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Bar Exam - Torts > Torts - Negligence > Flashcards

Torts - Negligence Flashcards

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1
Q
  1. Duty on the part of the defendant to conform to a specific standard of care for protection of the plaintiff against unreasonable risk of injury
  2. Breach of that Duty by Defendant
  3. The breach is the Actual and Proximate Cause of plaintiff’s injury
  4. Damages
A

Prima Facie Case of Negligence

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2
Q

Owed to all foreseeable plaintiffs.

Extent of the duty is determined by the applicable standard of care.

A

Duty of Care

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3
Q
  1. Was the plaintiff foreseeable?

2. What is the applicable standard of care?

A

Negligence Question Guidance

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4
Q

Foreseeable/Unforseeable Plaintiffs

A

Duty is owed to foreseeable plaintiffs. Problem arises when defendant breaches duty to P1 and causes injury to another (possibly unforeseeable) P2.

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5
Q

P2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances.

She was located in the foreseeable zone of danger.

A

Palsgraf - Majority View - Foreseeable Zone of Danger

CORDOZO

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6
Q

Palsgraf - Minority View - Everyone is Foreseeable

ANDERSON

A

P2 may establish the existence of a duty extending from defendant to her by a showing that defendant has breached the duty owed to P1.

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7
Q

Specific Situations - Rescuers

A

Rescuer - foreseeable plaintiff where defendant negligently put himself or a third person in peril. DANGER INVITES RESCUE.

Firefighters and Police Officers - May be barred by the “firefighter rule” from recovering from injuries caused by the risks of rescue.

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8
Q

Specific Situations - Prenatal Injuries

A

Duty of Care is owed to a viable fetus.

Failure to diagnose a congenital defect or properly perform a contraceptive procedure:
- Child may not recover for “wrongful life”
- Parents may recover damages in “wrongful birth” or
“wrongful pregnancy” action for any additional
medical expenses and for pain and suffering from
labor. Ordinary child rearing expenses CANNOT be
recovered.

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9
Q

Specific Situations - Intended Beneficiaries of Economic Transactions

A

Third party for whose economic benefit a legal or business transaction was made may be a foreseeable plaintiff.

Example: Beneficiary of a will.

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10
Q

Standards of Care

A
  1. Reasonable Person
  2. Professionals
  3. Children
  4. Common Carriers and Innkeepers
  5. Automobile Driver to Guest
  6. Bailment Duties (Bailor and Bailee)
  7. Emergency Situations
  8. Duty of Possessor to those off premises
  9. Trespassers
  10. Attractive Nuisance Doctrine
  11. Duty owed to Licensee
  12. Duty owed to Invitee
  13. Duty owed to users of recreational lands
  14. Duty of Lessors and Lessees of Realty
  15. Duty of Vendor of Realty
  16. Statutory Standard of Care
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11
Q

Reasonable Person Standard

A

OBJECTIVE STANDARD.

Measured against what the average person would do.

Mental deficiencies and inexperience are not taken into account.

Reasonable person has the same physical characteristics as a defendant.

Person is supposed to know one’s physical handicaps and to exercise care of a person with such knowledge. A BLIND PERSON SHOULD NOT FLY A PLANE.

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12
Q

Standards of Conduct - Professionals

A

Professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities.

Medical specialist will be held to a national standard of care. APPLIES TO ALL PHYSICIANS.

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13
Q

Duty to Disclose Risks of Treatment - Professionals

A

Doctor has a duty to disclose the risks of treatment to enable a patient to give informed consent.

BREACHED: If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.

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14
Q

Standard of Conduct - Children

A

SUBJECTIVE TEST

Held to the standard of a child of:

  • Like Age
  • Intelligence
  • Education
  • Experience
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15
Q

Standard of Conduct - Children Under 4

A

Child under 4 is usually WITHOUT the capacity to be negligent

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16
Q

Standard of Conduct - Children Engaged in Adult Activities

A

May be required to conform to an adult standard of care.

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17
Q

Standard of Conduct - Innkeepers and Common Carriers

A

Held to a very high degree of care. They are liable for slight negligence.

For this to apply - Plaintiff MUST BE a passenger or guest.

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18
Q

Standard of Conduct - Automobile Driver to Guest

A

Guest in a car is owed a duty of ordinary care.

Some “Guest Statute States” - Only liable to nonpaying passengers for reckless tortious conduct.

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19
Q

Standard of Conduct - Duties Owed by Bailee

A

Depends on WHO BENEFITS from the Bailment

  • Sole benefit of the bailor - low standard of care
  • Sole benefit of the bailee - high standard of care
  • Mutual benefit (bailment for hire) - Ordinary standard of care

MODERN TREND: Duty of ordinary care under the circumstances - type of bailment is just one factor taken into account.

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20
Q

Standard of Conduct - Duties Owed by Bailor

A

Sole benefit of bailee bailment - bailor MUST inform the bailee of known, dangerous defects in the chattel

Bailment for Hire - Bailor must inform the bailee of chattel defects of which he is or should be aware

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21
Q

Standard of Conduct - Emergency Situations

A

Defendant must act as a reasonable person under the same emergency conditions.

EMERGENCY IS NOT CONSIDERED - if it is of defendant’s own making.

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22
Q

Standards of Conduct - Duty of Possessor to Those Off Premises

A

No duty to protect one off the premises from natural conditions on the premises.

Duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.

One must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises.

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23
Q

URBAN Areas - Exam Tip

A

Owner/occupier is liable for damages caused off the premises by trees on the premises

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24
Q

Standard of Conduct - Duty of Possessor to Those on the Premises - Trespassers

A

Undiscovered Trespasser - NO DUTY owed

Discovered or Anticipated Trespasser - Landowner must:

  • Warn or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm
  • Use reasonable care in the exercise of “active operations” on the property
  • NO DUTY required for natural conditions or less dangerous artificial conditions
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25
Q

Standard of Conduct - Duty of Possessor to Those on the Premises - Easement and License Holders

A

Owe a duty of reasonable care to trespassers.

26
Q

Standard of Conduct - Duty of Possessor to Those on the Premises - Attractive Nuisance Doctrine

A

Ordinary care to avoid a reasonable foreseeable risk of harm to children caused by dangerous conditions on the property.

Typically an artificial condition but sometimes can be a natural condition.

PLAINTIFF MUST SHOW:

  • A dangerous condition on the land that the owner is or should be aware of
  • Owner knows or should know children frequent the vicinity of the condition
  • Condition is likely to cause injury (dangerous because the child’s inability to appreciate the risk)
  • Expense of remedying the situation is slight compared with the magnitude of the risk

FOUR REQUIREMENTS ALL MUST BE SHOWN.

Child DOES NOT have to be attracted onto the land by the dangerous condition, NOR is the attraction alone enough for liability

27
Q

Standard of Conduct - Duty of Possessor to Those on the Premises - Duty Owed to Licensees

A

Possessor has a duty to:

  • Warn of or make safe dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover
  • Exercise reasonable care in the conduct of “active operations” on the property

Possessor has NO DUTY - to inspect or repair.

28
Q

Definition of Licensee

A

One who enters onto the land with the possessor’s permission for her own purpose or business, rather than for the possessor’s benefit.

SOCIAL GUESTS are also considered Licensees.

29
Q

Social Guest Definition

A

They are also considered licensees.

30
Q

Standard of Conduct - Duty of Possessor to Those on the Premises - Duty Owed to Invitees

A

Landowner or Occupier owes SAME DUTIES owed to Licensees PLUS the duty to make reasonable inspections to discover nonobvious dangerous conditions and make them safe. A WARNING MAY SUFFICE.

One will lose invitee status if she exceeds the scope of the invitation.

31
Q

Definition of Invitee

A

One who enters onto the land in response to an invitation by the landowner.

  • Enter for a purpose connected with the business of the landowner
  • Enters as a member of the public for purposes for which the land is held open to the public

One will lose invitee status if she exceeds the scope of the invitation.

32
Q

Standard of Conduct - Duty of Possessor to Those on the Premises - Duty Owed to Users of Recreational Land

A

Landowner who permits the general public to use his land for recreational purposes WITHOUT charging a fee - NOT LIABLE for the injuries suffered by recreational user.

UNLESS landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

33
Q

MODERN TREND in Status Rules for Standard of Care

A

Strong Minority of the States - reject distinction between licensee and invitee (some trespassers as well) and simply apply reasonable person standard to dangerous conditions on the land.

34
Q

Standard of Conduct - Duty of Lessor of Realty

A

Must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection.

If covenants to repair - LIABLE for unreasonably dangerous conditions.

If lessor volunteers to repair and does so negligently - HE IS LIABLE.

35
Q

Standard of Conduct - Duty of Lessee of Realty

A

Lesse has general duty to maintain the premises.

36
Q

If Guest of a tenant is injured.

A

Landlord may be liable as a lessor of the premises.

Tenant may be liable to the guest because of the tenant’s status as the owner/occupier of the premises.

37
Q

Standard of Conduct - Duty of Vendor of Realty

A

Must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.

38
Q

Statutory Standards of Care

A

Clearly stated specific duty imposed by a statute providing for criminal penalties (including fines) may replace the more general common law duty of due care if:

  • Plaintiff is within the protected class
  • Statute was designed to prevent the type of harm suffered by the plaintiff
39
Q

Statutory Standards of Care - Excuse for Violation

A

Some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond the defendant’s control

40
Q

Statutory Standards of Care - Effect of Violation or Compliance

A

MAJORITY - An unexcused statutory violation is negligence per se - it establishes the first two requirements in the prima facie case - a conclusive presumption of duty and breach of duty

Even though violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.

41
Q

Duty to Avoid Negligent Infliction of Emotional Distress

A

May be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff.

42
Q

Requirements to prevail in NIED Cases

A

Plaintiff must prove:

  • Plaintiff was within the zone of danger
  • Plaintiff must suffer physical symptoms from the distress
43
Q

NIED - Zone of Danger

A

Plaintiff must show that her distress has been caused by a threat of physical impact.

44
Q

NIED - Physical Symptoms from the Distress

A

Defendant’s conduct must cause the plaintiff emotional distress that manifests itself in physical symptoms.

Severe shock to the nervous system that causes physical symptoms will satisfy this requirement.

GROWING MINORITY OF STATES - dropped the requirement for physical symptoms.

45
Q

NIED Special Situations - Bystander Not in Zone of Danger Seeing Injury to Another

A

Can recover damages for her own distress as long as:

  • the plaintiff and the person injured are closely related
  • the plaintiff was present at the scene of the injury
  • the plaintiff personally observed or perceived the event

Most states - Still require physical symptoms

46
Q

NIED Special Situations - Special Relationship between Plaintiff and Defendant

A

Defendant may be liable for directly causing the plaintiff severe emotional distress that leads to physical symptoms when the duty arises from the relationship between the plaintiff and the defendant, such that the defendant’s negligence has great potential to cause emotional distress.

Doctor misdiagnosis that a patient has a terminal illness.

47
Q

NIED Special Situations - Other Situations

A

Plaintiff may be able to recover without proving zone of danger and physical symptoms where the defendant’s negligence creates a great likelihood of emotional distress

EXAMPLE: Erroneous report of relative’s death or mishandling of a relative’s corpse.

48
Q

Affirmative Duties to Act

A

Generally one does not have a legal duty to act, but there are exceptions.

49
Q

Assumption of Duty by Acting

A

One may assume a duty to act by acting

Once defendant undertakes to aid someone, he must do so with reasonable care.

50
Q

Peril due to Defendant’s conduct

A

Duty to assist someone he has negligently or innocently placed into peril.

51
Q

Special Relationship Between Parties

A

Special relationship may create a duty to act. Such as PARENT-CHILD.

Common Carriers, Shopkeepers, Innkeepers, and others that gather the public for profit:
- Owe duties of reasonable care to aid or assist their patrons

Places of public accommodation - duty to prevent injury to guests by third persons

52
Q

Duty to Prevent Harm from Third Persons

A

Generally - NO DUTY to prevent a third person from injuring another.

Affirmative duty - may be imposed if one has the actual ability and authority to control a persons actions AND knows or should know the person is likely to commit acts that would require exercise of this control.

53
Q

Breach of Duty

A

Where a defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff.

Question for the trier of fact.

54
Q

Theories to show proof of the breach:

A
  1. Custom or Usage
  2. Violation of Statute
  3. Res Ipsa Loquitur
55
Q

Proof of Breach - Custom or Usage

A

May be used to establish the standard of care.

Does no control the question of whether certain conduct amounted to negligence.

Example: Certain behavior is a custom in an industry, court could find that the entire industry is acting negligently.

56
Q

Proof of Breach - Violation of a Statute

A

If there is proof that the defendant violated an applicable statute - breach may be established as a matter of law.

NEGLIGENCE PER SE

57
Q

Proof of Breach - Res Ipsa Loquitur

A

Occurrence of an event may tend to establish the breach of duty.

Requires that a plaintiff show:

  • the accident causing the injury is a type that would not normally occur unless someone was negligent
  • the negligence is attributable to the defendant (this type of accident ordinarily happens because of the negligence of someone in defendant’s position.)

Can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.

58
Q

Effect of Res Ipsa Loquitur

A

Where it is established - the plaintiff has made a prima facie case and no directed verdict may be given for the defendant.

Plaintiff can still lose if the inference of negligence is rejected by the trier of fact.

59
Q

EXAM TIP: Questions testing res ipsa loquitur often have the DEFENDANT making a motion for a directed verdict. You have to remember:

A

DENY defendant’s motion for directed verdict if plaintiff has established res ipsa loquitur or presented some other evidence of breach of duty (violation of a statute)

GRANT defendant’s motion if plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty

60
Q

Res ipsa loquitur - Plaintiff moves for directed verdict

A

Motion should ALWAYS BE DENIED except in the rare case where the plaintiff has established negligence per se through a violation of the statue and there are no issues of proximate cause.

Bar Exam - Torts (3 decks)

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