torts- neligence

Question 1

Negligence

Answer 1

1. Duty
2. Breach
3. Causation
4. Damages
   - Regular negligence, negligence per se, or res ipsa loquitor
   - Duty owed to foreseeable Ps
   - SOC: reasonably prudent person

Question 2

Known trespasser

Answer 2

• Warn of known dangers (known, manmade death traps)
• No duty of care to unknown trespasser

Question 3

Licensee

Answer 3

• Social guest
• Warn of known concealed dangers

Question 4

Invitee

Answer 4

• Businesses
• Warn, inspect, and make safe

Question 5

parent/child duties

Answer 5

Duty of a parent
- Knew/should have known that child was likely to cause harm
Duty of a child
- Reasonably prudent children of same age, experience, and intelligence
- Except when engaging in adult activities (motor vehicles)

Question 6

Duty of a professional

Answer 6

• Similar/average professionals with the same education, training, and customs

Question 7

Exception to general no duty to rescue

Answer 7

1. Assumption of duty
2. Special relationship (common carrier, inkeeper-guest, teacher-student, employer’-‘ee)

Question 8

Breach of duty

Answer 8

• Failure to comply with duty of care

Question 9

causations

Answer 9

Actual causation (cause in fact)
- But for
- Almost always met

Proximate causation
- Foreseeability
- Need both actual and proximate causations
- Intervening cause: foreseeable event, pay all damages (med mal, subsequent disease or accident, negligent rescuer, protective/reactive forces)
- Superseding cause: unforeseeable event, cuts off liability (act of God, intentional tort, criminal act)

Question 10

Damages

Answer 10

Physical injury

Question 11

Defenses to negligence
Pure comparative negligence

Answer 11

• P’s damages reduced by % of fault
• Assume pure comparative negligence jur unless otherwise

Question 12

Defenses to negligence
Modified/modern/partial comparative negligence

Answer 12

• P cannot recover if more than 50% at fault

Question 13

Defenses to negligence
Contributory negligence

Answer 13

• P cannot recover if at fault
• Last clear chance exception:
  
  • D had last clear change to avoid accident
  • D did not do so
  • P can recover

Question 14

Defenses to negligence
Assumption of the risk

Answer 14

• Must have knowledge
  Must appreciate the danger

Question 15

Joint and several liability

Answer 15

• 2 or more people cause single accident
• All Ds jointly and severally liable for damages (P can choose)
• Merged causes: If 2 Ds + 2 breaches + merged = use substantial factor test. If breach would have been able to cause entire harm if it had been only breach, it’s a substantial factor
  □ Merged cause –> D held jointly and severally liable
• Unascertainable cause: 2 acts, only one of which causes injury but unknown which one
  Shifts burden of proof to Ds. If fails –> jointly and severally liable
• Contribution: co-Ds can sue to recoup money

Question 16

Vicarious liability

Answer 16

• Employer liable for negligent employees
• Employees acting within scope of employment
• Indemnification: may seek indemnification from whoever actually caused the damage
  - ‘er or manufacturer

Question 17

Independent contractors generally not liable unless

Answer 17

1. Abnormally dangerous activity
2. Non-delegable duty (safety or benefit of public/others. business should make its place safe for its customers)
   
   • Chop off ice on sidewalk
   • Clean windows
   • Polish floor in office building
     NOT a non-delegable duty: redoing my bathroom