Torts negligence

Question 1

When is a plaintiff foreseeable?

Answer 1

A plaintiff is foreseeable if he was in the zone of danger created by the defendant.

Question 2

Under the common law, what 5 relationship situations create a duty?

Answer 2

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

Question 3

What duty does a landowner of an adjacent land owe?

Answer 3

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.

Question 4

what are patent defects? Does a LL have a duty to warn?

Answer 4

(conditions that are or should be apparent to tenant upon transfer of possession) No duty to warn!

Question 5

What is the procedural affect of Res Ipsa Loquitor?

Answer 5

Sufficient to avoid a directed verdict and get to jury Judge determines if plaintiff makes sufficient showing on these elements

Question 6

What is direct cause?

Answer 6

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.)

Question 7

what is an indirect cause?

Answer 7

Indirect Cause Cases- there is an intervening cause that comes after the defendant’s negligent act; sets the wheels in motion

Question 8

What are the three types of damages?

Answer 8

1. 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)

Question 9

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?

Answer 9

yes

Question 10

What is contribution? hint: table with people eating in restaurant

Answer 10

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.

Question 11

What is indemnification?

Answer 11

The process by which a party is entitled to/and receives total compensation from another party based on a relationship between them.

Question 12

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.

Answer 12

rescue doctrine

Question 13

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)

Answer 13

(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.

Question 14

When does the attractive nuisance doctrine not apply?

Answer 14

When the injury that results is not foreseeable

Question 15

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?

Answer 15

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

Question 16

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.

Answer 16

Duty and Breach

Question 17

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:

Answer 17

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.

Question 18

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?

Answer 18

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.

Question 19

Generally, in a contributory negligence jurisdiction, a plaintiff is precluded from recovery if she is found to be negligent. what is the exception?

Answer 19

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.

Question 20

2. under the modified comparative negligence statute, if the plaintiff is more responsible for her injuries than the defendants, she will be?

Answer 20

barred from recovery.

Question 21

: 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?

Answer 21

sports

Question 22

T or F, A comparative negligence statute only applies when there is a negligent plaintiff and one or more negligent defendants.

Answer 22

True

Question 23

Explain the doctrine of respondeat superior

Answer 23

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.

Question 24

A plaintiff can find res ipsa loquitor in a PEA (mnemonic)

Answer 24

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

Question 25

If you inflict emotional harm, you’ll have a SAD CEO

Answer 25

CEO – D’s intentional or reckless CEO (CONDUCT that was EXTREME and
OUTRAGEOUS) exceeding all bounds usually tolerated by a decent society, and
SAD – D’s conduct caused P to suffer SAD (SEVERE AND DEBILITATING) emotional
anguish

Question 26

A Person who RAN onto P’s property is liable in trespass only if D’s entry caused harm to the
land:

Answer 26

R – RECKLESSLY
A – As the result of ABNORMALLY dangerous activity
N – NEGLIGENTLY

Question 27

An MBE landowner will have a different duty to an injured person, depending on whether the
person was LIT:

Answer 27

L – LICENSEE
I – INVITEE
T - TRESPASSER
*Note – This is NOT the rule in NY

Question 28

A plaintiff has the privilege to SIT on one’s property in response to a:

Answer 28

S – SERIOUS and
I – IMMEDIATE
T – THREAT
*But note – even though a D who SITs is not trespassing, liability will be imposed for any
resulting damages

Question 29

If you inflict emotional harm, you’ll have a SAD CEO:

Answer 29

CEO – D’s intentional or reckless CEO (CONDUCT that was EXTREME and
OUTRAGEOUS) exceeding all bounds usually tolerated by a decent society, and
SAD – D’s conduct caused P to suffer SAD (SEVERE AND DEBILITATING) emotional
anguish

Question 30

Overgrown LA2WNS impose strict tort liability:

Answer 30

L – LABOR LAW § 240 & 241
A – Abnormally dangerous ACTIVITY
A – ANIMALS: wild animals or vicious domestic ones
W – WORKER’S job related injuries (Worker’s Compensation)
N – NEGLIGENCE per se
S – STRICT products liability

Question 31

A parent is liable only for the torts of a SICK child

Answer 31

S – in an employment relationship where a child commits a tort, while acting as a SERVANT or
agent of the parent
I – where the parent entrusts or knowingly leaves in the child’s possession an
INSTRUMENTALITY that, in light of the child’s age, intelligence, disposition and prior
experience, creates an unreasonable risk of harm to others
C – where the parent knows of the child’s tortious conduct and directs, approves or CONSENTS
to it
K – where the parent has the ability to control the child, but fails to exercise that control
even though the parent KNEW of the infant’s violent tendencies, which could
endanger a 3P

Question 32

Where the plaintiff suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, Is the original D or tortfeasor held liable for damages arising from the second accident?

Answer 32

Yes the original tortfeasor is usually held liable for damages arising from the second accident.

Question 33

T or F a defendant is held liable for foreseeable, intervening causes.

Answer 33

True

Question 34

T or F An owner of an automobile is vicariously liable for the negligent acts of his agents or members of his family when using the auto for “family purposes

Answer 34

True

Question 35

T or F a landowner has no duty to trespassers to inspect his land to find conditions of which he is unaware.

Answer 35

True, he must know about the dangerous condition

Question 36

Under the minority rule a land occupier owes a duty of reasonable care to entrants on her land regardless of their status (invitee, licensee, or trespasser).

Answer 36

True

Question 37

When two or more individuals agree to enter into an undertaking in the performance of which they have a community of interest and mutual right of control, they are said to be engaging in a joint venture. Because such an arrangement is similar to a business partnership, each member is ________ _________ for any committed by the others within the scope of the enterprise.

Answer 37

vicariously liable

Question 38

A parent can be liable for the intentional tort of a child if the parent fails to..?

Liability will require the parent to know or have reason to know…?

Answer 38

exercise reasonable care to prevent the child from intentionally harming another person or from creating an unreasonable risk of harm to another person.

to know that she has the ability to control the child and that she knows or should know of the necessity and opportunity to exercise control over the child.

Question 39

contributory negligence does not bar recovery if?

Answer 39

the plaintiff’s theory is intentional tort, recklessness, or strict liability.

Question 40

When the plaintiff has no practical alternative, due to the defendant’s negligence, but to face a known risk, has the plaintiff assumed the risk? why or why not

Answer 40

No, the Plaintiff has not assumed the risk because when the plaintiff is compelled to undergo the known risk due to the defendant’s negligence, there is no voluntary assumption.

Question 41

T or F f an employee negligently entrusts performance of his work to a third person, the employer will not be liable by imputed negligence.

Answer 41

False, the employer will be liable by imputed negligence

Question 42

No affirmative duty to take action to aid or protect a injured plaintiff unless.. hint actions

Answer 42

No affirmative duty to take action to aid or protect a injured plaintiff unless 1) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking; or 2) the person to whom the services are rendered relies on the actor’s exercising reasonable care