Torts - negligence Flashcards

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1
Q

negligence elements

A

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

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2
Q

parties to who duty is owed

A

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

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3
Q

duty owed for failure to act

A

generally none

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4
Q

duty & foreseeability of harm to P

A

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

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5
Q

duty to rescuers

A

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
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6
Q

duty to fetuses

A

duty of care owed to fetuses viable at time of injury

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7
Q

affirmative duties to acts - exceptions

A

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

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8
Q

VA Good Samaritan Law

A

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

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9
Q

reasonably prudent person std

A

objective std

- physical, not mental, characteristics are considered

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10
Q

reasonably prudent person std for intoxicated persons

A
  • voluntarily intoxicated person held to same standard as sober one
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11
Q

reasonably prudent person std for children

A

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
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12
Q

use of custom to determine std of care

A

admissible but not conclusive

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13
Q

std of care for professionals

A

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)
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14
Q

std of care for physicians

A

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

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15
Q

negligence per se (under statute)

A

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

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16
Q

defenses to negligence per se

A
  • compliance impossible or more dangerous than noncompliance
  • violation reasonable under circumstances
  • statutory vagueness or ambiguity
17
Q

inn keeper std of care

A

ordinary negligence std

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

18
Q

common carrier std of care

A

highest duty of care consistent w/ practical operation of business

19
Q

auto drivers std of care

A

ordinary care to guests as well as passengers

20
Q

bailor std of care

A

duty to warn all bailees of known dangerous defects

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

21
Q

bailee std of care

A

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

22
Q

sellers of real property std of care

A

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

23
Q

std of care for undiscovered trespassers

A

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

24
Q

std of care for discovered trespassers

A

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

25
Q

attractive nuisance rule

A

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

26
Q

invitee definition

A

invited to enter for purposes for which land is held open

27
Q

std of care for invitees

A

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

28
Q

licensee - defined

A

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

29
Q

std of care for licensees

A

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

30
Q

std of care for tenant

A

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

31
Q

std of care for off premises victims

A
  • no duty for harm caused by natural conditions

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

32
Q

burden of proof for breach of duty

A

preponderance of the evidence:

  • greater than not D failed to meet std of care
  • failure was proximate cause of injury and p suffered damages
33
Q

res ipsa loquitor

A

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