Torts - Negligence

Question 1

MBE Tip: How many types of negligent questions are there?

Answer 1

1. Good old fashioned negligence
2. Negligence per se
3. Res Ipsa

They have nothing to do with one another, totally separate.

Question 2

What are the elements of negligence?

Answer 2

The elements of the prima facie case for (good old fashioned) negligence are as follows:

1. The defendant owed a duty to the plaintiff to conform to a specific standard of care;
2. The defendant breached that duty;
3. The breach was the actual and proximate cause of the plaintiff’s injuries; AND
4. The plaintiff sustained actual damages or loss.

Question 3

For lay people, what duty is owed?

Answer 3

If lay person, must act as Reasonably prudent person under the circumstances

Question 4

For lay people, to whom is duty owed?

Answer 4

A duty of care is owed to all foreseeable plaintiffs that may be harmed by the defendant’s breach of the applicable standard of care.

1. To foreseeable plaintiffs within foreseeabe zone of danger
2. minority rule, D owes duty to everyone harmed

Question 5

What duty is owed to unknown trespasser?

Answer 5

No duty of care owed.

Question 6

What duty is owed to known trespassers?

Answer 6

The duty to warn of known dangers.

Discovered or anticipated trespassers enter the land without consent, but may be expected by the landowner. The landowner owes a duty to discovered/anticipated trespassers to warn of (or make safe) hidden dangers on the land that pose a risk of death or serious bodily harm (only applies to artificial conditions that the landowner is aware of).

Must know of the trespasser; must know of the dangers
If both, then have duty to warn the known trespassers of known dangers.

Watch out for dangers that D did or did NOT know about; if didn’t know about the danger, then don’t owe a duty of care to the known trespasser.

Question 7

What duty is owed to a licensee?

Answer 7

You owe the duty to warn of KNOWN DANGERS

Question 8

What is a licensee?

Answer 8

Licensee = social guest; personal relationship (eg, come watch a game or eat BBQ)

Licensees. A licensee is a person who lawfully enters the landowner’s
property for her own purpose or benefit, rather than for the landowner’s benefit (e.g., social guests). The landowner has NO duty to inspect his property for licensees. However, the landowner does owe a duty to licensees to warn of (or make safe) hidden dangers on the land that pose an unreasonable risk of harm (applies to both artificial and natural conditions that the landowner is aware of).

Question 9

What is an invitee?

Answer 9

THINK BUSINESS. a customer or something.

An invitee is a person who is invited on the property for the owner’s own benefit or mutual benefit with the invitee (e.g., a customer shopping in a store that is open to the public).

Question 10

What duty is owed to invitee?

Answer 10

The landowner owes a duty to the invitee to reasonably inspect the land for hidden dangers (artificial or natural) that pose an unreasonable risk of harm, and if discovered, make them safe (e.g., installing a warning sign, fixing the hidden danger, etc.).

if you now of the banana peel, not enough to tell pepole about it, must go clean it up.

Question 11

when a business or other land-possessor holds its land open to the public, the land-possessor owes the public a duty…

Answer 11

…to use reasonable care to keep the property in a safe condition.

Question 12

Where a possessor of land owes such a duty of care, that duty cannot be…

Answer 12

… delegated to an independent contractor who will do repairs, at least if the possessor retains possession of the premises during the repair activity.

Question 13

Is An owner of land who has created or negligently permitted to remain on the land a structure or other artificial condition which involves an unreasonable risk of harm to others outside of the land subject to liability to such persons for physical harm caused by the condition after the landowner has sold the property and the new owner has taken possession?

Answer 13

Yes, A vendor of land who has created or negligently permitted to remain on the land a structure or other artificial condition which involves an unreasonable risk of harm to others outside of the land . . . is subject to liability to such persons for physical harm caused by the condition after his vendee has taken possession of the land.

EG, sold house, had slates on roof loose and one comes off and strikes a pedestrian, is old owner (who sold and no longer on premises) liable?
YES, if he should have been aware of the condition of the roof and should have realized that it was dangerous to a person outside the premises.

Question 14

In the example of the slate falling off roof, and old seller being held liable if he should have known about the danger to pedestrians, when does his liability end?

Answer 14

Except in the case where the vendor knowingly conceals the defect, the vendor’s liability under § 373(1) continues “only until the vendee has had reasonable opportunity to discover the condition and to take . . . precautions.”

Question 15

How do some states (not traditional approach) approach invitees v. licensee and the duty owed to each?

Answer 15

Several states have rejected the traditional approach distinctions between licensees and invitees simply applying a reasonable person standard to landowners. In these states, landowners owe the same duty of reasonable care to ALL entrants on their land regardless of their status as invitees or licensees (although, status of the entrant may still be relevant to determine reasonableness under the circumstances).

Question 16

What duty is owed from children?

Answer 16

Children are held to the standard of care of a reasonably prudent child of similar age, experience, and intelligence under the circumstances (more subjective). However, if the child is engaged in adult activity (e.g., operating a crane), the court will NOT take the child’s age into account (i.e., the child will be held to an “adult” standard).

Question 17

What duty of care is owed by parents over their children?

Answer 17

Note: if child is known to have a necessity ( knew or should have known that kid could cause damage and parent knew they needed to do something to prevent harm) to exercise more care that a reasonable parent would have udner the circ’s, then that is the duty owed by parent

Question 18

Is there a duty to come to someone’s rescue?

Answer 18

No, if you do nothing, then not liable for anything. And in general, no duty to act affirmatively or help others.

But there are exceptions:

1. If you do start to rescue someone, then you owe them reasonable care.
2. If there is a special relationship (airplane/passenger common carriers, teacher/student, employer/employee, innkeeper/guest (hotel owes you duty to come to aid), parent/kid, husband/wife)
3. If you caused the danger, you have duty to act; OR
4. If there is a duty to act affirmatively imposed by law

Question 19

So if I start to rescue someone, then stop, but didn’t make the victim’s situation any worse, am I liable?

Answer 19

No, if the rescuer did not in any way make the victim-plaintiff’s situation any worse, the rescuer is not liable.

eg, in the middle of nowhere, i see someone suffering in a field, i go to examine, then decide to leave without doing anything to better or worsen the situation; later someone runs them over. Am I liable?
Nope, as long as didn’t do anything to make their situation worse.

Question 20

What is the reasonable person standard?

Answer 20

The standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard. The defendant is presumed to have average mental abilities and knowledge.

NOTE. The reasonable person standard is the default standard of care. It should be applied unless a special standard of care applies (e.g., children, professionals, physicians, landowners, negligence per se, etc.).

Question 21

Are community customs relevant to determining reasonabless?

Answer 21

Yes, Community Customs. Community customs may be relevant in determining reasonableness, but they are NOT dispositive.

Question 22

What is the reasonable person standard for individuals with physical disabilities?

Answer 22

Physical Disabilities. Particular physical disabilities may be taken into account (e.g., blindness, deafness, etc.). E.g., the standard of care for a blind person would be that of a reasonably prudent blind person under the circumstances as measured by an objective standard.

Question 23

What is the reasonable person standard for intoxicated individuals?

Answer 23

Intoxicated people are held to the same standard as sober people UNLESS
the intoxication was involuntary.

Question 24

What duty of care is owed by professionals?

Answer 24

A professional (e.g., nurses, lawyers, accountants, engineers, architects, etc.) is expected to exhibit the knowledge and skill of a member of the profession in good standing in similar communities.

Question 25

As to “similar communities” in standard of care for professionals, what does this require?

Answer 25

No locality requirement, either in their direct community, state, or nation. Just requires the minimum common skill of members in good standing in their profession.

The locality requirement is old concept and just one factor (not dispositive) used by modern courts.

Question 26

If lawyers failed to file in time for statute of limitations, do we need expert witness to testify as to the lawyer’s standard of care?

Answer 26

No. This is a simple timeliness issue and the jury may reoly on their common knowledge as to whether there was a breach.

Under FRE 702, expert testimony is only necessary where the court determines that “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Determining whether the two attorneys missed their deadline would not be the kind of matter necessarily meriting expert testimony.

Question 27

What duty of care is owed by physicians?

Answer 27

Physicians are held to a national standard of care and have a duty to disclose the risks of treatment to enable a patient to give informed consent. This duty is only breached if an undisclosed risk was so serious that a reasonable person in the patient’s position would not have consented upon learning of the risk.

Question 28

What duty of care is owed by psychotherapists?

Answer 28

Psychotherapists. In the majority of states, psychotherapists have a duty to warn potential victims of a patient’s serious threats of harm if the patient has the apparent intent and ability to carry out such threats and the potential victim is readily identifiable.

Question 29

What duty do landowners owe to child trespassers? (aka, attractive nuisance doctrine)

Answer 29

A landowner owes a duty to child trespassers to warn of (or make safe) artificial conditions on the land, provided that:

1. The artificial condition exists in a place where the landowner knows or has reason to know that children are likely to trespass;
2. The landowner knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm;
3. The children, due to their age, do NOT appreciate the danger involved; AND
4. The risk of harm outweighs the expense of making the condition safe. (and the landowner hasn’t done anything to make it safe)

Get these elements down, because these questions can be tricky.

Question 30

What types of causation are there?

Answer 30

In order to prove negligence, the plaintiff must show that the defendant’s conduct was
BOTH the actual AND proximate cause of the plaintiff’s injury.

Question 31

What is actual cause?

Answer 31

Actual Cause. To prove actual cause, the plaintiff must show that her injury would not have occurred BUT FOR the defendant’s breach.
Substantial Factor Test. However, if traditional “but for” causation cannot be shown, most courts are willing to implement a “substantial factor” test. Under a substantial factor test, actual cause can be established if the defendant’s breach was a substantial factor in bringing about the plaintiff’s harm.

Question 32

What is proximate cause?

Answer 32

Proximate Cause. To prove proximate cause, the plaintiff must show that her injury was a foreseeable result of the defendant’s conduct. An intervening cause is an outside force or action that contributes to the plaintiff’s harm after the defendant’s breach has occurred. If the intervening cause is unforeseeable, it is a superseding cause and the defendant’s liability to the plaintiff will be cut off from that point forward. Further negligent acts are considered foreseeable (e.g., medical malpractice). Criminal acts, intentional torts, and nature-induced “acts of god” are considered unforeseeable.

For Example: Vic breaks his wrist in a car accident that was caused by Don’s negligent driving. Minutes after the accident, Vic loses his arm when he is struck by a falling meteorite. The meteorite falling from the sky is a superseding cause (because it is unforeseeable) that cuts off Don’s liability.

Question 33

Say it again for those in the back: FURTHER NEGLIGENT ACTS ARE CONSIDERED FORESEEABLE

Answer 33

It’s the criminal, intentional, and nature-induced acts that are considered unforeseeable.

Hence, if i go to rescue someone and then police comes, and on the way back to my car, someone speeding (and driving negligently, but not intentionally) hits me, is the person whose negligence caused the rescue situation (eg, negligent design caused a rollover in a car) still liable for my injury?
YES. BC DANGER INVITES RESCUE AND FURTHER NEGLIGENT ACTS ARE FORESEEABLE.

Question 34

So negligence stemming from negligent acts is foreseeable for the purposes of liability to original tortfeasor, right? Not criminal acts, right? Well, what if the criminal acts were foreseeable in some way?

Answer 34

The original negligent tortfeasor WILL BE LIABLE FOR CRIMINAL ACTS.

When a tortfeasor should have realized the likelihood of the crime at the time of his negligence, he may be liable for the criminal acts of a third party. The issue of foreseeability is generally a question for the jury, so we must look closely at the facts of this question.

eg, it was a “high-crime neighborhood” and “there had been many thefts of tools and equipment from the construction area” and I negligently leave a trench unguarded and truck falls in and someone steals from the truck. am i liable for stolen goods? YES.

Question 35

In terms of foreseeability, does the later injury have to be foreseeable to D?

Answer 35

NO. just has to be a normal consequence, does not have to be foreseeable at the time of injury to D.

Question 36

NOTE. Courts have long held that injuries sustained when running from danger are…

Answer 36

foreseeable and that injuries sustained to the rescuer during a rescue attempt are foreseeable (“danger invites rescue”).

Question 37

If rescuer sustains no physical injury in the course of rescue, is the negligent tortfeasor liable to rescuer?

Answer 37

No, while it is true that one who negligently injures another is liable to rescuers who are physically injured in the course of the rescue, not liable if the bystander was not physically injured.

Question 38

Is one who negligently causes an initial injury to another is also liable for a second injury to the other that is a normal consequence of the initial injury?

Answer 38

Yes, per the “normal consequence test”:

“If the negligent actor is liable for an injury which impairs the physical condition of another’s body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other’s condition not been impaired, and which is a normal consequence of such impairment.”

Thus, if i negligently break your knee causing a hitch in your knee, and six months from now, your knee buckles and you fall down a flight of steps, am I liable for the first injury AND the stairs injury?
YES, as the second injury woul dnot have occurred had P not been impaired by knee injury, and a knee buckling causing a fall is a normal consequence of such impairment.

Question 39

What is the Fireman’s Rule?

Answer 39

Fireman’s Rule. The fireman’s rule generally bars lawsuits by police officers and firefighters from collecting on damages that occur in the course of their duties even if the injuries were a clear result of the other party’s negligence.

Question 40

If doctor fails to follow accepted medical practice, what else is also required?

Answer 40

The claim would still require a causal link between the surgeon’s asserted negligence and the injury to the patient.

eg, dr fails to consult with cardiologost, as accepted medical practice dicates, only liable if, had cardio examined patient, cardio would probably have provided advice that would have changed the outcome for patient.

Question 41

What is subsequent negligent acts occur after my negligent act?

Answer 41

EG, i smash into you negligently, then ambulance messes up, then doctor messes up, so what of it? is D liable for all damages down the line?

If other things that occurred after are intervening but not foreseeable, then D liable
If other things that occurred after are superceding (not foreseeable, ie, act of God, intentional tort, or crime, or anything the F pattern says is unforeseeable), then D NOT liable for anything after that cause.

Question 42

What is the Eggshell Plaintiff Rule?

Answer 42

Under the eggshell plaintiff rule (“take your victim as you find him rule”), the defendant is liable for ALL harm suffered by the plaintiff, even if the plaintiff suffered from an unforeseeable, preexisting mental or physical condition that aggravates the harm.

Question 43

What is negligence per se?

Answer 43

This is completely different than normal negligence.

1. When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se if the plaintiff:
2. Is in the class of people meant to be protected by the statute; AND
3. Suffers the type of harm the statute was designed to protect against.

Question 44

Tips for negligence per se questions

Answer 44

If it’s a negilgence per se question (which you’ll know because you’ll see a statute), then do not talk about duty, breach, cause, damages, just look at the elements above.

eg, hit little boy in school zone and there’s a statute that says if you hit little kids in school zones, you’re negligent per se. then you’re negligent per so.
if you swerve and hit an old lady in school zone in same F pattern, then no negligence per se, because old lady is not in class statute meant to protect.

NOTE. If a statute is given to you in the fact pattern of a torts essay question, you MUST discuss negligence per se as the applicable standard of care.

Question 45

When is D liable for negligence per se?

Answer 45

The defendant will only be liable under negligence per se if his violation of the statute was the proximate cause of the plaintiff’s injury.

IE, even if found to be negligent due to negligence per se, P must still prove causation. So in ocean liner example, no life boats as statutorily mandated, but P swept off boat due to roughness of storm and storm so rough lifeboats would not have been able to be launched. Here, ocean liner not liable because life boats could not have been launched (and therefore, though negligent per se, no causation as to P’s death).

Question 46

MEE Tip:

Answer 46

If a statute is given to you in the fact pattern of a torts essay question, you MUST discuss negligence per se as the applicable standard of care.

Question 47

MBE Tip: Examiners will go out of their way to not say “negligence per se” so what you do is…

Answer 47

Look for a statute to tip you off, and

look for phrases in the question or answer choices like: “violation of a statute that was meant to protect against this type of occurrence”

Question 48

Damages requirement for neglience (duty, breach, causation, damages)?

Answer 48

If no harm done, even if you had duty, breached that duty, caused what happened…if no harm done, there are no damages, and so no negligence.

No injury/harm, no damages, no negligence. (maybe another tort, but not negligence, so if that’s what they’re asking you about, then shut up and pick it.)

Question 49

Can I recover punitive damages for another’s negligence?

Answer 49

No, punitive damages are not available in ordinary negligence cases.

Question 50

What is res ipsa loquitur?

Answer 50

RIL has nothing to do with negligence or negligence per se in the sense that it requires completely different elements.

Res ipsa loquitur (“the thing speaks for itself”) is applied when an element of negligence is difficult to prove, but the circumstances make it obvious that the defendant’s negligence was the most likely cause of the harm. In order for res ipsa loquitur to apply, the plaintiff must show that the accident resulting in the harm was:

1. Of a kind that ordinarily does not occur in the absence of negligence; AND
2. Caused by an agent or instrumentality within the defendant’s exclusive control.

eg, Dr leaving scalpel in the stomach; flower pot falling off windowsill)

Some jurisdictions also require that the injury was NOT due to any action on the part of the plaintiff.

Question 51

MBE Tip

Answer 51

Res Ipsa Loquitur is ALL ABOUT INFERRING NEGLIGENCE.

If the RIL elements are present, then raises an inference that negligence occurred.

LOOK FOR: one or both parties make motion for summary judgment/directed verdict/etc and asking whether jury could conclude/infer negligence.

if possible something happened, then answer is Yes, because jury could conclude negligence

if F’s show nothing D did wrong and no evidence, then answer is No, because jury could not conclude negligence

eg, hit by flower pot and I look up and see one open window = fulfills RIL elements
eg, passing by hotel and a million windows open = not exclusive control = does not fulfill RIL elements

Question 52

MBE TIP res ipsa eg

Answer 52

a surgical patient who was injured while under anesthesia was able to show that his injuries would not have happened without negligence by some member of the surgical team, but could not show which member was likely negligent. In Ybarra, the court placed on every defendant who had at any point had control of an instrumentality that could have been responsible for the injury the burden of coming forward with at least an initial explanation of who was negligent. Most modern courts follow the approach of Ybarra, at least in the narrow surgery-under-anesthesia context.

So with res ipsa, P able to survive a motion for summary judgment by D’s even though unable to show specific evidence of negligence by any particular D because able to show that at least one of the Ds had control over whatever agency or instrumentality caused P’s injury.

Question 53

For RIL, can you apply it to a tenant without bringing in the owner of the building?

Answer 53

Absolutely, as long as the instrument causing the injury was within the tenant’s exclusive control.
In many cases, the landlord does not have control of what’s going on on the land, so in the absence of some control by landlord, not necessary to bring in the landlord for the purposes of a RIL claim and can sue tenant only.

Question 54

Under the doctrine of respondeat superior, an employer (principal) may be liable for torts committed by an employee (agent) if:

Answer 54

An employer-employee relationship exists (NOT an independent contractor relationship); AND

The employee’s commission of the tort occurs within the scope of employment.

Question 55

In determining whether an employer-employee relationship exists, the most important consideration is

Answer 55

the extent of control that the principal exercises over the details of the agent’s work (the more control the principal exercises over the agent, the higher the likelihood that the agent will be considered an employee as opposed to an independent contractor).

Question 56

Activity is within the scope of employment when…?

How do courts make this determination?

Answer 56

the employee’s conduct is of the same general nature as that authorized, or incidental to the conduct authorized by the employer.

In making this determination, courts examine whether the employee’s conduct was:

1. A function for which the employee was hired to perform;
2. Within the employer’s authorized time and space limits;
3. Conducted to serve the employer; AND
4. Foreseeable to the employer.

Question 57

Are employers liable for acts of independent contractors?

Answer 57

Generally no. But if work being done by indy K-er is abnormally dangerous, then employer will be liable.
Look for this in the F’s, or in the answer as a definition.

Also, if work being done is a non-delegable duty (eg, any work done for benefit or safety of public at large; eg, someone cleaning sidewalks; getting ice off road; someone polishing/waxing floor; look for walking, safety, benefit, welfare, where would help PUBLIC at large, that’s a non-delegable duty), then employers can be held liable.

Question 58

If employee takes detour, is employer liable for their negligence?

Answer 58

The employer remains liable during an employee’s detour (i.e., a minor deviation from the scope of employment), even if the detour is mainly for the employee’s own personal reasons. However, the employer does NOT remain liable during an employee’s frolic (i.e., a major deviation from the scope of employment).

Question 59

Are employers liable for intentional torts of employees?

Answer 59

No, UNLESS:

1. The intentional tort was authorized by the employer; OR
2. Force is within the scope of employment in the employee’s work (e.g., security guards).

Question 60

Are business partners liable for one another’s negligence?

Answer 60

Yes, the negligence of one business partner can be imputed on other business partners IF it is committed within the scope of the business’s purpose.

Question 61

When two or more parties are jointly and severally liable…

Answer 61

…each party is independently liable for the full extent of the damages stemming from the tortious act.

Thus, if a plaintiff wins a money judgment against jointly and severally liable defendants, the plaintiff may collect the full value of the judgment from any one of them.

Question 62

Joint liability applies where…

Answer 62

…the damages are not divisible between tortfeasors, making each defendant liable for all the damages (some states apply the rule of contribution to negligent joint tortfeasors, such that a negligent joint tortfeasor who pays a judgment can recover pro rata shares from the other tortfeasors).

Question 63

Several liability applies where…

Answer 63

… the damages are divisible, making each defendant liable only for the damages he caused.

Question 64

In joint and several liability, what is contribution?

Answer 64

Contribution. Contribution allows a defendant who pays more than his share of the total liability to recover from the other liable defendants (cannot recover more than the other liable defendant’s percentage share of fault – based on a pure comparative fault theory).

One D will be suing another D for contribution, that’s how you’ll see it.

Question 65

Gun example to remember joint v several liability

Answer 65

Say two people are fighting over a gun and it goes off, injuring a plaintiff. This is joint liability, because there’s no way to apportion liability. If two people, each of whom has a gun, shoot a plaintiff, causing two separate injuries, then the damages can be apportioned, and there’s several liability.

Question 66

If a plaintiff cannot identify with specificity which among multiple defendant’s caused his harm, alternative liability allows…

Answer 66

the plaintiff to shift the burden of proving causation to the defendants (even though only one of them could have been responsible).

Question 67

In torts, indemnification usually arises…?

Example?

Answer 67

in situations involving vicarious liability or strict liability. Indemnification allows a passive tortfeasor who was forced to pay damages to recover a complete reimbursement from an active tortfeasor.

For Example: An employer is held vicariously liable for an employee’s negligence under respondeat superior and is required to pay the full amount of damages. The employer could seek indemnification from the employee because the employee was the active tortfeasor (the employee actively committed the negligent act), and the employer was the passive tortfeasor (the employer is only liable vicariously).

Question 68

What is distinction between contribution and indemnification?

Answer 68

contribution: two D’s at fault
v.
indemnification: two D’s, but one is actively at fault and one is only passively at fault (because they are the employer or something)

Question 69

What is default fault theory for MBE

Answer 69

pure comparative fault

Question 70

What is pure comparative fault?

Answer 70

Under pure comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence (e.g., if the jury finds the plaintiff is 95% at fault, the plaintiff can recover 5% of her damages).

Question 71

What is modern/modified comparative fault?

Answer 71

P still recovers but damages will be reduced, but if more than 50% responsible, that cuts it off and P gets nothing.

Question 72

What is contributory negligent?

Answer 72

If P was just 1% responsible, that cuts it off P’s ability to recover damages and P gets nothing.

Exception: last clear chance rule: if D had the last clear chance to avoid the injury and failed to, then P can recover their damages

Exception: D engaged in wanton and willful misconduct

Question 73

Is contributory negligence a valid defense for intentional torts?

Answer 73

Contributory negligence is NOT a valid defense for intentional torts.

Question 74

What is the assumption of risk defense to negligence?

Answer 74

Assumption of risk is a defense to negligence that applies when a party knowingly and willingly embraces a risk for some purpose of his own (similar to consent in intentional torts).

Assumption of risk may be express or implied.

NEVER PICK answer that says assumption of risk unless they tell you or suggest clearly in the facts that that’s what they’re talking about. (eg, D knew and did it anyway…)
This is a classic teaser.