Bar Exam Negligence

Front 1

What are the prima facie elements of negligence?

Back 1

1) a duty for P to conform to a specific standard of conduct to protect others against an unreasonable risk of injury
2) a breach of that duty
3) the breach is the actual and proximate cause of P's injury
4) damages

Front 2

What are the two questions that should be asked before determining the duty of care for negligence?

Back 2

1) Was P a foreseeable victim?
2) if yes, what is the applicable standard of care?

Front 3

Is a duty of care owed to unforeseeable plaintiffs?

Back 3

No, a duty of care is only owed to foreseeable plaintiffs.

Front 4

What are the two views when a breach of duty to one P results in the injury of another P?

Back 4

Cardozo view: a duty of care is only owed to foreseeable plaintiffs

Andrews view: P2 may establish a duty to him by extending the duty owed to P1

Front 5

Are rescuers foreseeable plaintiffs?

Back 5

Yes, where D negligently put another in danger, rescuers are foreseeable

Front 6

What type of standard is the reasonable person standard?

Back 6

It is an objective standard, maesured against what the average person would do.

Front 7

Are mental deficiencies taken into consideration for a negligence case?

Back 7

No, but the reasonable person is considered to have the same physical characteristics as D. E.g., if D is blind, the ORPP will be blind too.

Front 8

What is the standard of care for professionals?

Back 8

A professional will be held to the standard of care of a member of the profession in good standing in the local community.

Front 9

What is the standard of care for medical specialists?

Back 9

They are held to a national standard of care for the specialty.

Front 10

What is the standard of care for children?

Back 10

They are held to the standard of a child with similar age, education, intelligence, and experience.

Note: if children are engaging in adult activity (usually operating a vehicle with a motor), they will be held to an adult negligence standard

Front 11

What is the standard of care for common carriers and innkeepers?

Back 11

They are held to a high degree of care, i.e., they can be held liable for even slight negligence. Look for a hypo where P is a passenger or guest of the common carrier

Front 12

What is the duty owed by owners and occupiers of land?

Back 12

The liability depends on where the injury occured and the status of the plaintiff

Front 13

What is the duty owed to those off the premises?

Back 13

1) there is no duty owed to protect others off the premises from natural conditions on the premises;

2) there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land; and

3) there is a duty to carry on activities on the property so as to avoid unreasonable risk of harm to others outside the property

Front 14

What is the duty owed to those off the premises?

Back 14

It depends on the classification - Are they a
1) trespasser;
2) licensee; or
3) business invitee

Front 15

What is the duty owed to undiscovered trespassers?

Back 15

None

Front 16

What is the duty owed to discovered or anticipated trespassers?

Back 16

The landlord must:

1) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm

2) use reasonable care in the exercise of active operations on the property

Front 17

What is the attractive nuisance doctrine?

Back 17

A landowner has a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on the property.

P must show:
1) a dangerous condition on the land that P should be aware of;
2) the owner knew or should have known that children frequent the area around the condition;
3) the condition is likely to cause injury because of the child's inability to appreciate the risk; and
4) the expense of remedying the situation is slight when compared with the magnitude of the risk

Front 18

What is a licensee?

Back 18

A licensee enters on to the land with the owner's permission for her own purpose or business, rather than for the possessor's benefit.

Note: social guests are licensees

Front 19

What is the duty owed to a licensee?

Back 19

The possessor of land has a duty to

1) warn the licensee of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover; and

2) exerise reasonable care in the conduct of active operations on the property

Front 20

What is an invitee?

Back 20

Invitees enter land in response to an invitation from the possessor. This is the case when land is held open to the public, usually businesses.

Front 21

What is the duty owed to an invitee?

Back 21

1) warn the invitee of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the invitee and that the invitee is unlikely to discover; and

2) make reasonable inspections to discover dangerous conditions and make them safe

3) exerise reasonable care in the conduct of active operations on the property

Front 22

Is there a duty for landowners who permit the general public to use their land and do not charge a fee?

Back 22

They owe no duty to those that enter the land, unless the owner willfully and maliciously failed to guard against or warn of a dangerous condition or activity

Front 23

What duty is owed by a lessee?

Back 23

A lessee has a general duty to maintain the premesis

Front 24

What duty is owed by a lessor?

Back 24

The lessor must:

1) warn of existing defects which he is aware or has reason to know, and

2) which he knows the lessee is not likely to discover on a reasonable inspection

Front 25

What if the lessor covenants to repair?

Back 25

He will be liable for unreasonably dangerous conditions. Also, if the lessor volunteers to repair and does so negligently, he will be liable.

Front 26

What duty is owed by a seller or realty?

Back 26

A vendor must disclose to the vendee unreasonably dangerous conditions which the vendor knows or should know about, and which he knows the vendee is unlikely to discover on a reasonable inspection

Front 27

When may a statutory duty replace the more general common law duty of care?

Back 27

1) The statute provides for a criminal penalty;

2) The statute clearly defines the standard of conduct

3) P is within the class the statute is designed to protect; and

4) the statute was designed to prevent the type of harm suffered by P.

Front 28

What if compliance with the statute would cause more danger than not, or compliance is beyond D's control?

Back 28

That is an excuse for violation of the statute.

Front 29

What is the effect of violation of a statute?

Back 29

The majority view is that it establishes the first two elements of negligence, duty and breach of duty.

Front 30

What are the elements of negligent infliction of emotional distress?

Back 30

D creates a foreseeable risk of physical injury to P, either by

1) causing a threat of physical impact that leads to emotional distress, or

2) directly causing severe emotional distress that by itself is likely to result in physical symptoms.

Front 31

Is there an injury requirement for NIED?

Back 31

Yes, P can only recover if D's conduct caused some physical injury. Symptoms must be shown except in 2 cases:

1) an erroneous report of a relative's death, or

2) a mishandling of a relative's corpse.

Front 32

Is there a zone of danger requirement for NIED?

Back 32

Normally yes. There is a modern exception for situations where P and the person injured are closely related, and P was present at the scene and witnessed the injury.

Front 33

Is there ever an affirmative duty to act?

Back 33

Generally no, but there are exceptions where:

1) one has assumed a duty of care by choosing to act (unless there is a good samaritan statute);

2) if D's conduct placed someone else into peril;

3) There is a special relationship between the parties - parent/child, husband/wife, common carrier/passenger

Front 34

what is the duty to control 3rd persons?

Back 34

there is a duty to control a 3rd person where a person has actual ability and authority to control the 3rd party actor, and has reason to know that the person is likely to commit acts that would require use of that control.

Front 35

When has D breached their duty to P in a negligence question?

Back 35

Where D's conduct falls short of the applicable standard of care owed to P. This is a question of fact to be decided by the jury.

Front 36

What theories may be used to establish a breach of duty?

Back 36

1) custom or usage

2) Violation of Statute

3) Res Ipsa Loquitur

Front 37

What are the factors establishing res ipsa loquitur?

Back 37

1) the accident causing the injury is a type that would not normally occur undless someone was negligent; and

2) the negligence is attributable to D; i.e., this type of accident ordinarily happens because of the negligence of someone in D's position.

Front 38

What is the effect of establishing Res Ipsa?

Back 38

It means that P has met his initial burden, and the question must go to the jury

Front 39

How does P establish the causation element of negligence?

Back 39

1) actual cause - but for D's conduct, the injury would not have occured; and

2) Proximate cause - the harm that was caused to P was a foreseeable result of his negligence

Front 40

What is the substantial factor test?

Back 40

Several causes bring about an injury, and any one alone would have been sufficient to cause the injury.

D's conduct will be the cause in fact if it was a substantial factor in causing the injury

Note: this applies to multiple actors where both caused harm.

Front 41

What is the alternative causes approach?

Back 41

This is the Summers v. Tice scenario. There are two acts, only one of which caused the injury, but no one knows which one.

The burden of proof is shifted to the defendants to show that they did not cause the harm, otherwise they will be held jointly and severally liable.

Note: this applies to situations where both parties acted negligently, but only one caused the harm.

Front 42

What is the general rule re proximate cause?

Back 42

D is generally liable for all harmful results that are the normal incidents of and within the increased risks caused by his acts; i.e., he will be responsible for harm that is foreseeable.

Front 43

Is D liable for harm caused by foreseeable intervening forces?

Back 43

Yes. D will be liable where his negligence caused a foreseeable harmful response or created risk of an independent intervening force.

Front 44

What are some common intervening forces?

Back 44

1) subsequent medical malpractice;
2) negligence of rescuers;
3) efforts to protect person or property;
4) injuries caused by reactions;
5) subsequent diseases;
6) subsequent accident substantially caused by the original injury

Front 45

Is D liable for unforeseeable results caused by unforeseeable intervening forces?

Back 45

No. This is a superseding force that will break the causal chain and relieve P of liability for harm caused by the superseding factor.

Front 46

What is the collateral source rule?

Back 46

P's damages are not reduced b
ecause he receives benefits from other sources, e.g., health insurance.

Front 47

Does P have a duty to mitigate damages as a result of negligence?

Back 47

Yes, P must take reasonable steps to mitigate damages.

Front 48

What are the defenses to negligence?

Back 48

1) contributory negligence

2) assumption of the risk

3) comparative negligence

Front 49

What is contributory negligence?

Back 49

Negligence on the part of P that contributes to her injury.

Front 50

Is contributory negligence a defense to intentional torts?

Back 50

No.

Front 51

What is the last clear chance doctrine?

Back 51

The person with the last clear chance to avoid an accident who fails to do so is liable for negligence.

Note: this is often P's rebuttal to a defense of contributory negligence

Front 52

What is assumption of the risk?

Back 52

P may be denied recovery where he:

1) knew of the risk, and

2) voluntarily encountered the risk.

Note: assumption of the risk may be implied or express, but it is not available if P had no available alternative

Front 53

What is comparative negligence?

Back 53

The trier of fact weighs each party's respective negligence and assigns percentage values.

Front 54

What is pure comparative negligence?

Back 54

P can recover, even if he was 95% negligent.

Front 55

What is modified comparative negligence

Back 55

P can only recover if he was 50% negligent or less.