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56 Cards in this Set

  • Front
  • Back
Elements of a Prima Facie Case for Negligence
1) Duty
2) Breach
3) Actual and Proximate Cause
4) Damages
Determinig whether or not a duty is owed
1) Was the P forseeable? (in the zone of danger)
2) If so, what is the applicable standard of care
Specific Situations where P is always foreseeable
1) Rescuers (except police/fire)
2) Viable Fetus
3) Third party beneficiary
Default Duty - Default Standard of Care
A rsnbly prudent person under same/similar circs (emergency circs taken into account unless of Ps own creation)

Two exceptions to rigid objectivity =
1) Δ’s expertise = Body or single fact
2) Physical characteristics of Δ
Specialized Standards of Conduct
1) Professionals
2) Children
3) Common Carriers and Innkeepers
4) Bailor/Bailee
5) Premisis Liability
6) Negligence Per Se
8) Affirmative Duty to Act
Professionals, Duty of Care
knowledge or skill of a member of the profession in good standing in similar communities

-Specialists = nat'l standard

-Dr = duty to disclose risk of treatment to enable π to give informed consent. Inquiry, would a RP in patient's position consent post warning?
Child's Duty of Care
(SBJ) child of like age, education, intelligence, experience in similar circumstances

- Standard very customized to specific kid

Exception = child engaged in adult activity (vehicle)
Common Carriers/Innkeepers
Held to a very high degree of care, liable for slight negligence. H/e, the P must be a passenger or guest.
What is a bailor?
One who transfers possession of a chattel (but not title)
What is a bailee?
One who takes possession of a chattel (but not title)
Bailee Standard of Care
1) If the bailment is for the sole benefit of the bailor, low standard of care.
2) If for the sole benefit of the bailee, high standard of care
3) If for mutual benefit, ordinary standard of care
Bailor Standard of Care
A bailor must inform the bailee of known, dangerous defects in the chattel. If it is a bailment for hire this includes an defects which he should be aware of.
Negligence Per Se
A statute may create a more stringent duty if
1) it provides for criminal penalty
2) clearly defines standard of conduct
3) P is within the protected class
4) designed to prevent the type of harm suffered by P

1) When compliance would be beyond D's control
Negligent Infliction of Emotional Distress
1) P must be in the zone of danger
2) P must suffer physical symptoms from the distress

1) Bystander outside zone of danger that sees can recover for their distress if P is closely related to injured party, P was present at scene and perceived the event
2) If there is a special relationship between P and D with potential to cause great distress (Dr misdiagnosis, mishandling of body). May not require proof of physical manifestation.
Affirmative Duties to Act
1) Undertaking aid (Good samaritan statutes exempt doctors, etc. from ordinary negligence)
2) When D creates Peril
3) Special Relationship - common carriers/innkeeprs/shopkeepers
4) Duty to control 3rd parties if one has knowledge of prpensity and ability/authority to control
Categories of Premisis Liability
1) Those off Premises
2) Undiscovered Trespassers
3) Discovered Trespassers
4) Licensees
5) Invitees
6) Attractive Nuisance
7) Recreational Land
8) Lessor/Lessee of Realty
9) Vendor of Realty
Off-Premises Duty
no duty from natural conditions, duty for unrsnbly dangerous artificial conditions or structures abutting adjacent land
Undiscovered Trespassers
No Duty
Known Trespasser
Duty to warn of or make safe artifical conditions if non obvious and highly dangerous. No duty as to natural conditions.
Those who enter land with permission, not for econ benefit. Social guests.

Duty to warn of or make safe known conditons if nonobvious and dangerous.
Persons who enter the land with permission to confer an economic benefit OR land that is generally held open to the public even if for free.

Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe.

One can exceed scope of invitation and lose invitee status.
Attractive Nusance
Duty to avoid forseeable risk of harm to children caused by artificial conditions. Must show:
1) dangerous condition that the owner K or SK of
2) owner K or SK children frequent vicinity
3) condition is likely to cause injury b/c kid can't appreciate risk
4) expense of fixing is slight compared with magnitude of risk.

** Note - thing that lured kid onto property doesn't have to be thing that injured kid.
Duty for Recreational Property w/o fee
not liable for injuries unless Δ willfully and maliciously failed to guard/warn against danger
Lessee has a duty to maintain the premises. Lessor must warn of existing defects of which he K or SK and the less is not likely to discover on reasonable inspection.
Vendor of Realty
Must disclose concealed, unreasonably dangerous conditions which the vendor K or SK and vendee can't discover w/ reasonable inspection.
Effect of Warnings on dangerous property condition
satisfy the duty of care b/c the turn a concealed hazard into a known hazard
Define Breach
Δ’s conduct falls short of level required by applicable SOC owed to π
Theories of Breach
1) Custom or usage (but entire industry may be neg)
2) Violation of statute/Neg per se
3) Res ipsa loquitor
Res Ipsa Loquitur
1) Accident is not the type that would occur unless someone was negligent
2) negligence is attributable to the defendant/exclusive control
- P can lose if inference is rejected by trier of fact
But for the breach, π would be uninjured today

Problem of Multiple Δs
- Merged cause = if Δ’s act was a substantial factor in causing π’s injury, Δ is liable
- Unascertainable cause = Burden shifts to Δs to show they weren’t actual cause, if they cannot meet burden Δs joint and severally liable
Proximate cause in direct cause cases
Δ is liable unless what happened is freakish + bizarre,usually no proximate cause issues.
Proximate cause in indirect cause cases
Δ liable for frsbl consequences of his actions

Always forseeable if:
1) Negligent Medical Malpractice
2) Negligent Rescue
3) Reaction or Protection
4) Subsequent Diseases/Accidents from injury

Independent Intervening Forces = Neg 3Ps, Intentional Torts + Acts of God

If not one of the big four: ask: Is the harm that occurred the harm we were afraid would occur as a result of the breach?
Eggshell Plaintiff
Unforseeable Extent or Severity of Harm is no defense. You take your Plaintiff as you find him.
Eggshell π = all econ + non-econ harm + potentially punitive damages for wanton and willful/reckless/malicious conduct.

P has a Duty to Mitigate – π take rsnbl steps, i.e. treatment

Collateral Source = dmgs not reduced just b/c π has benefits from other sources, i.e. health insurance
Nonrecoverable Damages in Negligence
Interest fromd date of injury and attorney's fees.
Negligence Defenses
1) Comparative Negligence
2) Contributory Negligence
3) Assumption of Risk
Contributory Negligence
Negligence by P contributes to her injuries. At common law, it bars P's right to recovery. Not used in most JX now.
Last Clear Chance
to mitigate harsh affect of contributory negligence - the person with the last clear chance to avoid an accident but fails to do so is liable for negligence.

- Δ K/SHK π in hapless peril
- Δ must actually know of π’s condition
- Δ been able to avoid harming π at time accident occurred
Contributory Negligence - Negligence Per Se
If Negligence per se, Contributory Negligence cannot be a defense when the statute was designed to protect the P - i.e. children darting into the street in a school zone.
Assumption of Risk
Implied or Express

Implied when the risk is one that an average person would clearly appreciate.

No assumption of risk when P had no other option.

Common carriers and public utitlities may not use assumption of risk by disclaimer.
Comparative Negligence
Ps recovery is reduced according to her contribution.

Partial comparative negligence - bars Ps recovery if his negligence is more serious than D's negligence.

Pure comparative negligence - allow recovery no matter how great P's negligence.
Strict Liability - Prima Facie Case
1) Nature of activity imposes an absolute duty to make safe
2) Dangerous aspect of the activity was the actual and proximate cuase of Ps injury
3) P suffered damage to person or property
Strict Liability for Animals
1) Trespass = SL for rsnbl dmg caused by owner's animals
2) Wild = SL to licensees + invitees unless 3P provoked it
3) Domestic = no SL unless Δ has knowledge of animal’s dangerous propensities not common to that species
4) Trespassers ≠ SL unless owner is neg. H/E alternatively landowner could be liable for intentional tort for injuries inflicted by vicious watchdogs (like the springgun case)
Abnormally Dangerous Activities
1) Activity creates frsbl risk of serious harm even when rsnbl care is exercised by all actors
2) Activity ≠ matter of common usage in the community
Defenses to Strict Liability
1) Comparative Negligence is typically allowed.
2) Assumption of risk is a good defense.
3) Contributory negligence is usually no defense if P has failed to realize the danger or guard against it. P's unreasonable conduct must be the cause of the explosion.
Theories of Liability for Products Liability
1) Intent 2) Negligence 3) Strict Liability 4) Implied warranties of merchantability and fitness for a particular prupose 5) warranty and misprepresentation
Strict Products Liability Prima Facie Case
1) Strict duty owed by a commercial supplier of a product to purchasers and bystanders
2) production of a defective product, defect when the product left D's control
3) P is making a foreseeable use of the product
4) actual and proximate cause
5) damages
Δ is a merchant
Regularly deals in goods of the kind

Good provided incidental to service does not count
The product is defective
Must be defective when the product left D's control (inferred if normal distribution)

Types of defects:
1) Manufacturing = Product differs from its intended design in a way that makes it more dangerous than consumers would expect
2) Design = All products are same, but unrsnbly dangerous. P must est. alternative design = (1) safer (2) cost effective (3) practical
3)Inadequate Warning = Can’t be made safer + risks not obvious to consumers. Warnings by learned intermediaries are sufficient - physicians, etc.

Other Factors to consider:
Government Safety Standards
Scientifcally Unknowable Risks
Unavoidably Unsafe Products
Effect of Government Safety Standards
Noncompliance with government safety standards establishes that the product is defective. Compliance with standards, while evidence, is not conclusive of safety.
Scientifically Unknowable Risks
D is not liable for dangers not foreseeable at the time of marketing
Unavoidably Unsafe Products
Manufacturers aren't laible for dangerous products if the danger is apparent and there is no safer way to make the product (knives)
Products Liability Based on Intent
If D intended the consequences or knew they were substantially likely to occur. No privity required. Compensatory as well as punitive damages.
Products Liability based on negligence
Duty to any foreseeable P (user, consumer, bystander). Anyone in the chain can be held liable.

Breach is shown by the defendant supplying a defective product. May use res ipsa.

** Retailers and wholesalers can usually satisfy their duty through a cursury inspection.

Causation - failure to discover doesn't absolve the manufacturer.

Damages - must be shown
Products Liability based on implied warranties of merchantability and fitness
1) Merchantability - good are of average acceptable quality and a fit for the ordinary purose for which the goods are used.

2) Fitness for a particular purchase - seller K or SK the purpose that the goods are being used for and buyer relies on seller's skill in selecting goods.

Damages - personal injury, property damages, economic loss.

Other negligence rules apply
Misrepresentaiton for Products LIability
1) Express Warranty - Affirmative promise, didn't live up to warranty.

2) Misrepresention - statement of material fact concerning quality or use of goods, seller intended to induce reliance.