Lawex3: 7 &22 Negligence.

Front 1

elements of negligence

Back 1

duty of care,

breach,

causation,

damages

Front 2

A defendant owes a duty of care only to those in the reasonably _____ zone of danger

Back 2

FORESEEABILITY

Front 3

each person has a duty to act as a reasonable person would under the circumstances

Back 3

duty of due care

Front 4

liability of bars & restaurants is addressed in ______ acts which impose liability resulting harm if the establishment serves alcohol to intoxicated person

Back 4

dram shop

Front 5

No liability for mere negligence; only liable for intentional injury or some other gross misconduct

Back 5

Trespassing adult

Front 6

No duty for mere negligence, however, duty of care if some man-made thing on the land may be reasonably expected to attract children

Back 6

Trespassing children

Front 7

Owner has duty to warn licensee of hidden dangers of which the owner is aware

Back 7

Licensee

Front 8

on land for licensee's own purposes but w/ owner's permission

Back 8

licensee

Front 9

No duty to warn of obvious dangers

Back 9

Licensee

Front 10

on land b/c it is a public place or a business open to public

Back 10

invitee

Front 11

owner owes a duty of reasonable care to invitee

Back 11

Invitee

Front 12

Even if owner unaware of hidden danger, can be liable; thus owner of business needs to inspect own property

Back 12

Invitee

Front 13

a person must act as a reasonable person in her profession would act

Back 13

Professionals

Front 14

can be held liable for workplace violence (& sometimes even off-premises violence) if employer

Back 14

did not act as a reasonable employer would act

Front 15

failure to meet the duty of care

Back 15

breach

Front 16

usually breach is established by convincing the jury that the

Back 16

defendant did not act as a reasonable person in the circumstances would act

Front 17

min. standard of care is necessary to protect a certain group of persons. If that statute is violated & a member of the protected group is injured by the violation, the defendant has committed

Back 17

negligence per se

Front 18

did the defendant's breach lead to the ultimate harm?

Back 18

factual cause

Front 19

was the general type of harm reasonably forseeable

Back 19

Proximate cause

Front 20

Proximate cause: was the general type of harm reasonable _____

Back 20

foreseeable

Front 21

breaks the chain of causation

Back 21

superseding cause

Front 22

the thing speaks for itself

Back 22

Res ipsa loquitur

Front 23

Res ipsa loquitur only applies if:

Back 23

1) defendant had exclusive control of the thing that caused the harm

2) harm would not normally occur w/o negligence, &

3) plaintiff had no role in causing the harm

Front 24

if the court applies res ipsa loquitur, it shifts

Back 24

the burden of proof to the defendant to prove that he was not negligent

Front 25

employer can be held liable for the negligence of its employee who was acting w/i the scope of their employment

Back 25

respondeat superior; under Palsgraf doctrine

Front 26

In order for there to be negligence per se

Back 26

the statute needs to proscibe the specific acts

Front 27

showing injury is an element of plaintiff's negligence case

Back 27

Damages

Front 28

Damages requirements

Back 28

1) Plaintiff must persuade the court that harm is genuine & not just speculative

2) Plaintiff must also persuade the court that she suffered the harm- not someone else

Front 29

plaintiff who was also negligent cannot recover

Back 29

Contributory negligence

Front 30

plaintiff who was partially negligent can recover proportionally; but many bar recovery totally if plaintiff was more the 50% responsible)

Back 30

Comparative negligence

Front 31

person who voluntarily enters situation that has an obvious danger cannot recover for resulting injury

Back 31

assumption of risk

Front 32

strict liability

Back 32

1) cases of ultrahazardous activity OR

2) defective products

Front 33

product sold (by a seller normally engaged in selling such goods) in defective condition unreasonably dangerous to the user & the product reaches the user w/o substantial change;

Back 33

Strict liability

Front 34

defendant engaging in ultrahazardous activity is almost always liable for resulting harm; plaintiff does not need to prove duty or breach of foreseeability

Back 34

Ultrahazardous activity

Front 35

can be based on a # of theories including warranty, negligence & strict liability

Back 35

Products liability

Front 36

contractual assurances the goods will meet a certain standard

Back 36

warranties

Front 37

warranties which seller creates through words or actions

Back 37

express warranties

Front 38

Created by: affirmation of fact, promise,

description of the goods,

samples/models;

must be part of basis of bargain

Back 38

Express warranty can arise from:

Front 39

requirement of warranties

Back 39

Seller's conduct must form part of the basis of the bargain.

Front 40

are created by law (Ex. UCC)

Back 40

implied warranties

Front 41

unless excluded or modified, a warranty that the goods are merchantable is implied in a contract for the sale of goods if the seller is a merchant of good of that kind

Back 41

Merchantability

Front 42

where the seller @ the time of contracting knows about a particular purpose for which the buyer wants the goods, & knows that the buyer is relying on the seller's skill or judgement, there is an implied warranty that the goods shall fit the purpose

Back 42

Fitness for a particular purpose

Front 43

the seller of goods impliedly warrants that her title is valid & that the goods are free of any security interest that the buyer knows nothing about unless the seller has excluded or modified the warranty

Back 43

Title

Front 44

unless otherwise agreed, the seller of goods who is a merchant warrants that the goods are free of any rightful claim of copyright, patent or trademark infringement

Back 44

Non-infingement

Front 45

statement that says that a particular warranty does not apply

Back 45

Disclaimer

Front 46

Can be disclaimed

Back 46

Oral express

&

Implied Warranty of Title

Front 47

Usually cannot be disclaimed

Back 47

Written express

Front 48

Can be disclaimed if disclaimer mentions the word mechantability & is clear & conspicuous

Back 48

Implied warranty of merchantability

Front 49

Can be disclaimed if disclaimer is clear & conspicuous

Back 49

Implied warranty of fitness for particular purpose

Front 50

when 2 parties contract w/ each other they are

Back 50

"in privity" or "in privity of contract"

Front 51

Most state permit a warranty claim to be bought by a plaintiff who suffered a _____ even if there is no privity.

Back 51

personal injury

Front 52

If only ___ has been suffered, privity will be required by most states if the plaintiff is a business, but not required if plaintiff is a consumer.

Back 52

economic loss

Front 53

Defenses to breach of warranty action

Back 53

Product misuse

Statute of limitations

Failure to give notice of breach

Front 54

UCC sets a limitations period of 4 years from discovery of the breach, but the parties can in their agreement shorten that time to no less than 1 year

Back 54

Statute of limitations of defenses to breach of warranty action

Front 55

Negligence claims involving the sale of goods:

Back 55

1) Negligent design

2) Negligent manufacture

3) Negligent to warn (of risks of normal use & foreseeable misuse)

Front 56

Privity not required for such strict liability defective product claims & use of reasonable care is no defense.

Plaintiff does not have to show that the defendant's conduct was unreasonable

Back 56

strict liability: Defective Products

Front 57

2 tests for design & warning claims

Back 57

1) consumer expectation claim

2) risk-utility test

Front 58

manufacturer liable for defective design if product is less safe than a reasonable consumer would expect

Back 58

consumer expectation test

Front 59

benefits society weighed against dangers of product

Back 59

risk-utility test

Front 60

if injury is purely economic & arises from contract btw 2 businesses, the recovery is under the contract, not for tort

Back 60

Economic loss rule

Front 61

o/s limit on lawsuit (Ex. x years from when product was sold regardless of when defect discovered)

Back 61

Statute of repose

Front 62

Implied by law that goods are fit for reasonable use

Back 62

Implied warranty of merchantability

Front 63

Implied by law that goods are fit for buyer's particular purpose, seller must know of particular purpose

Back 63

Implied warrant of fitness for a particular purpose

Front 64

Implied by law that seller has good title, free of security interests (of which buyer has no knowledge) & claims of IP infringement

Back 64

Implied warranty of title

Front 65

Seller liable if she failed to show the level of care a reasonable person would use (no duty to warn of obvious dangers)

Back 65

Negligence

Front 66

Seller liable if product sold in a dangerously defective condition

Back 66

Strict liability

Front 67

did not act in an unreasonable fashion

Back 67

no negligence

Front 68

man-made thing on the land that may be reasonably expected to attract children

Back 68

attractive nuisance

Front 69

When does the law prohibit the exclusion of consequential damages?

Back 69

When exclusion whould be unconscionable (shockingly 1-sided & fundamentally unfair

Front 70

What situation is court often likely to ignore contractual limitations on remedies?

Back 70

Personal injury to a consumer

Front 71

Damages requirements

Back 71

1) harm is genuine
2) Plaintiff suffered harm