Torts - negligence

Question 1

negligence elements

Answer 1

1- duty
2- breach
3- causation - close causal connection
4- damages

Question 2

parties to who duty is owed

Answer 2

all foreseeable persons who may be injured by D’s failure to meet reasonable standard of care

Question 3

duty owed for failure to act

Answer 3

generally none

Question 4

duty & foreseeability of harm to P

Answer 4

Cardozo - D only liable to P’s w/ in zone of foreseeable harm - Palsgraf majority
Andrews - If D can foresee harm to anyone resulting from D’s negligence, D owed duty to everyone harmed

Question 5

duty to rescuers

Answer 5

D liable for negligently putting rescuers / rescued party in danger

• can apply comparative responsibility if rescuer’s efforts were unreasonable
• emergency professionals barred from recovery from injury in course of job

Question 6

duty to fetuses

Answer 6

duty of care owed to fetuses viable at time of injury

Question 7

affirmative duties to acts - exceptions

Answer 7

1- assumption of duty
2- placing another in peril
3- by contract
4- by authority - in VA no cause of action based on duty by employer to supervise employee

Question 8

VA Good Samaritan Law

Answer 8

protects people rendering the following from tort negligence liability
a- emergency care in good faith & without comp
b- emergency obstetrical care when pregnant woman’s medical records are not readily available, unless care is grossly negligent
c- emergency assistance to injured animals at scene of emergency
d- emergency personnel while operating emergency vehicle en route to emergency provided i- comply w/ warning lights, ii- act w/ out gross negligence

Question 9

reasonably prudent person std

Answer 9

objective std

- physical, not mental, characteristics are considered

Question 10

reasonably prudent person std for intoxicated persons

Answer 10

• voluntarily intoxicated person held to same standard as sober one

Question 11

reasonably prudent person std for children

Answer 11

reasonable child of same age, intelligence and experience used as std

• children engaged in high risk adult activity held to adult standard
• irrebuttable presumption that children under age of 7 incapable of negligent conduct
• rebuttable presumption that children between ages 7 and 14 are legally incapable of negligence

Question 12

use of custom to determine std of care

Answer 12

admissible but not conclusive

Question 13

std of care for professionals

Answer 13

expected to show same skill, knowledge and care as other practitioners in SAME COMMUNITY

• specialists may be held higher std
• usually requires expert to est. proper std of care unless negligence would be apparent to a lay person (e.g. amputating wrong leg)

Question 14

std of care for physicians

Answer 14

held to std of other physicians and specialists in VA but locality std may be applied if shown to be more appropriate
- failure to comply w/ informed consent requirement is medical negligence unless risk is commonly known, patient is unconscious, patient waives or is incompetent, or disclosure is too harmful

Question 15

negligence per se (under statute)

Answer 15

1- specific duty imposed by criminal or regulatory statute
2- D neglects to perform required duty
3- D liable to anyone in the class of people intended to be protected by statute
4- for harms the type of which statute was intended to protect against
5- that were proximately caused by D’s violation of the statute

Question 16

defenses to negligence per se

Answer 16

• compliance impossible or more dangerous than noncompliance
• violation reasonable under circumstances
• statutory vagueness or ambiguity

Question 17

inn keeper std of care

Answer 17

ordinary negligence std

+ must warn or protect guests from foreseeable criminal acts (VA)

Question 18

common carrier std of care

Answer 18

highest duty of care consistent w/ practical operation of business

Question 19

auto drivers std of care

Answer 19

ordinary care to guests as well as passengers

Question 20

bailor std of care

Answer 20

duty to warn all bailees of known dangerous defects

duty to warn bailee for hire or defects bailor should have known w/ reasonable diligence

Question 21

bailee std of care

Answer 21

gratuitous bailee liable only for gross negligence
bailee for hire must exercise extraordinary care
bailee for mutual benefit must take reasonable care

Question 22

sellers of real property std of care

Answer 22

duty to disclose known, concealed, unreasonably dangerous conditions
liability to 3rd parties continues until buyer has a reasonable opportunity to discover and remedy the defect

Question 23

std of care for undiscovered trespassers

Answer 23

no duty unless owner should reasonably know that trespassers are entering the land
- no intentional misconduct toward trespassers (spring gun)

Question 24

std of care for discovered trespassers

Answer 24

duty to warn / protect against concealed, dangerous and artificial conditions

Question 25

attractive nuisance rule

Answer 25

repudiated in VA except landowner may be held liable for leaving hidden danger on property that is
i- easily accessible to children and
ii- known to be frequented by children

Question 26

invitee definition

Answer 26

invited to enter for purposes for which land is held open

Question 27

std of care for invitees

Answer 27

liable to invitees for injuries caused by land if owner should have known invitee would not realize danger -
NO duty to protect against open and obvious dangers

Question 28

licensee - defined

Answer 28

enters onto land of another w/ permission or privilege (social guest, emergency personnel

Question 29

std of care for licensees

Answer 29

carry on activities w/ reasonable care for safety of licensees
liable for resulting injuries unless licensee should be aware of risk

Question 30

std of care for tenant

Answer 30

landlord liable for injuries a) occurring in common areas resulting from hidden dangers about which LL fails to warn on premises b) premises leased for public use c) hazrd caused by negligent repair, or d) involving hazard LL agreed to repair

Question 31

std of care for off premises victims

Answer 31

• no duty for harm caused by natural conditions

- duty to prevent - unreasonable risk of harm caused by artificial condition

Question 32

burden of proof for breach of duty

Answer 32

preponderance of the evidence:

• greater than not D failed to meet std of care
• failure was proximate cause of injury and p suffered damages

Question 33

res ipsa loquitor

Answer 33

P’s harm wouldn’t have occurred if D used ordinary care - no injury absent negligence
P not responsible for injury
p’s injury under D’s exclusive control