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55 Cards in this Set

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What are the prima facie elements of negligence?
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
What are the two questions that should be asked before determining the duty of care for negligence?
1) Was P a foreseeable victim?
2) if yes, what is the applicable standard of care?
Is a duty of care owed to unforeseeable plaintiffs?
No, a duty of care is only owed to foreseeable plaintiffs.
What are the two views when a breach of duty to one P results in the injury of another P?
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
Are rescuers foreseeable plaintiffs?
Yes, where D negligently put another in danger, rescuers are foreseeable
What type of standard is the reasonable person standard?
It is an objective standard, maesured against what the average person would do.
Are mental deficiencies taken into consideration for a negligence case?
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.
What is the standard of care for professionals?
A professional will be held to the standard of care of a member of the profession in good standing in the local community.
What is the standard of care for medical specialists?
They are held to a national standard of care for the specialty.
What is the standard of care for children?
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
What is the standard of care for common carriers and innkeepers?
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
What is the duty owed by owners and occupiers of land?
The liability depends on where the injury occured and the status of the plaintiff
What is the duty owed to those off the premises?
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
What is the duty owed to those off the premises?
It depends on the classification - Are they a
1) trespasser;
2) licensee; or
3) business invitee
What is the duty owed to undiscovered trespassers?
None
What is the duty owed to discovered or anticipated trespassers?
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
What is the attractive nuisance doctrine?
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
What is a licensee?
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
What is the duty owed to a licensee?
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
What is an invitee?
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.
What is the duty owed to an invitee?
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
Is there a duty for landowners who permit the general public to use their land and do not charge a fee?
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
What duty is owed by a lessee?
A lessee has a general duty to maintain the premesis
What duty is owed by a lessor?
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
What if the lessor covenants to repair?
He will be liable for unreasonably dangerous conditions. Also, if the lessor volunteers to repair and does so negligently, he will be liable.
What duty is owed by a seller or realty?
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
When may a statutory duty replace the more general common law duty of care?
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.
What if compliance with the statute would cause more danger than not, or compliance is beyond D's control?
That is an excuse for violation of the statute.
What is the effect of violation of a statute?
The majority view is that it establishes the first two elements of negligence, duty and breach of duty.
What are the elements of negligent infliction of emotional distress?
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.
Is there an injury requirement for NIED?
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.
Is there a zone of danger requirement for NIED?
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.
Is there ever an affirmative duty to act?
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
what is the duty to control 3rd persons?
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.
When has D breached their duty to P in a negligence question?
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.
What theories may be used to establish a breach of duty?
1) custom or usage

2) Violation of Statute

3) Res Ipsa Loquitur
What are the factors establishing res ipsa loquitur?
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.
What is the effect of establishing Res Ipsa?
It means that P has met his initial burden, and the question must go to the jury
How does P establish the causation element of negligence?
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
What is the substantial factor test?
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.
What is the alternative causes approach?
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.
What is the general rule re proximate cause?
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.
Is D liable for harm caused by foreseeable intervening forces?
Yes. D will be liable where his negligence caused a foreseeable harmful response or created risk of an independent intervening force.
What are some common intervening forces?
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
Is D liable for unforeseeable results caused by unforeseeable intervening forces?
No. This is a superseding force that will break the causal chain and relieve P of liability for harm caused by the superseding factor.
What is the collateral source rule?
P's damages are not reduced b
ecause he receives benefits from other sources, e.g., health insurance.
Does P have a duty to mitigate damages as a result of negligence?
Yes, P must take reasonable steps to mitigate damages.
What are the defenses to negligence?
1) contributory negligence

2) assumption of the risk

3) comparative negligence
What is contributory negligence?
Negligence on the part of P that contributes to her injury.
Is contributory negligence a defense to intentional torts?
No.
What is the last clear chance doctrine?
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
What is assumption of the risk?
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
What is comparative negligence?
The trier of fact weighs each party's respective negligence and assigns percentage values.
What is pure comparative negligence?
P can recover, even if he was 95% negligent.
What is modified comparative negligence
P can only recover if he was 50% negligent or less.