loquitor

Answer 21

INFERENCE of breach only if

(1) defendant had control of the instrumentality of the harm; and

(2) the harm would not have occurred in the absence of negligence.

Question 22

Negligence Per Se

Answer 22

(1) the statute or ordinance must be a criminal statute;

(2) plaintiff must be a member of the class of persons intended to be protected by the statute; and

(3) the claimed harm must be the type of harm intended to be protected against by the statute.

results in conclusive presumption of breach/duty - NOT a separate cause of action, its just a different standard of care

Question 23

Order of Analysis - Negligence Per Se

Answer 23

(1) Oridnary Duty
(2) Specialized Duties
(3) Ordinary Breach
(4) Specialized Duty Breach
(5) STATUTORY DUTY & BREACH
(6) Actual & Proximate Cause
(7) Harm

Question 24

But For Cause

Answer 24

But for defendant’s breach, plaintiff would not have been injured

Question 25

Substantial Cause

Answer 25

Several causes of plaintiff’s injury, ANY OF WHICH ALONE would have caused plaintiff’s harm

plaintiff can establish breach by showing defendant’s conduct was a substantial factor in causing plaintiff’s harm.

Question 26

Proximate Cause

Answer 26

Type of harm plaintiff suffered was a FORESEEABLE result of defendant’s conduct

Question 27

Negligence Defenses

Answer 27

(1) Contributory
(2) Comparative
(3) Assumption of Risk
(4) Emergency

Question 28

Eggshell Plaintiff

Answer 28

Take your plaintiff as you find them.

Question 29

Contributory Negligence

Answer 29

Defense and a complete bar to recovery.

Question 30

Last Clear Chance

Answer 30

A plaintiff may invoke the last clear chance doctrine to avoid a finding of contributory negligence.

Question 31

Comparative Fault

Answer 31

Pure comparative:

• Pure comparative fault reduces the recovery by the percentage attributable to plaintiff’s fault.

Non-pure comparative:

• Non-pure comparative fault bars recovery if plaintiff’s fault exceeds 50%.

Question 32

Assumption of Risk

Answer 32

Plaintiff is denied recovery if he or she knows of the risk and voluntarily assumes it. (Knowing and voluntary.)

Question 33

Emergency

Answer 33

So long as defendant did not create the emergency, the duty is to act as a reasonable person would under the same emergency.

Question 34

Public Nuisance

Answer 34

(1) Interference with a COMMON PUBLIC INTEREST, and

(2) if a private party, the private party must suffer harm that is different in kind from the harm suffered by members of the public in general.

Question 35

Trespass

Answer 35

(1) Entry onto or remaining upon
(2) Land that belongs to another
(3) Without privilege or consent

Mistake NOT defense. Harm not required (but nominal damages)