Torts - Negligence

Question 1

The general rule for when a duty exists in tort:

Answer 1

Whenever a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person engaged in the same or similar activity. To be owed a duty, a prospective plaintiff must be in the foreseeable “zone of danger” from the defendant’s activity.

**Memorize for essays.

Question 2

A duty is owed to

Answer 2

all people who are foreseeable victims of your failure to exercise reasonable care.

**On the bar almost everyone is a foreseeable victim.

Question 3

Plaintiffs who are foreseeable as a matter of law are

Answer 3

(1) Rescuers (but see firefighter’s rule exception for police and firefighters who rescue as a part of their job)
(2) Viable fetuses (even if D does not know that victim was pregnant)

Question 4

Special duty standards apply to

Answer 4

(1) children
(2) professionals
(3) owners and occupiers of land

Question 5

Under the majority rule, a child must exercise the degree of care that

Answer 5

a reasonable child of like age, intelligence, and experience would exercise under the circumstances.

**Most states have a minimum cutoff of age 4, under which the child is incapable of negligence.

Question 6

Under the traditional (minority) view, a child’s duty of care is governed by the “Rule of ____”

Answer 6

“Rule of Sevens”

(1) Under age 7: incapable of negligence
(2) 7 to 14: Rebuttable presumption that the child is NOT capable of negligence
(3) 14 and older: Rebuttable presumption that child IS capable of negligence

Question 7

A child involved in an adult activity must exercise an ______ degree of care.

Answer 7

adult. (i.e. driving a car).

**But lookout for tractor-driving 13 year olds who are held to a “superior” degree of care b/c they’ve been doing it since they were 11 (wtf).

Question 8

A person who holds him/herself out as a professional must possess and exercise

Answer 8

the knowledge and skill of an ordinary member of that profession in good standing.

**Profession itself sets the standard of care, usually through expert testimony. Usually a national standard.

Question 9

To exercise ordinary care, a person must exercise the

Answer 9

amount of care that would be undertaken by a reasonably prudent person under the circumstances.

Objective standard, even for inexperienced people, mentally incompetent, etc (but see superior skill or physical disabilities case)

Question 10

For doctors as defendants, the doctrine of ______ consent applies.

Answer 10

informed.

Question 11

Under “Good Samaritan” statutes in many states, licensed doctors, nurses, etc. who _______________ render emergency treatment are exempt from __________ but liability still exists for ____________.

Answer 11

voluntarily and gratuitously; ordinary negligence; gross negligence.

Question 12

For attorneys as defendants, the plaintiff asserting a malpractice case must still prove

Answer 12

CAUSATION.

Question 13

Owners and occupiers of land owe a duty

Answer 13

to persons on their property

Question 14

The four statuses of plaintiffs on land are

Answer 14

(1) undiscovered trespasser
(2) discovered/anticipated trespasser
(3) licensee
(4) invitee

Question 15

The two potential sources of a plaintiff’s injury on property are

Answer 15

(1) conduct of ACTIVITY (2) encounter with a static CONDITION

Question 16

If the plaintiff is an undiscovered trespasser, the owner/occupier owes

Answer 16

no duty.

Question 17

If the plaintiff is a discovered trespasser, the owner/occupier owes

Answer 17

(1) for ACTIVITY: the owner/occupier owes a duty of reasonable care. (2) for CONDITIONS: only as to artificial, highly dangerous, KNOWN conditions (man-made death traps)

Question 18

The duties that owner/occupiers owe to LICENSEES are

Answer 18

(1) for ACTIVITY: the owner/occupier owes a duty of reasonable care.
(2) for CONDITIONS: a duty to warn of or make safe known dangerous conditions on the land of which the licensee is not aware (this is a duty to protect against (a) concealed conditions (b) known to owner/occupier)

Question 19

The duties that owner/occupiers owe to INVITEES are

Answer 19

(1) for ACTIVITY: the owner/occupier owes a duty of reasonable care.
(2) for CONDITIONS: duty to protect against (a) concealed conditions either (b) known to owner/occupier or that (c) could have discovered through reasonable inspection (duty to inspect)

Question 20

A “licensee” is a

Answer 20

social guest (a [L]icensee is someone you [L]ike).

Question 21

An invitee is a

Answer 21

anyone who comes onto land held open to the public at large (business visitor)

Question 22

An invitee that exceeds the scope of the invitation by _________________, the invitee ______________ and is at most treated like a _________________.

Answer 22

going into a portion of the property where his invitation cannot reasonably be said to extend;

loses invitee status;

licensee (but possibly even an anticipated/discovered trespasser).

Question 23

In a static condition question, an owner/occupier can satisfy his/her legal duty by

Answer 23

(1) making the condition safe or
(2) giving a warning (most likely)

Question 24

For child trespassers the standard of care is

Answer 24

almost always reasonable prudence (attractive nuisance doctrine).

Was D aware that children might be near land, was child unable to appreciate the danger (this is almost always a JURY question)

Question 25

Under the attractive nuisance doctrine, the plaintiff must show that

Answer 25

(1) there is a DANGEROUS CONDITION present on the land of which the OWNER is or should be AWARE, (2) the OWNER SHOULD HAVE FORESEEN that CHILDREN would be on the land (3) the condition is likely to cause injury, i.e., is dangerous, because of the CHILD'S INABILITY TO APPRECIATE THE RISK, and (4) the EXPENSE of REMEDYING the situation is SLIGHT compared with the MAGNITUDE of the RISK.

Question 26

A jury usually decides whether the attractive nuisance doctrine applies by determining whether the landowner should have

Answer 26

foreseen that children would be on the land.

Question 27

If an entrant on property is injured by an open and obvious condition, then the entrant will almost always

Answer 27

lose. No duty to warn for an open and obvious condition, the condition provides its own warning. But see attractive nuisance for a child's ability to appreciate the risk.

Question 28

Under the modern trend for owner/occupier duties, the distinction between invitees and licensees has been

Answer 28

abolished

Question 29

A plaintiff can use a statute to set the standard of care (negligence per se) by showing that

Answer 29

(1) the statute is designed to protect the "CLASS OF PERSON" of which P is a member (2) the statute is designed to protect against the "CLASS OF RISK" or harm that is the type of harm in P's case

Question 30

The two EXCEPTIONS to using a statute to set the standard of care are

Answer 30

(1) compliance with the statute is MORE DANGEROUS than violating the statute (e.g. exceeding the speed limit while trying to get a severely injured to the hospital) (2) compliance is IMPOSSIBLE under the circumstances (heart attack, seizure, faint)

Question 31

There is generally no duty to rescue or otherwise ________ act.

Answer 31

affirmatively.

Question 32

There is an affirmative duty to act when

Answer 32

(1) D created the risk/peril (even non-negligently) (2) relationship between the party (close family, common carrier or innkeeper, invitee-invitor) (3) D controls 3rd persons (D must have actual ability and authority to control)

Question 33

P can recover for negligent infliction of emotional distress (NIED) in the following situations

Answer 33

(1) Zone of Danger (physical symptoms generally required) (2) Bystander Recovery (physical symptoms generally required) (3) Relationship (e.g. doctor-patient for negligent misdiagnoses of a terminal illness) (4) erroneously reporting a relative's death (physical symptoms not required) (5) mishandling a relative's corpose (physical symptoms not required)

Question 34

Under the zone of danger rule, P can recover for NIED if

Answer 34

(1) P was in the "zone of danger", i.e. threat of physical impact (a "near miss") (2) Most states require that P have physical symptoms, but there is a modern trend to abolish them

Question 35

Under the bystander recovery rule, P can recover for NIED if

Answer 35

(1) P and the person injured were closely related (2) P was present at the scene of the injury (3) P personally observed or perceived the event (4) Most states require physical symptoms, but there is a modern trend to abolish them

Question 36

A plaintiff's introduction of custom to establish a standard of care and breach is

Answer 36

admissible, but is NEVER conclusive. An entire industry can be negligent. \*\*In essays, analyze both sides of the standard of care and potential breach, but ultimately send it to the jury.

Question 37

Res ipsa loquitur relieves P's obligation to show specific conduct for a breach by instead showing

Answer 37

(1) the event is one that does not normally occur in the absence of negligence (2) any negligence would be attributable to the D \*Under res ipsa, P gets to the jury \*\*This is usually used by desperate Ps who don't know or can't prove what happened.

Question 38

To prove causation, P must show both

Answer 38

(1) cause-in-fact; and (2) proximate (legal) cause

Question 39

The three cause-in-fact tests are

Answer 39

(1) but for (most important - P's injury would not have occurred but for D's conduct) (2) substantial factor (use for multiple Ds in a co-mingled cause, e.g. pollution cases) (3) burden shifting (multiple Ds in an unknown cause)

Question 40

Proximate cause only holds a D liable for

Answer 40

harms that are within the risk of D's activity, i.e. foreseeable consequences. This limits D's liability.

Question 41

In INTERVENING cause proximate cause cases, the breakdown of result/invervention liability is:

Answer 41

(1) Foreseeable result/foreseeable intervention = LIABLE (2) Foreseeable result/unforeseeable intervention = GENERALLY LIABLE, but not for crimes or intentional torts of third person (3) Unforeseeable result/foreseeable intervention = GENERALLY NOT LIABLE (4) Unforeseeable result/unforeseeable intervention = NOT LIABLE, superseding cause

Question 42

Intervening forces that are almost always foreseeable are

Answer 42

(1) subsequent medical malpractice (2) negligent rescue (3) injuries caused by another "reacting" to D's actions (4) subsequent diseases and accidents caused by the original injury

Question 43

Intervening causes that will NOT cut off liability if D can ANTICIPATE them are

Answer 43

(1) negligence of a 3rd party (2) criminal conduct (negligent failure to lock up) (3) act of god (worker leaves materials on a roof despite knowing a hurricane is coming)

Question 44

The three elements of a typical personal injury award are

Answer 44

(1) past and future medical expenses (2) past and future lost income (3) pain and suffering

Question 45

Under the eggshell skull P rule, a defendant is liable for

Answer 45

the full extent of the damage D causes, even if the extent was unforeseeable. You take your victim as you find him.

Question 46

The three defenses to negligence are

Answer 46

(1) contributory negligence (2) assumption of risk (3) comparative negligence

Question 47

A P is contributorily negligent if P

Answer 47

failed to use the relevant degree of care for his or her own safety.

Question 48

If P was contributorily negligent, then P

Answer 48

is completely barred from recovery. The "last clear chance" doctrine ameliorates this rule if D had the last clear chance to avoid the accident and failed to do so.

Question 49

P can recover even if P was contributorily negligent if

Answer 49

(1) D's conduct was reckless and wanton (causes D to lose his privilege of asserting a contributory negligence defense); or (2) D had the "last clear chance" to avoid the harm (in some states)

Question 50

Contributory negligence is not available as a defense when the D's conduct was

Answer 50

wanton and willful.

Question 51

The two types of assumption of risk are

Answer 51

(1) express (2) implied

Question 52

Express assumption of risk completely

Answer 52

bars recovery in a negligence case.

Question 53

There is sometimes an exception to an express assumption of risk if

Answer 53

there is a strong public policy reason to disregard it, i.e. requiring someone to sign an express waiver in order to get medical treatment.

Question 54

An implied assumption of the risk requires that P

Answer 54

(1) have knowledge of the risk (2) voluntarily assumes the risk

Question 55

The two exceptions to implied assumption of the risk are

Answer 55

(1) absence of an alternative (2) emergency situations \*\*in these situations, P's assumption is no longer "voluntary"

Question 56

The consequence of P's implied assumption of the risk is

Answer 56

traditionally an absolute bar (but not under comparative negligence)

Question 57

The two types of comparative negligence are

Answer 57

(1) pure comparative negligence (default for MBE) (2) modified comparative negligence

Question 58

Under pure comparative negligence P

Answer 58

will always recover something, even if P is majority at fault.

Question 59

Under modified comparative negligence P is barred from recovery if

Answer 59

P's fault level exceeds a certain threshold (depends on the state, might be 49/50/51%)

Question 60

Comparative negligence supplants all other affirmative defenses to negligence except

Answer 60

express assumption of the risk.

Question 61

Animals: A person is strictly liable for

Answer 61

foreseeable harm caused by the trespass of one's animals, (like cattle or livestock, not household pets)

Question 62

Animals: The liability rule for domesticated animals states that D ______ strictly liable UNLESS

Answer 62

is not; the person knew of the animals dangerous propensities (e.g. a past bite, growling, training as guard dog)

Question 63

Animals: The liability rule for wild animals states that D _____ strictly liable for harm due to D's wild animals

Answer 63

is; E.g., the animal gets loose and causes harm

Question 64

An abnormally dangerous activity is one that is

Answer 64

(1) incapable of being conducted w/o high risk (2) if harm occurs it is likely to be severe (3) the activity must be uncommon or atypical

Question 65

Under strict liability, proximate cause still applies and requires that

Answer 65

the harm be within the risk.

Question 66

The four strict liability causes of action are

Answer 66

(1) Animals (sometimes) (2) Abnormally dangerous activities (3) Product liability (4) Nuisance

Question 67

The prima facie case of products liability under a strict liability theory is

Answer 67

(1) D must be a MERCHANT seller (e.g. manufacturer, wholesaler, or retailer) (2) Product must be DEFECTIVE (3) Defect existed when the product left D's CONTROL (4) P was making a FORESEEABLE USE (doesn't have to be an INTENDED use) Merchant/Defective/Control/Foreseeable Use

Question 68

The two types of product defects are

Answer 68

(1) manufacturing defect - product is an anomaly (2) design defect - problem is in the design and there was a reasonable alternative design

Question 69

There is a presumption that the defect existed when the product left the seller's hands if the product moved in

Answer 69

normal channels of distribution.

Question 70

Even in a strict liability claim where there is no question about an injury, the P still must show that the

Answer 70

(1) use was foreseeable (no need to show that the use was intended); and (2) the defect caused the injury (both cause-in-fact and proximate)

Question 71

The defenses to a products liability claim are

Answer 71

(1) assumption of the risk bars recovery (2) comparative fault principles can reduce D's liability (in a majority of jurisdictions that have comparative fault regimes) \*\*Traditionally, contributory negligence is NOT a defense

Question 72

Products Liability Bar Tip: When the theory of products liability recovery is NEGLIGENCE, find for the \_\_\_\_\_\_\_.

Answer 72

defendant.

Question 73

Products Liability Bar Tip: An adequate warning by a manufacturer

Answer 73

usually insulates D from strict liability. \*\*But I think P must have actually read the warning?

Question 74

Products Liability Bar Tip: Foreseeable use is NOT the same as

Answer 74

intended use.

Question 75

Products Liability Bar Tip: When question refers to "feasible alternative" for making a product safer,

Answer 75

this often signals that you should find D liable on a design defect theory.

Question 76

Products Liability Bar Tip: If product use is incidental to the performance of a service, then

Answer 76

strict liability is unavailable (e.g. receiving tainted blood during a medical procedure does not give rise to strict liability).

Question 77

A private nuisance requires a showing of

Answer 77

(1) conduct that (2) causes a substantial and unreasonable interference with the use and enjoyment of land.

Question 78

If P in a private nuisance case requests an injunction, courts will

Answer 78

"weigh the equities"/"balance the interests" of the parties in deciding whether to enjoin a defendant's activity. \*\*P can also get damages.

Question 79

A public nuisance is

Answer 79

conduct that causes physical or moral harm to the PUBLIC in general.

Question 80

A private plaintiff can maintain a public nuisance action only when

Answer 80

P suffers an injury that is different in nature than the public at large.

Question 81

Typical categories of vicarious liability are

Answer 81

(1) employer-employee ("frolic and detour" rule) (2) employer-independent contractor (3) bailor-bailee (4) family member

Question 82

An employer is vicariously liable for employees' torts that are committed

Answer 82

within the scope of employment.

Question 83

The "frolic and detour" rule states that

Answer 83

employer is liable for employee's minor deviations from the course of work (detours), but not for major deviations (frolics).

Question 84

An employer is generally not vicariously liable for the intentional torts of employees EXCEPT when

Answer 84

(1) force is authorized in employment (e.g. bouncers) (2) friction is generated by employment (bill collector) (3) employee is furthering the business of the employer (removing rowdy customers from the premises)

Question 85

An employer is not vicariously liable for the actions of an independent contractor EXCEPT when

Answer 85

(1) independent contractor is engaged in inherently dangerous activities (blasting) (2) the duty is nondelegable because of public policy

Question 86

There is generally no vicarious liability for lending someone your car, EXCEPT when

Answer 86

(1) the driver is running an errand for the car's owner (the "errand" rule, this is more like principal-agent) (2) Family car states: member of same household drives car w/ owner's permission (3) Permissive use states: driver has owner's permission

Question 87

One who is liable to another simply because of the RELATIONSHIP between itself and the party actually at fault may seek _________ from the party at fault.

Answer 87

indemnity. E.g. a non-negligent employer liable under vicarious liability may seek indemnity from its employee

Question 88

Parents are generally not vicariously liable for a child's actions, but parents can be directly liable for

Answer 88

negligent supervision or failure to properly instruct.

Question 89

In vicarious liability situations, ALWAYS look for

Answer 89

direct liability, like: (1) negligent entrustment (2) negligent hiring (3) negligent supervision

Question 90

Joint and several liability traditionally applies where

Answer 90

(1) two or more tortfeasors act in concert; and (2) the harm is indivisible \*\*on the exam always apply joint and several liability unless told otherwise

Question 91

Partners or joint venturers are generally vicariously liable for torts committed by other members if the tortious act is

Answer 91

within the scope and course of the partnership/joint venture

Question 92

Indemnity allows a passive D to receive

Answer 92

full reimbursement from the active D

Question 93

Contribution allows the paying D to recover

Answer 93

proportional shares from the other Ds

Question 94

In comparative contribution states, contribution allows

Answer 94

recovery based on the relative fault of each tortfeasor.

Question 95

Tavern keepers are generally NOT vicariously liable for torts of patrons UNLESS

Answer 95

the state has a Dramshop Act and the D does not exercise reasonable care (i.e. D serves a minor or an obviously intoxicated adult)

Question 96

Family immunity for torts committed against family members is generally

Answer 96

abolished.

Question 97

The government does not have immunity when it engages in

Answer 97

a proprietary function, i.e. one that a private citizen would normally perform

Question 98

The government has immunity when it engages in

Answer 98

discretionary government activities typically performed by the government (unless there is a waiver of immunity) Typical activities include police, fire, military.

Question 99

A bailor (is/is not) vicariously liable for the bailee's torts.

Answer 99

is NOT.

Question 100

A common carrier has a nondelegable duty to provide a safe

Answer 100

vehicle.

Question 101

Special situations where Ps can recover for negligent infliction of emotional distress WITHOUT having __________ of the distress are

Answer 101

physical symptoms; (1) D erroneously (and negligently) reports that a relative of P has died (2) mishandling of a relative's corpse

Question 102

Common carriers and places of public accomodation (innkeepers, shopkepers, restaurateurs) have an ______ duty to use reasonable care to aid or assist passengers and patrons. Places of public accomodation have an additional duty to prevent injury to their patrons from \_\_\_\_\_\_\_\_\_.

Answer 102

affirmative. third persons.