Torts - Negligence Flashcards
THINK: ESSAY OUTLINE STRUCTURE
Prima Facie Case of Negligence Headings
Hi Anni! Just think of how you would structure an essay (“headings”)
- Duty
- Breach
- Causation
- Damages
Duty
“Headings”
-
Duty of Care
-
To whom?
- Foreseeable π (Majority)
- To everyone (Minority)
-
What Duty?
-
Common Law standard of care
- RPP/RPB
- Professional
- Children
- Common Carrier / Innkeeper
- Landowner
- Affirmative Duty to Act?
-
Negligence Per Se
- Π within protected class?
- Injury the type to be prevented?
-
Common Law standard of care
-
To whom?
Breach
Headings
-
Breach
-
Fact Discussion of whether ∆ met adopted standard of care
- Custom or Usage
- Balance risks against burdens
- Violation of Statute—Legal effect (for Neg Per Se)
-
Res Ipsa Loquitor
- Negligence in the air
- Negligence attributable to ∆
- Π not contributorily negligent
- Legal effect
-
Fact Discussion of whether ∆ met adopted standard of care
Causation (2)
Headings
-
Causation
-
Actual or Factual Cause
- But for
- Substantial factor
-
Proximate Cause
- Direct Cause
- Indirect cause
- Consequence Foreseeable?
- Intervening act or event foreseeable?
-
Actual or Factual Cause
Damages (2)
Headings
-
Damages
- General
- Eggshell π
Defenses
Headings
-
Defenses
- Contributory negligence = complete bar
- Assumption of Risk = voluntarily assume a known risk
- Comparative negligence = pure or modified
Negligence Elements:
1) Duty
2) Breach
3) Causation
4) Damages
Duty:
- Owed to foreseeable Plaintiffs
Standard of Care:
- Reasonably Prudent Person
SOC for Unknown Trespasser
- No Duty of Care
SOC for Known Trespasser:
Warn of Known Dangers
Example:
o Bob walks across Jon’s lawn every morning before work
SOC for Licensee
- Social Guest
- Warn of Known Dangers
SOC for Invitee
- Businesses
- Warn, Inspect, & Make Safe
Example:
o Spill in a grocery store
Duty of a Parent:
- Knew/Should have known that child was likely to cause harm
No General Duty to Rescue, UNLESS
1) Assumption of Duty
2) Special Relationship
What kinds of Special Relationships are there? (4)
- Common Carrier
- Innkeeper/Guest
- Teacher/Student
- Employer/Employee
Duty of a Child
Other children of same Age, Experience, & Maturity
Duty of a Professional:
- Similar professionals with the same Education, Training, & Customs
Example:
o Doctor
o Lawyer
o Professional Athlete
Breach of Duty:
- Failure to comply with Duty of Care
Actual Causation:
- “But for”
- Almost always met
Proximate Causation:
Foreseeability
Do you need BOTH Actual and Proximate Causation?
HELL TO THE MOTHAFRIGGING
YESSSSSSSSSSSSSSSSSS
Damages
(say BarMD’s rule)
- physical damage
A plaintiff can recover for all damages (past, present, and prospective) including
economic (medical, property damages, etc.) and non-economic (pain and suffering). The plaintiff’s non-economic damages include damages mental distress over a physical injuryGenerally, punitive damages are not available in a negligence action unless the defendant acted wantonly, willfully, maliciously, or recklessly.
NOTE: If the property is totally destroyed, the measure of damages is the fair market value of the property.
Intervening Cause:
- Foreseeable Event
- Pay all damages
Superseding Cause:
- Unforeseeable Event
- Cuts off liability
- Act of God, Intentional Tort, Criminal Act
Negligence Per Se:
1) Violation of ordinance/statute
2) Injured party is of protected class
3) Injury is of the type statute was trying to prevent
TIP: Never pick a negligence answer choice to a negligence per se question
RES IPSA LOQUITUR
Res Ipsa Loquitur:
Creates an INFERENCE of negligence, if:
1) Accident would not normally occur unless
negligence
2) Defendant had Exclusive Control
ATTRACTIVE NUISANCE + Elements (5)
- Artificial Condition causing Children to Trespass
Elements of Attractive Nuisance:
1) Owner knows of Child Trespassers
2) Unreasonable Risk of Harm
3) Children cannot Appreciate the Risk
4) Cost of Remedy is Less than the Danger
5) Owner Fails to Make Safe
Pure Comparative Negligence:
DEFENSES TO NEGLIGENCE
Plaintiff’s damages reduced by % of fault
TIP: Assume you are in a pure comparative negligence jurisdiction, unless the facts tell you otherwise
Modified/Modern Comparative Negligence:
DEFENSES TO NEGLIGENCE
- Plaintiff cannot recover if more than 50% at fault
Contributory Negligence:
DEFENSES TO NEGLIGENCE
- Plaintiff cannot recover if at fault
Last Clear Chance Exception:
DEFENSES TO NEGLIGENCE
- Defendant had last clear chance to avoid accident
- Defendant did not do so
- Plaintiff can recover
Assumption of the Risk:
DEFENSES TO NEGLIGENCE
- Must have knowledge
- Must appreciate the danger
JOINT & SEVERAL LIABILITY
- 2 or more people cause single accident
- All defendants jointly & severally liable for damages
Contribution
Vicarious Liability:
- Co-defendants can sue to recoup money
Vicarious Liability:
- Employer liable for Negligent Employees
- Employees acting within Scope of
Employment
Independent Contractors – Generally NOT Liable, unless:
Vicarious Liability:
Unless
1) Abnormally Dangerous Activity
2) Non-Delegable Duty
Non-Delegable Duty:
Vicarious Liability (Indepedent Contractor)
- Duties that involve safety or benefit of the public
EXAMPLE:
Non-Delegable Duty:
o Chop off ice on sidewalk
o Clean windows
o Polish floor in office building Not a Non-
Delegable Duty:
o Redoing Jon’s bathroom
Indemnification
- May seek indemnification from whoever actually caused the damage
