Torts - Negligence Flashcards
The general rule for when a duty exists in tort:
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.
A duty is owed to
all people who are foreseeable victims of your failure to exercise reasonable care.
**On the bar almost everyone is a foreseeable victim.
Plaintiffs who are foreseeable as a matter of law are
(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)
Special duty standards apply to
(1) children
(2) professionals
(3) owners and occupiers of land
Under the majority rule, a child must exercise the degree of care that
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.
Under the traditional (minority) view, a child’s duty of care is governed by the “Rule of ____”
“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
A child involved in an adult activity must exercise an ______ degree of care.
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).
A person who holds him/herself out as a professional must possess and exercise
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.
To exercise ordinary care, a person must exercise the
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)
For doctors as defendants, the doctrine of ______ consent applies.
informed.
Under “Good Samaritan” statutes in many states, licensed doctors, nurses, etc. who _______________ render emergency treatment are exempt from __________ but liability still exists for ____________.
voluntarily and gratuitously; ordinary negligence; gross negligence.
For attorneys as defendants, the plaintiff asserting a malpractice case must still prove
CAUSATION.
Owners and occupiers of land owe a duty
to persons on their property
The four statuses of plaintiffs on land are
(1) undiscovered trespasser
(2) discovered/anticipated trespasser
(3) licensee
(4) invitee
The two potential sources of a plaintiff’s injury on property are
(1) conduct of ACTIVITY (2) encounter with a static CONDITION
If the plaintiff is an undiscovered trespasser, the owner/occupier owes
no duty.
If the plaintiff is a discovered trespasser, the owner/occupier owes
(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)
The duties that owner/occupiers owe to LICENSEES are
(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)
The duties that owner/occupiers owe to INVITEES are
(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)
A “licensee” is a
social guest (a [L]icensee is someone you [L]ike).
An invitee is a
anyone who comes onto land held open to the public at large (business visitor)
An invitee that exceeds the scope of the invitation by _________________, the invitee ______________ and is at most treated like a _________________.
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).
In a static condition question, an owner/occupier can satisfy his/her legal duty by
(1) making the condition safe or
(2) giving a warning (most likely)
For child trespassers the standard of care is
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)
Under the attractive nuisance doctrine, the plaintiff must show that
(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.
A jury usually decides whether the attractive nuisance doctrine applies by determining whether the landowner should have
foreseen that children would be on the land.
If an entrant on property is injured by an open and obvious condition, then the entrant will almost always
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.
Under the modern trend for owner/occupier duties, the distinction between invitees and licensees has been
abolished
A plaintiff can use a statute to set the standard of care (negligence per se) by showing that
(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
The two EXCEPTIONS to using a statute to set the standard of care are
(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)
There is generally no duty to rescue or otherwise ________ act.
affirmatively.
There is an affirmative duty to act when
(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)
P can recover for negligent infliction of emotional distress (NIED) in the following situations
(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)
Under the zone of danger rule, P can recover for NIED if
(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
Under the bystander recovery rule, P can recover for NIED if
(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
A plaintiff’s introduction of custom to establish a standard of care and breach is
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.
Res ipsa loquitur relieves P’s obligation to show specific conduct for a breach by instead showing
(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.
To prove causation, P must show both
(1) cause-in-fact; and
(2) proximate (legal) cause
The three cause-in-fact tests are
(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)
Proximate cause only holds a D liable for
harms that are within the risk of D’s activity, i.e. foreseeable consequences. This limits D’s liability.
In INTERVENING cause proximate cause cases, the breakdown of result/invervention liability is:
(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
Intervening forces that are almost always foreseeable are
(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
Intervening causes that will NOT cut off liability if D can ANTICIPATE them are
(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)
The three elements of a typical personal injury award are
(1) past and future medical expenses
(2) past and future lost income
(3) pain and suffering
Under the eggshell skull P rule, a defendant is liable for
the full extent of the damage D causes, even if the extent was unforeseeable. You take your victim as you find him.
The three defenses to negligence are
(1) contributory negligence
(2) assumption of risk
(3) comparative negligence
A P is contributorily negligent if P
failed to use the relevant degree of care for his or her own safety.
If P was contributorily negligent, then P
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.
P can recover even if P was contributorily negligent if
(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)
Contributory negligence is not available as a defense when the D’s conduct was
wanton and willful.
The two types of assumption of risk are
(1) express
(2) implied
Express assumption of risk completely
bars recovery in a negligence case.
There is sometimes an exception to an express assumption of risk if
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.
An implied assumption of the risk requires that P
(1) have knowledge of the risk
(2) voluntarily assumes the risk
The two exceptions to implied assumption of the risk are
(1) absence of an alternative
(2) emergency situations
**in these situations, P’s assumption is no longer “voluntary”
The consequence of P’s implied assumption of the risk is
traditionally an absolute bar (but not under comparative negligence)
The two types of comparative negligence are
(1) pure comparative negligence (default for MBE)
(2) modified comparative negligence
Under pure comparative negligence P
will always recover something, even if P is majority at fault.
Under modified comparative negligence P is barred from recovery if
P’s fault level exceeds a certain threshold (depends on the state, might be 49/50/51%)
Comparative negligence supplants all other affirmative defenses to negligence except
express assumption of the risk.
Animals: A person is strictly liable for
foreseeable harm caused by the trespass of one’s animals, (like cattle or livestock, not household pets)
Animals: The liability rule for domesticated animals states that D ______ strictly liable UNLESS
is not; the person knew of the animals dangerous propensities (e.g. a past bite, growling, training as guard dog)
Animals: The liability rule for wild animals states that D _____ strictly liable for harm due to D’s wild animals
is; E.g., the animal gets loose and causes harm
An abnormally dangerous activity is one that is
(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
Under strict liability, proximate cause still applies and requires that
the harm be within the risk.
The four strict liability causes of action are
(1) Animals (sometimes)
(2) Abnormally dangerous activities
(3) Product liability
(4) Nuisance
The prima facie case of products liability under a strict liability theory is
(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
The two types of product defects are
(1) manufacturing defect - product is an anomaly
(2) design defect - problem is in the design and there was a reasonable alternative design
There is a presumption that the defect existed when the product left the seller’s hands if the product moved in
normal channels of distribution.
Even in a strict liability claim where there is no question about an injury, the P still must show that the
(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)
The defenses to a products liability claim are
(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
Products Liability Bar Tip: When the theory of products liability recovery is NEGLIGENCE, find for the _______.
defendant.
Products Liability Bar Tip: An adequate warning by a manufacturer
usually insulates D from strict liability.
**But I think P must have actually read the warning?
Products Liability Bar Tip: Foreseeable use is NOT the same as
intended use.
Products Liability Bar Tip: When question refers to “feasible alternative” for making a product safer,
this often signals that you should find D liable on a design defect theory.
Products Liability Bar Tip: If product use is incidental to the performance of a service, then
strict liability is unavailable (e.g. receiving tainted blood during a medical procedure does not give rise to strict liability).
A private nuisance requires a showing of
(1) conduct that
(2) causes a substantial and unreasonable interference with the use and enjoyment of land.
If P in a private nuisance case requests an injunction, courts will
“weigh the equities”/”balance the interests” of the parties in deciding whether to enjoin a defendant’s activity.
**P can also get damages.
A public nuisance is
conduct that causes physical or moral harm to the PUBLIC in general.
A private plaintiff can maintain a public nuisance action only when
P suffers an injury that is different in nature than the public at large.
Typical categories of vicarious liability are
(1) employer-employee (“frolic and detour” rule)
(2) employer-independent contractor
(3) bailor-bailee
(4) family member
An employer is vicariously liable for employees’ torts that are committed
within the scope of employment.
The “frolic and detour” rule states that
employer is liable for employee’s minor deviations from the course of work (detours), but not for major deviations (frolics).
An employer is generally not vicariously liable for the intentional torts of employees EXCEPT when
(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)
An employer is not vicariously liable for the actions of an independent contractor EXCEPT when
(1) independent contractor is engaged in inherently dangerous activities (blasting)
(2) the duty is nondelegable because of public policy
There is generally no vicarious liability for lending someone your car, EXCEPT when
(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
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.
indemnity.
E.g. a non-negligent employer liable under vicarious liability may seek indemnity from its employee
Parents are generally not vicariously liable for a child’s actions, but parents can be directly liable for
negligent supervision or failure to properly instruct.
In vicarious liability situations, ALWAYS look for
direct liability, like: (1) negligent entrustment (2) negligent hiring (3) negligent supervision
Joint and several liability traditionally applies where
(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
Partners or joint venturers are generally vicariously liable for torts committed by other members if the tortious act is
within the scope and course of the partnership/joint venture
Indemnity allows a passive D to receive
full reimbursement from the active D
Contribution allows the paying D to recover
proportional shares from the other Ds
In comparative contribution states, contribution allows
recovery based on the relative fault of each tortfeasor.
Tavern keepers are generally NOT vicariously liable for torts of patrons UNLESS
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)
Family immunity for torts committed against family members is generally
abolished.
The government does not have immunity when it engages in
a proprietary function, i.e. one that a private citizen would normally perform
The government has immunity when it engages in
discretionary government activities typically performed by the government (unless there is a waiver of immunity) Typical activities include police, fire, military.
A bailor (is/is not) vicariously liable for the bailee’s torts.
is NOT.
A common carrier has a nondelegable duty to provide a safe
vehicle.
Special situations where Ps can recover for negligent infliction of emotional distress WITHOUT having __________ of the distress are
physical symptoms;
(1) D erroneously (and negligently) reports that a relative of P has died
(2) mishandling of a relative’s corpse
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 _________.
affirmative.
third persons.
