Torts-Negligence

Question 1

3 kinds of negligence Q’s

Answer 1

1. (Regular) Negligence (duty + breach + causation + damages)
2. Negligence per se
3. Res ipsa loquitur

Question 2

Negligence

Answer 2

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

Question 3

Duty (generally)

Answer 3

You do NOT owe a duty to everyone, only “foreseeable P’s” (w/in “zone of danger”)
For “foreseeable P’s”, (objective) standard of care = Reasonably Prudent Person

Question 4

Duty of Land Owner

Answer 4

1. Unknown Trespasser: NO duty
2. Known Trespasser: duty to WARN of known dangers
3. Licensee (personal/social guest): duty to WARN of known dangers
4. Invitee (business patron): duty to WARN of danger, INSPECT and MAKE SAFE

Question 5

Special Duty Rules

Answer 5

1. Parent has duty to supervise/control their child if parent KNOWS (or should have known) that the child would be likely to cause harm
2. Duty to aid/rescue: No duty to aid/rescue strangers, BUT once you voluntarily begin to render aid you must proceed w/ REASONABLE CARE
3. Special Relationship w/ Party (e.g., common carrier-passenger/innkeeper-guest/teacher-student/employer-employee): heightened degree of care (e.g., conduct operations w/ reasonable care)
4. Child: liable for their own torts (parents NOT vicariously liable); has duty to act like a child of like age, intelligence, and experience (unless engaging in adult activity)
5. Professionals: duty to act like similar professionals with the same education, training, and customs in the community

Question 6

Breach

Answer 6

Failure to comply w/ Duty of Care

Question 7

Causation

Answer 7

Needs BOTH:
Actual = but-for (but for D’s actions, no harm would have occurred)
Proximate = foreseeability

Question 8

Damages

Answer 8

Actual, physical injury

Question 9

Intervening vs Superseding Causes

Answer 9

Intervening = foreseeable (does not cut off causation)
Superseding = unforeseeable (cuts off causation); if it’s (1) an act of God; (2) an intentional tort; or (3) a criminal act
*Almost EVERYTHING on the MBE (unless stated otherwise or one of 3 things above) is FORESEEABLE

Question 10

Negligence Per Se

Answer 10

(1) D violated ordinance/statute;
(2) Injured party is part of protected class the statute was designed to protect; AND
(3) Injury is the kind the statute was trying to prevent
*NEVER pick a negligence answer for a negligence per se Q!

Question 11

Res Ipsa Loquitur

Answer 11

Creates an INFERENCE of negligence, if BOTH:
(1) Whatever occurred does not normally happen absent negligence, AND
(2) D was in EXCLUSIVE control of the instrumentality
*Usually looks like a regular negligence fact pattern, but one or both parties make a MSJ motion (answer = a reasonable jury can INFER…)

Question 12

Attractive Nuisance

Answer 12

There’s an artificial condition on land causing children to trespass
(1) owner knows (or should’ve known) that the children will trespass;
(2) the condition poses an unreasonable risk of harm;
(3) the children, b/c of their age or maturity, can’t appreciate the risk involved;
(4) the utility of maintaining the artificial condition is slight compared to the risk to the children; AND
(5) owner fails to make safe

Question 13

Defenses to Negligence

Answer 13

Pure Comparative Negligence: (P also negligent, will still recover but) P’s damages will be reduced by their % of fault
Modified/Modern Comparative Negligence: P cannot recover if > 50% responsible
Contributory Negligence: P cannot recover if at fault (> 1% responsible)
Exception to Contributory Negligence/Last Clear Chance: If D had the last the last clear chance to avoid the accident but did not do so, then P can still recover
Assumption of the Risk: P had BOTH knew and appreciated the danger but proceeded anyway

Question 14

Joint & Several Liability

Answer 14

2 or more D’s caused a single accident AND we don’t know the allocation of fault btw them
ALL D’s will be jointly & severally liable for ALL damages (P can choose one to get $ from)
1 co-D can then seek CONTRIBUTION from the other co-D

Question 15

Vicarious Liability

Answer 15

Employer is liable for the NEGLIGENT acts of employee as long as employee was acting in their scope of employment
Employer is NOT liable for intentional torts of employee
*Someone who hires an independent contractor is not liable for negligent acts of contractor, unless:
(1) abnormally dangerous activity; or
(2) non-delegate duty (work that involves safety or benefit of public at large)
Employer can then seek INDEMNIFICATION from employee