Torts negligence Flashcards
When is a plaintiff foreseeable?
A plaintiff is foreseeable if he was in the zone of danger created by the defendant.
Under the common law, what 5 relationship situations create a duty?
i. Contractual relationship
ii. Familial relationship- mostly immediate family members (husband, wife, child)
iii. Common carriers, Innkeepers
iv. School- teachers/students
v. Statutes- can create a duty
What duty does a landowner of an adjacent land owe?
An owner of adjacent land owes a duty to exercise reasonable care in the maintenance of his/her property to prevent foreseeable injury that might occur on the adjoining property.
what are patent defects? Does a LL have a duty to warn?
(conditions that are or should be apparent to tenant upon transfer of possession) No duty to warn!
What is the procedural affect of Res Ipsa Loquitor?
Sufficient to avoid a directed verdict and get to jury Judge determines if plaintiff makes sufficient showing on these elements
What is direct cause?
nothing intervenes between D’s negligent act and P’s injury ( eg. D runs a stop sign and hits P’s car and seriously injures P.)
what is an indirect cause?
Indirect Cause Cases- there is an intervening cause that comes after the defendant’s negligent act; sets the wheels in motion
What are the three types of damages?
- Actual Damages- Medical bills, pain & suffering
2. Punitive Damages- punishes intentional bad acts
3. Nominal Damages- dignity torts! (eg. blows smoke in someone else’s face on purpose)
If Milly and Erica, two 13-year-olds, are building bombs in Milly’s garage. Their parents do not supervise their free time and giggle when they find bomb- making manuals in the house, saying, “Kids will be kids!” If Milly and Erica bomb their school and kill many of their classmates and teachers, could their parents be liable?
yes
What is contribution? hint: table with people eating in restaurant
Apportioning fault among tortfeasors who are jointly liable to the plaintiff for an incident. Joint tortfeasors are entitled to contribution from each other based on their relative degrees of fault, if they pay more than their pro rata share of liability to the plaintiff.
What is indemnification?
The process by which a party is entitled to/and receives total compensation from another party based on a relationship between them.
The _______ ____________- recognizes that if a defendant’s negligence puts someone in danger, it is foreseeable that another person will come to the rescue of the person in peril. If the rescuer is injured, the rescuer can hold the defendant whose negligence created the need for the rescue attempt liable.
rescue doctrine
What are the 5 requirements in the attractive nuisance doctrine ( holding that a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition of the land if)
(1) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass;
(2) the condition is one of which the possessor knows or has reason to know and which he realizes, or should realize, will involve an unreasonable risk of death or serious bodily harm to such children;
(3) the children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it;
(4) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved; and
(5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
When does the attractive nuisance doctrine not apply?
When the injury that results is not foreseeable
The unexcused violation of a legislative enactment or administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence itself, or as commonly phrased, negligence per se.
what are the elements of negligence per se?
The violation of a criminal statute constitutes negligence per se where the plaintiff can show that:
(1) he was a member of the class of persons the statute was designed to protect; and
(2) he suffered the type of harm the statute was designed to prevent. (violating the statute itself is enough to show duty and breach elements)
P is also required to prove causation and damages
According to the doctrine of res ipsa loquitur, the incident could not have happened without negligence, and so the elements of ____ and ______ will be established.
Duty and Breach
While the general rule is that subsequent medical malpractice is considered a foreseeable intervening act which does not sever the original tortfeasor’s liability, this does not apply when:
where the medical care was performed recklessly or where medical malpractice was committed deliberately. In such a case, the intervening act is certainly not considered foreseeable.
A teenage boy and his friend were playing paintball at the friend’s father’s farm. The paintballs were designed to break on impact, spraying paint but not physically injuring anyone. The boy pointed his paintball gun at the friend and fired a paintball at him. The paintball missed the friend and instead hit a horse that was grazing nearby. The horse, startled and in pain, started bucking and kicked up a rock that hit the friend in the head, causing him to lose vision in his right eye.
In a negligence action against the boy, will the friend recover?
No because the issue here is one of foreseeability, which is not dependent on the age of the defendant or the activity, but rather, on whether the actions would foreseeably result in the plaintiff’s injuries. Here Shooting the gun was not the proximate cause of the friend’s injury because it was not foreseeable that shooting the paintball gun at the friend would cause the horse to be injured, kicking up a rock that then hit the friend. Because there is no proximate cause, there can be no action in negligence.
Generally, in a contributory negligence jurisdiction, a plaintiff is precluded from recovery if she is found to be negligent. what is the exception?
Under the last clear chance doctrine provides that even if the plaintiff were negligent, that will not matter if the defendant could have avoided the accident by exercising reasonable care in the final moments (no matter how slight) before the accident.
- under the modified comparative negligence statute, if the plaintiff is more responsible for her injuries than the defendants, she will be?
barred from recovery.
: In some circumstances, a court will determine that a defendant has no obligation to be non-negligent toward the plaintiff because of the nature of the activity in which they are engaged. What is a common example of this?
sports
T or F, A comparative negligence statute only applies when there is a negligent plaintiff and one or more negligent defendants.
True
Explain the doctrine of respondeat superior
Under the doctrine of respondeat superior, an employer is liable for injuries caused by the negligence or strict liability of an employee, if the tortious act occurred within the scope of the employment.
Acts are within the scope of employment if they are so closely connected with what the employee was hired to do and so fairly and reasonably incidental to it that they may be regarded as methods, even though improper, of carrying out the objectives of the employment.
If an employee uses force, even misguidedly, wholly or partly to further the employer’s purpose, such use of force may fall within the scope of employment, resulting in vicarious liability for the employer.
However, employers are generally not liable for the intentional torts of their employees.
A plaintiff can find res ipsa loquitor in a PEA (mnemonic)
P – PROBABILITY that the plaintiff was injured through no fault of his own
E – D had EXCLUSIVE control over the instrumentality that caused the injury
A – ABSENT negligence, the injury would not have occurred
