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56 Cards in this Set
- Front
- Back
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To whom do you owe a duty?
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foreseeable victims
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What is the default standard of care?
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Reasonable and prudent person under the circumstances
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What are the 6 specialized duties?
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1. Children
2. professionals 3. possessors of land 4. statutory 5. affirmative duties 6. negligent infliction of emotional distress |
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Is there an affirmative duty to rescue?
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Generally, no.
Exceptions: 1. pre-existing relationship 2. def caused the peril |
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When is there an affirmative duty to rescue?
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1. pre-existing relationship
2. def created the peril |
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What is the standard of care that a rescuer must meet?
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RPP under the circumstances
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What are the 3 scenarios of Negligent Infliction of Emotional Distress? (NIED)
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1. near miss case - if the def's negligent conduct put pl in a zone of physical danger, then pl was distressed by that and the distress then produced subsequent physical manifestation
2. bystander claim for NIED - pl must be a contemporaneous witness to a negligent bodily injury on a close family member. 3. pre-existing relationship b/w pl and def and a negligent act can foreseeably cause distress. |
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For NEID what are the requirements for a near miss case?
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if the def's negligent conduct put pl in a zone of physical danger, then pl was distressed by that and the distress then produced subsequent physical manifestation
Pete crossing street, near miss, agitated, has heart attack 1. zone of danger 2. distress 3. visible manifestation |
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For NEID what are the requirements for a bystander claim?
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pl must be a contemporaneous witness to a negligent bodily injury on a close family member.
Ex: your 5yr old son is killed by drunk driver, in front of you NY requires that the observer be in the zone of physical danger close family member = parent, spouse, child |
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For NEID what are the requirements for a pre-existing relationship?
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pre-existing relationship b/w pl and def and a negligent act can foreseeably cause distress.
Ex: negligent medical diagnosis. |
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In NY for NEID bystander claim, where must the bystander be?
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in the physical zone of danger
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For NEID who is a close relative?
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spouse, child, parent
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Breach - what are the two things you should discuss in an essay?
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1. ID the wrongful behavior - factual proposition
2. must give a reason why that ID'd fact falls short of the standard of care - argumentation, advocacy |
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When is res ipsa loquitor used?
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when the pl lacks information about what the pl did wrong.
A way to get to the jury. |
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What must a pl demonstrate for res ipsa loquitor?
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1. pl must demonstrate this event is one normally associated w/ negligence
2. pl must show that the accident is normally due to a person in the def's position |
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How can a pl using res ipsa loquitor demonstrate that this event is one normally associated w/ negligence?
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can appeal to common knowledge or offer two kinds of proof
1. evidence that rules out non-negligent explanation (no earthquakes) 2. offer expert testimony about probabilities |
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How can a pl using res ipsa loquitor demonstrate that the accident is normally due to a person in the def's position?
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show the def had control of the object - the def's decisions
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Does a showing of res ipsa loquitor guarantee a pl verdict?
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no, just gets you to the jury. Res ipsa is a substitute for evidence of a breach.
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Why show cause?
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demonstration by the pl of a connection b/w the breach and the injury suffered
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What are the two types of cause?
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1. Factual cause - but for
2. proximate or legal cause |
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How do you test for factual cause w/ multiple defendants?
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1. Multiple def's and merged causes = substantial factor test
(two forest fires - whether each breach standing alone was capable of causing the injury) 2. Unascertainable cause - shift burden of proof (hunting accident) |
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What is the result if both def's are a substantial factor?
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jointly and severally liable
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What is the "shadow" name for proximate cause?
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fairness - measures foreseeability
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what are the two types of bar exam questions for proximate cause?
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1. direct cause problems
2. indirect cause problems |
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What is a direct cause problem? (proximate cause)
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one where the breach leads instantaneously to injury
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What is an indirect casue problem? (proximate cause)
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the def commits the breach and then other stuff happens in the middle of the story. Only after that does the pl suffer the full harm
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What are the four scenarios where a def is always liable for an indirect cause? (proximate cause)
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1. intervening medical negligence or med mal
2. intervening negligent rescue 3. intervening reaction or protection forces (cause a stampede) 4. subsequent disease or accident |
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How do you analyze indirect cause questions if not in the four scenarios?
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1. look at the breach, why is it a breach
2. what am I afraid is going to happen 3. what actually happened 4. if they are the same then foreseeable GA shrimp / vomit example: bad shrimp does not cause a broken arm - not foreseeable |
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What is the eggshell skull rule?
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if you commit all the other elements of negligence then you are liable for all damages suffered, no matter how great in scope
Take the pl as you find him, even frailties |
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Is the eggshell skull rule limited to negligence?
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no, can apply to the other torts.
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What are equittable remedies in the law of torts?
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1. negative injuction - refrain from conduct
2. mandatory injunction - requires an undertaking Injunctions can be either: 1. permanent 2. preliminary |
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What is a negative injunction?
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you must refrain from conduct
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What is a mandatory injunction?
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requires an undertaking
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What is a preliminary injunction?
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entered shortly after the complaint is filed, after a truncated hearing, designed to maintain the status quo
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What is a permanent injunction?
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entered at the conclusion of a full trial on the merits, part of the final relief of the lawsuit
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Can you get an injunction w/o establishing a tort?
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no, have to go through the tort analysis first
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What is the 4 part showing to get a permanent injunction?
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1. no adequate remedy at law - money won't do
2. the tort in question impinges on a property interest or a protectable interest 3. the injunction is enforceable 4. the balance of hardships is in the pl's favor |
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What does it mean that no adequat remedy at law exists? What are some things to look for?
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money is not adequate
Money might not be adequate if: 1. the pl might not have money 2. the harm can't be measured in monetary terms 3. the conduct is ongoing |
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What are defenses to injuctions?
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1. unclean hands
2. laches 3. 1st amendment |
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What is the unclean hands defense to an injunction?
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the pl himself is guilty of some form of misconduct (pl stole trade secret from his old employer, can't get an injunction to stop me)
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What is the laches defense to an injunction?
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prejudicial delay - because you didn't sue me earlier I have detrimentally changed my position
court may give money but not an injunction factory expands after 3years, you sue down the road |
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Why the 1st amendment defense to an injunction?
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strong principle of no prior restraint
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What are the two additional showings for a preliminary injunciton?
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1. showing of likely success on the merits
2. pl will suffer irreparable injury in the absence of an injunction |
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What are the three affirmative defenses to negligence?
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1. traditional contributory negligence
2. traditional implied assumption of the risk 3. comparative negligence |
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What is tradtional contributory negligence?
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if the pl in a negligence claim has failed to exercise proper care for his own safety that pl will be barred from recovery
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Does NY follow traditional contributory negligence?
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no, comparative negligence
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What is the exception to traditional contributory negligence?
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last clear chance doctrine
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What is the traditional implied assumption of the risk doctrine?
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I am cool with dealing with a negligent person
complete bar to recovery look for the following for implied consent 1. knowledge and appreciation of the risk 2. must take on the risk voluntarily |
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Is traditional implied assumption of the risk a complete bar to recovery?
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Yes
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What should you look for for implied consent? (traditional implied assumption of the risk)
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1. knowledge and appreciation of the risk
2. must take on the risk voluntarily |
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In NY can the failure of a passenger to wear a seatbelt mitigate recovery?
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Yes, mitigate but not bar.
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What is comparative negligence?
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assigns different consequences to pl's failure to behave reasonably for his own safety.
Reduces but doesn't bar recovery |
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What is the affirmative defense to negligence in NY?
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comparative negligence
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What are the two types of comparative negligence?
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1. pure comparative negligence - pl always recovers a little bit, even if 90% responsible
2. partial or modified comparative negligence - if pl is assigned less than 50% they will have reduced damages, if over 50% then no recovery |
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What is pure comparative negligence?
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pl always recovers a little bit, even if 90% responsible
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What is partial or modified comparative negligence?
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if pl is assigned less than 50% they will have reduced damages, if over 50% then no recovery
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