Torts - Negligence

Question 1

THINK: ESSAY OUTLINE STRUCTURE

Prima Facie Case of Negligence Headings

Hi Anni! Just think of how you would structure an essay (“headings”)

Answer 1

1. Duty
2. Breach
3. Causation
4. Damages

Question 2

Duty

“Headings”

Answer 2

1. Duty of Care
   
   • To whom?
     
     • Foreseeable π (Majority)
     • To everyone (Minority)
   • What Duty?
     
     • Common Law standard of care
       
       1. RPP/RPB
       2. Professional
       3. Children
       4. Common Carrier / Innkeeper
       5. Landowner
       6. Affirmative Duty to Act?
     • Negligence Per Se
       
       1. Π within protected class?
       2. Injury the type to be prevented?

Question 3

Breach

Headings

Answer 3

• Breach
  
  • Fact Discussion of whether ∆ met adopted standard of care
    
    1. Custom or Usage
    2. Balance risks against burdens
  • Violation of Statute—Legal effect (for Neg Per Se)
  • Res Ipsa Loquitor
    
    1. Negligence in the air
    2. Negligence attributable to ∆
    3. Π not contributorily negligent
    4. Legal effect

Question 4

Causation (2)

Headings

Answer 4

• Causation
  
  • Actual or Factual Cause
    
    1. But for
    2. Substantial factor
  • Proximate Cause
    
    1. Direct Cause
    2. Indirect cause
       - Consequence Foreseeable?
       - Intervening act or event foreseeable?

Question 5

Damages (2)

Headings

Answer 5

• Damages
  
  • General
  • Eggshell π

Question 6

Defenses

Headings

Answer 6

• Defenses
  
  • Contributory negligence = complete bar
  • Assumption of Risk = voluntarily assume a known risk
  • Comparative negligence = pure or modified

Question 7

Negligence Elements:

Answer 7

1) Duty
2) Breach
3) Causation
4) Damages

Question 8

Duty:

Answer 8

• Owed to foreseeable Plaintiffs

Question 9

Standard of Care:

Answer 9

• Reasonably Prudent Person

Question 10

SOC for Unknown Trespasser

Answer 10

• No Duty of Care

Question 11

SOC for Known Trespasser:

Answer 11

Warn of Known Dangers

Example:
o Bob walks across Jon’s lawn every morning before work

Question 12

SOC for Licensee

Answer 12

• Social Guest
• Warn of Known Dangers

Question 13

SOC for Invitee

Answer 13

• Businesses
• Warn, Inspect, & Make Safe

Example:
o Spill in a grocery store

Question 14

Duty of a Parent:

Answer 14

• Knew/Should have known that child was likely to cause harm

Question 15

No General Duty to Rescue, UNLESS

Answer 15

1) Assumption of Duty
2) Special Relationship

Question 16

What kinds of Special Relationships are there? (4)

Answer 16

• Common Carrier
• Innkeeper/Guest
• Teacher/Student
• Employer/Employee

Question 17

Duty of a Child

Answer 17

Other children of same Age, Experience, & Maturity

Question 18

Duty of a Professional:

Answer 18

• Similar professionals with the same Education, Training, & Customs

Example:
o Doctor
o Lawyer
o Professional Athlete

Question 19

Breach of Duty:

Answer 19

• Failure to comply with Duty of Care

Question 20

Actual Causation:

Answer 20

• “But for”
• Almost always met

Question 21

Proximate Causation:

Answer 21

Foreseeability

Question 22

Do you need BOTH Actual and Proximate Causation?

Answer 22

HELL TO THE MOTHAFRIGGING

YESSSSSSSSSSSSSSSSSS

Question 23

Damages
(say BarMD’s rule)

Answer 23

• 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.

Question 24

Intervening Cause:

Answer 24

• Foreseeable Event
• Pay all damages

Question 25

Superseding Cause:

Answer 25

• Unforeseeable Event
• Cuts off liability
• Act of God, Intentional Tort, Criminal Act

Question 26

Negligence Per Se:

Answer 26

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

Question 27

RES IPSA LOQUITUR

Answer 27

Res Ipsa Loquitur:
Creates an INFERENCE of negligence, if:
1) Accident would not normally occur unless
negligence
2) Defendant had Exclusive Control

Question 28

ATTRACTIVE NUISANCE + Elements (5)

Answer 28

• 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

Question 29

Pure Comparative Negligence:

DEFENSES TO NEGLIGENCE

Answer 29

Plaintiff’s damages reduced by % of fault

TIP: Assume you are in a pure comparative negligence jurisdiction, unless the facts tell you otherwise

Question 30

Modified/Modern Comparative Negligence:

DEFENSES TO NEGLIGENCE

Answer 30

• Plaintiff cannot recover if more than 50% at fault

Question 31

Contributory Negligence:

DEFENSES TO NEGLIGENCE

Answer 31

• Plaintiff cannot recover if at fault

Question 32

Last Clear Chance Exception:

DEFENSES TO NEGLIGENCE

Answer 32

• Defendant had last clear chance to avoid accident
• Defendant did not do so
• Plaintiff can recover

Question 33

Assumption of the Risk:

DEFENSES TO NEGLIGENCE

Answer 33

• Must have knowledge
• Must appreciate the danger

Question 34

JOINT & SEVERAL LIABILITY

Answer 34

• 2 or more people cause single accident
• All defendants jointly & severally liable for damages

Question 35

Contribution

Vicarious Liability:

Answer 35

• Co-defendants can sue to recoup money

Question 36

Vicarious Liability:

Answer 36

• Employer liable for Negligent Employees
• Employees acting within Scope of
  Employment

Question 37

Independent Contractors – Generally NOT Liable, unless:

Vicarious Liability:

Answer 37

Unless
1) Abnormally Dangerous Activity
2) Non-Delegable Duty

Question 38

Non-Delegable Duty:

Vicarious Liability (Indepedent Contractor)

Answer 38

• 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

Question 39

Indemnification

Answer 39

• May seek indemnification from whoever actually caused the damage